For Hans-Georg Gadamer, the task of any historical hermeneutics is "to consider the tension that exists between the identity of the common object and the changing situation in which it must be understood." With regard to legal hermeneutics this task issues from the circumstance that "[a] law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted .... [T]he text ... if it is to be understood properly - i.e., according to the claim it makes - must be understood at every moment, in every concrete situation, in a new and different way." Gadamer concludes that this combination of identity and change is the sense to be given to Aristotle's conception of natural law. On the one hand, the idea of natural law indicates that "despite all the variety of moral ideas in the most different times and peoples ... there is still something like the nature of the thing." On the other hand, "the nature of the thing" does not determine an unvarying content that is the same as a fire that "burns everywhere in the same way, whether in Greece or in Persia." In this Essay, I want to consider this claim not by considering natural law directly but by looking at certain of our current debates over the meaning of universal principles we think are embedded in the U.S. Constitution. I shall begin by underlining what I take to be relevant aspects of Gadamer's hermeneutics and then turn to disputes, such as those over abortion and affirmative action, that seem to divide Americans' understanding of constitutional principles in increasingly bitter ways.
Law, Hermeneutics, and Public Debate,
Yale J.L. & Human.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol9/iss2/4