Une herméneutique en contexte: le droit

As a form of hermeneutics in context, law makes use of various interpretative techniques. In addition, law must accept that justice is also open to interpretation. Amongst the great exegetical disciplines, alongside literature, biblical exegesis, and historiography, law occupies a unique place. It is aware of the necessity of interpretation and the danger of misinterpretation that results from the equivocal character of statements or from a context that may give rise to false or contrary meanings. From this point of view, the work of interpretation ceases as soon as the situation has been clarified. In claris cessat interpretation. But law must also work to interpret the signs (proofs or testimonies) of conflicts that are inherent in the social body and that emerge from a background of tragedy. Legal interpretation arises from a background of social violence, from a wrong committed, and is thus imbued with a significant existential dimension. To this violence, the law adds the risk - in the name of a possible carrying out of justice - of adding pain to punishment: the violence of a miscarriage of justice. In law, interpretation is tragic because the differend, litigation, crime, sanction, or sentence will always entail the pathos of suffering. Interpretation here is not just a technique, but a practice: arbitration by a third party. In order to avoid the arbitrary, the law as arbiter must make explicit the status of the signs on which its legal judgments and pronouncements depend. It is here that the work of interpretation must begin.

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