The hermeneutics in judicial decision-making

This dissertation addresses the problem of judicial interpretation of legal texts. It confronts traditional approaches such as formalism, which emphasizes textual objectivity, and subjectivism, which accentuates the interpreter's prejudice, with an alternative based on a reexamination of Karl Llewellyn's The common Law Tradition through the lens of Hans-Georg Gadamer's philosophical hermeneutics. Whereas traditional approaches hold to a belief that either a text has objective meaning or no meaning at all aside from that given it by a judge's personal preferences, hermeneutics posits a process whereby judicial subjectivity and textual objectivity achieve a dialectical synthesis in which both significantly contribute to but neither dominate the interpretative process. Gadamer employs a dialogical model of language to illustrate the manner in which meaning and understanding are achieved between the subject, as subjectively conditioned by tradition on the one hand, and the objectivity of texts on the other. Gadamer argues that a dialogical encounter, a conversation if you will, must be pursued until an agreement is reached between the interpreter and interpretandum. Llewellyn anticipated in many ways philosophical hermeneutics by illustrating the dialectical relationship between interpreter and interpretandum in which meaning comes from the interplay of subjective and objective factors. Llewellyn's interpretative model, the Grand Style, encompasses much of what is to be found in Gadamer's dialogical model. Llewellyn argues that a judge's prejudice is not only a necessary but a valid component of interpretation. Moreover and at the same time, he gives credit to the limiting effect of objective reality on the substance of meaning. Although Llewellyn's work was considered by many as an enigmatic paradox, it becomes less problematical when examined from the perspective of philosophical hermeneutics. Thus, this work is a work in hermeneutics as well as a work about hermeneutics. Just as objective and subjective models of judicial decision-making are themselves hermeneutical strategies for understanding certain aspects of social behavior, the application of philosophical hermeneutics to the work of Llewellyn is likewise a strategy for understanding his work as well as this facet of the political process.