A Perspective on Comparative Legal Methodology and its Barriers

Abstract

1. The most outstanding and most popular theories of legal interpretation in Europe after World War II, the German legal hermeneutics and the Anglo-American objective interpretation theories of Dworkin have one characteristic in common. Both theories are not interested in drawing up a boundary between two operations, interpretation and gap-filling. 2. In opposition to such trends, I seek to argue for the necessity and possibility of a distinction between interpretation and gap-filling, as emphasized in the traditional subjective theory. I have proposed a three-stage theory in order to describe the process of judicial lawmaking. This theory tries with the help of two dividing lines to divide the development of the law through judicial operations that range from interpretation to gap-filling into three stages. One of these two dividing lines is the boundary of the possible meaning of the word, which separates the interpretation stage from the normal gap-filling stage. The other is the boundary of evaluation which separates the usual gap-filling stage from irregular judicial operations beyond the lawmaker’s plan of the statute. Any judicial operation performed inside the limits of law could be located at one of these three stages. 3. There are two major advantages of this three-stage theory. It suggests a clue to a solution of highly controversial issues related to the binding force of legal precedents in continental jurisprudence. Furthermore, it provides a new perspective for comparative legal methodology, which unfurls the possibility of dynamic and comparative studies in each characteristic or specialty of judicial operations according to the various stages of the theory. 4. The popular and trendy interpretation theories such as the German legal hermeneutics, or Dworkin’s conception, which are based on Gadamer’s philosophical hermeneutics, are nothing less than barriers to be overcome for the development of a comparative legal methodology. Currently, I think that one of the best and most productive ways of developing a comparative methodology is to re-evaluate Ph. Heck’s late works from before World War II. Needless to say, we should try to overcome the limits of Heck’s works and pursue the more advanced theory on the base of the contemporary scientific philosophy and cognitive science with more modem standards.