Francis Joseph Mootz's 'Hermeneutics and Law', to be included in N Keane and C Lawn (eds), The Blackwell
Companion to Hermeneutics is available on SSRN:
This chapter will appear in a
forthcoming book on hermeneutics. After providing a hermeneutical phenomenology
of legal practice that locates legal interpretation at the center of the rule of
law, the chapter considers three important hermeneutical themes:
(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;
(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by consturing human nature as hermeneutical; and
(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.
I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.
(1) the critical distinction between a legal historian writing aboout a law in the past and a judge deciding a case according to the law;
(2) the reinvigoration of the natural law tradition against the reductive characteristics of legal positivism by consturing human nature as hermeneutical; and
(3) the role of philosophical hermeneutics in grounding critical legal theory rather than serving as a quiescent acceptance of the status quo, as elaborated by reconsidering the famous exchanges between Gadamer, Ricoeur and Habermas.
I argue that these three important themes are sufficient to underwrite Gadamer's famous assertion that legal practice has exemplary status for hermeneutical theory.
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