On the Background
Friedrich Scheiermacher (1768-1834), one of the influential figures of the German Romanticism, paid particular consideration to the problem that emerges when attempts are made to endow a given text with an understandable content.
Schleiermacher saw this problem as follows: Every act that leads one to the correct understanding of a text is (and must be) ultimately based on a dialogue between the author and the interpreter - that is, on some sort of an imagined conversation. Every author addresses his text to some interpreter. When this basic pattern is inverted and the matter is looked at from the interpreter’s viewpoint, the task then is to reply to the author’s oral or written expression in the context in which it was originally presented. In this way it becomes possible to have an authentic interpretation, an understanding of the text that is based on a dialogue between I (Ich) and you (Du).It has been correctly pointed out that Schleiermacher’s basic intuition seems to be plausible up to a certain limit but also contains several difficulties that are hard to solve. Indeed, his ideas as such have not been particularly applied in the later theory of interpretation. However, Schleiermacher’s influence on the theory of understanding has been extremely significant. It was transmitted by the author of an influential Schleiermacher biography, Wilhelm Dilthey, to Martin Heidegger, who passed it on Hans-Georg Gadamer. Through him, it has been channelled to the whole Continental discussion about hermeneutics (Aarnio 1983,47; Villa 1984, 509).
Scheiermacher’s conception of interpretation gives rise to a difficult problem: Under what kinds of criteria has the text-author’s message been caught in its “genuine” meaning? It is well known that this question has occasioned reflection on the significance of the temporal - that is, historical - difference between text writing and interpretation.
Although this aspect is not dealt with in detail in my study, the following remark is worth mentioning.As we will see, it is correct to understand the interpretation as a dialogue, and thus a form of communication. However, if hermeneutics opts for the line suggested by Scheiermacher, it will neglect another aspect of the problem far too much - namely, the interpretation is always an interpretation of something for someone. Therefore, it is not enough to consider just the relationship between the text author and the text interpreter. The analysis should also, and perhaps above all, deal with the third pole - that is, the person or party to whom the interpretation is being addressed. The reason for this is that it is exactly this pole that most essentially seems to involve the epistemological dimension characteristic of interpretative studies. This observation echoes Karl-Otto Apels’ conception of the so-called interpretation community in hermeneutics. Now, let us look a little more closely at what this means from the specific viewpoint of legal reasoning.
The interpretation proposition is not an empirical statement in the sense that it is confirmable by reference to the so-called brute facts. It is also true that references to empirical facts - for instance, to the assumed consequences of interpretation - can be used as a warrant for the interpretation proposition. However, that proposition does not follow from the factual statements in any unambiguous way.
On the other hand, it does not seem possible to think that there were such a set of inference rules valid in the legal community that the interpretation proposition were derivable from legal sources by mere application of these rules. The inference rules of legal reasoning do not form such a closed system, and the content of these rules is not so univocal that a logical - i.e., necessary relationship between the premises and the conclusion - prevails. Legal reasoning is by its nature an open performance.
From the viewpoint of hermeneutics, the interpretation in DSL is a linguistic matter. On the other hand, it is not possible to justify the interpretation proposition as such - that is, by comparing it with the “normative reality” in some way or another. We find here some sort of a network of sentences, within which the premises and the conclusion are interconnected non-logically but still plausibly. Following Wittgenstein, an interpretation proposition could be compared to a strand of a rope. In becoming associated with other strands it makes up twine, which is the more durable the more strands there are in the rope and the more elaborated the structure of the twine is.
Despite the importance of the hermeneutic approach, it does not give enough detailed tools for further analysis of legal reasoning. The next step can be found in the so-called new hermeneutics or new rhetoric. Let us start with some ideas from Stephen Toulmin, a distinguished contributor to the theory of argumentation:
If we accept the formal pattern of mathematical and scientific theory as the only acceptable varieties of “rational demonstration”, therefore, we shall be driven to the paradoxical conclusion that the best of us do not really “know” what other people's states of mind really are, even in the most favorable situations (Toulmin 1976, 113).
Toulmin proceeds to note that “scientific” methods - that is, the mathematical- positivist model of science - are of no help to us as we try to “read” a person’s gestures, expressions or other kinds of behaviour to provide us with some clues about what he means. What is it that makes this process impossible? Toulmin has an answer ready at hand. It is closely related to the proposition made at nearly the same time in the 1970s by Georg Henrik von Wright concerning the understanding of human behaviour (von Wright 1971, 83). Toulmin himself formulates the fundamental question of the understanding as follows: “What kinds of justificatory activities must we engage in, if we are to convince our fellows that these beliefs are based on good reasons” (Toulmin 1976, 138).
Toulmin pinpoints the difficulty of “the ambiguity of all individual signs and features when taken separately”. But what, in the end, is “understanding”? What kind of research does it demand? What kind of truth does it produce? All these questions are unleashed at the moment one adopts the thoughts of Toulmin or von Wright, or - especially when it comes to law - Chaim Perelman. Since my theory rests largely on the influence of Perelman, his ideas demand closer attention, especially as they point out the ways in which the legal positivism represented by Alf Ross leaks.