Gadamer and Law

FrancisJ.Mootz Iii

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754626046
• eBook ISBN: 9781351566070
• Topic: History
• Subtopic: World History
• Index: History

Hans-Georg Gadamer's philosophical hermeneutics is especially relevant for law, which is grounded in the interpretation of authoritative texts from the past to resolve present-day disputes. In this collection, leading scholars consider the importance of Gadamer's philosophy for ongoing disputes in legal theory. The work of prominent philosophers, including Fred Dallmayr, P. Christopher Smith and David Hoy, is joined with the work of leading legal theorists, such as William Eskridge, Lawrence Solum and Dennis Patterson, to provide an overview of the connections between law and Gadamer's hermeneutical philosophy. Part I considers the relevance of Gadamer's philosophy to longstanding disputes in legal theory such as the debate over originalism, the rule of law and proper modes of statutory and constitutional exegesis. Part II demonstrates Gadamer's significance for legal theory by comparing his approach to the work of Nietzsche, Habermas and Dworkin.

Part I
Philosophical Hermeneutics
and Legal Theory

Gadamer on the Exemplary Significance
of Law for Hermeneutical Philosophy

[1]

THE RECOVERY OF THE FUNDAMENTAL
HERMENEUTIC PROBLEM

Hans-Georg Gadamer

(A) THE HERMENEUTIC PROBLEM OF APPLICATION

In the early tradition of hermeneutics, which was completely invisible to the historical self-consciousness of post-romantic scientific epistemology, this problem had its systematic place. Hermeneutics was subdivided as follows: there was a distinction between subtilitas intelligendi (understanding) and subtilitas explicandi (interpretation); and pietism added a third element, subtilitas applicandi (application), as in J. J. Rambach. The process of understanding was regarded as consisting of these three elements. It is notable that all three are called subtilitas—i.e., they are considered less as methods that we have at our disposal than as talents requiring particular finesse of mind.²³⁵ As we have seen, the hermeneutic problem acquired systematic importance because the romantics recognized the inner unity of intelligere and explicare. Interpretation is not an occasional, post facto supplement to understanding; rather, understanding is always interpretation, and hence interpretation is the explicit form of understanding. In accordance with this insight, interpretive language and concepts were recognized as belonging to the inner structure of understanding. This moves the whole problem of language from its peripheral and incidental position into the center of philosophy. We will return to this point.

The inner fusion of understanding and interpretation led to the third element in the hermeneutical problem, application, becoming wholly excluded from any connection with hermeneutics. The edifying application of Scripture in Christian preaching, for example, now seemed very different from the historical and theological understanding of it. In the course of our reflections we have come to see that understanding always involves something like applying the text to be understood to the interpreter’s present situation. Thus we are forced to go one step beyond romantic hermeneutics, as it were, by regarding not only understanding and interpretation, but also application as comprising one unified process. This is not to return to the pietist tradition of the three separate “subtleties,” for, on the contrary, we consider application to be just as integral a part of the hermeneutical process as are understanding and interpretation.²³⁶

The current state of the hermeneutical discussion is what occasions my emphasizing the fundamental importance of this point. We can appeal first to the forgotten history of hermeneutics. Formerly it was considered obvious that the task of hermeneutics was to adapt the text’s meaning to the concrete situation to which the text is speaking. The interpreter of the divine will who can interpret the oracle’s language is the original model for this. But even today it is still the case that an interpreter’s task is not simply to repeat what one of the partners says in the discussion he is translating, but to express what is said in the way that seems most appropriate to him, considering the real situation of the dialogue, which only he knows, since he alone knows both languages being used in the discussion.

Similarly, the history of hermeneutics teaches us that besides literary hermeneutics, there is also a theological and a legal hermeneutics, and together they make up the full concept of hermeneutics. As a result of the emergence of historical consciousness in the eighteenth and nineteenth centuries, philological hermeneutics and historical studies cut their ties with the other hermeneutical disciplines and established themselves as models of methodology for research in the human sciences.

The fact that philological, legal, and theological hermeneutics originally belonged closely together depended on recognizing application as an integral element of all understanding. In both legal and theological hermeneutics there is an essential tension between the fixed text—the law or the gospel—on the one hand and, on the other, the sense arrived at by applying it at the concrete moment of interpretation, either in judgment or in preaching. A law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted. Similarly, the gospel does not exist in order to be understood as a merely historical document, but to be taken in such a way that it exercises its saving effect. This implies that the text, whether law or gospel, if it is to be understood properly—i.e., according to the claim it makes—must be understood at every moment, in every concrete situation, in a new and different way. Understanding here is always application.

We began by showing that understanding, as it occurs in the human sciences, is essentially historical—i.e., that in them a text is understood only if it is understood in a different way as the occasion requires. Precisely this indicates the task of a historical hermeneutics: to consider the tension that exists between the identity of the common object and the changing situation in which it must be understood. We began by saying that the historical movement of understanding, which romantic hermeneutics pushed to the periphery, is the true center of hermeneutical inquiry appropriate to historical consciousness. Our consideration of the significance of tradition in historical consciousness started from Heidegger’s analysis of the hermeneutics of facticity and sought to apply it to a hermeneutics of the human sciences. We showed that understanding is not a method which the inquiring consciousness applies to an object it chooses and so turns it into objective knowledge; rather, being situated within an event of tradition, a process of handing down, is a prior condition of understanding. Understanding proves to be an event, and the task of hermeneutics, seen philosophically, consists in asking what kind of understanding, what kind of science it is, that is itself advanced by historical change.

We are quite aware that we are asking something unusual of the self-understanding of modern science. All of our considerations thus far have been directed toward making this task easier by showing that it results from the convergence of a large number of problems. In fact, hermeneutical theory hitherto falls apart into distinctions that it cannot itself maintain. This is seen clearly in the attempt to construct a general theory of interpretation. When a distinction is made between cognitive, normative, and reproductive interpretation, as in Betti’s General Theory of Interpretation,²³⁷ which is based on a remarkable knowledge and survey of the subject, difficulties arise in categorizing phenomena according to this division. This is especially true of scholarly interpretation. If we put theological interpretation together with legal interpretation and assign them a normative function, then we must remember Schleiermacher who, on the contrary, closely connected theological interpretation with general interpretation, which was for him the philological-historical one. In fact, the split between the cognitive and the normative function runs right through theological hermeneutics and can hardly be overcome by distinguishing scientific knowledge from the subsequent edifying application. The split runs through legal interpretation also, in that discovering the meaning of a legal text and discovering how to apply it in a particular legal instance are not two separate actions, but one unitary process.

But even the kind of interpretation that seems furthest from the kinds we have been considering, namely performative interpretation, as in the cases of music and drama—and they acquire their real existence only in being played ²³⁸—is scarcely an independent mode of interpretation. In it too there is a split between the cognitive and the normative function. No one can stage a play, read a poem, or perform a piece of music without understanding the original meaning of the text and presenting it in his reproduction and interpretation. But, similarly, no one will be able to make a performative interpretation without taking account of that other normative element—the stylistic values of one’s own day—which, whenever a text is brought to sensory appearance, sets limits to the demand for a stylistically correct reproduction. When we consider that translating texts in a foreign language, imitating them, or even reading texts aloud correctly, involves the same explanatory achievement as philological interpretation, so that the two things become as one, then we cannot avoid the conclusion that the suggested distinction between cognitive, normative, and reproductive interpretation has no fundamental validity, but all three constitute one unitary phenomenon.

If this is the case, then we have the task of redefining the hermeneutics of the human sciences in terms of legal and theological hermeneutics. For this we must remember the insight gained from our investigation into romantic hermeneutics, namely that both it and its culmination in psychological interpretation—i.e., deciphering and explaining the individuality of the other—treat the problem of understanding in a way that is far too one-sided. Our line of thought prevents us from dividing the hermeneutic problem in terms of the subjectivity of the interpreter and the objectivity of the meaning to be understood. This would be starting from a false antithesis that cannot be resolved even by recognizing the dialectic of subjective and objective. To distinguish between a normative function and a cognitive one is to separate what clearly belong together. The meaning of a law that emerges in its normative application is fundamentally no different from the meaning reached in understanding a text. It is quite mistaken to base the possibility of understanding a text on the postulate of a “con-geniality” that supposedly unites the creator and the interpreter of a work. If this were really the case, then the human sciences would be in a bad way. But the miracle of understanding consists in the fact that no like-mindedness is necessary to recognize what is really significant and fundamentally meaningful in tradition. We have the ability to open ourselves to the superior claim the text makes and to respond to what it has to tell us. Hermeneutics in t...

Table of contents

• Cover Page
• Halftitle
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I PHILOSOPHICAL HERMENEUTICS AND LEGAL THEORY
• PART II GADAMER IN CONVERSATION WITH OTHER LEADING HERMENEUTIC PHILOSOPHERS ON LAW AND LEGAL THEORY
• Name Index