Ralf Poscher, Albert-Ludwigs-Universitaet, Freiburg, is publishing The Hermeneutical Character of Legal Construction in Law's Hermeneutics: Other Investigations (Simone Glanert and Fabien Girard, eds., London: Routledge, 2016). Here is the abstract.
Ever since Carl Friedrich von Savigny and Francis Lieber introduced the distinction, lawyers and legal theorists distinguish between legal interpretation and legal construction. The article wants to defend and reconstruct the distinction on the basis of an intentionalist account of hermeneutics. Interpretation in the most general sense is a specific form of explanation. It is an explanation at the level of intentional phenomena like believes, desires, intentions, actions and their products. The interpretation of texts is a specific case of this more general kind of explanation. It explains the meaning of utterances on the basis of the intentions of their authors. In legal interpretation the author is the legislator. Legal construction sets in when legislative intentions have run out. Legal construction amends the law. But how could legal construction still be considered a hermeneutical activity if it cannot explain meaning by relying on prior intentions of an author, if it does not interpret existing law, but creates new law? Aren’t many legal theorists – be they legal realists or normativists like Hans Kelsen – right to insist that legal construction is more akin to legislation even if at a different level of abstraction? The article defends the hermeneutic character of legal construction by showing that it distinguishes itself from legislation through its relation to a text. It is the intentionalist structure of justification, which gives legal construction its hermeneutic character and set it apart from legislation even though it creates new law. That the justification cannot relate to an actual legislative intent but has to take refuge to a fictive one distinguishes legal construction from legal interpretation. Once in place the intentionalist account of legal construction can clarify some of its features like its relation to rule of law standards, its generality, consistency and rationality requirements, as well as its truth aptness.Download the essay from SSRN at the link.