[HOME] [BOOKS] [ORDERING] [JOURNALS] [ABSTRACTS] [LINKS] [SPECIAL OFFERS]

Jarkko Tontti, "Law, Tradition and Interpretation", International Journal for the Semiotics of Law / Revue Internationale de Sémiotique Juridique X/31 (1998), 25-38: The paper seeks to construct answers to the ontological and epistemological problems of legal philosophy from the basis of continental hermeneutics as it has been developed by Martin Heidegger and Hans-Georg Gadamer. First it is argued that the ontological status of law is constituted by a dialectical interplay of tradition and interpretation. The scope of hermeneutics is widened from the interpretation of legal texts (legal sources) to the interpretation of the whole tradition of law, including e.g. practical legal work. The tradition of law is an on-going process of conflicting interpretations, where different interpreters (courts, the legislator, advocates, scholars) compete to get through their views. Secondly it is suggested that the epistemology of law must start from a reconsideration of the Is-Ought distinction: every proposition contains, at least implicitly, a normative demand that the claim ought to be accepted by others. A correct proposition about law has two requirements: it must be in coherence with the tradition and answer the present interpretative question adequately. An adequate decision results when the tradition of law enters into a dialectical relationship with creative and critical interpretation, which guarantees dynamism and the change of the tradition. Tradition only gives the framework or the context in which every interpretative question of law must be answered. There are no non-contextual criteria to distinguish correct interpretations from incorrect ones. e-mail: Jarkko.Tontti@Helsinki.fi

[HOME] [BOOKS] [ORDERING] [JOURNALS] [ABSTRACTS] [LINKS] [SPECIAL OFFERS]