On the road. Carlos Alchourron's path towards an interpretive concept of law

• Author: Sophie Papaefthymiou
• Pages: 145-162

9. ON THE ROAD. ALCHOURRÓN’S PATH

TOWARDS AN INTERPRETIVE CONCEPT OF LAW

Sophie PAPAEFTHYMIOU*

1. INTRODUCTION

This paper deals with A’s trajectory in his last article «On

Law and Logic» —hereinafter LL— (1996/2012). Starting with a reminder

of the limits of logic in law, the author proceeds to a construction which he

calls «Master System» —hereinafter MS. Then, he gives an overview of the

«activity» of interpretation of the set of normative formulations, which he

calls «Master Book» —hereinafter MB; he locates this activity within the

paradigm of the theories of communication and focuses on the different

«interpretative arguments» used. The MS is the outcome of the interpre-

tation of the normative formulations of the MB. He ends with a norma-

tive conception of the interpretation and the adjudication, making explicit

reference to «rights theories», mainly D’s. In this conception, the

properties of the MS are reformulated.

These four steps reveal, rst, a change of focus from theory to legal

practice, i.e., from the normative system as presented in the book Carlos

A co-authored with Eugenio B (1971) to the practice of

interpretation; second, an interest in theories of communication and the

pragmatic model of interpretation; third, a new conceptualization of law

* Institute for Political Science in Lyons, France. sophie.papaefthymiou@sciencespo-lyon.fr.

I would like to thank Professor Stanley L. P for his invitation to present an earlier

version in his Workshop at the IVR Congress in Lucern (2019), and Professor Pablo N

for his invitation to this Tribute. I also thank Professor Ross C for his revision of the

English language.

This article is dedicated to Professor Eugenio B, who was «forgiv[ing my] heresies».

146 SOPHIE PAPAEFTHYMIOU

as a MS and, fourth, an acknowledgement of the importance of a norma-

tive conception of the legal interpretation and adjudication.

Several points made by the author have been critically discussed with-

in the Buenos Aires and the Genoa Schools. In this work, and in view of a

reconstructive approach, I will shed light on certain aspects of this trajec-

tory by focusing on some points which are either controversial or have not

attracted wide attention.

In a rst section I will deal with A’s main thesis in LL, i.e.,

the legal conception stemming from «the ideal» of «deductive - axiomatic

organization of every eld of research» 1 and called the conception of the

MS. I will focus on the MS as the outcome of the process of interpretation

and I will discuss, rst, the «descriptive» and, second, the «normative»

conception of interpretation and adjudication in their presentation by the

author.

In a second section I will focus on a specic «phenomenon» 2 within

the process of interpretation, i.e., defeasibility of normative formulations,

as conceived of in LL.

2. THE «MASTER SYSTEM»

2.1. An overview

The author begins his article by mentioning the importance of logic

and by acknowledging its limits 3.

He continues with a reference to the scientic ideal of «deductive or

axiomatic organization of a eld of research», its aims and its strategies 4.

Focusing on law and «legal science», he is interested in the «legal con-

ception that stems from» the «ideal model» of a set of rules which are «the

starting points (axioms) for deriving the instructions to follow in each par-

ticular concrete situation». This conception is called the «conception of the

Master System». It is the outcome of interpretation. The ideal «is not in-

compatible with the dynamic nature of the law» 5.

Presenting the version of an «abstract ideal model» 6 of MS, he men-

tions its starting point, i.e., the deductive organization of law and its main

characteristics, including completeness and consistency, the political ide-

als supporting this version, among which the principle of separation of

powers, and those to which it aims, mainly the principles of security and

formal equality 7.

1 A, 2012: 39.

2 Ibid.: 49.

3 Ibid.: 39.

4 Ibid.: 39-40.

5 Ibid.: 40.

6 Ibid.: 40.

7 Ibid.: 41-42.