Hermeneutics in Law
| Author | Brad Sherman |
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01762.x |
| Published date | 01 May 1988 |
| Date | 01 May 1988 |
REVIEW ARTICLE
HERMENEUTICS
IN
LAW
THERE
has been a lot of talk recently about hermeneutics in law’;
but does it amount to more than academic ornamentation,
fashionable eclecticism or the “therapeutic consolidation for a
somewhat neurotic dissatisfaction with the state of the legal
discipline”2? That there may also have been some misuse and
misunderstandings is suggested in this lament about the general
misunderstanding of a particular brand of hermeneutics: “Many
have seen and continue to see in hermeneutic philosophy a
repudiation of methodical rationality. Many others misuse the term
and that to which it refers
.
. .
this is especially the case now that
Hermeneutics has become fashionable and every interpretation
wants to call itself ‘hermene~tical’.”~
Yet there is much that could profitably be learnt from
hermeneutics; but it is first necessary that it be understood, and its
uncritical transposition into the legal arena halted. Just as non legal
theorists often fail to appreciate the complexities of legal
phenomena, lawyers often fail to appreciate the complexities of the
hermeneutical tradition. One is never sure what it is that lawyers
refer to when the term “hermeneutics” is used, nor what type of
hermeneutics Hart, for example, is supposed to have invoked,
since the term is used in a way which groups together aspects of
the tradition which are clearly incompatible. The divergent trends
within hermeneutics can best be seen as thematic responses to
questions different interpreters have raised.
If
hermeneutics is to
have any genuine impact upon legal scholarship, these divergent
approaches must be recognised and understood, not conflated and
confused.
While it is not surprising that lawyers are attracted towards
“legal hermeneutics”, the mere fact that “law” appears as an
adjective in its title does not necessarily render it relevant to legal
argument. It is as if those legal academics interested in hermeneutics
have selected particular texts, looked through the index for
references to law and then felt satisfied that they had exhausted
While the phrase “hermeneutics” appears in many places in legal literature, there has
been little attention given to Hermeneutics
per
se.
There are, however, some exceptions;
D. Herman, “Phenomenology, Structuralism, Hermeneutics and
Legal
Study,” 36
U.
of
Miami L.Rev. p.379;
S.
McIntosh “Legal Hermeneutics,” 35 Oklahoma L.Rev. (1982),
p.1; D. Hoy, “Interpretating the Law,” 58 Sth. California L.Rev. (1985), p.136. In the
U.K.,
one finds a less direct and more vaned focus on “hermeneutics”; P. Goodrich,
Reading the law
(1986),
Legal Discourse
(1987); Ian Duncanson, “Hermeneutics and
Persistent Questions in Hart’s Jurisprudence,”
Juridical Review
(1987) p.113. R. Dworkin,
Law’s Empire
(1986) p.62 and notes makes a brief, but well informed reference to
Gadamer’s hermeneutics. See further note
5.
Peter Goodrich, “Law and Modernity” (1986) 49 M.L.R., p.548.
H.
Gadamer,
Philosophical Apprenticeships,
Eng. tr. (1985) p. 177.
386
MAY
19881
REVIEW ARTICLE
387
the relevance of hermeneutics to law.4 This is an unfortunate
practice, since more often than not what
is
written within the
hermeneutical tradition about law is far less interesting than that
which is written about hermeneutics as such.
In those rare instances where the hermeneutical tradition is
seriously addressed in law, its potential impact is still not realised.
For its field of application is nearly always limited to judicial
interpretation (or the even narrower area of constitutional
interpretation). While an appreciation of hermeneutics is very
helpful (perhaps crucial) to an understanding of legal interpretation,
its potential relevance extends far wider than this. For hermeneutics
is relevant not only for interpretation within law, but also for the
interpretation of law. Yet while there can be few doubts about the
importance
of
hermeneutics for the study of law
,
the descriptive
claim that law is a hermeneutical event is far less c~nvincing.~
Before pursuing the relevance, or otherwise, of hermeneutics for
law, hermeneutics must be understood on its own ground.
I.
PHILOSOPHICAL
HERMENEUTICS
As
has already been mentioned, hermeneutics embodies a diverse
tradition, a tradition which is best seen as a container for thematic
responses to different questions and interests. Rather than
concentrate upon this diversity, the focus of this paper falls upon
the philosophical hermeneutics of Hans-Georg Gadamer, and its
potential relevance or otherwise for law and legal study.6
While it is always problematic to outline briefly complex bodies
of thought, Gadamer’s works are particularly difficult, for they do
“not
so
much signal a doctrine as a direction for questioning”.’
Brief overviews of Gadamer’s work tend to imply that his
hermeneutics are more abstract, ahistorical and original than they
in fact are. In addition, the finality of writing tends to silence the
fluidity
of
the dialectic within his work, and obscure the interrelated
nature
of
his thought.8 Yet, as Gadamer argues, such problems are
‘
Geertz makes a similar point in his discussion of the relationship between law and
anthropology.
“. .
.
what is needed is
.
.
.
not an attempt to join Law simpliciter, to
Anthropology, sans phrase, but
.
.
.
an hermeneutical tacking between the two fields.”
Clifford Geertz,
Local Knowledge
(1983) p. 169-170.
S.
McIntosh, “Legal Hermeneutics,” 35 Oklahoma L.Rev. (1982) p.1.
For
less
explicit claims
of
Hermeneutics in law, see D.
N.
MacCormick,
Legal Reasoning and
Legal Theory
(1978);
P.
M.
S.
Hacker and
J.
Raz (eds.),
Law Morality and Society
(1977) Chap. 1; and Raz and Hacker,
Essays in Honour
of
H. L.
A.
Hart
(1977)
pp.1&13. Geertz makes the claim that “[quite] standard legal or anthropological
. .
.
commentary seems to me also properly to be termed hermeneutic.” Clifford Geertz,
Local Knowledge
(1983), p.224 note
88.
For
an alternative view of hermeneutics in law
see W.
T.
Murphy,
The Right
to
Housing and the English Legal Tradition
prepared
for
the Istituto di Diritto Comparato (Florence).
While one may not agree with Gadamer’s analysis of the legal interpreter
(Truth and
Method,
Eng. tr. (1979) p.289ff), this does not imply that his Philosophical Hermeneutics
are not important
for
law;
cf.
97 Harvard L.Rev. (1984), p.6, note 11.
’
H. Gadamer,
Philosophical Apprenticeships
(1985), p.186.
’
J.
Weinsheimer,
Gadamer’s Hermeneutics
(1985) p.xi.
To
appreciate Gadamer’s
hermeneutics it is necessary to understand the tradition he is working from and against,
for it is “rooted in a very definite German philosophical and cultural heritage”,
H.
Gadamer,
ibid.,
p.179.
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