An Analytical Reconstruction of Legal Hermeneu­tics

This long-term project, begun about a decade ago, aims to provide a philosoph­i­cally updated account of legal her­me­neu­tics. Whereas legal hermeneutics has often been associated with continental philosophical approaches (e.g., Gadamer, Ricœur), the project addresses the questions discussed in this tradition with the means of analyti­cal philosophy. As such, it bridges a gap between both traditions. Methodologically it breaks the process of the application of the law down into different phenomena. The application of the law does not just consist in “interpre­ta­tion” but also in rule-following, legal construction, and the exercise of discretion. It involves questions as to the nature of meaning and collective intentionality with respect to the legislature. Many of the theoretical issues raised by these phenomena are extensively discussed in analytical philosophy. The discussions range from ontol­ogy to the philosophy of language to the theory of action. By reconstructing the different phenomena implied in the application of the law and elucidating their relationships, the project renders a more precise theoretical de­scrip­tion of the basic activity all lawyers are engaged in and, in doing so, contributes to an improved self-under­stand­ing of the discipline. The project, however, is not only of theoretical value but has direct implications for a number of doctrinal questions such as the scope of constitutional review or the doctrine of administrative dis­cre­tion, both key issues also of public security law. The project has so far generated more than half a dozen contribu­tions to peer-reviewed collective works.

Key publications

Talk

Discretion and the descriptive inexhaustibility of the world. Presented at the VII Lisbon annual meeting on legal theory, University of Lisbon, 06/28/2024.