Xavier Bioy

Qualification: What Theoretical Readings?

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In studies regarding the theory of legal interpretation, the theoretical statute of qualification is not clearly defined. While the practitioner of law struggles with it day by day, the theoretician has yet to resolve many of the issues that traditionally touch on the act of qualification, beginning from the question of whether it is to be understood as interpretation (whether anchored to positivist or hermeneutic premises) or decision. In the first case qualification would mainly perform a classificatory function and thus would refer to the autonomy of legal language. In the second case a performative function would be attributed to the act of qualification, one regarding in large part the generation of the very meaning of legal terms - alike certain trends in the philosophy of language. In both cases, having acknowledged the impossibility of depicting legal language as a 'given,' qualification refers less and less to an idea of truth of legal language understood as objective correspondence and more and more to an idea of truth as coherence.

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