Poscher on the Hermeneutics of Law @CambridgeUP

Ralf Poscher, Albert-Ludwigs-University Freiburg, is publishing The Hermeneutics of Law: An Analytical Model for a Complex General Account in The Cambridge Companion to Hermeutics (Michael Forster and Kristin Gjesdal, eds., Cambridge University Press, 2017). Here is the abstract.

In contrast to monistic conceptions of hermeneutics as interpretation, legal hermeneutics has always been acutely aware of the complexity of our hermeneutic practices. The legal tradition thus speaks in favor a complex conception of hermeneutics that identifies the different activities involved. The essay tries to show that such diverse activities as interpretation, rule-following, construction, association, the exercise of discretion, and judgments on significance can all be involved in the application of the law. All of these distinct practices involve distinct theoretical issues, most of which can be linked to particular debates in analytic philosophy. To prove the point that this complex conception of hermeneutics is not specific to the law, but applies to hermeneutics in general, some parallels in the field of the hermeneutics of art are drawn. In theoretically following up on the distinctions inherent in legal doctrine and methods, hermeneutics in general can live up to Gadamer’s observation that there is something to be learned from looking at the law.

Download the essay from SSRN at the link.

Poscher on the Normative Construction of Legislative Intent

Ralf Poscher, Albert-Ludwigs-University Freiburg, is publishing The Normative Construction of Legislative Intent in Droit & Philosophie, Annuaire de l‘ Institut Michel Villey (forthcoming). Here is the abstract.

Legislative intent is not only important for the legitimacy of large parts of the law. More fundamentally it is also central to an analytical reconstruction of legal hermeneutics. As amongst others the work of Paul Grice and Donald Davidson has highlighted, non-natural signs acquire their meaning only through the communicative intentions that are connected to them. No meaning, no interpretation and no hermeneutics of linguistic expressions can exist without communicative intentions, be they factual or fictive. Central to communicative intentions is an intentional subject. For codified law, that means the legislature. Without a convincing reconstruction of legislative intent, the whole analytical reconstruction of legal hermeneutics fails to get off the ground. In modern legal systems, however, legislation is a collective process involving often several hundred individuals. In the more recent literature the thus raised issues of collective intentionality have often been addressed by pointing to reductive accounts in the theory of action and group agency. There is, however, little reason to be confident that the conditions of reductive accounts of collective intentionality, which have been designed for small sized groups, can be met by the legislature. The essay shows why this is the case even if we take the anaphoric character of the vote on legislation into account. The anaphoric analysis of the voting act, however, allows to reveal the linguistic structure of our legislative practices and the normative assumptions build into it. It then becomes apparent, how our talk of legislative intent relies on normative ascriptions of communicative intentions to individual legislators. It is via normative ascriptions of intentions – also ubiquitous in other areas of the law – that we arrive at the necessary overlap of communicative intentions for a reductive account of legislative intent. This normative construction of legislative intent has to be distinguished from legal construction as a practice to amend the law mainly in cases where legislative intent runs out.

Download the essay from SSRN at the link. 

Kerr on Interpreting the Rapper in an Internet Society

Andrew Jensen Kerr, Georgetown University Law Center, is publishing Rap Exegesis: Interpreting the Rapper in an Internet Society in the Columbia Journal of Race and Law. Here is the abstract.

The Law and Literature movement has had limited influence on the work of lawyers and judges. But a rap lyric’s dual quality as aesthetic and “truth” document makes it uniquely amenable to literary interpretation. The competing problems: lyrics are meant to be heard and not read, and the ambition of the contemporary rapper is no longer to be didactic or suggest authenticity. The #rapgame has changed. I argue the internet rapper is the paradigm of creative identity. The guiding questions for this Article are how the law should respond to the individual who lives life as art, and if the social knowledge project will lead to the crowdsourcing of hermeneutics of both rappers and legal texts.

Download the article from SSRN at the link.

Hermeneutics and Law

Francis Joseph (Jay) Mootz, III, is publishing Hermeneutics and Law in The Blackwell Companion to Hermeneutics (Naill Keane and Chris Lawn, eds.; 2015). Here is the abstract.

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 construing 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.

Download the essay from SSRN at the link.