About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 St. Louis U. L.J. 353 (1984-1985)
Questioning the Text: The Significance of Phenomenological Hermeneutics for Legal Interpretation

handle is hein.journals/stlulj29 and id is 369 raw text is: QUESTIONING THE TEXT: THE SIGNIFICANCE OF PHENOMENOLOGICAL HERMENEUTICS FOR LEGAL INTERPRETATION TERESA GODWIN PHELPS* JENNY ANN PITTS** In order to be able to ask, one must want to know, which involves knowing that one does not know.' I. INTRODUCTION Hermeneutics, the study of interpretation, has moved rapidly to the forefront in major areas of American thinking, particularly philoso- phy and literary criticism. Yet the term hermeneutics offers some inter- pretive problems of its own. It is defined, rather simply, as The science or art of construction and interpretation,2 while legal hermeneutics is the systematic body of rules which are recognized as applicable to the construction and interpretation of legal writings.3 For one school4 of hermeneutical theory, this definition suffices, at least as a basis. Her- meneutics is seen as a scientific quest for methods of obtaining valid interpretations. Another school of hermeneutical theory, however, sees hermeneutics as an integral part of the phenomenological enterprise (Heidegger, in fact, described his project as phenomenological herme- neutics). Phenomenological hermeneutics attempts to explore the fol- lowing questions: What is interpretation? What is the nature of under- standing itself? What occurs during understanding that may be beyond our willing and doing? It eschews the laying down of a body of rules for interpretation and instead focuses on the act of interpretation, choosing as its goal a humanistic understanding of what interpretation * Assistant Professor, Notre Dame Law School, B.A., 1973; M.A., 1975; Ph.D. 1980. ** B.A. 1982, University of Notre Dame; J.D., Notre Dame Law School (ex- pected 1985). I. H.G. GADAMER, TRUTH AND METHOD 326 (1975). 2. BLACK'S LAW DICTIONARY 654 (5th ed. 1979). The use of the disjunctive in this definition is a telling comment on the perceived nature of hermeneutics. For years, scholars have debated whether hermeneutics is, or ought to be, a science (that is, operating on an objective, verifiable scientific model) or an art (that is, we suppose, aesthetic and unverifiable). See R. PALMER, HERMENEUTICS, INTERPRETATION THEORY IN SCHLEIERMACHER, DILTHEY, HEIDEGGER, AND GADAMER 33-45 (1969) for a variety of modern definitions of hermeneutics. 3. BLACK'S LAW DICTIONARY 654 (5th ed. 1979). 4. Among its proponents are Dilthey, Schleiermacher, Betti, and Hirsch, who are discussed below.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most