Legal hermeneutics from a philosophical perspective

Abstract

In this paper we start from hermeneutics not so much as a specific philosophical method, but rather as the inherent tool of every human act, especially in decision-making. Law implies decision-making both in the legislative exercise and in judicial practice. But human interpretation always generates a state of uncertainty, by giving the impression that it is a private act of objectivity, more typical of science, which has led to the search for a paradigm in law that is scientific and has often been identified with logical positivism (empiricism). The philosophical perspective that we propose is that of the analysis of the very inherent nature of the interpretative act, since neither data, nor the subject, nor science can be reduced to mere data and facts, without taking into account not only the context of justification, but also that of discovery and the sociological perspective. To this we add the new perspectives of neuroscience and cognitive psychology based on Bayesian inference that shows, in turn, how sensory perception is read by the brain from a cultural and historical context of its own that is capable of projective thinking. This implies that analytical reasoning and deductive and empirical logic are not sufficient when analyzing data that are never read in a neutral (raw) way. In conclusion, the best way to avoid uncertainty is not to close our eyes to the evidence of interpretation, but to face it with tools such as hermeneutics.

Doi: https://doi.org/10.17398/2695-7728.35.481