The Hermeneutics of Law: An Analytical Model for a Complex General Account

Michael Forster/Kristin Gjesdal (eds.), The Cambridge Companion to Hermeneutics, CUP, pp. 326-353, 2019

24 Pages Posted: 5 Jun 2017 Last revised: 13 Oct 2020

See all articles by Ralf Poscher

Ralf Poscher

Max Planck Institute for the Study of Crime, Security and Law

Date Written: June 1, 2017

Abstract

In contrast to monistic conceptions of hermeneutics as interpretation, legal hermeneutics has always been acutely aware of the complexity of our hermeneutic practices. The legal tradition thus speaks in favor a complex conception of hermeneutics that identifies the different activities involved. The essay tries to show that such diverse activities as interpretation, rule-following, construction, association, the exercise of discretion, and judgments on significance can all be involved in the application of the law. All of these distinct practices involve distinct theoretical issues, most of which can be linked to particular debates in analytic philosophy. To prove the point that this complex conception of hermeneutics is not specific to the law, but applies to hermeneutics in general, some parallels in the field of the hermeneutics of art are drawn. In theoretically following up on the distinctions inherent in legal doctrine and methods, hermeneutics in general can live up to Gadamer’s observation that there is something to be learned from looking at the law.

Keywords: Barthes, Betti, Davidson, Gadamer, Grice, Hart, Heidegger, Kant, Kelsen, Kripke, Lieber, Savigny, Wittgenstein, legal interpretation, legal construction, discretion, association, significance, rule-following, easy cases, hard cases, intentionalism, originalism, semantic meaning, pragmatic meaning

Suggested Citation

Poscher, Ralf, The Hermeneutics of Law: An Analytical Model for a Complex General Account (June 1, 2017). Michael Forster/Kristin Gjesdal (eds.), The Cambridge Companion to Hermeneutics, CUP, pp. 326-353, 2019, Available at SSRN: https://ssrn.com/abstract=2978630

Ralf Poscher (Contact Author)

Max Planck Institute for the Study of Crime, Security and Law ( email )

Guenterstalstr. 73
Freiburg, 79100
Germany

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