Legal Hermeneutics: Origins and Use

• Legal Hermeneutics

Origin

• It was conceived as the art of interpreting sacred texts.
• Roots can be found in Greek culture from the interpretations of Homer, and in Judeo-Christian traditions with versions of biblical texts.
• The term hermeneutics comes from the Greek verb ἑρμηνεύειν (jermenéuein), meaning to interpret, declare, announce, clarify, and translate.
• It signifies that something becomes comprehensible or leads to understanding.
• The origins are in attempts to explain the Bible and classical Greek and Latin writings.
• By the 19th century, hermeneutics was a basic auxiliary to historiography and jurisprudence, influencing the understanding of language by human beings.
• Initially, it was a technique for interpreting biblical and legal literary texts, and acquired a philosophical character in Romanticism.

Use

• Hermeneutics refers to the art of interpreting texts of a sacred, philosophical, or literary nature.
• Legal hermeneutics has been used by historians for over two centuries, substantiating the separation of the so-called natural and social sciences.
• In the 19th century, it was a basic auxiliary to historiography and jurisprudence.
• As a method, hermeneutics is used in theology, philosophy, history, jurisprudence, linguistics, and even psychoanalysis.

Definition

• The term HERMENEUTICS comes from the Greek "Jermeneueien," meaning to interpret, clarify, announce, declare, or translate.
• It is derived from the god HERMES, to whom the origin of language and writing was attributed as the patron of human communication and understanding, and originally meant "The explanation of an obscure and enigmatic divine sentence through the oracle."
• Hermes brings the word of Zeus (God), so the early use of the term hermeneutics focused on methods of interpreting the Sacred Scriptures.

Legal Hermeneutics

• It is the branch of legal science that deals with the interpretation of the norms that constitute it.

Elements

• According to De Ruggiero, that should be taken into account:
• Grammatical: Understanding what the rule says in its words, relating them to each other, to capture its meaning, in relation to the other words.
• Logical: Discovering, in case of obscurity of the text, the reason for which it was created (ratio legis) and the historical social context that determined its sanction.
• Historical: It should not be confused with the previous one, since the circumstances of the moment in which the law was dictated were observed there, and in this case, how it came to be dictated, and the norms that preceded it.
• Sociological: Adapting the rule to the social changes produced.

Interpretation

• The operation of capturing the linguistic meaning of a statement, as well as attributing a meaning to what someone has said or written.
• It translates into a human activity performed on a statement in a specific context.

Elements of Interpretation

• Factual budget: What is to be interpreted.
• Context:
  • Concrete: When a problem is going to be interpreted, which needs a solution.
  • Abstract: When any non-concrete situation is going to be interpreted.
• Normative and evaluative aspects: Determining, according to the methods of interpretation, what value we give to each Constitutional or legal norm that we are going to interpret.
• Arguments: Reasons that will express to support your position regarding the fact or situation in interpretation.
• Consequences: Conclusions of the interpretation, which are reflected according to the class of interpretation, in a decision or suggestion.

Types of Interpretation

• Ideological Interpretation: Includes philosophical, theological, moral, political, and sociological interpretation.
• Literary Interpretation: The interpretation that readers make of a novel or literary work, where they can interpret the contexts in different ways, create characters, recreate the environments.
• Legal Interpretation: The right that must be interpreted, and always aims to adhere to the legal norms to a greater or lesser extent.
• Authentic Interpretation: The one that the legislator makes at the moment of issuing the norm, is found in the statement of reasons.
• Judicial Interpretation: The activity carried out by judges in the exercise of jurisdictional activity that is entrusted to them, consisting of determining the meaning and scope of legal norms and principles of law.
• Operative Interpretation: The interpretation of law made by the one who has the power to offer a decision with administrative authority.
• Doctrinal Interpretation: Purely theoretical, generally in academic circles, by authors of law books.

Legal Interpretation

• Ancient hermeneutics was a practical auxiliary discipline for the activity of understanding and interpreting difficult texts.
• As a consequence of the development of hermeneutics, arises a reflection on that same hermeneutical activity and occurred in the fields of theology and jurisprudence.
• This «new hermeneutics» can be found in this reflection of the hermeneutical task itself, possibly sensed by BETTI, in his «teoria generale della interpretazione» and consecrated by the Gadamerian work.