Facts and Norms, Theory and Practice

This chapter starts from a double premise. The first is that law as an academic discipline belongs firmly to the humanities precisely because of its historical development since the rediscovery of the Justinian Code, as outlined in Chapter 2. Moreover, law is and has always been characterised as a strong language-oriented, philological-hermeneutical perspective, notwithstanding contemporary developments occasioned by the influx of technologies on the plane of digital and visual media entering the courtroom. It is the view, propounded among others by Hans-Georg Gadamer in Truth and Method, that hermeneutics is not merely a methodology for interpretation but is also a philosophical view encompassing a broad mode of inquiry into both text and action or human agency. Judges always try to ‘figure out’ the variety of meanings of the narratives before them, and to deal with these in terms of their legal consequences, whether or not intended. As a consequence, the second premise is that jurists necessarily combine the practical and the theoretical. I use the term theory deliberately a bit loosely here in order to refer to legal scholarship in the sense of the academic study of and research into law generally, with no doctrinal strings attached, at least not a priori. But why this double premise? Because the art of doing law in its different professional guises always requires attention to the reciprocal relation between fact and norm, as well as to the ways in which the system of substantive and procedural rules and norms is deployed to achieve justice.

Facts and norms

A characteristic feature of legal methodology in the sense of the perception of the case or legal topic at hand is the constant movement from facts to legal norms, and back. Or, as the Latin maxims go, Da mihi facta, dabo tibi ius, give me the facts and I will give you the law, and Ex facta ius oritur, the law arises from the facts. The facts too, objective as they are often mistakenly called, need a hermeneut. They do not need a iudex deductor who subsumes the facts under the rule as if the meanings of both are undisputed and given beforehand, immediately ready for use.