The legal hermeneutics It can be defined as the technique or method used to achieve a better understanding of legal or legal texts. Its objective is that the task is carried out in the most equitable way possible.
Basically, the word hermeneutics derives from the Greek jermeneueien, which is understood as declaring, announcing or interpreting. Its origin comes from the Greek god Hermes, who in ancient mythology was in charge of communicating the word of the gods to humans.
Legal hermeneutics is used by judges, lawyers and professors to, first, deeply understand the meaning of the norms, and then to enforce, argue or explain them.
In this way, legal hermeneutics is not only a theoretical tool, but it is also practical, since the knowledge obtained through it is applied in the application of the rules..
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Legal hermeneutics has its origin in hermeneutic philosophy, which was introduced in the middle of the 20th century by the German philosopher Hans Georg Gadamer, and is born from the works of the German jurists Arthur Kaufmann and Josef Esser.
The intention was to introduce a new current that would replace the old naturalist and positivist models, which have a more irrational vision regarding the application of law..
In this way, Esser indicated that using hermeneutics it was possible to first identify, and then get rid of the subjectivities that always appear when making an interpretation, so that the application of the law is more rational.
On the other hand, Kaufmann pointed out that the application of the law is carried out through the process of understanding, in which the hermeneutical circle and prejudices play an important role..
In addition to the previous authors, there are many more, such as Karl Larenz, Francesco Viola and Modesto Saavedra, among others, who support legal hermeneutics as a way to explain and interpret law..
Based on the fact that legal hermeneutics tries to explain, among others, the relationship that exists between the interpreter and the text, the past and the present, the present and the future, the most important principles of legal hermeneutics are the following:
The understanding of the legal norms or texts plays a determining role in the application of the law. But this understanding is, in all cases, influenced by the interpretation made by the person who reads them..
In this sense, understanding is affected by the interpreter's preconceptions or pre-understanding, as well as by the hermeneutical circle..
As for preconceptions, hermeneutics points out that any interpretation inevitably has preconceptions, whether they are true or false. And what it does is, instead of denying them, it invites us to reflect on them..
On the other hand, the hermeneutical circle or spiral refers to the way in which the interpreter understands a text, and therefore acquires new knowledge.
The notion of law conceived by legal hermeneutics is totally different from that of normative and natural law theories..
For legal hermeneutics, the law is not previously given, but rather a process that is built and modified over time..
Interpretation is intimately linked with understanding, with interpretation being a product of understanding. In other words, interpretation is the result of a process of understanding..
The argument in principle seems contrary or opposed to hermeneutics, however it is necessary in legal hermeneutics to be able to base the interpretations that it makes of the texts.
One of the most outstanding facts, regarding the importance of legal hermeneutics, is found in the possibility that it offers to interpret legal norms in a broader way..
For this, it takes into account the historical context of the law, trying to relate the meaning that the law had at the time it was issued, and if its application is valid in the present. Since, for example, many of the rules that exist cannot be applied to new cases.
On the other hand, legal hermeneutics does not seek to understand norms in a textual way, but rather takes into account the context of their application..
This is because texts, by themselves, are not capable of expressing the totality of a concept. For this reason, the interpretive task provided by hermeneutics is fundamental..
Additionally, it not only seeks to interpret the rules, but also tries to expose and study the preconceptions of the people who are in charge of interpreting them..
The terms hermeneutics and legal interpretation are closely linked, and are sometimes used as if they were synonymous, but they are not..
Legal interpretation can be understood from two parts, as a process and as a product.
As a process, it has to do with the interpretation that each person gives to legal norms, since although the norms are the same for everyone, their interpretation can offer different possibilities.
As a product, it refers to the application of the results obtained in the interpretation process. Both in the process and in the product of the legal interpretation, the circumstances of the case, the context of the case, and the recipients, among others, are taken into account..
Instead, legal hermeneutics provides the means by which the interpreter not only understands or interprets the norm, but can also explain it.
Legal hermeneutics has a more philosophical character than interpretation, since it takes into account both human behavior and its context in each case to find more just and effective solutions.
Therefore, it can be said that legal hermeneutics and legal interpretation share the same purpose, which is the interpretation of the legal norm, but with different approaches. Having, the first, a more philosophical character than the second.
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