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

Document Type : Scientific research

Authors

• Esmat Golshani
• Seyed Mahdi Hosseini Modarres

Shahid Beheshti University

https://doi.org/10.22067/le.v22i7.44981

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

References

[1] Alawi, M. & Babazade, B. (2011). The Interpretation of Contract in Common Law Legal System. Allameh Journal, 29, 149-176. (In Persian)

[2] Alizadeh, A. (2008). Foundations of Social Approach to Law. Tehran: SAMT Publication. (In Persian)

[3] Almasi, N., & Habibi Dargah, B. (2012). Principles Governing the Efficient Laws from an Economic Analysis of Law. Private Law Journal, 8(2), 5-24. (In Persian)

[4] Alsharif, M. (2007). Formalism in Juditial reasoning: a Research on Relation between Juditial and Formal Sllogism. Law Quarterly: Journal of the Faculty of Law and Political Science of Tehran University, 37(2), 1-39. (In Persian)

[5] Ansari, M. (2011). Economic Analysis of Comparative Law. Tehran: Javdaneh Publication. (In Persian)

[6] Babaei, I. (2008). Fundamental Principles in Economic Analysis of Law. Law & Politics Research Journal,9(23), 13-60. (In Persian)

[7] Badini, H. (2006). Is Law an Autonomous Discipline?. Law and Politics Sience Jouranl of Tehran University, 74, 1-46. (In Persian)

[8] Bentham, J., & Dumont, É. (1864). Theory of legislation. (R. Hildreth, Trans.) K. Paul, Trench, Trübner.

[9] Bork, R. H. (1990). The Tempting of America: The Political Seduction of The Law. New York: Free Press.

[10] Buchanan, J. M. (1974). Good Economics-Bad Law. Virginia Law Review, 60(3), 483-492.

[11] Campbell Black, H. (1983). Black's Law Dictionary:Abridged (5th ed.). West Publishing.

[12] Cooter, R. & Ulen, T. (2000). Law and Economics (Dadgar, Y. & Akhavan, H. Trans.). Tehran: Noorelm Publication. (In Persian)

[13] Dworkin, R. (1995). Laws and Morals. in Oxford Companion to Philosophy. Oxford University Press.

[14] Frideman, D. (2000). Law's order. Princeton, New Jersey: Princeton University Press.

[15] Hart, H. (1961). Concept of Law. Oxford: Clarendon Press.

[16] Katouzian, N. (2008). General Priciples of Contracts Vol. X. Tehran: Sahami Enteshar Publication. (In Persian)

[17] Katouzian, N. (2009). Philosophy of Law Vol. I. Tehran: Sahami Enteshar Publication. (In Persian)

[18] Keyvanfar, S. (2008). Legal Pragmatism. Legal researches Journal, 46, 147-167. (In Persian)

[19] Keyvanfar, S. (2008). The philosophical basis of interpretation of the law. Tehran: Sahami Enteshar Publication. (In Persian)

[20] James, W. (1922). Pragmatism: A New Name for Some Old Ways of Thinking. New York: Longmans Green and Co.

[21] Mcleod, I. (2005). Legal Theory (3th ed.). (M. Cremona, Ed.) Palgrave Macmillan.

[22] Mitchell, C. (2007). Interpretation of Contracts- Current Controversies of Law. Routledge Cavendish Publishing.

[23] Mohaghegh Damad, M. (2013). The Pamphlet of Discursive Islamic Jurispudance. Tehran: Shahid Beheshti University. (In Persian)

[24] Posner, R. (2007). Economic Analysis of Law (Seventh ed.). Wolters Kluwer (Aspen Publishing).

[25] Posner, R. A. (1987). The Decline of Law as an Autonomous Discipline. Harvard Law Review, 100(4), 761-780.

[26] Schiäfer, H.-B. C. (2004). The Economic Analysis of Civil Law. (E. Braham, Trans.) Cheltenham: Elgar Publishing Limited.

[27] Stone, M. (2002). Formalism. In J. Coelman, & S. Shapiro, In The Oxford Handbook of Jurisprudence & Philosophy of Law. Oxford University Press.

[28] Treviño, A. J. (2007). Classic Writings in Law and Society. New Jersey: Transaction Publishers.

[29] Weinrib, E. J. (1988). Legal Formality: On the Immanent Rationality of Law. Yale Law Journal, 97.

[30] Yntema, H. E. (1933). The Theory of Legislation by Jeremy Bentham. Columbia Law Review, 33(1), 176-182.