INTERPRETATION AND CONSTRUCTION OF THE LAW

Abstract

The terms «interpretation» and «construction» pertaining the Law are understood and used in various ways among jurists; and this divergence is sometimes rooted in a different legal conception. This paper deals in particular with a fairly new disagreement in legal theory, which confronts those who think of law as a process with those who see it as a product. The so-called «interpretive theory» of law challenges the common doctrinal assumptions among lawyers, according to which the Law is the object of interpretation, and not its result; but doing so it undermines the claim that the purpose of interpretation is to declare the Law. Instead, it is argued that interpreting the Law is to attribute meaning to its sources, either only with linguistic keys or also with other kind of arguments; and that to construe the Law is to give it content that it did not have, either by creating new norms authoritatively or by correcting existing ones.