Judicial interpretation and Gadamer’s Hermeneutics

Abstract

The judicial activity is mainly directed to the resolution of conflicts between members of the society. To this end, the judicial interpreter must carry out a logical-deductive reasoning, in which he derives a solution from the analysis of events (minor premise) and rules in force in the legal system (major premise). The problem of judicial activity is that the object to be known, given by facts and rules, is rooted in times distant from that of the subject, who is steeped in his own tradition and history. Given the social, political and institutional demands on judicial activity, scholars have historically tried to come up with some theory that provides criteria or standards of correction that, when contrasted with judicial decisions, account for their objectivity or arbitrariness. Under this scenario, the hermeneutic theory proposed by H. G. Gadamer provides tools to describe and understand how judges interpret that distant object. Gadamerian thought is relevant in practice for legal operators and society in general, although it is not a prescriptive theory which provides criteria for the correction of judicial decisions.