Die exemplarische Bedeutung der juristischen Hermeneutik

“Wo das nicht der Fall ist, wo etwa, wie im Absolutismus, der Wille des absoluten Herrschers über dem Gesetz steht, kann es keine Hermeneutik geben, ‘da ein Oberherr seine Worte auch wider den Regeln gemeiner Auslegung erklären kann’. (..) Die Aufgabe des Verstehens und Auslegens besteht eben nur dort, wo etwas so gesetzt ist, dass es als das Gesetzte unuafhebbar und verbindlich ist.” Hans-Georg Gadamer, Gesammelte Werke, Hermeutik 1, Wahrheit und Methode, JCB Mohr Tübingen 1990, p. 334 (the innerquote is from Walch).

(amateuristic English Translation: “Where this is not the case, where for instance, as in absolutism, the will of the absolute ruler stands above that of the law, there can be no hermeneutics, ‘because an overlord can explain his words also against the rules of common explanation’. (..) The mission of understanding and of explanation exists only there where something is set in such a way as to become, as law, both binding and unremovable.” (it is for me impossible to render the wordplay on setzen and Gesetz in English).”

Let’s see whether I can still do this. As I happen to be (still) reading Gadamer let me try to apply Gadamer to actual events. In an odd way, this may be the most fitting way to go about things. Anyway, I am annoyed. Not so much by absolute rulers as by those who want to rule based on what they understand as the absolute correctness of their position.

Yes, where I want to go is here: it seems to me that those who take pride in positioning themselves as being to far left of centre are basically just taking pride in being far better than the average (human being).

It is maybe the most characteristic feature of the post-post-modern period, the period of technology, to presuppose that every problem not only has a solution but, more specifically, has the right solution. The latter means that there is a solution that is beyond interpretation and beyond evolution. What remains of the relativizing power of time is restricted to us not yet being in a way that is corresponding to the correct solution.

Specifically modern anarchists suffer from this intellectual default. They’re more annoying than the traditional right wing and absolutist people that are appealing to authority to make common sense explications of what is right, and what is fair, suspect. They’re more annoying then them because they’re appealing to their own authority as non-authoritarians to be, by default, in the right. The mechanism used by them to achieve this is to reinterpret what is commonly held in line with the own opinion, without being accountable on how this re-interpretation is done (see footnote 272 in above quote).

The common error of extremism is that of projecting a final solution. There is some value in non-authoritarian extremism but that value is gone at that exact time when the non-authoritarian appeals to the own authority as well as the own untouchableness in order to strengthen the effect he or she has – whether for good or bad intentions.

Whether extremism likes it or not, the only extreme solution of value is the one that is extremely moderate. For sure, there is value in stretching what is commonly held towards more liberal interpretations but this value can only be kept when one takes care not to overstretch. This is the exact value of a well-run democracy and this is also the exact reason why achieving balance in the right of law – & specifically the laws governing the democratic process (such as funding of political parties) – is where we should focus attention. It is why we should not get overexcited with what happens to be the concrete current outcome of that process. Political moderation needs to be radical in the acceptance of the outcome of democracy as far as democracy has been suitably advancing to ensure that that outcome does represent the common sense of the moment.

The point in all this is that there is no such thing as the (typically right wing) notion of absolute common sense. The reason for this is that common sense is a process as well with an outcome that has not only been varying over the times but that will continue – by the very essence of common sense – to keep varying over the times. Democracy is nothing else as the capturing of what’s currently held as common sense. The double challenge of democracy is to a. capture something essentially elusive and b. capture it in a way that allows for a smooth evolution of common sense. The point a. is the most tricky as capturing something elusive means that one does injustice to it, because it is no longer elusive once captured. This is the one where we in current times risk going overboard in our impatience for finding the right final recipe that will solve everything that we think needs to be solved; and this specifically on the left.

This is also the reason why one should shy away from any a more extreme position as might be held by the extreme wing of the political party that wins elections. The extreme position does not serve the value of being the right one but of illustrating better the direction in which a winning party wants to go. The last thing we need is to progress in society by adopting subsequent extreme positions – and I think really nobody could, in common sense, deny this position.

They may call us moderates a bunch of girly men but we will take pride in it, as we know that we don’t want to be bullying other. Most certainly not in the name of things we believe in like freedom of expression. We hate bullying, & we refuse to go overboard in that hate😉

 

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