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§ 1. Legal hermeneutics as a scientific direction of jurisprudence



The history of occurrence of hermeneutics goes back to theology (interpretation of the Bible and works of fathers of Church) and the Greek mythology. One scientists connect hermeneutics with a name of antique god Hermes — the messenger of the gods, announcing their will [19], explain an origin of the term "hermeneutics" from grech.
"germeneo" I (explain) [20]. The name Hermes in antique mythology is connected with "germami", the stones-marks which are on trading ways, some kind of the "milestones" designating distance between settlements.
Other authors connect hermeneutics with a verb hermeneuein, usually translated how to "interpret,"express, "explain,"translate", and a noun hermeneia, i.e."interpretation"(a word was used also for a designation of the sacred message, the message) [21]. So, in poem Ovidija of"Metamorphosis"mythological Hermes delivered from the Olympus to lead from gods in the form of miracles and images which were necessary for"deciphering, interpreting [22]. Hermes's similar role can be tracked in poems Gesioda «Works and days», in "Odysseus" the Homere and other literary monuments of the ancient world.
Problems of interpretation of a picture of the world already from an antiquity lead to necessity of working out of a hermeneutic problematics, the doctrine about interpretation of the phenomena of the validity, texts and signs. Further hermeneutic research any more is not limited to a formulation of rules with which help correct interpretations can be made, but also covers studying of conditions of human understanding [23]. The understanding category becomes the major category of hermeneutics, in it, V.G.Kuznetsov considers, «the attention to the question on the person understanding – understanding, the place in the world, a legal reality and other person» [24] is brought.
At the present stage of the development the hermeneutics are one of scientific directions of the humanities, it is treated as special art of understanding and comprehension of sense and value of signs; as the theory and rules of interpretation of texts; as special philosophical doctrine about ontologii understanding and epistemologii interpretations [25].
Questions of social knowledge and its methods concern a subject of its steadfast attention. In hermeneutic methodology the question on how the understanding the person of senses real and due and what limits interpretatsionnoj freedom is possible is central.
The essence of the given problem of E.N.Atarshchikova connects with the following: «We understand statements of another in the light of that we already know, we take from each statement something new, that we take into consideration. It is possible to try to cover from the first whole, but we will see only its one part. The understanding comes when we represent a picture as a whole. Our representation about the whole changes with each new detail which we take into consideration. It also is the well-known hermeneutic circle» [26]. The hermeneutic approach assumes an active role of the person (the human factor) in knowledge in general and interpretatsionnoj activity in particular, necessity of finding-out of motives, the purposes and intentions of authors of the text, and also historical conditionality and preparation of a writing of the given text.

The philosophical hermeneutics, according to N.V.Malinovskoj, represent the intrinsic doctrine not so much about interpretation (in sense of interpretation-explanation as this term is maintained by jurisprudence), how many about a phenomenon of understanding [27]. The philosophical hermeneutics displace accents on how there is possible an understanding of specialised texts.
As the scientific direction which is engaged in knowledge of laws of understanding of language, allowing to develop articles of verbal communications, the hermeneutics have special value in law-making and right realisation. Having arisen on the basis of art of interpretation of written texts, at the present stage of development the hermeneutics in jurisprudence, linguistics and philosophy are treated as a science about understanding of sense of the text and have various degrees of development. The special direction of hermeneutic methodology developing problems of understanding, interpretation and right application, receives the name of legal hermeneutics [28].
Considerable growth of popularity of legal hermeneutics among the western jurists is connected with works by G.G.Gadamera, P.Rikyora, E.Betti who have paid special attention on a generality of historical, theological, philological and legal hermeneutics. G.G.Gadamera's approach to a problem of understanding and construction of statutes by means of hermeneutic prospect considerably staticized a direction of modern legal philosophy – legal hermeneutics. So, for example, A.Kaufman specifies, that the real right should unite the complementary moments of essence (justice) and existence (positivity), to investigate which it is necessary in development, in the course of a right concrete definition, connection of essence and existence [29]. It is represented, what exactly comprehension of these legal problems leads in the end of the XX-th century of reorientation of some researchers from positivism to legal hermeneutics.
Despite that fact, that concept «the legal hermeneutics» are used in the modern domestic legal literature widely enough, its status till now it is impossible to name defined. Recognising an application urgency to the legal validity of the hermeneutic approach, proving its value and necessity, modern domestic researchers, however, have not come to a uniform conclusion concerning value of legal hermeneutics in legal science. Proceeding from the analysis of the domestic researches devoted to problems of legal hermeneutics in domestic jurisprudence, it is possible to allocate three basic approaches to definition of its status. In modern domestic jurisprudence the legal hermeneutics are understood as a concrete method of interpretation of the legal validity [30]; a special methodological direction [31]; integrating type pravoponimanija modern jurisprudence [32].
So, for example, within the limits of the first approach, understanding legal hermeneutics as the concrete method of interpretation, S.S.Alekseev legal hermeneutics names a science (and art) interpretation of legal terms and the concepts, being top of legal skill, culmination point of legal activity [33].
I.P.Malinova, N.I.Habibulina legal hermeneutics as a basic method «interpretation of the latent sense of the text» [34] also understand. I.P.Malinova legal hermeneutics names, first of all, a concrete method of interpretation of the legal validity [35]. According to N.I.Habibulinoj, theoretical interest to hermeneutics as to «to the core among existing methods of judgement of the text all till now, has especially increased recently in connection with rapid development new, kognitivnogo directions in language studying. It is considered, that the hermeneutics phenomenon helps to open difficult process of interaction of language and thinking … hermeneutics, taking into account influence on it of analytical methodology, constitutes one of the major sources of modern methodology in the field of the theory of law based on a recognition of a basic role of language for adequate interpretation and understanding of the legal phenomena» [36]. However unlike S.S. Alekseeva, not identifying with interpretation the rights specified above authors pay legal hermeneutics special attention on a problem of understanding of the legal phenomena.
As a whole as A.N.Germashev understands legal hermeneutics. According to its position, the hermeneutics represent «the independent science which subject are knowledge of ways of explanation and an explanation of sense of the rule of law (will) (interpretation), and also knowledge of ways of a statement of the rule of law, will in the legal text (the legal technics); the subject of legal hermeneutics is constituted also by knowledge of anticorruption examination. A method of legal hermeneutics is hermeneutic the circle which is shown in dialectic communication of ways of interpretation both ways correlating by it and receptions of a statement of the legal text, and also in sistemnosti applications of ways of interpretation, their recurrence and urovnevosti. Problems of legal hermeneutics is accordingly development of the most adequate and least zatratnyh ways of a statement and will interpretation in the legal text» [37].
Among the representatives of the second approach understanding legal hermeneutics as a special methodological direction of jurisprudence, it is necessary to note V.I.Krussa, V.N.Sinjukova [38]. So, V.I.Kruss legal hermeneutics names the legal technics in the wide value, having the general problems judgement and obektivirovanie the rights: «In the constitutional state the legal hermeneutics (including technics of designing and application of norms of a positive law) act as the sum (system) of technologies of judgement of the konstitutsionno-expressed ideals and principles and obektivirovanija – on this basis – branch principles, standard establishments of rules pravoprimenitelnoj experts» [39].
Within the limits of N.V.Malinovsky, A.I.Ovchinnikov, A.E.Pisarevsky, I.L.Chestnov's third approach understand legal hermeneutics more widely, as separate type pravoponimanija. As fairly marks N.V.Malinovskaja: «To this day ambiguous there is an answer to a question how to understand hermeneutics – as a method of knowledge or a complete scientific direction. Primary formation as practice of interpretation of texts has for a long time assigned it first of all methodological character. However accumulation of experience and a significant amount of methods of research within the limits of the process of interpretation promoted more and more confident advancement of hermeneutics in number of independent sciences, therefore now in theory of law it is understood and as the separate scientific approach to pravoponimaniju» [40].
Such type pravoponimanija is obliged to give integral representation about the right, having overcome limitation of sociological, historical, legal and other approaches to it. By means of hermeneutic ways we can «adjust individual and general, personal and social, irrational and rational», and in it and the mission of legal thinking [41] consists.
According to A.I.Ovchinnikova, the most important questions of hermeneutics of the right besides interpretation problems is the following: what features of informative function of sense of justice how values influence a choice of specifically significant decision what the nature of legal intuition in what specificity of legal logic and others [42].
According to its point of view, «the right inherently is a hermeneutic phenomenon. A condition of the legal personality, representing a combination of individuality, originality and uniqueness to generality, intersubektivnostju, an omnitude, already by the nature germenevtichno» [43]. In A.I.Ovchinnikova's works the legal hermeneutics are considered already as «integrating type so necessary today pravoponimanija in which context the right nature, its roots settle down in communicative depths of human spirit, and the law, the cultural-historical basis of the right and is natural-legal justice are presented in that organic integrity which searches for modern jurisprudence» [44]. As a whole with it A.E.Pisarevsky [45] agrees also.
I.L.Chestnov, investigating pravoponimanie during a postmodern epoch, notices, that to a new epoch (postmodern) there should correspond the new concept of the right. Crisis of philosophy of a modernist style and impossibility to consiliate contradictory concepts positive and the natural death have forced many jurists to search «for other planes pravoponimanija», which (behind impossibility to find out true in concrete) would be based on certain general, metalegal beginnings... postmoderniststkaja the jurisprudence is not only and not so much critic of the right of an epoch of a modernist style, how many the precondition of formation of essentially new type pravoponimanija, a modern society adequate to realities »[46]. Among modern types pravoponimanija I.L.Chestnov allocates right hermeneutics. Marking thus existence of two directions of its development, I.L.Chestnov allocates two directions in right hermeneutics in the western jurisprudence: ontologic and methodological (technical or tool).
Despite distinctions of approaches to definition of the status of legal hermeneutics, the primary goal of legal hermeneutics sees to modern researchers first of all in search and realisation of sense of the rule of law, and also in research of a problem of plurality of senses. In a context of legal hermeneutics as object of interpretation all phenomena of the legal validity, any legal text are considered. The hermeneutics purpose consists not only in understanding sense of the norm expressed in the text, but also in broadcasting this sense, to approach it to practical situations so, to exclude doubts in their relevancy to interpreted norm and to facilitate its application. As a whole the legal hermeneutics are understood as dejatelnostnyj the process including stages of understanding, interpretation, application (in a broad sense including direct realisation) the rights at all stages of the mechanism of legal regulation, taking into account a principle of a hermeneutic circle.
As the basic categories of legal hermeneutics it is possible to name categories "interpretation", "understanding", "interpretation" and right "application". Key concept of modern hermeneutics is "interpretation". The society assumes intelligence of social actions of the members which comes to light in the course of their social interpretation as the actions corresponding to social expectations, defined by legal culture of a society. So, according to A.V.poljakova, the society represents the set of people allocated on the basis of system reproduced by them of communicative actions, interpreted as valid, i.e. socially comprehended and socially significant. Legal can exist only through activity of the subjects interpreting having textual form socially significant information in the course of communicative influence [47]. Interpretation represents a way of social life of the person, it is is intellectual-emotional process of understanding of a social (legal) reality by means of language means.
The understanding – is not simple extraction by the subject of sense from the legal text, i.e. thinking work, but also involving in this process of irrational (mental) structures of the person causing possibility of acceptance of this sense as. In the course of understanding three stages of understanding are allocated: physiological, mental and social.
The concept of interpretation is applicable only in relation to processes of purposeful semantic interpretation of legal texts. Interpretation assumes external orientirovannost, aiming not only at extraction of some sense, but also at a substantiation, the statement in other consciousness (including and in the). Interpretation has diskursivnyj, logically mediated character and is connected with a manipulation the senses not always coinciding with the internal text.
Application (including direct realisation of the right and pravoprimenenie) is the third element of legal hermeneutics: «to understand and interpret – means to learn and recognise operating sense of the law» [48].
In the concepts developed till now and approaches of various authors to a problem of legal hermeneutics, despite the fact that what they are under construction on a methodological basis peculiar to various epoch, decisions of a problem of understanding, interpretation and application of legal texts (as dejatelnostnogo process in whole or its separate elements) contain. The specified circumstance allows to consider a complex of sights at legal hermeneutics as tending to theoretical registration in the doctrine including a logiko-theoretical basis, conceptually-kategorialnyj the device, and also in some cases program positions of the doctrine.
Legal doctrines arise in system of constantly developing public relations and experts put the problem improvement of the legal organisation and pravoprimenitelnoj. The integral property of legal thought, according to G.J.Semigina, its surprising continuity providing as a result traditional character in transfer of the major legal categories [49] is. As fairly marked more hundred years ago prof. A.Zagorovsky, «the historical way of studying for Russian right is so means urazumenija the past, how many and the reliable head for present explanation as also the law in force in most cases represents only a past result» [50].
Thus, not having for an object a theoretical substantiation within the limits of the given dissertational research of the status of legal hermeneutics what hardly probable probably to make at present, proceeding from presence of the discrimination to its nature and according to the purposes and problems of the given dissertational research, the legal hermeneutics are defined by us as a special scientific direction of jurisprudence (doctrine) about conditions and ways of understanding, interpretation and right application where a key element is the understanding. It is represented, that at the development present stage there is a process of formation of the given actively developing direction of jurisprudence to the tendency to formation new integrativnoj concepts hermeneutic pravoponimanija.
At the development present stage when on change of official ideology the ideological pluralism as never the requirement for reference points of development of the state and the right before increases has come. In the created conditions studying «legal doctrines as schools of alternative thinking», according to O.E.Lejsta, gives «possibility to compare various theories, directions of legal thought taking into account centuries-old discussion about these problems …», allows «… to get rid of narrowness and one-dimensionality of ideologically deformed consciousness focused only on dominating earlier official outlook and pravoponimanie» [51].
It is represented, that for definition of essence and specificity of legal hermeneutics as separate legal doctrine it is necessary to track process of origin and development of a hermeneutic problematics of legal texts in Russia during different historical epoch. As fairly specifies V.V. Sokolov, «… it is difficult to speak about uniform history of hermeneutics though each epoch anyhow offers similar models of interpretation for all areas, whether it be philology or jurisprudence» [52]. Nevertheless, repeating ideas, models and approaches to the interpretation, arising during the different periods of time, give us the bases to present the following periodization of history of legal hermeneutics in Russia: Legal hermeneutics in the Russian pre-revolutionary jurisprudence; Problems of legal hermeneutics in works of the Soviet scientists; The present stage of development of the Russian jurisprudence (last decades XX – the XXI-st century beginning).
In spite of the fact that the given periodization of legal hermeneutics has conditional character, she allows to allocate and characterise the basic stages of development of the hermeneutic theory, that, in turn, demands, first of all, to investigate a question on a term origin «legal hermeneutics» and process of formation of a hermeneutic problematics in world legal thought which has predetermined development of legal hermeneutics in domestic jurisprudence.

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A source: Vasiuk Anastas Vladimirovna. HISTORY of OCCURRENCE And DEVELOPMENT of LEGAL HERMENEUTICS In Russia. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2011

More on topic § 1. Legal hermeneutics as a scientific direction of jurisprudence:

  1. § 2. Legal hermeneutics at the present stage of development of the Russian jurisprudence
  2. § 1. Formation of legal hermeneutics in the Russian jurisprudence in second half XIX – the XX-th century beginning
  3. the Chapter II. Legal hermeneutics in the Russian pre-revolutionary jurisprudence
  4. § 1. Sights at legal hermeneutics in works of the Soviet scientists
  5. § 2. Historical preconditions of formation and development of legal hermeneutics
  6. Vasjuk Anastas Vladimirovna. HISTORY of OCCURRENCE And DEVELOPMENT of LEGAL HERMENEUTICS In Russia. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -, 2011 2011
  7. § 2. Ideas of legal hermeneutics in N.A.Gredeskula and E.V.Vaskovskogo's works
  8. the Chapter I. Teoretiko-methodological and istoriko-legal bases of formation and development of legal hermeneutics
  9. the Chapter III. Legal hermeneutics in works of the Soviet and Russian scientists
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  14. PRIESTS ILJA SERGEEVICH. the Legal mechanism of state regulation of bank activity. The DISSERTATION on competition of a scientific degree of the candidate of jurisprudence. Moscow,, 2000 2000
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  16. Aleksandrova Anna Jurevna Sovershenstvovanie. of legal regulation of hypothecary crediting in the Russian Federation. The dissertation on competition of a scientific degree of the candidate of jurisprudence. Moscow -, 2005 2005