Dialectic and Revolution: Confronting Kelsen and Gadamer on Legal Interpretation

Authors

Hans Lindahl, Tilburg University

Abstract

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests that legal interpretation always moves on this side of a normative rupture that cannot be "closed" interpretatively from within the order itself. This insight implies that Gadamer's account of legal interpretation ultimately falls prey to positivism.

Disciplines

Constitutional Law | Courts | Criminal Law | Criminal Procedure | International Law | Judges | Jurisprudence | Law

Recommended Citation

Hans Lindahl, Dialectic and Revolution: Confronting Kelsen and Gadamer on Legal Interpretation, 24 Cardozo L. Rev. 769 (2003).
Available at: https://larc.cardozo.yu.edu/clr/vol24/iss2/15