Do Jurists Know What They Are Talking About Or Talk About What They Know? A Dialogue Between Legal Argumentation And Philosophical Hermeneutics

Abstract

Although more popular in the legal framework, theories of legal argumentation does not satisfactorily answer the question: do jurists know what they are talking about or talk about what they know?, or, more specifically, to the question: what is the role of knowledge in the building of interpretation? It seems to be lacking in such theories a critical view of the interpretation as a process of comprehension and its importance in the decision making process. On the other hand, questions of this scope can be addressed from the propaedeutics offered by a theory of knowledge, which should then be a constituent part of contemporary theories of interpretation. Therefore, unlike the recent trend in Philosophy of Law to limit interpretation to the theory of legal argumentation, we report that a broad theory of legal interpretation is not possible without a thought in advance about the process of understanding, like those offered by Heidegger and Gadamer. Similarly, it is also problematic to limit the discussion about the practice of interpretation to philosophical hermeneutics, as suggested Streck. If we are right, we can glimpse that the theories of legal argumentation and philosophical hermeneutics must be understood first in their complementarity than their differences.

Keywords

• Interpretação
• Argumentação jurídica
• Hermenêutica filosófica
• Teoria do conhecimento