HERMENEUTICS AND JUDICIAL INTERPRETATION

fernando armando ribeiro, Pontificia Universidade Catolica de Minas Gerais, Brasil

Abstract

Modern hermeneutics teaches us that everything which is perceived and represented by human beings refers to a process of interpretation, and that the world comes to mind through language. Therefore, Law depends on the hermeneutic mediation. Without hermeneutics there is no law, only normative texts. This paper makes use of the philosophical hermeneutics by Gadamer to investigate the limits and possibilities of judicial interpretation. The paper explores the contribution of philosophical hermeneutics to a new model of rationality and how it can influence the application of Law, and not only legal theory. Therefore, we will examine some of the most important themes of the legal debate today in Brazil and the USA. What should be the role of the judge in a democracy? What can we understand by “judicial activism” and by “correct interpretation”? With this theoretical background we analyze some cases, always trying to show the better way to legitimize judicial decision and the contribution that hermeneutics and the new dimensions of language can bring to it.