Wasiq and Magoge on the Epistemology of Legal Maxims and Hermeneutics in Common Law Jurisprudence

Mohammad Rasikh Wasiq, ILS Law College, and Jackson Simango Magoge, National Institute of Transport; NALSAR University of Law, have published Epistemology of Legal Maxims and Hermeneutics in Common Law Jurisprudence. Here is the abstract.

The objective of this seminal inquiry is to elucidate the nuanced paradigm of legal interpretation and reasoning inherent to the common law milieu by interrogating the hermeneutics of legal maxims through an epistemological lens. This research endeavors to delineate an analogy between the theoretical constructs and practical manifestations of common law principles and legal maxims, thereby illuminating their evolving interpretive frameworks and intrinsic scientific value.The analysis encompasses several salient dimensions: the nature of interpretive mechanisms; the interplay between legal innovation and its socioeconomic ramifications; and the historical evolution of legal maxims, particularly in relation to the interpretation of criminal cases across diverse jurisdictions. To yield substantial insights into the interpretive clarity of legal maxims and to navigate the dialectic between ambiguity and interpretation, this study employs a rigorously conceived analytical framework, specifically tailored to accommodate the inherent complexities and paradoxes of legal maxims.It is pertinent to note that this study is confined to the practices of common law and predominantly utilizes doctrinal research methodologies. In doing so, it establishes a robust foundation for identifying the junctures where contemporary jurisprudential challenges intersect with traditional legal maxims. By engaging with the epistemological underpinnings that shape and define legal thought within the common law framework, this investigation aspires to further enrich the discourse on legal hermeneutics, advancing our comprehension of the mechanisms through which legal meaning is constructed and contested.

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Toussaint on the Cultivation of Black Letter Law @etiennetoussaint.bsky.social

Etienne C. Toussaint, University of South Carolina School of Law, has pulished On the Cultivation of Black Letter Law at 124 Columbia Law Review 151 (2024). Here is the abstract.

Engaging with the sociocultural dimensions of race and racism across U.S. history is essential when creating, critiquing, and reforming the law. Building on Robin West’s exploration of the law and culture movement, this Piece introduces a novel “hermeneutic” project that reads Black American culture throughout U.S. history to gain critical insights into the nature and function of law in America. Black American culture, deeply rooted in the sociocultural traditions uniting members of the African diaspora, has consistently challenged White supremacy and played a foundational role in shaping U.S. law. To illustrate the value of studying law through the lens of race and culture, this Piece incorporates an analysis of Ralph Ellison’s "Invisible Man" alongside the author’s experiences in a Black urban neighborhood in the South Bronx. It argues that intentionally “reading culture” is crucial for uncovering deeper insights into the inherent nature of law. This cultural-legal approach provides a framework for recognizing the limitations of liberal legalism, understanding the cultural production of legal meaning, and advancing legal reform, democracy, and justice in American society. By blending cultural analysis with legal critique, this Piece aims to promote more equitable legal practices informed by the lived experiences and cultural contributions of Black Americans and other marginalized groups.

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Foster on Statutory Construction and Biblical Hermeneutics--Law in the Service of the Gospel? @NeilJamesFoster

Neil James Foster, Newcastle Law School, has published Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel? at 252 St. Mark's Review 106 (2020). Here is the abstract.

Explores similarities between statutory interpretation techniques used by courts, and principles of Biblical interpretation used by Bible scholars.

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Bateman on The Hermeneutics of Sovereignty: The Written Word, State Sovereignty, and Freedom of Religion in the Late Antiquity Roman Empire @cg_bateman

C. G. Bateman, University of British Columbia, Faculty of Law, has published The Hermeneutics of Sovereignty: The Written Word, State Sovereignty, and Freedom of Religion in the Late Antiquity Roman Empire at 34 The Journal Jurisprudence 311 (December 2017).

Words are important. We order our lives around words. States and international bodies, themselves, are set forth as being based on what amount to collections of words in constitutions, charters, and codes. But these written legal instruments all refer to more basic philosophical principles and notions of justice, and those are the basis and justification for the laws themselves. But that they are written is important, and it gives us a starting point for trying to determine just what those principles are on which our society is based. We can also look back at the laws of earlier times to see just what principles guided their justifications, and very likely see reflections of our own choices on principles in theirs. The various states of the world constitute themselves based on documents which refer to these principles, as noted. What makes them a state, and one that can be thought of and recognized as a state vis-à-vis other states, is based on another principle laden idea, that of state sovereignty. But state sovereignty is not a thing, it does not really have an existence, instead it describes things, groups of people who order their lives around words. State sovereignty, in a real sense, is just words; what is far more important is what it signifies, and that is fairness and functional order in a defined societal unit. Words have been essential to the creation of sovereign states since at least, referring to the history of the Western world, the seventh century B.C.E; and for most of the intervening twenty-seven centuries, the belief in a single deity has set the parameters for what the Constitutions of the various Western states in our common history were based on. It is only in the last five centuries, perhaps, that Religion began to lose its sin qua non status in the organization and delivery of social services and justice in the Western experience. If historical context means everything, then historical context is everything when it comes to interpreting historical events. Like historian John Lukacs noted: “…the history of everything amounts to the thing itself.” Constantine and other emperors of Rome made laws they believed would encourage the stabilizing of their societies; we make laws for the same reason. We use the same means, legislation, but we justify it not on the pleasure of the gods, but on principles we believe in just as strongly. But these principles are in flux, and just as religion was jettisoned as a justification, so some of our ideas about justice have had to change.

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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.

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Kemmerer on Sources in the Meta-Theory of International Law: Hermeneutical Conversations @kemmereralex

Alexandra Kemmerer, Max Planck Society for the Advancement of the Sciences, Max Planck Institute for Comparative Public Law and International Law, is publishing Sources in the Meta-Theory of International Law: Hermeneutical Conversations in The Oxford Handbook on the Sources of International Law (Samantha Besson and Jean D'Aspremont, eds., Oxford University Press, 2017). Here is the abstract.

A meta-theoretical approach to sources opens reflexive spaces, situates theories in time and space, and allows for a contextual interpretation of sources. In this paper, drawing on the hermeneutic philosophy of Hans-Georg Gadamer and the writings of his most perceptive readers in international law, I develop a concept of reflexive situatedness prompting a constructive contextualization of sources and their interpreters in our ‘normative pluriverse’ (D’Aspremont). Following the traces of international law’s current ‘turn to interpretation’ and a reading of international law as a ‘hermeneutical enterprise’, my assessment of the limits and potentials of Gadamerian philosophical hermeneutics prepares the ground for an analysis of the writings of international lawyers who have developed theories of international legal interpretation inspired by his work — and, in particular, for a closer look at the writings of Outi Korhonen, linking her concept of situationality to an emphasis on context(s) that engages with the rhetorical dimension of Gadamer’s work. Gadamer’s conversational hermeneutics opens new perspectives for a contextual theory and praxis of international legal interpretation that brings together various disciplinary perspectives and cultural experiences, and thereby allows for a more nuanced and dynamic understanding of sources and their interpreters within their respective interpretative communities.

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Mailloux and Mootz on Hermeutics to Rhetoric and Back Again @PacificMcGeorge @UNLVLaw

Steven J. Mailloux, Loyola Marymount University, and Francis Joseph Mootz, III, University of the Pacific, McGeorge School of Law, have published From Hermeneutics to Rhetoric, and Back Again. Here is the abstract.

The William S. Boyd School of Law at UNLV convened the Annual West Coast Rhetoric Workshop in November 2016. Steven Mailloux, President’s Professor of Rhetoric at Loyola Marymount University, and Francis J. Mootz III, Dean and Professor of Law at McGeorge School of Law, University of the Pacific, were invited to deliver the Plenary Address. This paper is a slightly edited version of their joint Plenary talk. Professor Mailloux and Dean Mootz discuss their journey “From Hermeneutics to Rhetoric, and Back Again” and how it shaped their approaches to literature and law, respectively. After describing their theoretical conclusions and commitments, they each consider their positions in light of the jurisprudence of Justice Antonin Scalia.

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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.

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Ricca on the Intercultural Use of Human Rights and Legal Chorology

Mario Ricca, University of Parma, has published The Intercultural Use of Human Rights and Legal Chorology. Here is the abstract.

The essay deals with the contested universality of human rights from an intercultural point of view. Such a perspective conflates with the possible use of human rights discourse as a (horizontal) interface to translate different cultural subjectivities. Using this hermeneutical approach, spatial and semiotic proximities inherent to “multiculturality” are capable of showing and triggering renewed geographical and semiotic configurations. “Legal chorology” is the theoretical toolkit proposed here as a means of analyzing the emersion of new categorical and practical spaces of subjectivity.

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Ralf Poscher on the Hermeneutical Character of Legal Construction

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.

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Anat Rosenberg on Liberal Thought and "Wuthering Heights"

Anat Rosenberg, Interdisciplinary Center (IDC), Herzliyah-Radzyner School of Law, has published Liberal Anguish: Wuthering Heights and the Structures of Liberal Thought at 69 Nineteenth Century Literature 1 (2014). Here is the abstract.

After decades of sustained academic critiques along established lines, liberalism has recently attracted renewed evaluations. These readings treat complexity as inherent in liberalism, and proceed to explore its structures beyond suspicious hermeneutics. This essay argues that Emily Bronte's Wuthering Heights (1847) constitutes an early and sophisticated argument about the structures of complexity in liberalism. Not only does Bronte's novel merit entry into the discussion as a conceptual contribution, but it also offers an aesthetic enactment of the anguish that liberal structures of complexity were to evoke for generations to follow, an anguish experienced already at its troubled reception.

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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.