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A Post-Analytical Approach to Philosophy and Theory of Law

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Edited By Andrzej Bator, Zbigniew Pulka and Jan Burzyński

Post-analytical philosophy of law departs from the traditional view which considers philosophical cognition merely as a sense-making and optimizing activity. It also questions the apparently universal and objective character of the theorems put forward by existing analytical philosophy. Just like every scientific trend whose name is supplemented with the "post" prefix, it does not break with its past, but rather seeks to critically revisit its established achievements. The main goal of post-analytical philosophy is no longer to impose a conceptual structure upon chaos in the realm of legal and political phenomena. Rather, it seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify – if not mystify – the legal and political reality. This kind of diagnosis paves the way towards the construction of a positive program of post-analytical philosophy of law, which the focus of this book.

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Hermeneutic Universalism: A Post-Analytical Inquiry into the Political of Legal Interpretation

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1  Introduction1

Recently, there is no shortage of opinions that legal interpretation, especially performed by courts and tribunals, including international ones, belongs to the area of the political. It is said, for instance, that specific judgements of national constitutional tribunals or the Court of Justice of the European Union (CJEU) have a “political character.”2 One may even find opinions that the settlement activity of the said tribunals has an inevitably political character. It is symptomatic that the political diagnosed in court judgments is considered something normal by part of the authors,3 while others go as far as calling it a pathology, twisting the meaning of the application of law.4 Still other authors present a ←39 | 40→much more traditional approach, defending the paradigm of the apolitical of legal interpretation, starting their argumentation with the assumptions of traditional legal positivism.

In this context, the goal of this article is to join the debate of the political of legal interpretation, taking the perspective of philosophy of law with post-analytical philosophy of law in the background. This chapter is, therefore, a tool to reconstruct the beliefs of Stanley Fish in a perspective that would highlight the place of the political in legal interpretation based on hermeneutical universalism. It may be claimed that the adoption of the described perspective will bear major influence on the ongoing scientific debate on the political of legal interpretation, including that of courts and tribunals.

2 Hermeneutic Universalism: Definition...

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