An Analytical Reconstruction of Legal Hermeneu­tics

This long term project, begun about a decade ago, aims to give 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. It thus bridges a gap between the two 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 resprect to the legislature. Many of the theoretical issues raised by these phenomena extensively are discussed in analytical philosophy. The discussion span from ontology, to the philosophy of language and the theory of action. By reconstructing the different phenomena that the application of the law implies and elucidating their relations the project gives a more precise theoretical description of the basic activity all lawyers are engaged in. It thus contributes to a better self-understanding of the discipline. The project, however, does not only have theoretical value, but also direct implications for a number of doctrinal questions such as the scope of constitutional review or the doctrine of administrative discretion, both central also for public security law. Thus far, the project resulted in more than half a dozen contributions to peer reviewed collective works. These publications were already written as building blocks for a monography, for which they have to be revised, adjusted and amended by one or two additional chapters. The completion of the monography will be the last part of the project.

Key publications

Poscher, R. (2022 forthcoming), The Hermeneutics of Legal Precedent, In T. Endicott, H. D. Kristjansson & S. Lewis, Philosophical Foundations of Precedent, Oxford: Oxford University Press.