Hermeneutics, Jurisprudence and Law
Jeff Malpas and Hans-Helmuth Gander (eds.), Routledge Companion to Philosophical Hermeneutics (Forthcoming)
23 Pages Posted: 13 Feb 2014
Date Written: February 12, 2014
The article provides an overview of the discussion of hermeneutics in legal theory from the beginning of the 19th century to the present. It organizes the different scholarly strands along the lines of the distinction between interpretation and construction, which runs like a clear thread through the hermeneutical discussion from its beginning to its present in both the continental and the Anglo-Saxon tradition. Examining authors as diverse as Friedrich Karl von Savigny, Francis Lieber, Emilio Betti, Hans-Georg Gadamer, Paul Ricoeur, Ronald Dworkin and Michael Moore an attempt is made to get an analytical grip on the distinction by emphasizing the categorical difference between the two hermeneutical activities. Pursuing the analytical distinction, however, is only the first step of the analysis. In the third part, the relations and the interconnectedness of legal interpretation and legal construction come into focus. They can help to explain some of the major controversies in legal hermeneutics and also why the analytically clear cut distinction is so difficult to draw in the actual legal practice. At the level of legal doctrine the interconnectedness of legal interpretation and legal construction cautions against tendencies especially in administrative but also in constitutional law to define the role of courts with the help of the distinction.
Keywords: legal interpretation, legal construction, rule following, hermeneutics, textualism, originalism, Friedrich Karl von Savigny, Francis Lieber, Emilio Betti, Hans-Georg Gadamer, Paul Ricoeur, Ronald Dworkin, Michael Moore
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