¿Existen injusticias hermenéuticas en el derecho? Una lectura realista de la ininteligibilidad judicial de experiencias marginadas

This article discusses the application of the concept of hermeneutical injustice (Miranda Fricker, 2007) in judicial contexts. It argues that the application of this concept to capture problems of judicial unintelligibility of marginalized experiences is not so clearly discernible. There is an obstacle for its application in the law when the elements that, according to Fricker, comprise the definition of hermeneutical injustice are analyzed. More specifically, its purely structural character does not fit very well in a realistic picture of the activity of judicial interpretation. From this perspective, judicial interpreters have a decisive role in avoiding or creating hermeneutical gaps. Beyond the agential component of judicial hermeneutic injustice, it is argued that the intentionality of the judicial interpreter is, in a certain sense, peculiar – and this is particularly evident in criminal cases. The conclusion of this article is that judicial hermeneutical injustice blurs the line between the structural and agential dimensions of hermeneutical injustice, so that Fricker’s definition is only partially useful for law.