Gadamerian Hermeneutics in Practice as a Paradigm for Legal Interpretation and Analysis

Authors

KONSTANTIN G. VERTSMAN, Nanjing University, ChinaFollow

Abstract

Both law-making and legal interpretation involve a hermeneutic process of negotiating prejudices. Through confronting a text and engaging in the process of question and answer, an interpretation is obtained, representing a mixture of the legal horizon set by the law and the negotiated prejudices of the interpreter. A just application of legal texts only occurs due to the prejudices formed through an individual and a social consciousness. This Article focuses on the hermeneutic process in judicial decisions as exposed by differing judicial approaches based on the degree of law-making authority undertaken by the judiciary. Then, this Article demonstrates the explicit role of prejudices in judicial analysis by considering the highly fragmented Supreme Court case of Sessions v. Dimaya. Based on the hermeneutic description of legal analysis, this Article concludes that specificity within legal texts sets the horizon of hermeneutic dialogue rather than converting legal analysis into an entirely mechanical task free of human idiosyncrasies.

First Page

487

Last Page

544

Publisher

St. Mary's University School of Law

Editor

Heather C. Montoya

Recommended Citation

KONSTANTIN G VERTSMAN, Gadamerian Hermeneutics in Practice as a Paradigm for Legal Interpretation and Analysis, 54 St. Mary's L.J. 487 (2023).
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol54/iss2/6