A Comparison of the Impact of Economic and Formalistic Interpretive Doctrines on law

دانشنامه حقوق اقتصادی

Article 3, Volume 22, Issue 7, May 2015   

Document Type: Scientific research

DOI: 10.22067/le.v22i7.44981

Authors

Esmat Golshani^* ; Seyed Mahdi Hosseini Modarres

Shahid Beheshti University

Abstract

Despite the time and accuracy that the lawmakers spend on enacting legislations; Issues such as the inability to anticipate all possibilities, changes and transformations in society after passing the laws, the requirements and possibilities arising from the use of words and linguistic issues, lawmakers potential for making mistakes and a host of other reasons lead to a situation in which that different inferences can be made of the text of legislation. In such situation interpretation and its governing rules and principles become important and philosophical views underlying each of the interpretive schools and techniques are set against one another; among these philosophical views, the contrast between economical interpretation approach and formalism approach is remarkable.
In this research, data is collected through library method and analysis of topics is being done by two methods: descriptive and analytical.
In this paper, first, a clear picture of the mentality of the founders and proponents of the two approaches has been provided then these two philosophical approaches to the interpretation of laws have been discussed and analyzed, and their contrasts and contradictions have been clarified. In conclusion, economic analysis of law on one hand and legal formalism on the other hand are in conflict at both theoretical practical aspect; at the theoretical aspect these two are different from each other in intellectual foundations, the debate over the claim of the perfection of law, and in the inferring of definite and similar result from text of law. At the practical aspect they use totally different methods for interpretation.

Keywords

Interpretation of law; economic analysis of law; legal formalism; interpretive methods and principles; philosophical views

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