Interpretative
Process
Hans-Georg
Gadamer- Hermeneutics could be defined as a constructive process of
Interpretation. This Constructive Process comprises of Theories that are
universally accepted in the interpretative process.
Negative
Hermeneutics Process- It starts from the assumption that very notion of
Universal Valid Interpretation is not tenable.
Gadamer’s
Approach- He said that Statutory Interpretation involves creative policy
making by judges and the courts figure out the answers that were put in the
statute by the enacting legislature.
"We are a product
of our history. We can never know historical work as it originally appeared to
its contemporaries. It is not possible to ascertain the intention of the author
or the original context of production of that historical work. These works pass
through endless stages of changing interpretations, which gets richer and more
complex as the time passes."
Gadamer claims
that it is not really we who address the texts of tradition, but the
traditional texts that address us. Our conceptions, prejudices, cultural
horizon etc. are brought into the open in the encounter with the past.
The authority of
a text is recognized by engaging with it in textual interpretation and
explication, thereby entering into a dialogical relationship with the past.
This movement of understanding has been termed by Gadamer as the “fusion
of horizons”. While interpreting, at first, the text appears alien,
however with time we gain a better and more profound understanding not only of
text but also of ourselves.
But, in order to
obtain fusion of horizons, one must engage with the text in a productive
manner. There is no short cut trick for this. It is more like a tacit
capacity, which we acquire by following the example of others. The
knowledge at stake can only be exhibited in the form of path-breaking judgments
and interpretations.
However, the
interpreter can never completely recreate or understand the text’s horizon.
Interpreter’s goal is to find a common ground and such common ground is
possible because the ‘temporal gulf’ is filled with traditions and
experiences that inform the current horizon and link it with the previous one.
Gadamer further believed that “time is no longer primarily a gulf to be bridged, because it
separates, but it is actually the supportive ground of process in which the present
is rooted. Hence temporal distance is not something that must be overcome. It
is not a yawning abyss, but is filled with the continuity of custom and
tradition, in the light of which all that is handed down presents itself to us”.
He also said
that the one would not understand a legal text in abstract without application
of the text to a specific problem. Finding the meaning of any provision in a
Statute is not a mechanical operation. It often involves interpreter’s
choice among several competing answers. Therefore, this creative
supplementing of interpreting the law is a task that is reserved for the judges.
Pragmatic
Hermeneutics- This is also a type of constructive interpretation. It is mostly
prevalent in the American School of Jurisprudence. William James and Charles
Pierce are considered to be its pioneers.
This branch of
hermeneutics holds that Legal Interpretation is interpretive and revealing in
character and it is different from other types of interpretation such as:
1. Scientific
Interpretation- This is generally done by the scientists to give meaning to
the phenomenon they observe.
2. Conversational
Interpretation- It is a process by which the readers and the listeners
understand their communicative utterances and a standard view of this kind of
interpretation holds that the listener or the reader understands by duplicating
or substituting themselves with the propositional attitude of the author. This
method is commonly used in literature.
Ronald
Dworkin- Dworkin also followed the line of Gadamer in Interpretative
Process.
Pragmatic
Hermeneutics and Dworkin
Dworkin said
that the most important aspect of legal interpretation is creative or
constructive interpretation. This form of legal interpretation has 2
characters:
1. Legal
Practice
2. Legal
Concepts
The need for creative
interpretation arises when the community develops a complex interpretative
attitude towards the rules and the interpretation is called for when a text or
a practice is regarded as authoritative. The legal practice with regard to a
statute in a legal system is interpretative precisely because it
grants authority to the past political decisions that are represented by the
statute.
Dworkin did not
agree with many jurists. According to a lot of jurists, jurisprudence is not
interpretative because there is no point in making the practices adopted by the
judges authoritative for legal theories. However, Dworkin said that the general
theories propounded by a legal philosopher involves a constructive
interpretation because the philosopher tries to show the legal practice as a
whole in its best light to achieve equilibrium between the legal practice and
the justification of that practice. Hence, according to Dworkin, no firm
line divides Jurisprudence from adjudication or any other aspect of interpretation
such as Legal Practice.
Thus, we see
that there are three kinds of interpretations liable for the Interpretative
Process.
1. The text
that judges and others within a particular legal culture are obligated to
interpret and obey.
2. The text
created by judges within some particular legal culture which consists of
judicial practices in construing statutes and constitutions.
3. The work
of prior legal theories, some of whom seek to describe the judge’s
jurisprudence within some particular legal system and others who seek to do non-culture
specific or general jurisprudence.
Neo-Pragmatism-
This version of Pragmatism was developed by Richard Rorty. It was
subsequently carried forward by Stanley Fish.
Previously, Pragmatic
Hermeneutics believed in the dualism of ‘mind and matter’ and ‘soul
and body’. But, this dualism has slowly vanished. Now, it is based more on
interpreting in a practical manner. For a pragmatist, interpretation derives
meaning not from the antecedents and perception but from the consequences of
action.
While developing
neo-pragmatism, Stanley Fish gave a new formula for interpretation. He said
that “Action is guided by the tacit knowledge and not by application of
general rules, principles or theories”. Thus, metaphysical theories are
not essential for activities like judging. A judge is not a theorist of any
kind while he is deciding a case.
It is in this
context that Fish advanced his theory of “Interpretative Community”. Fish
believed that any written word derives its meaning from the society in which it
is used. A Statute comes into operation in a society once it has been enacted
by the legislature. Within this society, a community emerges that is so closely
associated with the working of the said statute that it actually imparts
meaning to the provisions of that Statute. Stanley Fish believed that this
meaning should be the governing factor in interpretation of the said Statute by
the courts. In Stanley Fish’s theory, the Community that gives the ‘controlling
meaning’ to the Statute is called as the Interpretative Community.
However, critics
of this theory say that if there is more than one Interpretative Community at
same point of time, then it would lead to a lot of confusion in the mind of the
judges as to the interpretation of said Statute.
Complete List of Jurisprudence Notes
No comments:
Post a Comment