Interpretation in Judicial Decision-Making

The importance of legal positivism for legal practitioners is undoubted. The legal system, originating from two version being both English and Continental-European, has indeed undergone a process of evolution. Today, the existence of a separate legal view in society with its legal norms and a strict separation of law and morality is witnessed. An autonomous order has emerged in our modern society and law is now seen to be separate and self-sustaining with a normative function. There was no longer an external view of the legal system, as all law is man-made by the Parliament and thus a new theory was needed to understand and replace natural law. This was coherently put together as the ‘Pure Theory of Law’ by Hans Kelsen (1967), who has argued for the existence of a system of norms that binds judges. Thus, the fundamental assumption of legal positivism is that there is no room for the interpretation of law and judges are law-bound. Nevertheless, this notion of legal positivism has and is still being argued. The importance lies with the epistemological views that underpin these theories. Legal positivism therefore relies heavily on logical decisions and rationality; hence a judge’s subjective opinion, morality and interpretation has no room in legal practice. Yet, this view has been criticised on the grounds that legal positivism seems to be a theory of law and not really one of legal practice, as it often ignores what happens in courts. This is therefore a question of importance within a social theory of law that examines law from a very different dimension.

Kelsen sees norms as the main starting point within law. The argument is that a legal norm derives from itself and thus finds normality in itself. There has to be a basis in la...

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