Legal Interpretation or Legal Understanding? At least: Understanding to Interpret

Abstract

The modern hermeneutics of facticity has represented a theoretical-and also practical-contribution of singular importance in order to comprehend the juridical phenomenon, in other words, the understanding of the juridical norms. The veritable hermeneutic experience modifies our initial perception of matters and in the same way it alters the perception of the Law practitioner. Thus, taking into account the function carried out by the circle of understanding, the hermeneutic process is the same that allows us to comprehend both the realization and the understanding in the Juridical Science. In fact, as hermeneutics proves, we understand to interpret, because by analysing and thinking on the historical tradition, not only is the historical tradition rebuilt, but also it progressively continues itself.

Likewise, in a different sense from what is propounded by the methodical positivism and from the qualified acceptance of the hermeneutic principles, the Structuring Theory of Law considers that both interpretation and application, strictly speaking, lack autonomy. In other words, this means that they become somehow autonomous during the process of production of the norms, for the resolution of each case always requires a new production until the particular decision Norm is duly established and accordingly the Juridical Norm is understood as a «product», resulting from a structuring process.