The Hermeneutics of Legal Precedent

Abstract

The application of statutory law is hermeneutical in nature along the lines of an intentionalist account of meaning and interpretation. This even holds for legal construction in hard cases. The hermeneutical character of the practice of precedent, however, is disputed. It has been contrasted with interpretation because of its purported analogical character. The question goes to the methodology of precedents in both common law and continental legal systems. This contribution shows that the application of precedent shares the hermeneutical character of the application of statutory law, although with some qualifications. These qualifications pertain to the necessity of constructing an intentional subject, the object of interpretation, and the necessity of legal construction. With these qualifications the application of precedent follows the intentionalist account even for “bare” precedents, i.e. precedents without stated reasons. Unlike the application of precedents, the creation of precedent is not necessarily hermeneutical.

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Keywords: legal hermeneutics, legal interpretation, legal construction, intentionalism, analogy, rules