Incorporating the Continental philosophical tradition of hermeneutics into legal scholarship appears to be a project relevant only to a few jurisprudes locked away in the uppermost reaches of the ivory tower. Many scholars undoubtedly would argue that the tradition and focus of twentieth-century German philosophy is far removed from the troubling interpretive issues that arise in the American legal system, regardless of any interesting parallels or comparisons that might be drawn., From this perspective, the renewed attention to hermeneutical philosophy by legal scholars is viewed as just one of an increasing number of esoteric, intellectual cul-de-sacs that have diverged from the boulevard of traditional jurisprudence.
This not-so-hypothetical attitude toward hermeneutics is interesting for the very reason that it is erroneous. Those who argue that contemporary philosophical hermeneutics holds little practical significance for legal practice demonstrate that they are unmindful of the genealogy of the traditional principles of legal interpretation that they hold so dear. The publication in 1837 of Francis Lieber's Legal and Political Hermeneutics was an important contribution to the effort to define principles of interpretation that could justify and guide the newly created American practice of written constitutionalism. Lieber, a native of Germany, related his knowledge of German hermeneutical philosophy to the political and legal questions facing the young republic. Lieber's attempt to describe a science of textual interpretation that would ensure rule-governed consistency in politics and adjudication helped to formulate the traditional views of interpretation espoused by judges and theorists during the past century.
Francis J. Mootz, III,
The New Legal Hermeneutics,
47 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol47/iss1/3