ON A VERSION OF "ANTIFORMALIST FORMALISM" IN JUDICIAL INTERPRETATION OF LAW

Abstract

In his book The Nature and Determinants of Judicial Interpretation of Law, Bojan Spaić addresses a topic that has been largely neglected in domestic legal theory and philosophy of law: judicial reasoning, interpretation, and decision-making. According to the author’s design, the aim of the book is to provide a description of judicial interpretation of law, based on the assumption that so-called antiformalism is a correct theory of the nature of judicial interpretation. This article first analyzes certain aspects of the book that seem open to critique. For example, attention is drawn to the absence of consideration of critical counterarguments regarding (some of) the significant theses that the author advocates. Alternatively, it points out the problematic nature of categorizing interpretative rules as extralegal merely because they lack a formally codified, written form in the legal framework. Nevertheless, the primary objective of the article is to “evaluate” the insights presented by the author, despite certain shortcomings in their formulation and development. These insights can be summarized under the phrase “antiformalist formalism.” The core of the book’s value lies in the recognition that there is no singular “true meaning” of a legal text, that judicial interpretation is a decision, that this decision is predominantly justified by reference to authoritative legal reasons found in formal or factual sources of law, that judges do not interpret norms but legal texts, that norms are the outcome of interpretation, and that judges, in the process of interpretation, supplement, develop, and occasionally even create law from nothing.