Alfred Schutz’s Practical-Hermeneutical Approach to Law and Normativity

Abstract

The contemporary practice of law is usually permeated by a steady stream of positivist thinking, whose last occurrences took the form of what has been called practice positivism. On the other hand, the hermeneutical philosophical current interested in normativity and the legal sphere had just as well been overtly external toward its objects, treating them mainly in a text-related context. In this paper I intend to tackle the question of a better approach concerning normativity and law, which averts the entrapments of positivism and makes a more advantageous use of hermeneutically devised tools, in order to carefully assess the role of the subjective perspective and of the practice of rationality in the meaningful construction of normativity. The significant work of Alfred Schutz will provide the phenomenological concept of normativity which departs notably from its long-standing, powerful metaphysical connotations and will help delineate a concept of practice which has important effects on the type of rationality functioning in the practical world of law. I will also try to test my findings by analysing the way a judge conducts its legal reasoning so as to make clear the useful combination of phenomenology and hermeneutics when treating normativity and law.