Law's Hermeneutics

Other Investigations

Simone Glanert, Fabien Girard, Simone Glanert, Fabien Girard

• Publisher: Routledge
• Year: 2017
• eBook ISBN: 9781317301653
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Bringing together leading academics hailing from different cultural and scholarly horizons, this book revisits legal hermeneutics by making particular reference to philosophy, sociology and linguistics. On the assumption that theory has much to teach law, that theory motivates and enables, the writings of such intellectuals as Martin Heidegger, Hans-Georg Gadamer, Jacques Derrida, Paul Ricœur, Giorgio Agamben, Jürgen Habermas, Ronald Dworkin and Ludwig Wittgenstein receive special consideration. As it explores the matter of reading the law and as it inquires into the emergence of meaning within the dynamic between reader and text against the background of the reader's worldly finiteness, this collection of essays wishes to contribute to an improved appreciation of the merits and limits of law's hermeneutics which, it argues, is emphatically not to be reduced to a simple tool for textual exegesis.

Part I

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A matrix

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Chapter 1

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Heidegger’s hermeneutics¹

Cristina Lafont

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Among the many philosophical innovations that Martin Heidegger introduces in Being and Time (1927b), one of the most significant and rich in consequences is his claim that philosophy is hermeneutics. This claim does not refer merely to the kind of topics with which philosophy should be concerned (interpretation, the methodology of the human sciences, etc.), but aims at a radical paradigm shift within philosophy itself. Indeed, one of the main achievements of Being and Time is its articulation of the basic features of the philosophical paradigm of hermeneutics, which had a decisive influence on twentieth-century Continental philosophy (Gadamer 1967, 1983, 1986; Apel 1973; Habermas 1999; Ricœur 1969; etc.).

To bring about this paradigm shift, Heidegger generalizes hermeneutics from a traditional method for interpreting authoritative texts (mainly sacred or legal texts) to a way of understanding human beings themselves. As a consequence, the hermeneutic paradigm offers a radically new understanding of what is distinctive about human beings: to be human is not primarily to be a rational animal, but first and foremost to be a self-interpreting animal. It is precisely because human beings are nothing but interpretation all the way down that the activity of interpreting a meaningful text offers the most appropriate model for understanding any human experience whatsoever. This change of perspective amounts to a major break with traditional philosophy. For the latter has been mainly guided by a diametrically opposed attempt, namely to model all human experience on the basis of our perception of physical objects. It is for this reason that in Being and Time Heidegger articulates the new hermeneutic account of human experience through a detailed criticism of the traditional philosophical model, the subject–object model.

Although the shortcomings that Heidegger finds in the latter model are virtually innumerable, all of his criticisms are part of a single strategy, namely to show the overall superiority of the hermeneutic paradigm (and thus the need for a ‘destruction’ and new appropriation of the history of philosophy). In order to succeed with this ambitious goal he has to prove that the hermeneutic paradigm can give an appropriate account of all human experience, including the experience that underlies the subject–object model (namely perception and empirical knowledge of objects), whereas the reverse is not the case.²

The argumentative strategy that Heidegger develops in Being and Time in order to achieve this goal is based on two central objections to the subject–object model. First of all, Heidegger argues that by trying to model human experience on the basis of categories taken from a domain of objects radically different from human beings (i.e. physical objects), traditional philosophy provides an entirely distorted account of human identity. To show this, Heidegger articulates an alternative, hermeneutic model that makes it possible to understand human beings as essentially self-interpreting creatures. Once we understand that human beings are self-interpreting and thus self-misinterpreting beings, Heidegger’s ambitious goal can be achieved. For he can then show both why philosophy can only be hermeneutics and how the errors of traditional philosophy are a direct consequence of the kind of beings that humans are. Second, Heidegger argues that by focusing on perception as the private experience of an isolated subject, the subject–object model incorporates a methodological individualism (even solipsism) that entirely distorts human experience with the world (giving rise to nothing but philosophical pseudo-problems such as the need to prove the existence of the external world). To defend this claim, Heidegger offers an alternative, hermeneutic account of our experience that makes it possible to understand human beings as inhabiting a symbolically structured world, in which everything they encounter is already understood as something or other. Once we understand the world in which human beings live as a holistically structured web of significance, Heidegger’s overall goal can be achieved in this context as well. For he can show both that the model of understanding a meaningful text is indeed more appropriate for understanding our human experience in the world than the subject–object model, and that the account of perception, knowledge, truth, etc. that the hermeneutic model provides is superior to the traditional one.

In what follows, I will analyze the hermeneutic core of Being and Time in order to spell out the main features of this new philosophical paradigm. But before I do so, I will first situate the project of Being and Time in the philosophical context from which it emerged and which makes the sense and scope of Heidegger’s hermeneutic transformation of philosophy understandable.

Historical background: philosophical continuities and discontinuities behind the project of Being and Time

From the point of view of the historical background out of which Being and Time grew, the most significant event was the development of the human sciences during the nineteenth century and the difficulties that this development brought to light. The question of how to obtain scientific knowledge of human realities such as history, culture and religion prompted philosophers of all kinds of persuasions to try to provide a philosophical foundation not only for the conditions of possibility of explaining natural processes, but also for the conditions of possibility of understanding cultural ones. Taking Immanuel Kant’s critique of pure reason as a paradigmatic example of the first task, neo-Kantians of the Southwest School such as Wilhelm Windelband and Heinrich Rickert (who was Heidegger’s teacher) were trying to extend transcendental philosophy in the direction of a philosophy of value that would be able to fulfil the second task. Within the Marburg School of neo-Kantianism, Ernst Cassirer’s project of articulating a critique of culture was similarly motivated. Equally so, Edmund Husserl’s project of developing a transcendental phenomenology that would provide a foundation for all regional ontologies, not just those that underlie the natural sciences, was an attempt to fulfil the same task. Within the tradition of the historical school, Wilhelm Dilthey’s project of complementing Kant’s work with a critique of historical reason had a similar inspiration.

However, all these attempts to complement Kant’s work were confronted with an unprecedented difficulty, namely the need to reconcile the transcendental and the historical without sacrificing one to the other. From this point of view, as the young Heidegger argues, the main difficulty confronting the human sciences is not so much that they lack a scientific foundation, but rather that precisely in trying to apply scientific methodology they lose the possibility of accessing the very reality they aim to understand. Grasping the meaningfulness of human life’s experience in its concrete facility requires a way to gain access to that reality as it is given to us prior to any scientific objectivities. Consequently, the problem of reconciling the transcendental and the historical can only be solved by breaking with the ‘primacy of the theoretical’ and thus with the key methodological assumption built on the basis of this priority, the subject–object model.

Keeping this background of philosophical issues in mind, we can now turn to the very dense Introduction of Being and Time. There, Heidegger accomplishes two important tasks. On the one hand, he makes explicit some of the methodological assumptions of his overall project and defends their plausibility by situating Being and Time in the context of other transcendental projects (the main references here are to Kant and Husserl). On the other hand, he also introduces the new conceptual framework that will make a hermeneutic transformation of transcendental philosophy possible.

Heidegger’s way of situating his own philosophical project in the Introduction to Being and Time makes very clear that he shares the conception of philosophy common to the different versions of transcendental philosophy available at the time (phenomenology, neo-Kantianism, etc.). Philosophy is supposed to provide the foundation for the empirical sciences through an a priori investigation of their basic concepts, which makes accessible to the sciences their own objects of study in their essential constitution. Heidegger also agrees with his contemporaries on the need for extending Kant’s transcendental project to provide a genealogy of the different possible ways of being (beyond the one of ‘Nature’), but he thinks that this task cannot be properly accomplished without a prior clarification of the meaning of being in general. To the extent that this clarification would provide the a priori conditions not only for the possibility of the sciences but also for the possibility of the ontologies themselves, which are prior to them and provide their foundations, it constitutes philosophy’s central task: articulating a fundamental ontology. Heidegger’s short exposition of his specific project for accomplishing this task reveals a further commonality with transcendental philosophy. Heidegger accepts the key methodological assumption necessary for a transcendental strategy, namely the ‘priority of Dasein over all other entities’ (1927b: 13). As he argues, given that philosophy’s central task is a clarification of the meaning of being and that Dasein is the only entity that has an understanding of being, Dasein provides ‘the ontico-ontological condition for the possibility of any ontologies’ (ibid.: 13). Thus fundamental ontology must take the form of an existential analytic of Dasein.

But just at this point the commonalities between Heidegger’s project and those of traditional transcendental philosophy rapidly come to an end. For, as Heidegger explains in the following section of the Introduction, the existential analytic of Dasein focuses on the hermeneutics of a factical Dasein in its average everydayness. Thus, the project of providing a fundamental ontology through an existential analytic of Dasein is the attempt to follow a transcendental strategy without a transcendental subject. To be plausible at all, Heidegger’s hermeneutic transformation of philosophy requires cashing out the empirical/transcendental distinction in different terms. This explains the second task that is accomplished in the Introduction, namely to set in motion a new framework of concepts that will make such transformation possible.

The new conceptual framework: the ontological difference

Although the term ‘ontological difference’ is not coined in Being and Time, the distinction between ‘being’ and ‘entities’ is introduced at the very beginning of the book. In §2 ‘being’ is defined as ‘that which determines entities as entities, that on the basis of which entities are already understood’ (ibid.: 6) and ‘entities’ are defined as ‘everything we talk about, everything we have in view, everything towards which we comport ourselves in any way’, including ‘what we are’ and ‘how we are’ (ibid.: 6–7).

Taking the ontological difference as the key methodological distinction, Heidegger interprets what is distinctive about human beings (i.e. the priority of Dasein over all other entities) in an essentially different way than does traditional philosophy. In contradistinction to Kant, Heidegger’s analysis rests not on the fact of reason but on a different fact, namely the fact that human beings have a ‘vague average understanding of being’ (ibid.: 5). This understanding is what allows Dasein to grasp the distinction between being and beings and thus to have an understanding of itself, the world, and everything that can show up within the world. Here, however, it is important to notice that Heidegger’s full interpretation of the ontological difference involves much more than just ascribing to Dasein the intuitive capacity for distinguishing between being and beings. It entails at least the following features:

1 Having an implicit grasp of the distinction between entities and their being, that is, between entities and how they are understood (ibid.: 6–7).

2 Understanding both as irreducibly distinct: ‘the being of entities “is” not itself an entity’ (ibid.: 6).

3 Understanding the transcendental priority of being over any entity: ‘being can never be explained by entities but is already that which is “transcendental” for every entity’ (ibid.: 208). Thus ‘entities are in no way accessible without a prior understanding of their being’ (1927–28: 38).

4 Understanding the transcendental priority in hermeneutic terms: ‘there is being only in an understanding of being’ (1927b: 212). Therefore, ‘what determines entities as entities’ is ‘that on the basis of which entities are […] understood’ (ibid.: 6).

5 To recognize the detranscendentalized status of the understanding of being (as contingent, historically variable, plural, etc.): ‘what determines entities as entities’ is merely ‘that on the basis of which entities are always already understood’ (ibid., emphasis added). This follows from the fact that ‘the meaning of being can never be contrasted with entities’ (ibid.: 152).

The first feature of Heidegger’s interpretation of the ontological difference seems clearly uncontroversial. At least in its most deflationary interpretation, it seems plausible to claim that we can intuitively distinguish between the entities we talk about and the way we understand them. However, the other features are hardly as uncontroversial. This becomes clear if we take into account the philosophical theses that lie behind each of them and, especially the philosophical positions that they are meant to rule out. Acceptance of the ontological difference entails, according to Heidegger, a strong anti-reductionist commitment: the meaningful and the factual are mutually irreducible. In virtue of this dualism, hermeneutic philosophy shares with transcendental philosophy its anti-naturalism. It also entails a decidedly anti-empiricist commitment: hermeneutic philosophy shares with transcendental philosophy its opposition to any kind of metaphysical realism. However, this opposition is based not on a transcendental but on a hermeneutic idealism, that is, on an idealism justified exclusively by hermeneutic reasons. Here lies Heidegger’s hermeneutic transformation of transcendental philosophy.³ In a nutshell, its main features can be explained as follows. On the basis of the ontological difference, the transcendental priority of being over entities is traced back to Dasein’s fore-structure of understanding. As a consequence, Dasein’s projections of the being of entities inherit the transcendental status that traditional philosophy ascribed to synthetic a priori knowledge: they are prior to all experience with entities (1), but determine all experience with those entities (2). However, the ascription of this status is not due to the alleged universal validity of such knowledge, but it is justified on merely hermeneutic grounds. As we shall see, Heidegger defends assumption (1) on the basis of a hermeneutic constraint on communication, na...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Notes on contributors
• List of cases
• Hermeneuticizing the law
• Part I A matrix
• Part II Concurrences
• Part III Variances/discrepancies
• Envoi
• Index