Hermeneutics and Law
The Blackwell Companion to Hermeneutics (Eds. Naill Keane and Chris Lawn, 2015)
13 Pages Posted: 2 Jul 2014 Last revised: 20 Jul 2014
Date Written: June 30, 2014
This chapter will appear in a forthcoming book on hermeneutics. After providing a hermeneutical phenomenology of legal practice that locates legal interpretation at the center of the rule of law, the chapter considers three important hermeneutical themes:
(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;
(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by construing human nature as hermeneutical; and
(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.
I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.
Keywords: Critical Theory, Hans-Georg Gadamer, Jurgen Habermas, Martin Heidegger, Hermeneutics, Natural Law, Positivism, Rhetoric, Paul Ricoeur
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