an overview of the discussion of hermeneutics in legal theory from the beginning of the 19th century to the present. It organizes the different scholarly strands along the lines of the distinction between interpretation and construction, which runs like a clear thread through the hermeneutical discussion from its beginning to its present in both the continental and the Anglo-Saxon tradition. Examining authors as diverse as Friedrich Karl von Savigny, Francis Lieber, Emilio Betti, Hans-Georg Gadamer, Paul Ricoeur, Ronald Dworkin and Michael Moore an attempt is made to get an analytical grip on the distinction by emphasizing the categorical difference between the two hermeneutical activities. Pursuing the analytical distinction, however, is only the first step of the analysis. In the third part, the relations and the interconnectedness of legal interpretation and legal construction come into focus. They can help to explain some of the major controversies in legal hermeneutics and also why the analytically clear cut distinction is so difficult to draw in the actual legal practice. At the level of legal doctrine the interconnectedness of legal interpretation and legal construction cautions against tendencies especially in administrative but also in constitutional law to define the role of courts with the help of the distinction.Poscher comments that
Hans Georg Gadamer famously referred to the law and its application as revealing a general feature of hermeneutics, which by the time of his “Truth and Method” had developed – Martin Heidegger’s lead – into a fundamental ontological concept. For Heidegger and Gadamer, our most fundamental relation with the world is hermeneutical. Heidegger insisted that we are ontologically situated in a world that is always already interpreted, that always already comes with a certain meaning. There are no uninterpreted objects, no objects as such (Heidegger 2010: § 32). A hammer is the object it is because we interpret it as such with respect to certain purposes and usages (cf. ibid. § 18). Our understanding of the world is thus hermeneutical in the most fundamentally ontological way. One feature of this existential hermeneutics is what Heidegger called the “fore‐structure of understanding” (ibid. § 32), which Gadamer coined into the famous “fore‐understanding” (Vorverständnis) of the hermeneutical subject (Gadamer 1989: 265–307). Our world is shaped by the hermeneutical fore‐understanding with which we encounter it. We see a hammer as a hammer only if we already know about hammering, nails and so forth. The involvement of the hermeneutical subject, its situatedness in the present, its particular hermeneutical fore‐understanding became a central theme for Gadamer. He rejected the concept of Romantic hermeneutics as developed by Schlegel, Schleiermacher, Ast, and others and taken up in large part not only by legal methodology but also by nineteenth‐ century historiography. He rejected the idea that interpretation should aim to reconstruct the intentions or experiences of the author, since this did not take into account the importance of the situatedness and fore‐understanding of the hermeneutical subject.
For Gadamer, the case in point for showing that understanding always involves situatedness and fore‐understanding is law. The central task in law is the application of a – historical – text to a present case. Due to changing historical contexts, for Gadamer the application of a legal text to the present always requires that the normative content of the law be determined anew (Gadamer 1989: 327). The application of the law amounts to more than the historical or psychological reconstruction of legislative intentions. It requires the mindful and prudent adaption or “appropriation” (Ricœur 1981) of the law to present circumstances and cases. It not only requires technical legal skills but practical wisdom: Aristotelian phronesis not mere techne (Gadamer 1989: 317–324). For Gadamer, „legal hermeneutics is no special case but is, on the contrary, capable of restoring the hermeneutical problem to its full breadth and so re‐establishing the former unity of hermeneutics“ (Gadamer 1989: 328). In this perspective, legal hermeneutics brings the applicational element of any hermeneutics into the spotlight, which Gadamer sees at work in historical interpretation as well. First, a historian too cannot help but approach a historical text from the perspective of his contemporary understanding (Gadamer 1989: 327) and can – following Gadamer – only bridge the gap by a fusion of horizons (Gadamer 1989: 307). Second, Gadamer points to the fact that historiography is not interested in historical facts as such, but in their meaning in an emphatic sense, which can only be construct ed by relating it to our present interests and concerns (Gadamer 1989: 328)
Gadamer’s account of legal hermeneutics has been quite influential. Even critics of Gadamer’s views on historical hermeneutics like Emilio Betti (Betti: 81–84) stress that legal hermeneutics show the specific constructive elements mediating between the historical horizon of the text and its present application. But unlike Gadamer, Betti regards legal hermeneutics as a special form of hermeneutics, which he describes as “value‐oriented” or “normative”.
“That the application of the law demands a legal interpretation that is related to the present and to contemporary society follows by necessity out of the function of the law as the ordering of co‐existence in a human community. It is part of its essence, therefore, that it should achieve a concretion of the law; it should be practically relevant in that it is called upon to provide a legally adequate direction and directive for communal existence and behaviour.”