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32 J.L. Pol'y & Globalization 57 (2014)
Partialities in the Methods of Legal Interpretation

handle is hein.journals/jawpglob32 and id is 63 raw text is: Journal of Law, Policy and Globalization www iiste.org ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) I Vol.32, 2014 lI511 Partialities in the Methods of Legal Interpretation R. Diah Imaningrum Susanti '* I. Nyoman Nurjaya2 Rachmad Safaat2 Prija Djatmika2 1, Faculty of Law, Widya Karya Catholic University, Jalan Bondowoso 2, Malang 65115, East Java, Indonesia 2, Faculty of Law, Brawijaya University, Jalan M. T. Haryono 169, Malang 65145, East Java, Indonesias Email of the corresponding author: dimasanti ttyahoo.com Abstract This topic will respond the following fundamental problems: First, theoretical one, concerning the theoretical basis of the legal-interpretation method. Its questions would be: (a) Why are there many differences and partialities in interpreting the same legal text? (b) Can any of all existing methods of legal interpretation provide us a comprehensive legal-interpretation? Following the fundamental problems, the research then aims firstly at finding the advantage and the weakness of each method of legal interpretation. Keywords: partial, methods of legal interpretation. 1. Introduction This topic will respond the following fundamental problems: First, theoretical one, concerning the theoretical basis of the legal-interpretation method. Its questions would be: (a) Why are there many differences and partialities in interpreting the same legal text? (b) Can any of all existing methods of legal interpretation provide us a comprehensive legal-interpretation? Following the fundamental problems, the research then aims firstly at finding the advantage and the weakness of each method of legal interpretation. In the Civil Law legal system, statutes and codes are the foundations of the legal system in the same way that cases are the foundation of the common-law system. Because of the primacy of written law in the Civil Law legal system, statutory interpretation lies at the heart of that system. However, statutory interpretation is very flexible, and there are no strict canons of interpretation.1 Legal interpretation, especially interpretation of statutes, does not attract the attention of legal science particularly in the common law legal system.2 However, the last twenty years of the twentieth century saw an 'interpretive turn' in legal philosophy.' The impetus for the interpretive turn came in part from the observation that written laws-statutes and constitutions-are 'texts'. It was argued that the model of literary theory is important in developing a conception of textual meaning, and therefore that an examination of literary interpretation would shed light on the nature of legal interpretation.4 Debate on the parsialities in the theories of legal interpretation has been so long in the democratic states. Mitchell N. Berman divides those theories into two groups, 'originalism' dan 'non-originalism'5; whereas Natalie Scholtjar devides it more detail, into intensionalism and non-intensionalism, which it is devided into textualism, value maximizing, and continental approach. This article identifies various theories of legal interpretation which have been the background of each methods of legal interpretation, whom are devided by Natalie Scholtjar into intentionalist, textualist, value-maximizing, historical, pragmatist, and critical.6 Tradition of written law makes legal texts an important object to understand. It follows that the meaning of Law cannot be separated from its linguisticality, its written form of the law. Understanding a text means to know the meaning of the text, and the knowledge of it can only be obtained through interpreting that text.7 1 Claire M. Germain, Approaches to Statutory Interpretations and Legislative History in France, Duke Journal of Comparative and and International Law , Vol 13, 2003, p. 195. 2 John Bell, Bennion's Statutory Interpretation, Oxford Journal Legal Studies Vol. 6/1986, p.288. 3 Michael Moore, The Interpretatif Turn in Modern Theory: A Turn for the Worse? Stanford Law Review, 41, 871-957, 1989 dalam Natalie Stoljar, Interpretation, Indeterminacy and Authority: Some Recent Controversies in the Philosophy of Law, The Journal of Political Philosophy: Volume 11, Number 4, 2003, p. 470. 4 See, for example: Dworkin, R. 1983. Please don't talk about objectivity any more dalam Mitchell W. J. T., ed. 1983. The Politics of Interpretation. (Chicago: Chicago University Press) which was reprinted with the title: 'On Interpretation and Objectivity' dalam Dworkin, R. 1985. A Matter of Principle. (Cambridge, Mass.: Harvard University Press). 5 Berman, Mitchell N., Constitutional Interpretation: Non-originalism The University of Texas at Austin, Philosophy Compass 6/6 (2011): p. 408-420. 6 Natalie Stoljar, Interpretation, Indeterminacy and Authority: Some Recent Controversies in the Philosophy of Law, The Journal of Political Philosophy: Volume 11, Number 4, 2003, p. 470). The theme-based - not periodical-based classification is chosen by the writer in order not to get confused with the history of interpretation. Besides that, this categorization is chosen in order to make the character of each legal method of interpretation will be clear. 7 Satjipto Rahardjo, 2005 Legal interpretation yang Progresif' in Anthon Freddy Susanto, Semiotika Hukum Dari Dekonstruksi Teks Aenuju Progresivitas Vlakna, Bandung: Refika Aditama. The same thing was said by B. Arief Sidharta in Ciri Khas Keilmiahan Ilmu Hukum, in Perkembangan Hukum di Indonesia: Tinjauan Retrospeksi and Prospektif PT Remaja Rosdakarya in collaboration with Bagian Hukum Internasional Fakultas Hukum Universitas Padjadjaran, Bandung, 2012, p. 96.

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