The Distinctiveness of Legal Hermeneutics

Abstract:     
In the larger field of hermeneutics, legal hermeneutics is characteristically described as exemplary. While I detail ways in which legal hermeneutics is paradigmatic - particularly in its immersion in application to new cases - more generally I argue that its insights are more regional. I contend in particular that Paul Ricoeur's hermeneutics offers much to refine the insights of legal hermeneutics, but the discreteness of the field of legal interpretation requires refinement of Ricoeur's own theory.

The chapter proceeds in three steps. First, I briefly review the main themes of Ricoeur's hermeneutics, particularly his emphasis on the semantic autonomy of the text, and draw upon examples from the American legal context that generally support and extend the significance of Ricoeur's insight. Second, I turn to the limitations of Ricoeur's general hermeneutics as applied to American legal interpretation. The author of the legal text does retain a significance in legal interpretation that is not required in other fields. Because a legal author - a legislature or court - requires obedience to the terms of a text it promulgates, its expression is limited to the range of its legitimate authority. Third, I show how the law can act as an exemplary form of hermeneutics in its attention to the application of meaning to particular circumstances. As Gadamer anticipated and as Ricoeur more expansively details, legal hermeneutics here does offer insights into a more general hermeneutics in its imaginative correlation between meaning and application.

Keywords: hermeneutics, legal hermeneutics, Paul Ricoeur, Hans-Georg Gadamer, legal interpretation

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