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Constitutional interpretation in Philosophy of Law beyond interpretivism and non-interpretivism

Document Citado por Related
Vincent
AutorBernardo Gonçalves Fernandes
Páginas2002-2014
2002 • XXVI World Congress of Philosophy of Law and Social Philosophy
Constitutional interpretation in
Philosophy of Law beyond interpretivism
and non-interpretivism
Bernardo Gonçalves Fernandes1
Abstract: The article aims to develop an analysis of the north-American inter-
pretation theories that seek to overcome the interpretivism X non-interpretiv-
ism dichotomy traditionally worked in the U.S. legal hermeneutics. For that, we
will take a path that goes from the delimitation of the terms under debate to later
presentation of contemporary theories that aim to overcome them, considering
an open mind to a philosophy of law linked to justice theories that take into
account the complexity of the legal phenomenon currently in vogue. Common
themes to theorists of law such as proceduralism, minimalism, substantialism,
consequentialism, economic pragmatism and integrity in law enforcement are
going to be brought up to achieve the main purpose of this essay.
Keywords: Constitutional interpretation. Philosophy of law. Interpretivism
and Non-interpretivism.
1. Introduction: the dicotomy , interpretivism x non-interpretivism
When the Constitutional Hermeneutic is brought up inside the
northAmericanjuridicaldebatetherstthingthatcomesuptomind
even because many of the national works seem not to go beyond it – is
the debate between interpretivism and non-interpretivism.
This debate that has found and still nds supporters on both
sides, is one of those historic and naturalized dichotomies that seem not
to abandon us, in other words, they insist to permeate, in a reductionist
and limited way, the juridical discussions, as the old question of jusnatu-
ralism versus positivism, or public law versus private law, and even of
voluntas legis versus voluntas legislatoris.
However, in this brief excursus, we intend to demonstrate that
1
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