Autor: Adalberto Hommerding, José Lyra

Abstract:

This paper deals with philosophical hermeneutics as a condition of possibility for one to question and understand Law. We argue that Law remains hostage of the paradigm of the philosophy of consciousness, unaware of the so-called linguistic turn. This work aims to demonstrate that philosophical hermeneutics, once incorporated into Legal Theory (and by Law itself), provides a new perspective for legal interpretation. In this context, the contribution of Hans-Georg Gadamer, disciple of Martin Heidegger, to the legal hermeneutics, is crucial, since understanding, interpretation and application, in the work of those German philosophers, come to constitute a single moment in applicatio – which provides the overcoming of the subject-object scheme and the preparation of correct judgments, that are confirmed in the things themselves. This paper claims that this phenomenon helps to surpass the positivist logic that is unaware of the authentic process of understanding. It opens the possibility of a new rationality standard in understanding the law, which unties itself from methodological procedures that seek an ultimate foundation for the understanding issue.

ISSN: 0870-5283; 2183-461X

DOI: http://doi.org/10.17990/RPF/2016_72_2_0771

Texto Completo: https://www.publicacoesfacfil.pt/product.php?id_product=910

Palavras-Chave: applicatio,hermeneutic turn,legal hermeneutic