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Administering InterpretationDerrida, Agamben, and the Political Theology of Law$
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Peter Goodrich and Michel Rosenfeld

Print publication date: 2019

Print ISBN-13: 9780823283798

Published to Fordham Scholarship Online: January 2020

DOI: 10.5422/fordham/9780823283798.001.0001

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Interpretations as Hypotheses

Interpretations as Hypotheses

(p.11) 1 Interpretations as Hypotheses
Administering Interpretation

Bernhard Schlink

Fordham University Press

The interpretations of legal norms, which are abstract and general, are also abstract and general. Legal norms are if-then-sentences—if this factual constellation occurs, then these are the legal consequences—and their interpretations aim to cover all cases that are similar enough to fall under the if-clause and all variations that the legal consequences can take on. These normative if-then sentences have something important in common with the factual if-then sentences of empirical science. Both claim relevance for an infinite number of instances, an infinite universe of discourse. Therefore, both can never be verified, only falsified. This also means that there can be no rules that have only to be followed to discover the right legal interpretation or scientific hypothesis. In the context of discovery, anything goes, so long as it is imaginative and creative. Rules come into play in the context of justification; they demand that legal interpretations and scientific hypotheses are justified by demonstrating that all ways to falsify them have been tried and tested without resulting in a falsification. Scientific hypotheses are falsified by consensus about how to understand reality. Legal interpretations are also falsified by consensus: about what the text of the norm says, about what the legislature intended, and about the consequences of a legal interpretation being compatible or incompatible with the rest of the legal system. Since legal interpretations are and can only be hypotheses, there is no one right interpretation, and the quest for it goes astray.

Keywords:   consensus, falsification, hypothesis, interpretation, justification

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