تطور و انتكاص الحتمية في التفسير القانوني في ضوء فلسفة المعنى

Abstract EN

The determinacy of legal interpretation has been an orthodoxy among jurists since Middle Ages.

Most jurists believed that legal texts have fixed meaning that judges may readily discover اand apply to cases.

Furthermore, the determinacy of legal interpretation is closely related to a consensus held by most traditional jurists in the ontology of law.

Jurists thought of meaning in law as a self-sufficient and logically complete entity, that is independent of anything, including legal texts.

Language is merely an instrument for communicating meaning that exists independently of it.

Indeed, the meaning of the law derives its determinacy from its unity with the objects in nature.

Therefore, the role of judges is limited to discovering the pre-existing true meaning of the law, intended by the legislature, or inspired by natural law.

However, by the nineteenth century, legal jurists began to question the determinacy of legal interpretation, expanding the role of the judges in the development of law.

Such expansion of judges' role came because of direct engagement between jurists with the philosophers.

On the one hand, philosophers have started to question the idea of meaning as an entity tied to things in themselves in nature.

They changed their ontology of meaning from things in themselves toward mind-dependent entities.

Entities of such sort do not necessarily resemble things in themselves.

On the other hand, jurists narrowed the scope of the determinacy of meaning, recognizing that the meaning of law could develop and change over time and space, which led to the expansion of judges' law-making power.

This article seeks a deeper understanding of the concept of determinacy in legal interpretation by studying its history from development to decline.

In so doing, the article will investigate the chance in the ontology of meaning in the writing of philosophers from pre-Socratic philosophers through the twentieth century