Giuseppe Zaccaria

A Practical - not Theoretical - Understanding of Law

  • Abstract

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Keywords: Hermeneutics; Legal Knowledge; Interpretation; Practical Reason; Creating New Law.

This article, in which the author responds to the commentaries made on his book "La comprensione del diritto", argues for the view of hermeneutics as a flexible approach open to different kinds of knowledge. Hermeneutics is a useful instrument for understanding law, as it is designed to overcome the discrepancies between theory and practice and to grasp the salient aspects of concrete situations. With regard to Francesco De Sanctis's contribution, in which the legal hermeneutic approach is cast as an example of contemporary constitutionalism, the author argues that the latter, unlike hermeneutics, fails in its attempt to bridge the gap between theory and practice. The author then turns to and embraces the diagnosis made by Massimo Vogliotti, who points out that Italian criminal legal science is for the most part reluctant to open up to judicial opinion and reasoning, since it is tied to an Enlightenment view of legal certainty and thus ignores the need to reason about cases, which, contrary to the assumption made on the Enlightenment view, are to be seen as having a role in criminal law no less than in the other branches of law. Likewise, the author agrees with Mauro Barberis's criticism of the tendency of analytical legal realism to disregard common practices and common law as irrelevant. Lastly, the author embraces Francesco Viola's perspective, as it identifies one of the contemporary sources of legal hermeneutics in the Aristotelian notion of practical philosophy, with its connection between practical knowledge and concrete action. The author does call into question, however, the view of the hermeneutic approach as a series of deliberative activities, since that view seems hardly applicable to legal science. In summary, the argument presented in this paper is for a hermeneutic approach to law as a social practice, an approach which rejects the attempt to view law through the lens of grand theories applied to the law from the outside.

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