The hermeneutic turn accepted from the Structuring Theory of Law

Abstract

Hermeneutic has developed far-reaching theoretical consequences about social knowledge, henceforth avoiding the mistakes of the methodical self-understanding of the sciences of the spirit devised during the 10 century. For the hermeneutics of facticity, the objective context of the case submitted to analysis becomes truly relevant and the action of understanding is deemed as a practical knowledge, which is an acting knowledge. The Science of the Law, from this perspective, it acquires the form of reflection on the juridical production; then there is a close connection between it and the conception supported by the Structuring Theory of Law. As a result of considering it as the theory of the legal production it is committed to the definitive re-encounter between Law and Reality: the Law as a practical reality. The work of social practice characteristic of the law practitioners is understood as comprising a creative process, hence leaving the differentiation between the Norm and the application of the Norm and recognising the inevitability of a productive juridical completion carried out through the act of reflection of juridical creation. The activity achieved by the jurist in the course of his work is intended to «extract the Law» in its original and essential meaning instead of «apply the Law”. This task is accomplished by a progressive realization of the Norm adapted to the problem. The juridical Norm is consequently understood as a «product» and the resolution of each case requires a new production of norms until it is submitted as a decision Norm.