Well, i think it’s important to keep the difference between different disciplines in mind, but also the difference between what judges do and what legal researchers do.
- When e.g. an astronomer develops a theory that explains a certain phenomenon, then she found a solution to her problem (and of course, the solution might not be correct).
- By contrast, judges need to decide cases. They do so by interpreting higher-ranking law, in order to identify the possible judgments they can pass. There will usually be a number of possible solutions, because law is never completely determined, and judges always have a certain scope of discretionary choice. Thus, they will, furthermore, make arguments to justify why they choose one solutions over the others. These two issues will enter the judgment text. However, the judge may also be influenced by other factors (psychology, political pressure, biases, misunderstanding of the law, her legal education, etc) — these will not be found in the judgment text (or at least not explicitly).
- If a legal scholar studies this judgment, he will 1) review the judge’s interpretation of the law. He may find that the judge has correctly or incorrectly interpreted the law. 2) He will review the arguments made by the judge to justify the choice the judge made; he might agree or disagree with these arguments. For these first two steps the researcher employs the instrument of hermeneutics. 3) Finally, the researcher might also want to look into the other factors that might have influenced the judgment. For this, hermeneutics will often not be sufficient. 4) Beyond that, the researcher may also provide policy advice (e.g. arguing that the relevant rules should be changed, etc.)