Hermeneutical legal theory
From IVR encyclopedie
Hermeneutical legal theory is one of the oldest and at the same time most disputed of all the philosophies of interpretation. Its beginnings can be traced back to Roman jurisprudence. Only in the 20th century did hermeneutical legal theory obtain a more specific status in the theory and philosophy of law. This was a consequence of at least two different factors. Firstly, in the 19th century a debate began over methodology in jurisprudence that has lasted until the present day, a debate in which representatives from all important movements and schools have taken part, with the law of nature and legal positivism leading the way. In the course of this debate hermeneutical legal theory proposed its own methodological approach to law (which served as an alternative and at the same time rival to other concepts), and at least in certain – phenomenological – variants also developed a different ontology of law. Secondly, in the 19th century F.E.D. Schleiermacher and Wilhelm Dilthey proposed the idea of creating a general philosophy of hermeneutics, which in essence was to be „a methodology of understanding” for all disciplines of the humanities, including jurisprudence. Ascribing such a function to hermeneutics resulted from its adoption of an anti-naturalist approach, an outlook which tends to be criticized today, which contrasted the methodology of the natural sciences, the aim of which is to clarify phenomena, with that of the humanities (hermeneutics), whose function is, as Dilthey emphasized, to understand manifestations of the human spirit (life) which find their expression in language.
In hermeneutics, fundamental importance is assigned to the concept of understanding, with which three other key terms in this philosophy of interpretation are directly linked: pre-understanding (which in German literature is expressed as Vorurteil or Vorverständnis), explanation (interpretation) and application. According to Hans-Georg Gadamer „the hermeneutical problem” always embraces three inseparably inter-linked moments: understanding (subtilitas intelligendi), explanation (subtilitas explicandi) and application (subtilitas applicandi). Understanding is realized through the act of explanation (interpretation), the essence of which is application in practice. Ultimately, hermeneutical understanding may signify: either a certain specific kind of cognition in the humanistic sciences (at any rate, this is how the representatives of the methodological current in hermeneutics – Schleiermacher and Dilthey – conceived understanding), a form of the existence of an individual being – Dasein (the ontological interpretation of understanding we find in the major work of Martin Heidegger – Sein und Zeit), or both the former and the latter, i.e. both as a kind of knowing, and as a manifestation of the existence of an individual being (at any rate, this is how Gadamer and Paul Ricoeur defined understanding).
The final set of – preliminary – remarks, concerns the relationship between philosophical hermeneutics and legal hermeneutics. What seems to be a plausible view on this issue is that legal hermeneutics is only one example of the application of philosophical hermeneutics in general. On the other hand, the following question remains to be considered: is legal hermeneutics a „model” (paradigm) case of application, as Gadamer wanted it to be, or does legal hermeneutics tend to have its own „particular” character”, if only on account of the fact that every possible application of hermeneutical methods in the process of legal interpretation must take into account the restrictions arising from the existence of the provisions (norms/regulations) of binding law. Examining the status of legal hermeneutics in this way entails uprooting it from a philosophical context. We would have to either propose a „specifically legal form of hermeneutics ”, the assumptions of which would be – beyond the context of philosophical reflection – incomprehensible, or „practise” hermeneutics within the framework of other already existing theories of legal interpretation. In such a situation, however, the appropriate question would become: why use a new word to name an “old thing”?
II The methodological and ontological current in hermeneutical legal theory
The binding link between the earlier 19th century methodological current in philosophical hermeneutics developed by Schleiermacher and Dilthey, and its contemporary legal variants are the ideas of Friedrich Carl von Savigny which he presented in his work Juristische Methodenlehre. Savigny believed that the purpose of legal understanding was to interpret the text of a statute. By way of this process we can recreate (reconstruct) the idea-thinking of the legislator in the past. The lawyer has at his or her disposal four means of interpreting the text: grammatical, logical, historical and systematic. Savigny, just like Schleiermacher, was an advocate of a comparative understanding as well as a grammatical-historical conception of the act of interpretation. He likewise adopted the thesis that the act of hermeneutical cognition (interpretation) is objective in character. However, this represented a specific kind of objectivism built on historical and psychological foundations and on the unity between the actions of the interpreter and the will of the – historical – legislator (the actual author of the interpreted statute).
One important – and modern – attempt to apply Schleiermacher’s hermeneutics to the needs of the discipline of law was made by Helmut Coing. He set forth his proposals in an essay entitled Die juristischen Auslegungsmethoden und die Lehre der allgemeinen Hermeneutik, in which he examined the possibilities of applying the general canons of interpretation formulated by Schleiermacher for the purposes of interpreting and explaining the law. He discussed each canon in turn while making various additions and changes of his own: the canons of objectivity (autonomy of interpretation), unity, genetic interpretation, interpretation in terms of factual and substantive meaning, and, finally, the canon of comparison. This approach led Coing to the conclusion that all general canons of interpretation find their confirmation and application in jurisprudence, which ensures that interpretation and understanding of a legal text can be universally valid. Hermeneutics teaches us how to critically assess an interpretation of the law, while at the same time showing that the discipline of law as an interpretive discipline uses not only exclusively deductive procedures, but also takes into account other approaches, including even topical ones. Within the framework of this „interpretative discipline” jurisprudence enjoys a specific status, for it is an example of an „applied interpretative discipline”. As a result, the legal method – both universal and objective in character – could constitute part of a – universal and objective - humanistic methodology, while legal hermeneutics would be just one example of the application of general humanistic hermeneutics.
In turn, the theory of legal hermeneutics developed by Emilio Betti and outlined in his work Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften clearly has its roots in Dilthey’s thought. Like Dilthey and Coing, Betti understood hermeneutics to be a universally valid objective of the humanities. Betti linked cognitive objectivism with axiological objectivism. Legal hermeneutics cannot ultimately be separated from humanistic hermeneutics in general, which assumes an objective and universally valid (for all specific variants of hermeneutics) philosophy of understanding and the theory of interpretation.
Representatives of modern philosophy and legal theory will often advocate a methodological understanding of hermeneutics, especially the German current referred to as Methodenlehre. One can find numerous references to hermeneutics and precisely this methodologically understood approach in the views of such authors as Karl Larenz, Josef Esser, Karl Engisch, Ernst Forsthoff, Friedrich Müller and Martin Kriele. The hermeneutical interpretation of method in jurisprudence was intended mainly to serve as a counterbalance (alternative) to the positivist and analytical school, which prefers a systematic approach to thinking on the law, conceived as a category with an a priori-deductive character. As a consequence, the epistemology of the law presented in hermeneutics appeals to problem-type (topical) thinking, in which the law is conceived as a concrete „interpretative fact” or „interpretative activity”.
In the case of phenomenological philosophy, the central problem of hermeneutics – understanding – receives a new – ontological – qualification. Understanding is no longer conceived simply as a method of humanistic cognition as favoured by Schleiermacher and Dilthey, but is also, and perhaps above all, regarded as a form of the existence of a individual being, to which Edmund Husserl assigned the name Lebenswelt, and Heidegger – Dasein. In this way, hermeneutics becomes a form of ontological understanding. Hermeneutics is, however, also a method, because after all it has to be. Indeed, phenomenological hermeneutics abandons its claims to objectivism, but not to universalism. Hermeneutics is universal because the very problem of understanding is universal. For the act of understanding is a point of departure for all cognitive activity. Being a „science of first instance” hermeneutics is not only a kind of reflection furnished with the capacity of understanding, but is also a method for knowing precisely this kind of existence.
One very interesting attempt to apply the phenomenological philosophy of Husserl to the needs of jurisprudence was made by Adolph Reinach. Reinach believed that phenomenological analysis lies at the basis of both statements concerning the ontological essence of the law and statements with a methodological character. He set out his ideas in Zur Phänomenologie des Rechts. Die apriorischen Grundlagen des bürgerlichen Rechts. Thanks to our intuition we are able to know and understand the essence of the phenomenon of the law – its a priori structure. Positive law is in constant flux and development. This tendency to change and such contingency make it difficult or downright impossible to know the essence of the law a priori. We must thus go further and deeper, through positive laws to the “thing in itself”, to the nature of Man and his needs, desires, will and actions. The essence of these essential presentations is expressed in a priorisentences, which at the same time are also statements (axioms) of a phenomenologically oriented discipline of law. In this way, besides mathematics and pure natural science we are also dealing with a case of „pure – in a phenomenological sense – legal science”.
Another philosopher of law, Gerhart Husserl, author of the work Recht und Zeit (a collection of essays) also refers to Husserl’s phenomenological philosophy. He argues that the essence of legal cognition comes down to a reduction of legal ideas to the ontological level, at which the “law-thing” appears. This process of reduction is at the same time a process of actualising the law itself – its application in concrete situations. For the act of reduction uncovers the basic (original) structure of every possible law – a structure which has an a priori character.
In turn, Werner Maihofer in his study Recht und Sein adopts a Heideggerian approach. Maihofer attempts to transfer Heidegger’s “fundamental ontology” to the terrain of philosophical-legal reflection. The hermeneutics of Dasein (an individual being capable of understanding itself) is intended to allow Dasein to construct an existential ontology of the law. Dasein possesses a certain structure and order, which is expressed likewise by the law.
Gadamer’s work in the philosophy of law is continued, finally, by Arthur Kaufmann, who provides an ontologically-oriented conception of legal hermeneutics. His views on this theme have been presented, among other places, in the works: Beiträge zur juristischen Hermeneutik and Rechtsphilosophie im Wandel. According to Kaufmann, the law emerges (is constituted) during the hermeneutical process of understanding. However, both the legislative act itself and the abstract idea of the law, as expressed in the concept of the just law, are only possibilities of the existence of a “concrete, historical law”. Kaufmann reckons that only through hermeneutics – the ontology of understanding – will it be possible to overcome the one-sidedness which has encumbered both natural-legal concepts and positivist concepts. The law is not a category in a cognitive objective sense. The law emerges through the process of understanding events – it comes into existence – it happens at a certain temporal (historical) moment. It is not a state (substance), but rather an act. Three degrees (stages) can be distinguished in the „actualisation of the law” (Rechtsverwirklichung).
The point of departure are abstract – extra-positive and extra-historical – legal principles (ideas). The second degree (stage) involves, in turn, the general – formal-positive – norms contained in a statute. The third stage involves the specific – material-positive – legal norms constituting the basis of decisions in actual legal cases. The establishment of a legal decision – the act of finding the legal solution – is achieved through an historical act of the understanding appealing directly to an original analogy contained in the concept of the law. For the act of understanding brings together subject and object, duty and being, norms and an actual state of affairs (Lebenssachverhalt). The law is the relationship which exists between a general principle or norm and an actual case. This relationship is ultimately grounded in an individual being – person. According to Kaufmann, such an analysis of the concept of law thus leads us to the concept of analogy and this in turn directs us to the concept of relationship and once again to the concept of the person. In this way the ontology of substance (characteristic of other philosophical-legal conceptions, in particular „classical” doctrines of the law of nature) is replaced by the ontology of understanding and by an existential ontology of the relationship.
Often, hermeneutics (both hermeneutics in general and legal hermeneutics) has been criticised, mainly by advocates of analytical philosophy (methodology). However, very often controversies between the adherents of hermeneutics and those of other currents have arisen out of the latter’s ignorance of the basic assumptions of hermeneutical philosophy and its different variants. It should be admitted, though, that the source of many of these controversies lies in hermeneutics itself. At least a number of such criticisms can be dealt with here individually.
1) It has been pointed out, and quite clearly fairly, that no single universally accepted definition of hermeneutics exists. As a result it is very difficult to set the boundaries between particular hermeneutical viewpoints (this concerns internal boundaries), as it is between those positions which may be hermeneutical and those which tend no longer to be so. As a result, the concept of “hermeneutics” has often been abused when used in describing and assessing different interpretative philosophies of the analytical, structuralist and argumentative types.
2) We are dealing with a similar situation in the case of other – for hermeneutical philosophy – basic concepts: understanding, pre-understanding or the hermeneutical circle. These terms are given fundamentally different interpretations in different hermeneutic conceptions.
3) Ultimately, we are not able to determine what is meant by the term hermeneutics: a form of cognition (a method), an ontology of understanding (a form of the existence of an individual being who possesses the ability of understanding), or perhaps both the former and the latter.
4) Accepting that understanding is also (besides representing a form of the existence of an individual being) a form of cognition, we are not in a position at the same time to determine what kind of cognition this is: direct or indirect.
5) Accepting that understanding is a form of direct-intuitive cognition, we then have a problem with determining what type of intuition we are ultimately dealing with: psychological, analytical or rather phenomenological.
6) The thesis of hermeneutical universalism is not entirely clear. The defence of this approach based on a division into naturalist and anti-naturalist methodologies adopted by Dilthey is quite weak, for the division itself gives rise to serious doubts. Moreover, it represents a particular type of universalism, because it is limited solely to the humanistic disciplines. It also appears risky to defend the phenomenological argument regarding the universalism of hermeneutics as a “the first science”. Defending ourselves against this argument in this case, we can claim that hermeneutics finds its main, if not exclusive, application precisely in the humanistic disciplines and not in the pure and natural sciences.
7) Ultimately, we ignore, not only how exactly hermeneutics can be applied usefully in legal interpretation, but also what the possible scope of its application is (it is at least clear that understanding – interpretation – must also be concerned with the regulations of the valid law). This problem is closely connected with other issues – the freedom of interpretation, whose limits are restricted, at least in the continental systems of law, by a prohibition on making interpretations contra legem.
IV Alternative solutions
Two such solutions are worth noting. They are interesting from our point of view because, on the one hand, they contain alternative proposals competing with one another with regard to hermeneutics, while on the other in some way they refer to hermeneutics or are able to reconcile with it.
The first approach of this type is the “alternative” analytical solution. This does not concern, however, horse-shoe analysis (i.e. analysis using logical and mathematical tools), which was anti-hermeneutical in its conceptual structure, but rather soft-shoe analysis (i.e. analysis appealing to “softer”, mainly linguistic, tools), which provided the basis for seeking a compromise with hermeneutics. This approach has borne fruit in attempts by some to develop analytical hermeneutics. One source of inspiration for an analysis of this kind was the “second” philosophy of Ludwig Wittgenstein, who in his Philosophical Investigations treats interpretation as a specific kind of “game” played by the interpreter with the text. Such an attempt to develop analytical hermeneutics was also undertaken in jurisprudence by, among other people, Aulis Aarnio (Linguistic Philosophy and Legal Theory) and Ota Weinberger (Law, Institution, and Legal Politics: Fundamental Problems of Legal Theory and Social Philosophy).
The second of the alternatives is represented by theories of legal argumentation, which often promote solutions that have also been adopted in hermeneutics. We even find such an approach in legal topics, especially in its variant proposed by Theodor Viehweg (in his Topik und Jurisprudenz. Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung) Similarities can be seen between the concept of problem-thinking in law, and the concept of a concrete law resulting from the process of interpretation and explanation. In turn, the roots of Robert Alexy’s procedural theory of legal discourse should be sought, as with most methodological variants of hermeneutics, in the philosophy of Immanuel Kant or in neo-Kantian philosophies. Finally, “communication theories” can be located at the border between hermeneutical and argumentative reflection. For some these are hermeneutical concepts, while for others – argumentative. This appears to pre-judge the aim of the analysis conducted at any given moment. It is enough, moreover, to examine closely the theories of Jürgen Habermas, or Karl-Otto Apel to recognise the earlier observation as fully appropriate.
1. E. Betti, Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften, Tübingen 1967. Betti’s opus magnum, alluding to Dilthey’s conception of understanding, is an excellent example of the methodological approach to legal hermeneutics.
2. H. Coing, Die juristischen Auslegungsmethoden und die Lehre der allgemeinen Hermeneutik, Köln-Opladen 1959.
3. W. Dilthey, Die Entstehung der Hermeneutik, in: W. Dilthey, Gesammelte Schriften, vol. V, Leipzig 1924.
4. K. Engisch, Einführung in das juristische Denken, 8. edition, Stuttgart 1983.
5. J. Esser, Vorverständnis und Methodenwahl in der Rechtsfindung. Rationalitätsgrundlagen richterlicher Entscheidungspraxis, Frankfurt am Main 1970.
6. H.G. Gadamer, Wahrheit und Methode. Grundzüge einer philosopischen Hermeneutik, in: Gesammelte Werke, vol. I, Tübingen 1986. A principal philosophical work on hermeneutics in the 20th century; an inexhaustible source of inspiration for all following the hermeneutical approach.
7. G. Husserl, Recht und Zeit. Fünf rechtsphilosophische Essays, Frankfurt am Main 1955.
8. A. Kaufmann, Beiträge zur juristischen Hermeneutik, Köln-Berlin-Bonn-München 1984.
9. A. Kaufmann, Rechtsphilosophie im Wandel, 2. edition, Köln-Berlin-Bonn-München 1984. Books by Kaufmann, alluding to Gadamer’s philosophy of understanding, provide a particularly mature and versatile account of legal hermeneutics; these books represent the philosophical approach to legal hermeneutics.
10. K. Larenz, Methodenlehre der Rechtswissenschaft, 5. edition, Berlin-Heidelberg-New York-Tokyo 1983.
11.W. Maihofer, Recht und Sein. Prolegomena einer Rechtsontologie, Frankfurt am Main 1954.
12. A. Reinach, Zur Phänomenologie des Rechts. Die apriorischen Grundlagen des bürgelichen Rechs, 2. edition, München 1953.
13. F.C. v. Savigny, Juristische Methodenlehre, Stuttgart 1951.
14. F.E.D. Schleiermacher, Hermeneutik, Heidelberg 1959.
15. J. Stelmach, Die hermeneutische Auffassung der Rechtsphilosophie, Ebelsbach 1991.
16. J. Stelmach, B. Brozek, Metody prawnicze (Legal Methods), Kraków 2004.
 The term “hermeneutics” comes from the Greek word ??µ????? denoting the art of prophesying, translating, explaining, interpreting.
 Representatives of this current were, e.g., R. Carnap, B. Russell, L. Wittgenstein (in his “Tractatus Logico-Philosophicus period”).