Hermeneutical Elements in the Derivational Model of Legal Interpretation

Keywords: derivational model of legal interpretation, hermeneutics, circularity of understanding, historicity of understanding, problem of pre-understanding

English abstract: The aim of this article is to demonstrate the possibility of presenting the derivational theory of legal interpretation as a theory of a hermeneutical nature. In order to achieve this goal, I distinguish five elements that can be found both in the derivational model of legal interpretation and in the hermeneutical way of thinking. These elements are: (1) a specific way of treating dis-cretion in interpreting cultural products; (2) the linguistic nature of understanding; (3) the histo-ricity of understanding; (4) the circularity of understanding, and (5) the problem of pre-understanding. In the article, I try to show that the five hermeneutic elements can be found with-in the derivational model of legal interpretation. The aim of the article is not to unambiguously determine whether the derivational model of legal interpretation is a hermeneutical one (this would require the construction of a precise definition of hermeneutics, which I do not undertake in this article), but only to mark certain elements of this theory of interpretation which can also be found in hermeneutic thinking.

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