Hermeneutics of the Law

Abstract

One of the most ancient forms of thinking about law is what is today known as positivist or normativist. It focuses on the product presented in the name of the law, the textual representation which not only simply includes, but directly embodies the law. In other words, it is a corpus, whether it is a code, a properly issued rule or a set of ad-hoc decisions: this is the law itself. This represents a short-circuited ready form for cognition, which the conscious follower and the professional agent of the law will both use as a tool. In addition, however, presumably ages later, there emerges a completely different version of the idea of law, rooted in a culture that forecasts the hermeneutic way of thinking. If in the former an approach based on epistemology can be discerned, the latter takes a more ontological approach instead. This focuses, beyond the given text, upon its interpretation and on the understanding that may be drawn from the text, and thus ultimately on the content which the law is supposed to message to the law abider and enforcer alike. In other words, it is concerned with the genuine meaning that actually affects and influences its addressees. Moreover, it is clear that, in contrast to text-centricity, the hermeneutic approach is also aimed at what sociological examination relating to the law reveals: finding the lebendes Recht [living law], separated from the positives Recht, setting some law in action next to the law in books.