Zur Hermeneutik als Verstehenshilfe bei Rechtstexten.

Abstract

This paper deals with the comprehensibility of legal texts (judgements) in a hermeneutic setting. The comprehensibility depends on understanding, here seen as ‘to apprehend the meaning of a text’. For this purpose we first look back on the history of modern hermeneutic from the 19th century (Dilthey) before the role of the hermeneutic in law is discussed. In the modern legal hermeneutics – 20th century - the judge is no longer seen as bouche de la loi (Montesquieu) who subsumes only, but instead laws and particular cases are seen as ‘raw data’, which have to be interpreted, before a decision can be made. To illustrate this approach, a rule and an actual case from a judgement are analyzed in depth. The rule in question is the section about theft in the German Penal Code (§ 242 StGB). The legal interpretation of this section is elaborated first from a legal and then a linguistic point of view. Then the interpretation of the particular case is investigated, again from both a legal and a linguistic point of view. Special attention is given to the problem of the underlying semantic meaning. Based on the analysis, we can state that the meaning of ‘understanding’ is not identical to the linguist and the legal expert. As for the legal expert, ‘understanding’ embodies much more than what is derivable from a linguistic – i.e. semantic – analysis only. It is concluded that the understanding of legal texts requires reliable linguistic and well-founded legal knowledge. From a more general point of view one can consequently conclude mutatis mutandis that both linguistic and thorough field knowledge is a necessary prerequisite for LSP-communication.