Abercrombie,Legal interpretation of the Truth and

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Legal interpretation of the Truth and Method - Gadamer's Hermeneutics and interpretation of the law

Interpretation of the law [1] is a foreign legal theory a focus of concern, after a long-term development has formed a number of systems approach [2], these methods are reflected on the legal interpretation of some of the insights revealed some truth, and also by some judges and scholars, and support the idea, which in practice has been widely used, but these methods to explain the position in law, conflict and contradiction in how to choose and coordination problems, has been Jusong diverse. Georgetown University Law Center's Distinguished Professor Eskridge (Eskridge) has long been studying the issue of legislation and legal interpretation, the results of research in this area living in the U.S. academic leadership. [3] In his view, explain the legal interpretation of all human activities, a branch of the need to thoroughly understand the debate on the issue of legal interpretation, must return to the interpretation of exploration on the nature of the activity itself. The characteristics of the activities for the interpretation of the law has been considerable discussion in addition, legal researchers should therefore be systematic study of these documents in order to deepen understanding of the nature of legal interpretation. He in 1990, Research into the issue of legal interpretation. [5] He made according to Gadamer's hermeneutics dynamic (dynamic) theory of legal interpretation [6] legal scholars in the United States had a significant impact. [7] Although Gadamer's theory of legal interpretation and style on this basis Eskridge's dynamic legal interpretation of the theory are difficult to overcome the difficulties faced, but also contains a lot of really inspiring insights, and in transition China's legal interpretation emphasized the dynamic nature of legal interpretation also has extremely important practical significance, this article the main contents of the papers for an introduction, intended to promote the interpretation of domestic law level.
Gadamer a fundamental point of view is that no matter what kind of interpretation, not the application has exclusive power, guidance and restraint should not be excessive interpreter. No matter what the interpreter is a method used to explain the history and tradition is always mediated through the search for explanations in the text and between the common understanding of the truth. The first part is to test the argument 察加达默尔 and philosophical criticism of their arguments.
Test 察加达默尔 second part of legal interpretation of the meaning of hermeneutics. Hermeneutics that our vision will be limited to simple text, legislators, or the current policy expectations, can help get the legal meaning of the truth. These perspectives should be collaborative efforts and complement each other. Gadamer's hermeneutics as the interpretation of the law's current perspective and interpretation of text and the historical perspective of the legislators of the dialogue between the (conversation). Legal interpretation of the Marxist dialectic is neither archaeological point of view, or text on the imposition of the interpreter, nor to explain his views were replaced with the views of legal texts, but between these different points of view fruitful dialogue. In the meta-theoretical level, Gadamer's hermeneutics as a dynamic interpretation of the law provides an important philosophical basis, contribute to a general theory of legal interpretation and legal interpretation for the thinking of some particular issues, such as to explain the doctrine,[link widoczny dla zalogowanych], the use of legislative history and the role of issues such as legal precedent to help.
The third part investigated whether we can type from those who oppose the legal interpretation of Gadamer's main point in the interpretation of the law to get some insights. To the theory of Gadamer's philosophical objections based on the dynamic nature of Gadamer's theory of legal interpretation there are three objections. The first involves widely proposed The problem is that this objection, hermeneutics has been that long since passed for the interpretation of the law the judge inevitably use their creativity, and this creative use is also welcome. Of course, most of the anti-democratic concern for the plight of legal culture in the West for the judges in a pre-understanding of the total, and also help ensure that judges can be explained during the law in a responsible attitude to the interpretation of the law. But the hermeneutics of democracy inspired by the plight of the majority is anti-not by taking a more restrictive approach to the solution.
Type of legal interpretation of Gadamer's second objection is that it is often too much to accommodate the biased,[link widoczny dla zalogowanych], contaminated tradition. Gadamer emphasized the need for critical dialogue, but he stressed that because of his tradition as a starting point and he will be seeking an objective starting point (by that point can be from the traditions of the traditional criticism) the suspect makes his theory is inherently conservative. Although Gadamer rightly claim we can not transcend our historical circumstances in which and with it the tradition of his theory to accommodate the existence of a tradition of excessive risk. One goal of the dynamic interpretation of the law lies in the development of a critical tool for improper tradition. Investigation should be conducted, including whether the established tradition of reflecting the different interest groups and the traditional view is arbitrarily excluded should be considered part of the interest.
Finally, there is a criticism of Gadamer's hermeneutics has always been the pursuit of the theory of intrinsic and such a theory is in fact impossible to obtain. By the influence of deconstruction, critical theory emphasizes the existence of legal interpretation of the fracture: between text and interpretation is not carried out by nature a gentle intellectual conversation, explanation is a struggle of will and power struggle, in the none of which determine the basic meaning. In most critical theory insight into the legal interpretation of the existence of discontinuity and insightful reminder of this is not attached to the continuity of the struggle for power. But this is not the continuity of critical theory to be the over-emphasis, it also fails to give the internal consistency of the assumed value of the attention it deserves, and this assumption is the basis for our rule of law ideal.
Gadamer's hermeneutics a
(A) Summary
General legal practitioners reading While Gadamer's hermeneutics of the law have interest in Gadamer advocated truth to a large extent independent of the method. This is a radical proposition, however, Gadamer never In fact according to the logic of Gadamer prove it can not prove that: If truth independent of the method, then there is no room for the use of proven methodology, because they have been considered to be not certified. In this way, people do not like the law and to refute the argument put forward their own contrary argument, Gadamer observed by the traditional way of interpretation and implementation of critical, historical note to put forward their own theories. Let us accept the idea of Gadamer, but it is so because we believe that Gadamer has explained the traditional display of accurate and meaningful out of, or because he tells us that a credible story, and not because he has not put forward their views to refute the argument.
History of this strange method and Gadamer's Gadamer did not believe there is an a priori truth of natural law waiting to be discovered there, he does not believe that truth is completely relative. In his view, the truth is intersubjective (intersubjective), also means that it mutual understanding (Verstaendigung) emphasized this point came to light, the so-called mutual understanding, is 'understanding' double meaning (a person understand something) the traditional understanding of, and proposed a relationship between the three sides: one to reach understanding with others of something, they are thus able to understand each other. When two people understand each other when They are always against something and understanding. (B) Gadamer's Hermeneutics
Hermeneutics (the concept comes from Greek mythology, messenger so the name, whose role is to explain to the people through his message passed the gods) is a study of the understanding and interpretation of the subject, its initial motivation in order to properly understand the Hermeneutics as a theory of understanding and interpretation of the system (general hermeneutics), by 19th century German philosopher Schleiermacher and Dilthey completed. Their theory is the spirit of hermeneutics and epistemology of the nature of scientific methodology, belonging to the classical or traditional hermeneutics. Before and after the 20th century, hermeneutics, a radical change took place,[link widoczny dla zalogowanych], from the nature of the research methodology and epistemology into the nature of ontology, and its instigators as Heidegger. By Heidegger in the timing of this analysis, to understand this in the presence as a way to grasp, so that by the spirit of the scientific methodology of hermeneutics into a philosophy. According to Heidegger's As a student of Heidegger, Gadamer adhering to the change in Heidegger's ontology, to further the development of philosophical hermeneutics hermeneutics, it is no longer a school on the understanding of the art in order to construct a system of rules to describe the spirit of scientific methodology or even guide the process, but rather to explore all human relations activities to be possible to understand the basic conditions, all attempts to understand through research and analysis to identify the basic conditions for the phenomenon of the human world experience in the limited human historical existence found that the fundamental relationship between humanity and the world. Gadamer in his masterpiece,
Heidegger through the first, the seer and the first to grasp the role. explanation has never been given for some things that made no grasp of the premise. If, as accurate as special Annotation of Classics like to invoke a specific interpretation of 'a Code can be protracted 'things, then the first of the' there can be protracted Code 'is nothing more than what the interpreter is not self-evident undisputed preconceptions. any explanation, there must be the beginning of this preconception, it as along explanation has 'been set' thing is first given, and that is, prior art, vision, first take the first given to. understand the important role in the interpretation of the understanding of the Enlightenment in the stereotypes seen on the previous in-depth criticism, he proposed: kinds of exposure to the traditional process of Action, in the process of past and present often to you the significance of what can be implemented as a unified, and thus provides the first complete grasp of the application. [11]
Gadamer believes that hermeneutics is not a correct understanding and interpretation of search methodology, but the interpretation and phenomenological description of temporal and historical in the revelation of this in person, understanding is never a For a given together, understanding but a kind of Gadamer writes: will learn to understand the object of its own otherness, and thus understanding of themselves and the Other. The real history of the object would not object, but his own, and it's unity, or a relationship, both in this relationship There is history and history to understand it. a true understanding of hermeneutics itself must show the reality of history. So we need to make such a call 'effective history'. understanding of its nature which is a kinds of effects of historical events.
Gadamer's Hermeneutics Another basic concept is fusion of horizons. Gadamer holds that the first is a historical understanding or prior to see or understand the interpreter to give constructive and positive factors, it is understood or interpreted to provide a special sight. Vision is to see as the region, which includes starting from a standpoint can see everything. Who can not put themselves at such a historic area, one who will not really understand the significance of relics. However, according to Gadamer's view, understanding, and the sight of the interpreter is not closed and isolated, it is time to understand the exchange place, is constantly changing. Gadamer says: us moving. Vision for the activities of people who are always changing. Therefore, all human life and the survival of the traditional forms of existence in the past where the horizon is always already in motion. ,],[Fusion of horizons is not diachronic but synchronic, in the fusion of horizons, the historical and present, object and subject, self, and it constitutes a unified whole infinite.
Fusion of horizons are highly abstract concept, more specifically the use of Gadamer's concept of conversation (conversation). Explanation is that between the text and explain the conversation, by talking to the participants received the understanding of transcendence. Interpreter is not easy to accept at face value or text to its original context to seek refuge, but the default text to challenge and question in order to obtain the truth value. The same interpretation of the others shall be placed to judge his own former position by the challenges and questions. types of inspection process, in which the text interpreter questioned the assertion that the strength of these assertions over time, transform the environment has been weakened, and at the same time he also passed a reference to the text to change their default.
(C) the criticism of Gadamer and its response to
Gadamer's . But it has also been a lot of criticism of the limited space, this article only choose one of three representative to discuss the criticism, these three criticisms, and Gadamer's response to the study will help us deepen Jia Damo Seoul hermeneutic understanding.
1. Relativism and subjectivism (Betty and Hirsch)
This is the Italian legal historian with the U.S. literary critic Betty Hirsch's criticism of Gadamer. [16] exposure to romantic hermeneutic tradition among the Betty and Hirsch, looking forward to seek text hermeneutics Objectively determine the This objective uncertainty means that the maximum through the use of a range of recognized standards, the meaning of the text can be different people at different times to be determined. Hirsch seems in this standard is the Hirsch believes that although the meaning of a text (significance), and its effectiveness is variable in the present application, and its meaning (meaning) fixed [17]. He criticized Gadamer guilty of relativism (meaning that the text changes over time) and subjective (that depends on the interpretation of the meaning of the text's point of view) of a double error.
Gadamer's response to this, the concern with two aspects of the plight of intent, on the one hand does not have the intended objective of certainty of the other unless we do a very broad definition of intent, then this concerns the so-called does not meet the original intent of the actual creation. Let us recall the interpretation of Gadamer and insights of sight. Intent in identifying the author, the interpreter of the inspection will be subject to their own pre-understanding and the impact of sight; so how can he truly reconstruction of the horizon? Even if the true intent of a study as the target, also Gadamer's critics of ignoring the They seem to think that means the specific intent of the original intent, or the author has pre-determine who in the interpretation of a situation in which the problems were resolved. But not of the most significant part of the original. Why not consider the overall intent of, that is, the text as a whole based on the overall objective, purpose or by default? When conditions change, new conditions for the meaning of the text also changes. However, interpretation of the text of the change is the overall intent of the exchange of his overall goal is the same. Of Gadamer further proposed that there are In his writing, most of his element he did not realize the original intent, but that does not say that this is not relevant; is the default permissions of all the text of the horizon evolves over time.
Gadamer accepted that the charges of relativism, which claims his theory is the meaning of the text as interpreter and changes in different contexts. However, if the interpretation of the interpreter and the text is indeed a dialogue between, this is inevitable, but with the understanding of the reality of intent is the same. Moreover, Gadamer explains that this relativism is not the value of the violation of the purposes of explanation. The main reason to explain changes in the distance is actually the role of time, it is the time horizon of the text from the making significant changes have taken place. Most of us have this experience, he thinks that we write an article full of insight, however, look back a few years later we find that the so-called insight Shique actually negligible or even pure fallacy. But often, some initial ideas over time and become more powerful - than it first appeared Shihai more practical. Time and the changing conditions brought about the vitality of the text makes tested. The truth of the text (if any) in the passage of time become more clear.
The role of time can be eliminated from the criticism of relativism, but it is subjective and can not play for the same effect. That Gadamer's hermeneutics Hirsch makes the meaning of the text not only by the impact of the passage of time but also by personal preferences of the dominant interpretation. This is a more serious criticism. However, as Gadamer He does not agree to giving Betty view of the priority given to, he can not agree with the views of the interpreter assigned to priority. They have failed to grasp the dialectical nature of interpretation and our interpretation of attention from the self-understanding and the search for truth in the role.
Gadamer do not think that personal preference can dictate the activities of interpretation. personal preferences of non-domination explanation. Since we are always affected by history, the traditional way of understanding the text constitutes our understanding of the conditions. This effect is not only that all knowledge of history to history as the intermediary, also shows that the subjective interpretation of the traditional limits. focus but distorting mirror. the individual life history of self-thinking is a closed circuit in the flash. Gadamer does not have to rely on the traditional fully convincing, because both the traditional or conventional language of the text can not come to complete closure of the conclusions. Text and its tradition does not have such a strong binding force, so that there is only one question on the text of a path to achieve understanding, in this case, the interpretation of personal beliefs to have a decisive significance. Gadamer's response was to turn to the hermeneutical circle. As the sight of text changes over time (in part through the experience with the interpreter) to explain the sight of those views and also occurred in the transfer of this encounter. We understand that our history does not preclude the premise of the text amendment based on their pre-understanding. Dynamic process of interpretation is how it works: when we first enter the text, we will be injected into one of their own pre-understanding. With the increase in our understanding of the text, we are the first target to be amended to better with the text shown to us which may be consistent with the integration. And text to explain the basic nature of the dialogue is its efforts to seek a common ground, based on both the individual parts of the text makes sense to show but will also integrate it into a consistent whole intrinsic them. We are bound to have learned the text of such a default binding for the interpreter of Indian influence. Although it does not eliminate the problem of subjectivism large indeed alleviated this problem.
2. Not always (Derrida)
Gadamer of relativism and subjectivism response to accusations made by his theory and ideas of deconstruction and critical critique. [20] such as the deconstruction of Derrida criticized Gadamer presupposes the integration of text and interpretation of continuity. Derrida that the text itself is full of inconsistencies, lead to the division rather than to explain coordination. Although Gadamer's easy to be deconstructed text alert enough, but he believes that deconstruction method is not constructive. Hermeneutics through our experience and connections between the text to achieve self-understanding, deconstruction can not complete this mission.
Gadamer care through his If you want to find a deconstructionist text is not coherent, he is entirely possible to succeed. Gadamer is pleased to accept this fact exists. However, due to a correct understanding of the hermeneutics of truth for the inspection, the inspection must be presupposed in the text is correct, but starting from the default to be able to find release from the text of the most consistent landscape. This happy to accept the text through education of the text of the guided by the meaning of a priori expectations. So, as a recipient understand the information contained in the letter, and the first person to write the vision to see things, that the writer wrote something that is true - but not to this writer's opinion that is true in particular - also, we from our own first according to the actual meaning of obtained relationships are expected to understand this handed down. Derrida Gadamer he called the text of the Derrida that such expectations of perfection, as Gadamer's hermeneutics in the overall critique of romanticism reflected in the same, depending on a nostalgic, outdated view of truth. Derrida will not be dealing with a coherent text rather than truth as the natural assumption. Derrida believes that the conditions of understanding is not a traditional Derrida, text analysis, insight is to understand the text to subvert its own truth claims made by a variety of ways, not to provide a coordinated program to discover other people's conversation in the inherent truth.
Gadamer convincingly denied that interpretation of history to understand the nature of doctrine (which I believe there is an objective reality determined), adhere to the text of his good will is the best path to reach clarity. He said: seek to strengthen the arguments of others as much as possible, so that they are more clear. This attitude, in my view are essential to any understanding. He stressed that the interpretation of continuity between those and the text, which is denied by Derrida's. Gadamer's view that text as if we do not examine the truth as custodial bridle paths, which will allow us to lose an opportunity to learn. Gadamer and Derrida Gadamer's argument points out the theory of an implicit normative feature. at the outset can not because you want to stubbornly as thoroughly as possible and do not listen to opinions of this article by accident confined to its own pre-understanding of - until this view and become audible until the abolition of the wrong understanding. who wants to understand A paper will come to tell him what to prepare for this.
3. Conservatism (Habermas)
Gadamer subjective and not always on the opposition's response to all resort to tradition and history. Are bound by the traditional interpretation of this traditional view for his own central role of the domain is inherently, and is the only way to communicate with the text. And Gadamer to the truth of history as advocates for text filtering mechanism. Gadamer should be said that these ideas show a certain degree of conservatism, but Gadamer does not recognize this. He said: arising from what exists in our relationship on a more original stuff is it not up? Gadamer thus recognized many of the former before the understanding of understanding is useless, by revealing the first direct our understanding and comprehension of text can be criticized before. The passage of time and text to give us a critical distance between, it allows us to better judge the truth of the text of the claim. Gadamer also emphasizes that a text can not understand the specific problems with the application of phase separation. Current issues in the new context itself that causes us to re-judge the truth and the default text default truth of our own.
Gadamer presents a short critique of hermeneutics. But this is still by Habermas's criticism that Gadamer's hermeneutics is still lacking critical. Gadamer and Habermas is the focus of the dispute can systematically distort the traditional meaning. Habermas agree with Gadamer the idea that the traditional interpretation has an important influence, but it does not agree to give the conventional permanent status. From the normative sense, the tradition should be opposed because it is constrained by social and economic structure, and such social and economic structure of some sound with the [25] Habermas, the real need is the traditional criticism, it reveals the depth of traditional prejudices. Gadamer advocated by the criticism of bias is not satisfactory, because the internal criticism from the traditional bias can not reveal the deep structure. Is useless as before Gadamer understanding, Habermas called pathological distortions.
Gadamer's response to Habermas is denied hermeneutics ignore buried in default under the traditional view and social relations. In Gadamer, hermeneutics is very suitable for distorted dialogue on the work of reconstruction, because it has a top to bottom search of the text to find hidden meaning and can not be expected to contact the tradition. In fact, Gadamer has been recognized in the 1970s in the distorted structure of modern society and advocated the existence of the process should be considered in the interpretation of damage to the real condition of reciprocity (which is the precondition for dialogue.) However, this attitude is still not satisfied that Habermas, who insisted that Gadamer's hermeneutics associated with the traditional reconstruction of dialogue can not be implemented because it lacks a social theory as a starting point. At minimum, need a
Gadamer criticized Habermas's position was that there were able to complete the reconstruction of the starting point for Habermas, as must be the general hermeneutic hermeneutics. Human thinking is limited from this standpoint that we can not completely Gadamer out where we are traditional, although this tradition is Habermas and other critics believe that is mandatory and oppressive. In fact, taking into account the concept of our rationality is limited by history, how can we convincingly demonstrated that, as sought by Habermas,[link widoczny dla zalogowanych], our theory is a valid criticism? Since we can not escape the forces of tradition, Gadamer claims that we must help it to find the conditions provided by its own to deal with it. [26]
Gadamer's hermeneutics two theories of legal interpretation for the meaning of
(A) Summary
Although Gadamer some aspects of the theory by a reasonable criticism,[link widoczny dla zalogowanych], but in general it has withstood numerous academic criticism and maintained as an important explanation of the status of the theory. As people are more concerned about the legal issues are: the theory can be applied to interpretation of the law? If the answer is affirmative, then it may have mean? This paper argues that Gadamer's hermeneutics on the Problems of legal interpretation has important inspiration and guidance.
First of all, there is not a legal interpretation based on single, standard or method. It seems in hermeneutics, this article describes the beginning of the three methods of legal interpretation are not a legal interpretation as the exclusive method of position. According to Gadamer's hermeneutics, although these theories can not be said to be wrong, but they can not be said to be perfect. Hermeneutics of legal interpretation that the complexity of a multi-dimensional, it also stressed the attitude of the interpreter rather than the importance of the method. Hermeneutics is the attitude of openness and inquiry, rather than closed and dictatorial style.
Second, the legal interpretation as a fusion of horizons must be dynamic rather than mechanical. Dynamic is reflected in both the horizon of the interpreter along with the passage of time changes occur naturally, just as our legal culture itself changes with the passage of time, as reflected in the text and the horizon is changing also because the text of each will be a new application is therefore full of new possibilities. Interpretation is dynamic, which means to seek explanation of the procedure should be explained by both the text and the value of unity, it also means that the history of the text each time the interpreter was present for the background of a real historical text will result in its amazing variations occur.

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