The Derivational Theory of Legal Interpretation in Polish Legal Theory

Abstract

The article presents so-called “derivational” theory of legal interpretation and analyzes its basic assumptions. The derivational theory of legal interpretation is still little known outside of Poland (in contrast to the clarificative theory which was popularized in many English-language publications by Jerzy Wróblewski). The article is divided into two parts. The first part is presenting the normative model of legal interpretation according to the derivational theory. In the second part, the basic assumptions and features of the theory are analysed in context of some other approaches to legal interpretation. The author argues that there are two levels (or aspects) of the derivational theory: local and universal. The local level of theory is related to the fact that it was designed for Polish legal system and legal culture. However, beyond its local features, the derivational theory is presenting strong theoretical framework and some significant universal ideas about legal interpretation. This creates universal level that can be called the “hard core” of the theory. The author characterizes the elements of this hard core, and in particular the most important element: the idea that the legal interpretation consists in the reconstruction of legal norms from legal provisions.