Book contents
- Frontmatter
- Acknowledgments
- Contents
- List of Abbreviations
- List of Cases
- 1 Introduction: On the Differentiation and Fragmentation of Contemporary Law
- 2 Arguments Based on the Unity of Law
- 3 The Principle of Proportionality and the Coherence of the Constitutional Order
- 4 Pluralism as a Source of Differentiation and the Unity of Law
- 5 Normative Coherentism
- 6 Conclusion: On the Necessity of Defragmentation Processes in Law
- Bibliography
- Index
- About the Author
2 - Arguments Based on the Unity of Law
Published online by Cambridge University Press: 29 February 2024
- Frontmatter
- Acknowledgments
- Contents
- List of Abbreviations
- List of Cases
- 1 Introduction: On the Differentiation and Fragmentation of Contemporary Law
- 2 Arguments Based on the Unity of Law
- 3 The Principle of Proportionality and the Coherence of the Constitutional Order
- 4 Pluralism as a Source of Differentiation and the Unity of Law
- 5 Normative Coherentism
- 6 Conclusion: On the Necessity of Defragmentation Processes in Law
- Bibliography
- Index
- About the Author
Summary
Pavel Holländer, a Slovak legal philosopher also active in the Czech Republic, describes the last 200 years of the methodology of legal thinking and legal interpretation in civil law jurisdictions as an ongoing debate regarding the paradigm of Savigny’s work. Despite all the developments in the field of legal argumentation, even today, Savigny’s work forms the basis and starting point for contemplations of many contemporary authors regarding the current methods of interpreting the law. This is true despite the fact that many current arguments evade the classical “Four-Canon” (Viererkanon) derived from Savigny’s work.
According to the well-known definition of the elements of interpretation in Savigny’s work System des heutigen Römischen Rechts, the canon of interpretation consists of four elements: grammatical, systematic, logical and historical. Teleological interpretation was later added among the interpretation tools, while on the other hand, logical interpretation is nowadays usually not recognised as a separate method of interpretation.
If we turn our attention to systematic and logical interpretation according to Savigny, the basic difference lies in the fact that, within the logical element, we interpret the individual parts of a legal regulation in the sense that they form logical relationships, while the systematic element of interpretation deals with the internal context (innere Zusammenhang), which combines all institutions of law and legal ideas into a single large whole.
At the present time, systematic interpretation is conceived by important German legal theorist Winfried Brugger as follows:
“In systematic interpretation, one attempts to clarify the meaning of a legal provision by reading it in conjunction with other, related provisions of the same section, or title, of the legal text, or even other texts within or outside the given legal system; thus, this method relies upon the unity, or at least the consistency, of the legal world”.
Systematic interpretation is crucial for a line of argument supporting the unity and weakening the fragmentation of the law. However, this is not the only argument; in this chapter, I will mention a combination of teleological and systematic interpretation that leads to specific arguments, such as arguments of elimination of contradictions in the law or consistency of the law.
- Type
- Chapter
- Information
- Defragmentation of LawReconstruction of Contemporary Law as a System, pp. 33 - 82Publisher: IntersentiaPrint publication year: 2023