“Preunderstanding” is the core of the theoretical framework developed by legal hermeneutics. Legal interpretation is necessary guided by the know-how, the presuppositions and the attitudes of the interpreter. But if this is the case, how can we distinguish between a legitimate and a not legitimate preunderstanding, and also between a good and a bad interpretation? The paper tries to address this question analyzing the structure of preunderstanding from the point of view of both legal hermeneutics and philosophical hermeneutics. The paper argues, in particular, that the preunderstanding of the judge can be treated as legitimate if corresponding to the “real thing” (Sache selbst) regulated by the text. Such a criterion can be articulated methodologically by means of an inferential approach to conceptual content and legal process.
La precomprensione dell’interprete è arbitraria?
CANALE, DAMIANO
2006
Abstract
“Preunderstanding” is the core of the theoretical framework developed by legal hermeneutics. Legal interpretation is necessary guided by the know-how, the presuppositions and the attitudes of the interpreter. But if this is the case, how can we distinguish between a legitimate and a not legitimate preunderstanding, and also between a good and a bad interpretation? The paper tries to address this question analyzing the structure of preunderstanding from the point of view of both legal hermeneutics and philosophical hermeneutics. The paper argues, in particular, that the preunderstanding of the judge can be treated as legitimate if corresponding to the “real thing” (Sache selbst) regulated by the text. Such a criterion can be articulated methodologically by means of an inferential approach to conceptual content and legal process.
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