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2019

  • THE LIMITED ROLE OF HERMENEUTICS IN LAW

    Code for cross-reference: 2018-x

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    Published in: David Duarte e.a. (eds.), Legal Interpretation and Scientific Knowledge, Cham: Springer 2019, pp. 1-11

    Paper presented at the workshop on legal reasoning (Lisbon 22 June 2018)

    The main claim of this article is that lawyers should make less use of the hermeneutical method than they do. The reasons that I will adduce to support this claim are the following:

    Law (tout court) is first and foremost an answer to the question of how to act, and more in particular, the question of which rules to enforce by collective means. As such, law does not coincide with positive law. Nevertheless, positive law determines the content of the law to a large extent. It does so for two reasons. The first reason is that positive law contributes to legal certainty, and that legal certainty is very important for the question concerning which rules should be enforced by collective means. The second reason is that respect for the positive law, which was created by democratic bodies, implies respect for democracy.

    However, positive law can only contribute to legal certainty if its application is predictable. If the positive law can be interpreted in more than one way, its application will not be predictable. In that case the positive law is not relevant for the content of the law tout court. Theories about the interpretation of positive law (hermeneutical theories) are particularly relevant where positive law can be interpreted in different ways, that is: where positive law is not relevant for the content of the law tout court. Therefore, hermeneutical theories are not relevant for the content of the law and lawyers should not waste their time on them. A similar argument can be given for the democratic legitimation of positive law.

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