Interpretation of the law is based on assumptions about the nature of texts, language, and the act of interpretation itself. These fourteen new essays trace the origin of these assumptions, examine their philosophical implications, and extend legal interpretation in new and constructive directions.

Writings on al-Shāṭibī have focused on his views on maṣlaḥah and Maqāṣid al-Sharīʿah. His approach to the interpretation of the Qurʾān and the implications of such an approach have only rarely been heeded. This study addresses this aspect of al-Shāṭibī’s work. It essentially asserts that in restructuring Islamic legal theory around the idea of Maqāṣid al-Sharīʿah, al-Shāṭibī brought jurists and Qurʾān commentators closer to one another. It further argues that his contribution went beyond the interest of jurists centred on (...) legal reasoning by holding a comprehensive hermeneutical view of the Qurʾān informed by belief in the thematic unity of its sūrahs and verses. Taking such unity as the cornerstone of a sound understanding of the Qurʾān capable of grasping its eternal values and universal principles, he developed a methodology that has inspired a few eminent contemporary Muslim scholars who have developed what has come to be known as thematic interpretation of the Qurʾān. This article discusses al-Shāṭibī’s hermeneutics of the Qurʾān by delineating his epistemic and methodological propositions. Thus, the author aims to show the existence of semantic unity and epistemic interconnectedness among different disciplines in Islamic scholarship. (shrink)

The Ethical Thesis: Practical Reason in Islamic Legal Hermeneutics. By Abdessamad BelhaJ. Documenta et Monographiae, vol. 8. Piliscsaba, Hungary: Avicenna institute of Middle Eastern Studies, 2015. Pp. 199. €38.80.

Legal Hermeneutics The question of how best to determine the meaning of a given text has always been the chief concern of the general field of inquiry known as hermeneutics. Legal hermeneutics is rooted in philosophical hermeneutics and takes as its subject matter the nature of legal meaning. Legal hermeneutics asks the … Continue reading Hermeneutics, Legal →.

Arthura Kaufmanna filozofia prawa wyrasta przede wszystkim z neokantyzmu aksjologicznego reprezentowanego przez „późnego” Gustava Radbrucha, którego uważał on za najważniejszego ze swych nauczycieli, oraz z hermeneutyki filozoficznej Hansa-Georga Gadamera. W późniejszym okresie znaczący wpływ na Kaufmanna wywarł Charles S. Peirce, którego pracami posiłkował się opracowując problematykę analogii (wiążąc ją z opracowanym przez Pierca zagadnieniem abdukcji) oraz ontologii relacji. Niektóre wątki poglądów Kaufmanna nawiązują do egzystencjalizmu Karla Jaspersa oraz antropologii Karla Löwitha. Obecne są także inspiracje tomistyczne i arystotelesowskie. Jest to filozofia (...) prawa o charakterze maksymalistycznym. Kaufmann wpisuje się w sięgającą starożytności tradycję uprawiania filozofii, w której stawia się pytania o całość; filozofia pyta o to, co to jest "byt w ogóle", byt "w całości"; filozofia prawa stawia pytania o to, co to jest prawo "w całości", prawo "w ogóle" . Podejmuje wprost fundamentalne zagadnienia należące do zasadniczych dziedzin filozoficznych – epistemologiczne, ontologiczne, etyczne, nie stroniąc także od zagadnień z zakresu logiki. Uprawiana przez niego filozofia ma charakter systemowy, co sprawia, że jej zrozumienie zakłada ujęcie całości propozycji. Sam Kaufmann uważa, że systemy filozofii prawa należą już do historii, jednak ta uwaga jest o tyle jedynie trafna w odniesieniu do niego samego, że jego filozofia prawa – w zgodzie z jego deklaracjami – nie zmierza do „gotowych rozwiązań” konkretnych kwestii prawnych, ale zmierza do ukształtowania pewnego sposobu refleksji nad prawem. Jego koncepcja jest ważnym głosem w sporze klasycznego pozytywizmu z koncepcjami niepozytywistycznymi. Za prawo w pełnym tego słowa znaczeniu uznaje konkretne rozstrzygnięcie, co niewątpliwie łączy jego podejście z amerykańskim realizmem prawnym. Rekonstruowana przez Kaufmanna struktura procesu „urzeczywistniania” prawa, dokonywana w kontekście i na użytek kultury prawnej typu kodeksowego, kontynentalnego, uwyraźnia obecność elementów typowych dla kultury prawa precedensowego –wnioskowanie od przypadku do przypadku. Jednocześnie za istotny problem każdego porządku normatywnego uznaje uogólnienie. Jest to znamienny teoretyczny wyraz narastającej świadomości współwystępowania obok siebie zasadniczych elementów każdego z tych typów kultur prawnych. Kaufmann trafnie dostrzega, że w konkretnym rozstrzygnięciu są obecne elementy normatywne wykraczające poza to, co jest zawarte w aktach normatywnych. Podobnie jak Ronald Dworkin, Kaufmann wskazuje, że dokonujący rozstrzygnięcia, czy tego chce, czy nie, „stosuje” szereg elementów normatywnych spoza aktów normatywnych. Analizy prowadzą do wniosku, że propozycja Kaufmanna zawodzi, gdy przechodzi on do ontologicznych uogólnień, przede wszystkim przez brak uwzględnienia w swych podstawach takich punktów odniesienia, które są zewnętrzne wobec badanego procesu „urzeczywistniania” prawa. To, czym jest osoba, determinowane jest systemem prawnym i kulturą, w której prawo funkcjonuje. Przy takim ujęciu Kaufmann nie osiąga jednego z ważnych celów, do którego zmierzał, nie wskazuje kryteriów pozwalających stwierdzić, czy stopniowa – dokonywana zgodnie z odkrytymi przez hermeneutykę filozoficzną wymaganiami poprawnego rozumienia – zmiana normatywnego sensu systemu prawnego zmierza ku „ustawowemu bezprawiu”, czy też nie. (shrink)

(1999). Critical hermeneutics and American legal interpretation:A search for the meaning of new york times v. sullivan. Angelaki: Vol. 4, Judging the law, pp. 173-188.

This article attempts to show the continuing practical relevance of hermeneutics through the example of legal interpretation. The article begins with the very concrete nature of legal hermeneutics that forms everyday legal practice – the interrelation of meaning and application – and expands at a more theoretical to show how legal hermeneutics, and hermeneutics more generally, offers what Ricoeur calls an interpretive “choice in favor of meaning.” The choice in favour of meaning (...) underscores the restorative character of hermeneutics that legal hermeneutics can epitomize. The article concludes with some of the challenges facing contemporary legal hermeneutics. (shrink)

This paper is concerned with the concept of translation competence as seen from the perspective of translational hermeneutics. The first part of the article provides a short survey of how translation competence and its develop- ment has been described so far, with a particular focus on the legal translator’s skills and abilities. The second part of the paper briefly presents the notion of translational hermeneutics together with its main concepts. The aim of this part of the article (...) is also to show similarities between the translation phenomenon and hermeneutical studies. Finally, building on Stolze’s hermeneutical model of translation, the last part of the paper presents the main features of a hermeneutical model of legal translation competence. (shrink)

The Formation of Islamic Hermeneutics: How Sunni Legal Theorists Imagined a Revealed Law. By David Vishanoff. American Oriental Series, vol. 93. New Haven: American Oriental Society, 2011. Pp. xxi + 318. $46.

The purpose of the study is to determine the compliance of the legislative interpretation of the concept of "traditional family values" with the cultural codes of legal consciousness that have developed to the current moment. In connection with this goal, the article examines the types of modern Russian family, taking into account the peculiarities of the mentality, cultural and religious traditions of the peoples of our country, analyzes the content of the norms of the Basic Law, as well as (...) other legislative acts of the Russian Federation. The scientific novelty lies in the application of the methodological tools of legal hermeneutics to determine the content of the concept of "traditional family values" and substantiate the conclusion that the transfer of this concept from broad social contacts to the field of professional legal thinking occurs in accordance with the formed cultural code. As a result of the analysis, the duality of the corresponding cultural code of legal consciousness is revealed. (shrink)

This book delves into Carl Schmitt's early legal works and explores their hermeneutic nature. Drawing on the insights of the giants of existential hermeneutics, such as Heidegger and Gadamer, we illuminate the essence of hermeneutic thought - the existential openness inherent in us as human beings, and then examine its implications for Carl Schmitt's early legal thought. The journey that this text embarks on reveals that the openness inherent in human beings inevitably extends to the legal (...) phenomenon. This realisation exposes two potential pitfalls or flawed appropriations within juridico-hermeneutical activity. First, there's the scientism that restricts law strictly to positive legislation, depriving it of its broader scope. Second, there's what might be called legal romanticism, in which the interpreter, on the basis of whim and subjectivity, dictates what the law means. The book delves into Schmitt's early works, highlighting his awareness of these extremes and the ways in which he addresses them. (shrink)

Legal practice exemplifies the activity of hermeneutical understanding. This chapter explores the dynamic of legal interpretation by focusing on key topics in the philosophical literature. It considers Gadamer's critical distinction between a legal historian writing about a law in the past and a judge deciding a case according to the law. The chapter then reanimates the natural law tradition against the reductive characteristics of legal positivism, reconfiguring the debate by construing man's nature as hermeneutical. Finally, it (...) describes how philosophical hermeneutics grounds critical legal theory rather than serving as a quiescent acceptance of the status quo, drawing from the famous exchanges between Gadamer, Ricoeur, and Habermas. These topics provide a point of entry for demonstrating the exemplary status of legal practice for hermeneutical theory. These topics provide a point of entry for demonstrating the exemplary status of legal practice for hermeneutical theory. (shrink)

Hermeneutics is the branch of knowledge that deals with interpretation, a behaviour that is intrinsic to our daily lives. As humans, we decipher the meaning of newspaper articles, books, legal matters, religious texts, political speeches, emails, and even dinner conversations every day. But how is knowledge mediated through these forms? What constitutes the process of interpretation? And how do we draw meaning from the world around us so that we might understand our position in it? In this Very (...) Short Introduction Jens Zimmermann traces the history of hermeneutic theory, setting out its key elements, and demonstrating how they can be applied to a broad range of disciplines: theology; literature; law; and natural and social sciences. Demonstrating the longstanding and wide-ranging necessity of interpretation, Zimmermann reveals its significance in our current social and political landscape. ABOUT THE SERIES: The Very Short Introductions series from Oxford University Press contains hundreds of titles in almost every subject area. These pocket-sized books are the perfect way to get ahead in a new subject quickly. Our expert authors combine facts, analysis, perspective, new ideas, and enthusiasm to make interesting and challenging topics highly readable. (shrink)

Hermeneutics is usually defined as the theory and practice of interpretation. As a discipline it involves a long and complex history, starting with concerns about the proper interpretation of literary, sacred, and legal texts. In the twentieth century, hermeneutics broadens to include the idea that humans are, in Charles Taylor’s phrase, ‘self-interpreting animals’ (Taylor, 1985). In contrast to the narrowly prescriptive questions of textual interpretation, philosophical hermeneutics, as developed by thinkers like Heidegger, Gadamer, and Ricoeur, raises (...) questions about the conditions of possibility for human understanding — not how we should interpret or understand something, but what interpretation and understanding are and how they work. For the nineteenth-century philosopher Wilhelm Dilthey, the hermeneutical disciplines were very different from the disciplines of science, including the newly emerging science of psychology. In contrast to psychology, which, in part, attempts to explain the natural behaviour of human animals in causal terms, Dilthey (1926) thinks of the hermeneutical disciplines as attempting to under- stand the behaviour of human persons in terms of their experience and inner motivation. Inner life is not composed of a series of mechanistic starts and stops, but is woven together into a continuity (Zusammenhang) that has a structure, by.. (shrink)

Taken in general terms, “hermeneutics” refers to the study of understanding and interpretation, and, traditionally, this study focuses on considerations of the art, method, and foundations of research in the arts and humanities. The study of hermeneutics has been developed and applied in a number of areas of scholarly inquiry, such as biblical exegesis, literary studies, legal studies, and the medical humanities. In the context of post-war Continental European thought, however, hermeneutics is brought into a novel (...) philosophical context and, with this, comes to designate a philosophical movement – or, at least, a number of related philosophers and themes – concerned with the scope and limits of phenomenology, the character of human existence, the relation of the natural sciences and humanities, as well as a range of interrelated matters in the philosophy of history, the philosophy of language, the philosophy of art and aesthetics, practical philosophy, as well as in epistemology and the theory of meaning. (shrink)

The Greek god Hermes, the messenger and god of thieves, the giver of laws and the alphabet, is a key figure for thinking about the relationship between hermeneutics and rhetoric. The philosophers have been able to cloak their distaste for people in general, evident most tellingly in Plato's allegory of the cave. On more familiar rhetorical territory, Nancy Worman in Abusive Mouths in Classical Athens reminds Aristotle's distaste for audiences. The ancient rhetoricians recognized the importance of appearances, and for (...) obvious reasons emphasized in their treatises that they wanted orators to be virtuous and morally upright people. In most kinds of legal and scriptural interpretation, authors build cases from precedent. As a way to capture the salient features of this intersection of hermeneutics and rhetoric, the reader could conjure up the differences in biblical hermeneutics between Moses Maimonides (1135–1204) and Baruch Spinoza (1632–1677). (shrink)

This paper investigates the state of the law in Canada in regards to a public health emergency, and in particular the jurisdictional logic that might come into effect were a public health emergency to occur. Although there has yet to be a national public health emergency in Canada, threats of such crises are likely to arise in the future. It is therefore recognised as necessary to address Canada’s legal preparedness for a public health emergency and evaluate proposed reforms to (...) the legal structure that could facilitate response. This paper contributes to this goal by identifying multiple jurisdictional factors that could inform legal interpretations in a public health emergency. It considers how the legal system and the courts are dealing with public health as a national security issue while taking into account s. 7 of the Canadian Charter. It also looks at the power of the government defined in the Emergencies Act [1985, c. 22] and a proposed legal reform that would make it easier for the government to act unilaterally in a public health emergency. The paper draws on the legal theory of Robert Cover to analyse the hermeneutics of jurisdiction that characterise legal interpretations of public health in Canada, as well as the relationship between jurisdiction and legal violence that these hermeneutics imply. It then develops a case study of the use of medical triage in a public health emergency to explore the possibility of holding the state liable under private law for harm caused to individuals by public health decisions. The paper concludes by suggesting that the state’s public health power can be conceptualised as a form of legal violence and that the courts in Canada should adopt a jurisgenerative approach to legal interpretation in the area of public health. (shrink)

On Finnish legal theory in the 20th century.--On the significance of theoretical studies in legal research.--On so-called hermeneutic trend in Finnish legal theory.--Can a sentence concerning the content of a legal rule be valid?--External and changing law--Some thoughts on the community of heirs as a juridical person.

The aim of the article is to characterise and analyse Paul Amselek’s research approach to legal hermeneutics. The text provides an outline of Amselek’s assumptions and theses about legal interpretation, considered in the broad context of hermeneutics, and in the narrower context of legal logic and argument. In point of fact, one of the methodological aims of Amselek’s philosophical reflection is to harmonise the two indicated contexts for framing interpretation — the wide context of (...) class='Hi'>hermeneutics, and the more narrow context of legal logic and argument. Amselek refers to issues in communication theory, reaching beyond the hermeneutic concept of text interpretation and evocation of the original authorial intention. He analyses the legal text-message in its content and argument layers, he also endeavours to specify the methodological possibilities of interpreting the attitudes and motivations of subjects — participants in communication situation. He also inquires about the ethical attitudes of jurisdiction authorities, performing the interpretation of a body of law — the subjects responsible for lawmaking and the execution of law. Adopting post-Enlightenment anthropological assumptions, Amselek accepts the primacy of rationality in cognition, decision making, and activity of the human individual. However, in his considerations on interpretation he concurrently underscores the role of affective factors, motivating many choices and actions made by legal subjects. (shrink)

The article deals with etymological hermeneutics of proper names as method of determining of approximate dating of a text, as well as of its content and intention of its authors or editors. The author of the article illustrates this method on example of an etymological analysis of proper names of personnages of the legend about Shem, Ham and Japheth, and draws the conclusion, that their etymology is Greek, therefore one needs to date this legend with Hellenistic periode, and it (...) was created in order to give a legal basing for dwelling of Israel on the territories of conquered peoples of Canaan. At the same time, the author is ready to admit, that the Greek etymology of the mentioned proper names is secondary and derived, if the specialists in the brances of the Old Hebrew and the Old Testament Bible Science would prove, that a Semitic etymology of the mentioned proper names is more ancient, than the Greek one. (shrink)

In its most venal manifestation, scholarly writing betrays the anxiety of influence by claiming to offer a radically new solution to age-old conundrums. The goal is to make a clean break from a traditional path of thought that has become trapped in a cul-de-sac, to make progress by finding a new way forward. Not so with Jean Porter’s work, and particularly her most recent book. Professor Porter demonstrates that thinking through an established tradition – one that has responded to numerous (...) challenges within very different contexts over several millennia – can sometimes offer the most productive response to contemporary dilemmas. She rejects the Sirens’ lure to make a sharp break from received traditions. Instead, she chooses to engage the natural law philosophy of the early Scholastic period from our contemporary perspective and its attendant problems. This provides helpful resources to deal with these contemporary dilemmas, but it also opens new possibilities for the development of natural law thinking. The resulting book, Ministers of the Law, is erudite, artfully presented, and provocative. In this article I view Professor Porter’s successful resuscitation of a plausible account of natural law through a particular lens. My thesis is that we can productively extend her work by more strongly acknowledging the hermeneutical and rhetorical nature of law. This may seem paradoxical, if not incoherent, in light of the common understanding that contemporary hermeneutical and rhetorical philosophy participates in the postmodern critique of rationality. Although many might assume that natural law is wholly at odds with hermeneutical philosophy and rhetorical theory, I argue that the case is just the opposite. Professor Porter acknowledges that rhetorical persuasion is at the center of the practices that gird the natural law tradition, but we should strengthen this acknowledgment to the point of embracing fully the theoretical commitments of contemporary hermeneutical and rhetorical theorists. My discussion is divided into three parts. First, I survey Professor Porter’s argument and establish that she regards hermeneutical and rhetorical practices as critical features of her natural law account. Next, I adumbrate a hermeneutical-rhetorical understanding of natural law that builds on my previous work. Finally, I explore how this account expands and deepens Professor Porter’s natural law account of legal authority. I conclude that we should recognize law’s hermeneutical and rhetorical nature, but that Porter has demonstrated the necessity of taking into account the Scholastics’ natural law philosophy as part of this project. (shrink)

Politeia (Πολιτεία in Hellenic) as a fundamental concept of legal philosophy and political philosophy can be interpreted in various meanings such as state, constitution, republic, citizenship etc. Though the fact that this term has a broad scale of meaning might, prima facie, seem confusing, such nature of the concept can, in light of its hermeneutics, hold light to ancient conception of law, ethics and politics. To this end, this study aims a thorough analysis of the concept by handling (...) every meaning attached to the term Politeia in ancient texts that survive today, and suggesting possible hermeneutic connections between those meanings. It is expected that this method would not only clarify the entire possible meanings of the term Politeia, but would help understanding ancient legal and political conceptions of the ancient times. (shrink)

This dissertation is an attempt at harmonizing hermeneutics. In particular, what I term the normative and descriptive approaches are explored and brought together. A normative approach is one concerned with providing the correct method for gaining knowledge of the meaning of a text. Beardsley's normative method of relying on the "text itself" is considered and rejected. Hirsch's normative method of relying on authorial intention is considered, criticized, and used as a springboard to my own normative method of urinterpretation. Propaedeutic (...) to the articulation of urinterpretation is an answer to the question: What is an author? After a survey of theories of authorship, I propose my own author construct--the urauthor. In constructing the urauthor we go back as far as possible to the model of the original. In urinterpretation we seek authorial intention on the basis of the urauthor. It is argued that through this method we secure the meaning of a text. ;Descriptive hermeneutics is concerned with describing the phenomenon of interpretive understanding. It eschews questions of epistemological method, which are at the center of a normative approach, in favor of an ontology of interpretive understanding. Gadamer's Truth and Method is the most complete philosophical account of descriptive hermeneutics to date, and accordingly our attention to descriptive hermeneutics is largely a critique of Gadamer's work. It is argued that both normative and descriptive hermeneutics can and should coexist, but to facilitate scholarship each should be explored separately. ;Interpretation and criticism are also harmonized. Interpretation is understood as the project of seeking the meaning of a text. The meaning of a text, it is argued, is discovered by seeking authorial meaning through the urauthor. Criticism is understood as the project of seeking the significance of a text. The significance of a text, it is argued, is its meaning-as-related-to: to me, to you, to our time, etc. The harmonization of interpretation and criticism is briefly explored in typical philosophical, literary, theological, and legal texts. (shrink)

Studies of hermeneutics have rarely dealt with eighteenth-century British thought, yet during this period debates over the interpretation of texts plagued and invigorated religious, intellectual, and political life in England. This important book is the first to deal with hermeneutical issues in British scriptural, legal, historical, political, and literary interpretation. Examining the work of Swift, Locke, Toland, Bolingbroke, Hume, Reid, Blackstone, and Burke, Joel C. Weinsheimer discusses common philosophical problems of understanding, concentrating especially on their theories about the (...) application of taste to discern interpretive truth. Weinsheimer's approach is primarily philosophical. In each area of hermeneutic endeavor, he asks such questions as why it is necessary to interpret, what it means to interpret, what does not need interpreting, what constitutes the signs of right understanding, and what accounts for the multiplicity of interpretations. He concludes that hermneutics in eighteenth-century England became the site of a contest and possible reconciliation between reason and history. Driven by the need to escape rationalist formalism as well as an opposite though equally sterile antiquarianism, interpretation offered a new way of thinking about truth, as belonging to reason and history together. (shrink)

This thought-provoking book initiates a dialogue among scholars in rhetoric and hermeneutics in many areas of the humanities. Twenty leading thinkers explore the ways these two powerful disciplines inform each other and influence a wide variety of intellectual fields. Walter Jost and Michael J. Hyde organize pivotal topics in rhetoric and hermeneutics with originality and coherence, dividing their book into four sections: Locating the Disciplines; Inventions and Applications; Arguments and Narratives; and Civic Discourse and Critical Theory. Contributors to (...) this volume include Hans-Georg Gadamer, Paul Ricoeur, Gerald L. Bruns, Charles Altieri, Richard E. Palmer, Calvin O. Schrag,.Victoria Kahn, Eugene Garver, Michael Leff, Nancy S. Streuver, Wendy Olmsted, David Tracy, Donald G. Marshall, Allen Scult, Rita Copeland, William Rehg, and Steven Mailloux. For readers across the humanities, the book demonstrates the usefulness of rhetorical and hermeneutic approaches in literary, philosophical, legal, religious, and political thinking. With its stimulating new perspectives on the revival and interrelation of both rhetoric and hermeneutics, this collection is sure to serve as a benchmark for years to come. (shrink)

The increasing interest in Hegel among legal scholars can be attributed to three recent developments. First, there is a slow but sure historicist turn in legal studies that is unsettling legal formalists and positivists. This turn—initiated by legal realists decades ago and deepened by the Critical Legal Studies movement in our own time—radically calls into question objectivist claims about procedure, due process, and the liberal view of law. Second, there are a growing number of serious (...) reexaminations of the basic assumptions and fundamental presuppositions of dominant forms of liberalism not only among critics but also by many prominent liberal thinkers themselves. These reexaminations take the form of immanent critiques of liberalism as well as creative revisions of liberalism. Third, a new emerging subject matter has seized the imagination of some legal theorists: the complex cultures of liberal societies (including the subcultures of the liberal legal academy). For the first time in American legal studies, the crucial roles of race and especially gender are receiving wide attention as legitimate spheres of legal inquiry into what constitutes the ways of life that circumscribe the operations of power in the legal systems of liberal societies. (shrink)

The rule of law demands that the state's coercive power be used only according to settled general laws, applied impersonally. But an individualist theory of legal inter pretation cannot provide the shared understanding required. Gadamer appeals to the practical wisdom of judges and lawyers, who will agree on how to apply law to new cases. But this account is adequate only for very cohesive societies. Dworkin's account rests on propositional knowledge of a supposed best interpretation of an entire (...) class='Hi'>legal system. But even if such a best interpretation is possible in theory, this possibility does not provide shared understandings in the social world. (shrink)

Analytical jurisprudence and the legal mainstream perceive legal rights in an interactionist fashion, pursuant to a right-obligation duality. The Paper suggests that this is principally because legal positivism and the analytical Anglo-Saxon legal tradition ground their theories on logical positivism and the Wittgensteinian premise that meaning is produced and asserted in social use, i.e. both consensually and contextually. The paper suggests that there is a surplus of meaning which exists beyond social use and which cannot be (...) conceptualized within the sociolinguistic confines of Wittgenstein’s logic of language. This surplus of meaning corresponds to the essential core of legal rights, which, following Aristotle’s induction and philosophy of the essences, constitutes a necessary property and τὸ τί ἦν εἶναι of legal rights, namely a state of affairs or a state of being that cannot be altered without their necessary breach or, indeed, the negation of their very meaning. The Paper discusses the shortcomings of the Wittgensteinian approach and revisits the philosophical foundations of legal rights by employing Aristotle’s induction and theory of the essences, which the Paper connects to the phenomenological method and particularly Ricoeur’s hermeneutics and Husserl’s transcedental phenomenology. This is a process of abstraction and insight, which aspires to induce a rational revisiting of the general theory of legal rights and address the surplus of meaning that Wittgensteinian logic leaves semantically uncovered. (shrink)

This paper focuses on some issues where the process of convergence between analytical and hermeneutic perspectives, with respect to their general philosophical grounds, mainly turns out to be clear. On the analytical side, the overcoming of logical Neopositivism and radical formalism and the rejection of the atomistic theory of reference by holistic theories of meaning have been the core shifts. On the side of the continental philosophical tradition, the main theoretical change lies in replacing the centrality of the subject with (...) the centrality of language, with its links to the dimension of intersubjectivity. Furthermore, the importance given to concepts such as action and intention, mainly due to the Wittgensteinian connection between language and forms of life, has led to recognising the active role of the subject in the world and the ability of language to be a means for doing things and not just a system of signs representing the world. Such a convergence, though it has not yet been reached, seems to be particularly fertile in the legal domain. Here, for example, some outcomes of speech acts theory fit the hermeneutic view of law. (shrink)

In much of the contemporary situation for trans* persons, authority over identity has been given to, or perhaps taken by, arbiters of the medico-legal discourse. These identity “experts” have become the gatekeepers for sex reassignment and gender designation. Alternatively, many theorists argue that identity is exclusively about first-person appeals to one’s own sense of oneself. I show here that neither of these accounts does justice to our experience. Instead, drawing upon Hans Georg Gadamer’s notion of horizons, I outline a (...) position where first-person and third-person accounts of the meaning of the body can meet somewhere in the middle. Such a position, characterized by a hermeneutics of the body, mediates between the phenomenological first-person while still recognizing the third-person view of the body as relevant. Approaching the body through a hermeneutic process allows us to find a place where we can all be open to different performances of gender and different particular bodily actions that recognize the bodies of us all as a combination of sedimented styles of action within social discourses. (shrink)

This book initiates a discussion among scholars in rhetoric and hermeneutics in many areas of the humanities. Twenty leading thinkers explore the ways these two powerful disciplines inform each other and influence a wide variety of intellectual fields. Walter Jost and Michael J. Hyde organize pivotal topics in rhetoric and hermeneutics with originality and coherence, dividing their book into four sections: Locating the Disciplines; Inventions and Applications; Arguments and Narratives; and Civic Discourse and Critical Theory. For readers across (...) the humanities, the book demonstrates the usefulness of rhetorical and hermeneutic approaches in literary, philosophical, legal, religious, and political thinking. (shrink)

Chapter 1: An Introduction: The ‘Semantic Sting’ Argument Describes Dworkin’s theory as concerning the conditions of legal validity. “A legal system is a system of norms. Validity is a logical property of norms in a way akin to that in which truth is a logical property of propositions. A statement about the law is true if and only if the norm it purports to describe is a valid legal norm…It follows that there must be certain conditions which (...) render certain norms, but not others, legally valid. Hence it also follows that there can be two types of disagreement over the truth or falsehood of propositions about the law. People can disagree over the question ‘What are the conditions of legal validity?’, in which case their disagreement is a theoretical one. Or they can agree on the conditions of validity, and disagree as to whether or not those conditions actually obtain in a given case or not.” Argues that the best way to interpret Dworkin’s ‘semantic-sting argument’ is as a general argument against conventionalism in legal positivism. Summarizes the outcome of Dworkin’s argument as follows: “[I]f Dworkin is right about the legal reasoning of lawyers and judges, conventionalism would be self-defeating: if lawyers and judges recognize as legally binding not only those norms which are uncontroversially identifiable under the Rule of Recognition, that is, if what they recognize as binding is not only source-based law, then conventionalism turns out to be false on its own terms. In other words, either law is not what lawyers and judges think that it is, in which case law is not a matter of conventions, or – if it is what lawyers and judges think – conventionalism is false, as they do not see the law as purely a matter of conventions.” Dworkin’s theory, then, is a new conception of jurisprudence aiming to present itself as a rival to conventionalism. The book will be concerned with re-examining positivism in light of the interpretative challenge. Chapter 2: Meaning and Interpretation “[R]oughly, interpretation can be defined as an understanding or explanation of the meaning of an object.” Interpretation in this narrow sense is distinct from a less formal and broader use of interpretation that makes it equivalent to explanation. “Hence also, only those objects which are capable of bearing some meaning qualify as objects of interpretation.” [Why shouldn’t we think of interpretation as object-identification? This seems to be closer to what Dworkin has in mind.] Thus, a consideration of the philosophical work on meaning is appropriate. First, a consideration of Davidson on interpretation. The thesis is that Davidson’s “radical interpretation” can only account for sentence meaning and not for linguistic interpretation in general. Davidson cannot account for the non-rule-governed aspects of communication. “Semantics, as opposed to interpretation, concerns those aspects of communication which are rule or convention governed…but such rules are normally unavailable as reasons or justifications for an interpretation. On the contrary, interpretation is usually required because the issue is not determined by rules or conventions.” Interpretation, rather, is parasitic with understanding the meaning of an expression and not equivalent with it. As Dummett notes, any reflection on the meanings of words assumes prior knowledge of ordinary meanings. “This leads to the conclusion that understanding or explaining the meaning of an expression and interpreting it, are two conceptually separate things. It also indicates that seman ics can only be employed, if at all, to elucidate the concept of interpretation by way of contrast: interpretation concerns those aspects of communication which are under-determined by semantic rules or conventions.” Pragmatics, the study of problems posed by discrepancies between utterer’s meaning and sentence meaning, would seem to be closer to inquiry into interpretation. Both are concerned with understanding how meaning is possible where conventional rules leave off. Contemporary pragmatics, moreover, recognizes the logically indeterminate character of communicative inferences beyond conventional meaning and that the contextual conditions that account for the possibility cannot be realized in the semantic structure of the sentence. However, different criteria of success may be at work in pragmatics than interpretation. Pragmatics is concerned with how communication is achieved and thus the criteria of success would be grasping a speaker’s intentions. Many think, however, that communication is unimportant in certain spheres of communication, e.g. artistic interpretation, and that in these cases the aim of interpretation is not to uncover the actual artist’s intentions. What kind of meaning is interpretation aimed at then? It cannot be the meaning the object has for the interpreter. “Interpretation purports to be a statement about the object interpreted, not about the subject who offers the interpretation…it is crucial to remember that not everything we say about a work of art, or any other text, amounts to an interpretation of it. Only those aspects of a text which can shed light on its meaning form part of the text’s interpretation. What the text means for someone rarely entails anything about what the text means.” [This is puzzling to some extent for it remains somewhat ambiguous what it means to talk of subject-independent meaning.] Interpretive meaning attribution is, rather, counterfactual. “In general, I will suggest that the answer to this question consists in the fact that meaning is assigned by a counterfactual statement. Given that x is the meaning attributed to, for instance a text T, and x is not the literal meaning of T, nor is it the meaning of T intended by its author, then the attribution of meaning x to T can only be understood as the contention that on the basis of certain assumptions a certain fictitious or stipulated speaker would have meant x by expressing T.” Thus, on this account, interpretation, when it does not concern an actual speaker, turns out to be a kind of counterfactual intention attribution. Twofold point: “First, that interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning’, namely, meaning that such-and-such by an act or expression. At the same time, interpretations need not be based on the intentions of actual authors; the meaning of an act or expression is understandable in terms of counterfactual intentions.” [Are we really restricted to understanding the coherence and integrity of meaning in such a way? Presumably the author is a kind of device for organizing meaning, much like Dworkin’s integrity, but need it take that format?] The logic of interpretation is typically reducible to intention attribution. [What role does the counterfactual author play in structuring meaning?] The criteria of interpretive success will depend upon the object, whether it is the real author or the counterfactual author. If the former, success will depend upon the retrieval of the author’s actual intentions. “Likewise, if the author is characterized in terms of some ideal representative of a certain genre, for instance, the presumptions which are taken to determine this c aracterization would provide the criteria of success for the particular interpretation offered.” [The criteria of success would seem, then, to be the principles, ideals, etc. that we attribute to the counterfactual author. These attributed qualities would be doing all the work – is the attribution of intention to the hypothetical author, then, really necessary at all?] [Does this account presuppose a weird dichotomy between what an object is and what it means? This dichotomy is different, if present at all, in Dworkin.] Chapter 3: Dworkin’s Theory of Interpretation and the Nature of Jurisprudence Three main insights of Dworkin’s theory of interpretation: “First, that interpretation strives to present its object in its best possible light. Second, that interpretation is essentially genre-dependent. And third, that there are certain constraints that determine the limits of possible interpretations of a given object.” Why the best light? Dworkin doesn’t really address this question in depth but claims that otherwise we are left with no way of justifying and choosing an interpretation or we are left with the author’s intention model, which we should reject. [Marmor doesn’t seem clear on what precisely it means to present something in its best light – seems to conflate it with most appealing light which, I take it, is different than what Dworkin has in mind.] “Dworkin is quite right to maintain that without having some views about the values inherent in the genre to which the text is taken to belong, no interpretation can take off the ground. The values we associate with the genre partly, but crucially, determine what would make sense to say about the text, what are the kinds of meaning we could ascribe to it.” There is no necessity for an interpretation to present an object in its best light with regards to the genre it is taken to be part of. Interpretations “could simply strive to present it in a certain light, perhaps better than some, worse than others, but in a way which highlights an aspect of the meaning of the text which may be worth paying attention to for some reason or another.” [What kind of reasons would count in choosing to present it in one light rather than another?] There is simply zero grounds for Dworkin’s assertion that we have no reason to pay attention to an interpretation that does not present it in its best light. Take a psychoanalytic interpretation of Hamlet, for example – not the best light, but a legitimate one. [This seems related to the next criticism – clearly Dworkin would have to loosen his insistence on the best, though not to detriment.] Moreover, especially with regards to art, it doesn’t appear possible to make an all things considered judgment about the best interpretation given the incommensurability of different values that are taken to inhere in a given genre. [Dworkin can respond here that we may have different available interpretations that could be justified with respect to the relevant value. Moreover, a lack of common denominator does not prevent any comparison whatsoever.] Constructive interpretation concerns social practices constituted by norms – it imposes a purpose or value rendering intelligible the normative character of the practice. There is a separate aspect of constructive interpretation that maintains that elements of the practice are sensitive to the point of the practice. It is important to note that different social practices will institutionalize themselves in different ways – thus, different practices will establish varying conditions on how the practice can be altered. The position of the positivists is that evaluative judgments concerning what the law should be are insufficient for determining what the law is given the nature of law’s institutionalization.&nb p; [This would seem to reside on a certain conception of law, i.e. an interpretation about where the value of law lies.] “[T]his being one of the main points of dispute between Dworkin and his positivist opponents, Dworkin cannot at this initial state presume law to be sensitive to its value in the manner that other, non-institutional practices might be, without incurring the charge of having assumed the very point at issue.” The upshot for Dworkin is that any explanation of a social practice such as law requires the same kind of reasoning as participation in that practice. This will be called the hermeneutic thesis. We can try to reconstruct a justification for this view based on the necessity of shared background assumptions – but this will not do since Dworkin’s claim is stronger: it contends that participants’ and theorists’ must “adopt one and the same normative point of view.” [The sense of normative here is unclear. It is true, though, that shared background assumptions do not imply viewing the law as valuable in any particular way, or at least it does not imply this in any strong sense.] Dworkin makes two distinct points with the hermeneutic thesis: “First, that the explanation of a social practice, like law or the arts, is essentially interpretative, and as such, necessarily value laden. Second, that the interpretation of such social practices, which Dworkin calls ‘argumentative’, is unique in the sense that the practice itself is an evaluative enterprise, and that therefore the interpreter of such a practice must form an evaluative judgment of her own about those values which are inherent in the practice that she purports to interpret.” [As stated, the first thesis is terribly ambiguous – for Dworkin, it clear implies a commitment to constructive interpretation. For Marmor, who accepts it, it is totally unclear what commitment he intends to make. He seems to mean simply that we have criteria for success concerning what counts as a successful explanation.] Mamor denies the second thesis. “What Dworkin seems to ignore here is that there is a crucial difference between forming a view about the values which are manifest in a social practice, like law, and actually having evaluative judgments about them.” [The problem, however, it that it is a contentious matter what values are part of the law – a theorist’s account of what values are constitutive of a particular legal system must rely on the kind of arguments which participants rely on. Of course, a theorist might simply note a debate about values and attempt to remain agnostic, but this will fail to be a full theoretical account of what law is!] Dworkin’s thesis seems to depend exclusively on his account of constructive interpretation. [This seems exactly right.] Chapter 4: Coherence, Holism, and Interpretation: The Epistemic Foundation of Dworkin’s Legal Theory Begins with discussion of Rawls’ reflective equilibrium. Sums up dual criticism as follows: “[T]he assumption that intuitions are independently true and the converse one, that their truth depends on fitting a coherent scheme, both seem to yield paradoxical results.” Dworkin, in his article “The Original Position”, claims that Rawls cannot commit himself to ethical realism. “[T]he natural model presupposes some form of ethical realism, while the constructive model does not. One important difficulty arising from an attempt to apply the natural model to Rawls is, that under the natural model, any theory which dopes not account for an intuition, at least for one which is held firmly, cannot be wholly satisfactory, just as scientific theory which does not account for certain observational data it is supposed to cover, would not be satisfactory in a familiar way.” Rawls, rather, is committed to a constructivist view of morality. Moreover, the reason we value coherence epistemically in moral theory is that it itself is a value of political morality – fairness requires consistency and publicity in the application of moral standards. Marmor notes the following problem with such a view: “[I]f coherence is justified, as it is here, with reference to certain moral values, that is, a specific conception of fairness, then we face the following problem: the presupposed values of fairness must themselves be based upon intuitive convictions, in which case the question of their truth cannot be ignored. If they are taken to be true…we are driven back to the perplexities of the natural model.” Discusses, helpfully, the Fish/Dworkin debate. The upshot is that Dworkin’s interpretive model is best off if it commits itself to a Quineian holism. However, this undermines his distinction between internal and external skepticism since holism must deny that moral judgments constitute a closed system. [This analysis seems exactly right.] Endorses Simmonds view that Dworkin’s theory does not meet the requirements of complexity he identifies as necessary to avoid vicious circularity in interpretive judgments of fit and identity. Coherence is doing the work through and through and therefore the interpretive theory of law is circular. [Will require further investigation, though it is unclear how coherence is doing any work in the pre-interpretive stage. At this stage, the judgments, if interpretive, seem to be derived from different sources. In any case, using coherence as a value seems to be highly suspect.] Why doesn’t Dworkin just reject Fish’s assumptions: because of his jurisprudence. “If legal texts can have a meaning that is not entirely dependent on a process of interpretation, then it is at least sometimes the case that the law can simply be understood, and applied, without the mediation of interpretation. And if that is the case, then the argument from interpretation against legal positivism collapses. It is no longer the case that every conclusion about what the law is, depends on evaluative considerations about what it ought to be.” Chapter 5: Semantics, Realism, and Natural Law Assessment of Michael Moore’s legal realism and its implications. [The final criticisms of Moore are not decisive.] Chapter 6: Constructive Identification and Razian Authority A consideration of Dworkin’s denial that the communication model of interpretation is appropriate for legal interpretation. Marmor argues that intentions do play a crucial role in the identification of legal norms in a way that is incompatible with Dworkin’s “coherence thesis”. Marmor takes Dworkin to be committed to the constructive identification thesis: that the identification of something as part of the legal, artistic, etc. genre can be done sufficiently by evaluative considerations. “Here, one must maintain that evaluative considerations are sufficient to determine whether something is a legal norm or a work of art”. [Fit, however, constrains possible evaluative considerations – thus evaluative considerations are not sufficient in themselves.] “Now the crucial point here is this: if you maintain the possibility of constructive identification in art, you must assume that works of art can be identified as such on the basis of certain features they happen to possess, features which contain no reference to any particular intention to create a work of art…unless we take intentions into account, how can we discriminate between the concept of an aesthetic artifact and the con ept of a work of art?” [It is unclear, and I think false, that constructive interpretation of anything requires identifying something irrespective of an artificers intentions. Those intentions may be relevant, dependent upon the genre under which we are trying to classify the object. Nothing, seemingly, about constructive interpretation in general excludes this possibility.] Marmor’s point is that it turns out to be impossible to identify art as art without reference to an artist’s intentions – especially given the state of contemporary art. [It is notable that Marmor’s response to counterexample implicitly depends upon a fully developed theory of aesthetics. His cursory comments on the matter of identifying art seem insufficient to say the least.] The rest of the chapter considers the incompatibility of Raz’s account of authority with constructive interpretation. The incompatibilities mentioned do not move beyond what Raz identifies in his article “Authority, Law and Morality”, but a defense of this notion of authority is defended in several [inconclusive] respects. [Raz and Marmor want to separate identification from content. This is not clearly a defensible separation.] Chapter 7: No Easy Cases? Chapter defends notion that there is a distinction between easy and hard cases in the positivist sense. Takes a Hartian approach and ultimately defends the distinction by associating it Wittgenstein’s conception of rule following. The point is that one need to look the purpose of rule in order to understand what the rule requires. Chapter 8: Legislative Intent and the Authority of Law Examines the following doctrine concerning the role of legislative intent in adjudication: “[F]irst, it would hold that laws, at least in certain cases, are enacted with relatively specific intentions, and that this is a matter of fact which is discernible through an ordinary fact-finding procedure. Second, that in certain cases the presence of such a fact, namely, that the law was enacted with a certain intention, provides judges with a reason to decide the legal dispute in accordance with the relevant legislative intent.” [It is important that for Marmor, interpretive strategies are only appropriate in hard cases. However, we should wonder what grounds positivism can offer for deciding a hard case in any manner which is not the morally best manner according to the judgment of the judge. There are no legal grounds, by definition, in hard cases and so what justificatory strategy would endorse any judicial decision except for the morally best one?] We can ascribe intentions to a legislative body, when this is possible at all, by taking the shared intentions of the majority, rather than some group intention, to be the significant intentions. Moreover, we should expect a good deal of consensus about intentions for otherwise it is hard to explain how legislative bodies are able to produce so much legislation. Discussion of kinds of intentions concludes as follows: “I have distinguished between three main types of intention that are potentially relevant from the legal point of view. Apart from the intentions that are manifest in the language of the law itself, legislators typically have further intentions in enacting a given law, and sometimes they would have certain intentions bearing on its proper application. I have also suggested that some of these further intentions may be essentially non-avowable, in which case they are rendered initially irrelevant. Finally, I have pointed out that considerations of consistency require that the legislator’s application intentions be taken into account only if, and to the extent that, they are in accord with his further intentions.” The manner in which intentionalism is to be justif ed relies on the distinction, Marmor maintains, between expert and mere collective action authority. “The point I wanted to make is strictly conditional: if, and only if, a certain law is justified on the basis of the expertise branch of the normal justification thesis, would it make sense to defer to the legislature’s intentions in the interpretation of the law, that is, to the extent that there is, in fact,; such an intention and it can clarify something that needs clarification.” Insofar as a legislature can be considered an expert on the matter requiring adjudication and interpretation should the body’s intention be taken into account. Chapter 9: Constitutional Interpretation Begins by laying out general necessary features of a constitution. Then Marmor moves on to consider general questions of constitutional legitimacy. First, he considers what grounds might be offered for the legitimacy of a constitution at all. He notes that the central question is what permits a single generation to bind future generations. He then examines four arguments to avoid this problem. The first is based on the moral legitimacy of the constitution; Marmor rejects this solution for the [truly dubious] reason that the constitution would make no practical difference because it would not supply reasons in addition to those provided by morality [but, presumably, the point is that these legally valid rules would be institutionally enshrined]. The second is based on the moral authority of the framers and Marmor rightly rejects this on the basis of the idealization of the framers it requires and less rightly on the basis that there cannot be moral authorities. Third is the “argument from interpretation” which claims that “as long as the particular content of the constitution is determined by its interpretation, and the authoritative interpretation at any time correctly instantiates the values which ought to be upheld in the community, the constitution would be morally legitimate”. The fourth is Raz’s which argues that a constitution is valid so long as its constraints are morally permissible because conventions of this type might aid the continuity of the legal system, i.e. it is important to have a convention of this type and the constitution is a kind of this type. Marmor appears to endorse these two approaches and concludes: “The conditions for the legitimacy of a constitution must comprise the following conditions. First, the values and principles enshrined in it must be morally permissible…Second, when certain choices are made in particular cases, they would be legitimate if they are either morally underdetermined, or else, morally correct…It follows from this that both arguments must assume that at least in those areas in which the constitution would make a moral difference, it can be interpreted to make the difference that it should, that is, according to the true moral principles that should apply to the particular case...the moral legitimacy of constitutions very much dependent on the practices of their interpretation. In other words, a great deal of the burden of moral legitimacy is shifted by these arguments to the application of the constitution, thus assuming that the constitution is legitimate only if the courts are likely to apply the constitution in a morally desirable way.” [This implies that the only significant value constitutions have is in providing a conventional practice where some such practice is required.] Moves on to argue that courts typically rely, and rightly so, on moral considerations when deciding constitutional issues because typically, in cases of the kind that reach the supreme or constitutional court, there is no law on the case. Much of this relies on his earlier discussion about the nature of interpretation in the law – that legal interpretation is always a matter of cha ging the law. (shrink)

My main claim in this article is that lawyers should make less use of the hermeneutical method than they do. The reasons that I will adduce to support this claim are the following: law is first and foremost an answer to the question of how to act and, more in particular, the question of which rules to enforce by collective means. As such, law does not coincide with positive law. Nevertheless, positive law determines the content of the law to a (...) large extent. It does so for two reasons. The first reason is that positive law contributes to legal certainty and that legal certainty is very important for the question concerning which rules should be enforced by collective means. The second reason is that respect for positive law, which was created by democratic bodies, implies respect for democracy. However, positive law can only contribute to legal certainty if its application is predictable. If positive law can be interpreted in more than one way, its application will not be predictable. In that case, positive law is not relevant for the content of the law tout court. Theories about the interpretation of positive law are particularly relevant where positive law can be interpreted in different ways, that is where positive law is not relevant for the content of the law tout court. Therefore, hermeneutical theories are not relevant for the content of the law and lawyers should not waste their time on them. A similar argument can be given for the democratic legitimation of positive law. (shrink)

Friedrich Müller has made important methodological contributions to constitutional theory. Our aim in this chapter is to contextualize his approach by comparing it to previous and current contributions. The first part of the paper addresses the relation between the hermeneutic tradition and his theory. In the second part, we discuss the specific characteristics of his Structuring Legal Theory. Finally, we point to some critical aspects of the theory.

Paradox and origin : on the structure of legal communication -- History, law and hermeneutic self-reference -- Self-mastery and the conversion of force : an ethics of freedom -- The social metaphysics of law : Vico's communicative body and the paradoxical grounding of freedom and authority -- The creative formation and foundation of society's law : on the nature of poetic wisdom -- Between freedom and authority : Vico's history of roman law -- The technique of command : on (...) the problem of freedom in Weber's sociology of law. (shrink)

The article explores the long lost synthesis between apophatic and cataphatic theological strategies and early legal systematizations which shaped the Christian, Jewish and Islamic legal collections in the twelfth century. It argues that the theological possibilities to achieve Divine knowledge have reached out to all normative forms of human existence including law. It focuses specifically on a Christian context where imagining the law involves complex scales of cataphasis and apophasis and parallels other normative forms such as ritual and (...) ascetic practices. The text only hints that parallel trends appear via very different routes but in a very similar ways in the Jewish and the Islamic legal projects and proposes that a comparative interreligious study of the twelfth century legal collections and their hermeneutic strategies is long overdue and critically important. (shrink)

The article presents possible applications of Paul Ricoeur’s theory in interpretation of legal texts and legally relevant human action. One should notice that Paul Ricoeur developed a comprehensive interpretation theory of two seemingly distant phenomena: literary texts and human action. When interrelating these issues, it becomes possible, on the basis of Ricoeur’s work, to construct a unified theory of the interpretation of legal texts and of legally relevant human action. What is provided by this theory for jurisprudence is (...) the possibility of formulating a comprehensive theory of application of law, well established in the ontology of the recipient of the legal text. It should be emphasised that the resulting benefits, outlined in the article become particularly noticeable when set against the background of the methodological weaknesses of legal positivism, concerning both the interpretation of law and a syllogistic model of its application. (shrink)

First, I argue for historical contextualization of the Qur’an as a given historical collection of discourses propagated by Muhammad as divine inspiration. Secondly, I argue for a distinction between the Qur’an and Islam, since the latter is the outcome of human efforts to construct their lives in accordance with what they understood to be the teachings of the Qur’an. The last point is to show how the role of Muhammad in his interaction with the communities of his time in Hijaz (...) shaped the Qur’an. So, the article is organized as (1) introduction; (2) the Qur’an and lslam; (3) the Qur’an and history: open hermeneutics; (4) Muhammad and the Qur’an; (5) the divine—human communication; (6) Muhammad: the first recipient; (7) Muhammad in the Qur’an; and (8) the community of believers and the need for legal regulations; followed by (9) conclusion. (shrink)

To date the wealth of literature on abortion has been dedicated to resolving the question of its legal and moral permissibility in relation to the fetus and pregnant woman as subjects of moral standing. This has created a dichotomised way of talking about abortion chiefly in terms of conflicting rights; as a „wrongful‟ versus „legitimate‟ form of killing. The tension between this individualistic rights-based discourse and the „ethic of care‟ to which women are often expected to conform in their (...) moral deliberations gives rise to a stigmatising picture of a woman who aborts as „callous‟ or „selfish.‟ Males who share in abortion decisions are rarely subject to the same type of criticism. In this paper I aim to conceptualise the impact of normative femininity and social judgement on women‟s capacity for moral self-determination in abortion contexts within the framework of an injustice. I will do so by examining women‟s discursive participation with respect to abortion, and by analysing the impact that abortion stigma has on women‟s moral agency and lived experience. This will enable me to demonstrate how women may be uniquely subject to a hermeneutical injustice, which in abortion contexts gives way to a phenomenological injustice. (shrink)

Until quite recently questions about methodology in legal research have been largely confined to understanding the role of doctrinal research as a scholarly discipline. In turn this has involved asking questions not only about coverage but, fundamentally, questions about the identity of the discipline. Is it (mainly) descriptive, hermeneutical, or normative? Should it also be explanatory? Legal scholarship has been torn between, on the one hand, grasping the expanding reality of law and its context, and, on the other, (...) reducing this complex whole to manageable proportions. The purely internal analysis of a legal system, isolated from any societal context, remains an option, and is still seen in the approach of the French academy, but as law aims at ordering society and influencing human behaviour, this approach is felt by many scholars to be insufficient. Consequently many attempts have been made to conceive legal research differently. Social scientific and comparative approaches have proven fruitful. However, does the introduction of other approaches leave merely a residue of 'legal doctrine', to which pockets of social sciences can be added, or should legal doctrine be merged with the social sciences? What would such a broad interdisciplinary field look like and what would its methods be? This book is an attempt to answer some of these questions. (shrink)

Law is perceived as a stabilising mechanism in an everchanging world and, as such, is founded on the quest for the one “true” meaning of legal norms as a basis for the rule of law. But I shall suggest that it is futile to seek a fixed meaning of legal norms or the one “true” method for interpreting them. The argument will be built by first considering the “trialectics” between hermeneutics, linguistics, and jurisprudence, and then taking a (...) systematic approach to law itself, to this end drawing inspiration from the work of Ferdinand de Saussure. I shall finally argue for the necessity of a more procedural understanding of the rule of law. (shrink)

In this late modern era within which the basic values of life have been reordered (driven by globalisation, the corporate agenda and mass communication technologies), the individual has effectively been reduced to a mere abstraction. It might be argued that the rational, moral and humanistic concept of freedom has, to a great extent, been compromised by a consequent crisis within the intelligentsia. These groups, in particular the gatekeepers of a classical liberal approach to legal scholarship, are caught between the (...) twin evils of increased unreflective populism and pragmatism evident within many law schools and modern legal institutions. Although a contested term, defenders of the ‘socio-legal’ tradition, who place the humanities at the heart of legal research and education, are obliged to restate with increased determination the utility of the liberal arts and literature to the law profession and wider legal community. In a normative environment, law and narrative are inextricably linked and narrative poetry is not only invaluable to explaining the origins and location of the legal tradition, but also elicits a mode of understanding which transcends the boundaries of narrowlydefined legal hermeneutics—which often only addresses issues of an operational nature. French novelist Flaubert claimed “chaque notaire porte en soi les débris d’un poète” (Flaubert in Madame bovary (trans: Wall, G.), Penguin Classics, London, 1960: 269), paraphrased by American civil rights lawyer, Clarence Darrow, as “inside every lawyer is the wreck of a poet” (Lukas in Big trouble: a murder in a small western town sets off a struggle for the soul of America, Simon & Schuster, New York, 1997: 323). In an age of disenchantment, this paper explores the poetic form as an important medium within which to understand the nature and function of law in a society of differentiated individuals. (shrink)

This book introduces readers to the legal epistemology that is advocated within Twelver Shi'ite usul al-fiqh (legal theory). It critically surveys the epistemological underpinnings upheld by post-19th century Uṣūlīclerics that impel them to mainly deduce and interpret Sharia using scripture and literalist hermeneutical methods. An evaluation of these underpinnings uncovers the important juxtaposition that exists between the seminarian discourses of usul al-fiqh and philosophy. The book hypothesises that usul al-fiqh has both space and historical precedence to accept alternative (...) epistemological theories that may enable orthodox Shi'ite clerics to display greater dynamism in deducing and interpreting Sharia. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Reviewed by:Eighteenth-Century Hermeneutics: Philosophy of Interpretation in England from Locke to BurkePaul J. KorshinEighteenth-Century Hermeneutics: Philosophy of Interpretation in England from Locke to Burke, by Joel Weinsheimer; xiii & 275 pp. New Haven: Yale University Press, 1993, $30.00.Hermeneutics has until the present study had little application to eighteenth-century England. The omission is curious for, although there were few advances in biblical scholarship during the Restoration and (...) eighteenth century, modern literary criticism begins in this century with Dryden and Johnson, modern aesthetics with Shaftesbury and the Scottish school of taste, and modern theories of art with Reynolds and writers on the picturesque. Joel Weinsheimer’s treatment of this topic, then, instantly possesses originality, not only from a lack of serious competition but because of its approach to [End Page 365] hermeneutics. He “does not offer a historical narrative” of what happened in hermeneutics in eighteenth-century England (p. xi). Rather, Weinsheimer prefers to see hermeneutics as a series of snapshots of how various writers, of whom only a few are conventional exegetes, deal with matters of interpreting texts. In all, the book treats eight major figures (Swift, Locke, Toland, Bolingbroke, Hume, Reid, Blackstone, and Burke), devoting a chapter to each.The method in each one is approximately the same: Weinsheimer produces a reading not of a single work alone but of all, or almost all that an author writes about interpretation. In the case of Swift, for instance, his principal contribution on exegesis, A Tale of a Tub, is a satire on styles of exegesis Swift considered ridiculous. This chapter adds little to what we know of Swift but, in relation to Weinsheimer’s analysis of Sir William Blackstone, we can see that there is a legal background to parts of the debate among the three brothers on the meaning of Scripture. Locke (pp. 23–45) also dealt with the Bible extensively, but his tendency to prefer the doctrine of “sola scriptura” limits what an author can say about his hermeneutics. John Toland (pp. 46–71), in his Christianity Not Mysterious, proposes radical notions of biblical exegesis, and Weinsheimer gives us a lucid reading of the first English skeptical exegete. All the other figures he studies, however, had little interest in traditional literary exegesis. Weinsheimer sees Bolingbroke (pp. 72–102) as a philosopher of history who tried to generate a theory of decoding the past, but he does not clearly distinguish Bolingbroke’s rules for writing history. Hume (pp. 103–34) wrote extensively on exegetical topics without actually being an exegete; although this is one of Weinsheimer’s more opaque chapters, it does succeed in showing the diversity of Hume and his inability to reason conclusively on matters of interpretation. Hume basically did not think that there is any problem in understanding others, so his theories of exegesis are not coherent. So, too, Thomas Reid (pp. 135–65) considered language, properly used, as lacking in opacity; hence elaborate theories of interpretation have little use for him.However, with Blackstone and Edmund Burke, Weinsheimer contributes his two most interesting chapters. The law, as Blackstone conceived of it, is extremely difficult to understand, so his Commentaries on the Laws of England is an attempt to read legal texts “in the context of general literacy” (p. 168); Bentham would later imitate him. Burke, Weinsheimer argues, started as an aesthetician and ended applying principles of good and bad taste to political behavior, always one of the weaknesses of reactionary politics.In a brief epilogue (pp. 226–33), Weinsheimer speculates on the effort of eighteenth-century hermeneutics to understand historical reason, but he does not comment on the failure of the period to produce a single important hermeneuticist. His own choice to avoid major exegetes such as Samuel Johnson and Joshua Reynolds abridges his results dramatically, but a study based on scholarly snapshots always courts this risk. Hermeneutics is a [End Page 366] recondite concept, yet Weinsheimer renders his topic more difficult than it need be by frequent shifts in its definition and a complex, often unclear, style. Eighteenth-Century Hermeneutics provides a start, if not a definitive treatment, for later students of exegesis in the English Enlightenment.Paul... (shrink)