5. Literature, Law, and Morality
Richard Posner lists several reasons to think that morality and law are enterprises distinct from literature: the fact that the heinous actions of German lawyers and citizens in the 1930-5 and 1940-5 coexisted with Germany's status as one of the most cultured nations of the world; the circumstance that one of the well-known abilities of many well-read people is to remain insensitive to the suffering of others; the fact that moral atrocities fill the literary canon without affecting either the aesthetic virtues of the work or its reader's own moral attitudes; and, finally, the distance between the concerns of law and those of literature.
For these reasons Posner is skeptical about what he calls the edifying school in legal scholarship, an approach to the relation of law and literature that claims that the study of literature is crucial to the ability of judges to judge responsibly and sensitively. Alexander Nehamas is equally skeptical about the ability of literature to teach people in general to act morally or to live moral lives. In this chapter I want to show the force of both positions. But I also want to turn to Gadamer's hermeneutics to develop suggestions he makes about the relation between literary criticism on the one hand and moral and legal reflection on the other. I shall argue that these suggestions help redirect our attention away from the solitary reader or critic toward the participant in dialogue. Moreover, I shall argue that the form this participation takes serves to strengthen rather than weaken the relation between literature, law, and morality. I shall begin with Martha Nussbaum's claims for the edifying potential of a particular novel, Henry James's The Golden Bowl, which is the focus of problems both Posner and Nehamas pose for attempts to connect literature, law, and morality.
The Golden Bowl involves the relations between four people: two rich Americans, Maggie and her widowed father Adam; Maggie's husband, a
The novel may be warning readers that it is a mistake for women to make marriage their whole career, that men and women alike should work rather than live off inherited wealth like Maggie and her prince. It may even be presenting a “grim parody” of the marital ideals of nineteenth-century England and America and of the capitalist system in which those ideals are embedded and which they reflect. (Posner 317-18).
If the moral implications of The Golden Bowl are ambiguous, then Posner thinks it is odd to suppose, as Nussbaum does, that reading literature is the only or best way to improve judicial decision making. For his part, Ne-hamas questions not only the limitations of Nussbaum's moralistic reading of James's novel, but also the assumption she appears to make that readers, whether judges or not, can transform that moralistic reading into lessons for their own lives. The problem in doing so, Nehamas thinks, is illuminated by the implications that Nussbaum tries to draw from the scene that describes the ultimate parting of Maggie and her father, a parting both see as the only way to resolve the situation in which all four characters find themselves. What James describes, as Nehamas puts Nussbaum's point, is how Maggie and Adam “loving each other as they do, become capable of letting go without harming one another, without selfishness and without cause for regret.”
For Nussbaum, the importance of this description is the contrast it marks between the abstract moral theories that form the content of moral philosophy and the particular situations to which they must ultimately be applied. Her point, as Nehamas understands it, is that they can only be appropriately applied “when the particular situations to which they are relevant are characterized in the detailed, fine-grained, minuscule manner of which only literary language is capable and to which only sensitive readers are attentive” (Nehamas 35). The conclusion for Nussbaum is that the sensitivity of good readers is necessary for the capacity to act morally because it is part of knowing
Nehamas suggests two ways in which Nussbaum's argument might be understood. According to the first, the moral relevance of The Golden Bowl lies in our capacity to expand our active sense of life to include the exquisite sensibility Maggie and Adam exemplify. The problem here, however, according to Nehamas, is that this capacity seems to require precisely the ability to paraphrase that Nussbaum rejects. We must be able to abstract the main features of plot, character, and reaction from a piece of literature and show their relevance for our own lives. But works of literature are unified wholes, Nehamas insists, unities of meaning in which no details are extraneous. They are not reports of real life but real life ordered around a particular sense of coherence and meaning. As he quotes William Gass, “nothing is simple happenstance, everything has meaning, is part of a net of essential relations. Sheer coincidence is impossible” (Nehamas 37). But if all the details of a novel have meaning only within this net of essential relations, it remains unclear how we are to extract particular moral lessons from out of the net.
The second way in which Nehamas claims we might understand Nussbaum's argument looks to the education in attentiveness and discrimination that reading itself is meant to offer us. According to this argument, the gravest moral problem in both reading and life is an inattentiveness to detail, an insensitivity to others, and an inability either to recognize or avoid the cruelty that such inattentiveness and insensitivity produce. We may not be able directly to transpose the sensibilities and actions of others to our own lives. Still, by becoming good readers, we are supposed to become sensitive to the needs, problems, and points of view of the diverse individuals we meet in literature and, according to Nussbaum, we are thus supposed to be able to become better moral actors in our own lives.
In questioning these suppositions, Nehamas takes up Vladimir Nabokov's Pale Fire, the central character of which, Charles Kinbote, is obtuse and largely insensitive as well as terribly inattentive as a reader. The book Pale Fire consists of a poem “Pale Fire,” which was written by a professor at a small college, John Shade, together with a foreword, commentary on the poem, and index supplied by Kinbote after Shade's death. What is striking about the commentary, however, is that it appears to be a complete misappropriation of the poem for Kinbote's own purposes. The poem concerns, in part, the poet's daughter's suicide; Kinbote's commentary sees in it the story of what he suggests is his life, the story of the deposed king of Zembla. Kinbote
Nehamas understands Nabokov's book somewhat differently, however. In the first place, he wonders how deep Shade's pain is. Shade's poem is fair to middling at best, Nehamas thinks, and the suffering it expresses is banal. Shade's life is not particularly altered by his daughter's death. “He continues to work, teach and give dinner and cocktail parties, to lecture and take vacations, to be a regular, lively and witty participant at collegial lunches, to provoke … crushes on the part of beautiful undergraduate students.” Moreover, he never talks to Kinbote very much about his pain, his daughter, or any other matters. Hence, according to Nehamas, Kinbote's supposed “insensitivity to Shade's pain appears to be due at least as much to the fact that Shade's pain is minimal as to his own insane egotism” (Nehamas 43).
In the second place, Kinbote's moral and interpretive deficiencies have literary value, Nehamas thinks. They allow Kinbote largely to ignore Shade's poem and, in appending a mad commentary to it, create a much better book. According to Nehamas, Kinbote is a better writer than Shade; the book he creates of the poem and his commentary is a better piece of literature than the poem alone. But Kinbote can engineer this literary feat only because he is so insensitive to Shade's own meaning. Moreover, Nehamas insists, Kinbote's cruelty here is the cruelty of interpreters in general “who take another person's words, redescribe them in a way that may have nothing to do with what the author consciously meant in the first place and by that means produce a greater work” (Nehamas 44). In this analysis interpretive cruelty, or what Nussbaum might consider inattentive reading, possesses creative merit. Indeed, Nehamas suggests thatjust this merit explains the reference to “pale fire” that in the play Timon of Athens refers to the moon's “arrant” thievery insofar as its light is a reflection of the sun's. It is only because of Kinbote's obtuse commentary that Shade's poem becomes noteworthy and burns with a reflected fire. Obtuse reading, as opposed to the attentive reading Nussbaum emphasizes, turns out to be necessary both for Kinbote's artistry and for the possibility of Shade's posthumous literary life.
But if an interpretive insensitivity can engender good literature, can it also lead to moral action? Nehamas suggests that Kinbote is a better man than Shade precisely because he is so interpretively insensitive. In failing to recognize the numerous ways in which Shade tries to avoid him, in attributing
Of course, Nussbaum can object to this line of argument that her concerns are directed not at the relation of morality to bad readings or misinterpretations of either texts or people, but rather at the relation of morality to good and valid interpretations. Inattentiveness to the feelings of others and the literature they meant to produce may sometimes lead to better literature as well as to actions and attitudes that are generous and forgiving. Her point is that attentive reading always has the capacity to improve our ability to act morally in particular circumstances because it gives us insight into the diversity and details of circumstances beyond our experience. Yet Posner adds to his list of bad actions on the part of good readers with which we began. Sensitivity to and understanding of the needs, problems, and points of view of diverse individuals that literature is meant to give us are also the source of the success of great demagogues “who understand people,” he claims, “all too well” (Posner 316). Moreover, Nehamas notes, an ability to understand others is a moral problem if it means that we can no longer condemn them. “That, at least, was the disturbing argument Bruno Bettleheim made against Robert Jay Lifton's study of the German physicians who worked in concentration camps: understanding them might lead us to forgive them” (Nehamas 50).
There thus appear to be four conclusions to be drawn from Posner's and Nehamas's reflections on Nussbaum's claims for literature, reading, and morality. First, to focus on the moral lessons a piece of literature has to teach us is to subtract from other meanings the work possesses and to ignore the different ways even its moral meaning might be understood. Second, an interpretive sensitivity that allows us to understand the moral grace in the actions of characters in literature such as Maggie and Adam in James's The Golden Bowl does not directly lead to a capacity to act gracefully in the different circumstances in which we find ourselves. Hence, both the moral meaning and the moral consequences of literature remain ambiguous. Third, an interpretive sensitivity can as easily provide the basis for immoral actions as it can for moral ones, for it may provide demagogues with dangerous insights into others and others with the means to forgive and excuse them. Finally, an interpretive insensitivity and the inability to read either texts or others well can lead to a generosity to others that makes better literature out of their efforts and fails to register their personal faults. The idea that literature or interpretive sensitivity is connected in any one or necessary way to morality or judicial insight seems definitively laid to rest.
Nehamas and Posner do not deny that literature can teach us how to live. What both deny, instead, is that insights into the form of a well-lived life translate into either moral or legal insights. What we learn from literature, Nehamas concludes, are models of coherent narrative in terms of which we might shape our own lives in our attempts to give them unity and meaning. Unity and meaning, however, are aesthetic values, not moral ones. In Pos-ner's view, literature helps us understand who we are and even to become who we are. Becoming who we are, however, or enhancing our recognition of ourselves is a question of authenticity, not morality. The self we discover ourselves to be “need not be a moral improvement over the reader's present, less authentic self” (Posner 331). The values involved in the consideration of literature, then, are aesthetic values or the values of an improved authenticity. They are not, however, moral values, nor do they necessarily translate into the values of sound judicial judgment.
In what follows I want to examine the connections between literature, law, and morality once more to see if there is yet another way they might have significance for one another. In order to do so I shall examine Gada-mer's account of the character of interpretive understanding, an account that tries to elucidate the conditions of literary interpretation by considering first, the interpretive or hermeneutic significance of Aristotle's ethics, second, the “exemplary significance of legal hermeneutics,” and third, the moral experience of the “Thou.” All three accounts seem to point to some relation between literary interpretation and the sphere of law and morality. What exactly this relation is meant to be remains the question. I shall begin with what Gadamer sees as the hermeneutic significance of Aristotle's ethics.
Aristotle's concern, as is Nussbaum's, is the application of moral univer-sals to particular circumstances and to the necessity of action: we encounter the question of the good in concrete situations in which some action or response is required of us. Importantly, when we know how to act or respond, the knowledge we have is not, for Aristotle, an objective knowledge or the knowledge that an observer has of necessary or constant relations between objects. It is rather a practical knowledge of what we are to do in a specific situation with its specific characteristics.
What sort of knowledge is this? Gadamer emphasizes the difference between a practical knowledge and technical or instrumental one. Whereas the latter allows for a straightforward derivation of the proper action from the result one wants to obtain, a practical knowledge of which action is morally appropriate in a particular circumstance circumscribes both means and ends. In the first place, the end, the good, is not separate from the action or means that leads to it. Rather, the good of the end depends, in large measure, on the actions through which it is realized. The success that Maggie attains by the end of The Golden Bowl is not just that she has warded off a
In the second place, if means and end are interrelated in moral deliberation, so that we cannot simply specify some end and look for the most efficient means to it, neither can we simply learn a series of moral virtues and principles and then apply them to particular situations. Knowing how to act, according to Gadamer's interpretation of Aristotle, is not a question of learning a skill and performing it when asked to do so. Rather, moral knowledge encompasses both a training or education in proper principles and virtues as well as an adequate understanding of the particular situation in which we are required to behave morally. In order to act morally, we must already understand the situation in a way that sees the relevance of the moral virtues and principles we are to apply to it. Part of Maggie's understanding of the particular situation in which she finds herself is that it imposes a moral requirement on her to act in such a way as to injure no one while resolving the situation. To this extent, her understanding of the situation is inextricable from her understanding of the relevant moral principles and virtues. On the one hand, then, her understanding of the virtues and principles she seeks to realize is an understanding constituted by the circumstances in which she finds herself. These provide the horizon from which the meaning of those virtues and principles is illuminated for her and, to this extent, her understanding of the principles and virtues at stake is already an applied understanding. On the other hand, it is significant for Gadamer that she also understands the situation in terms of moral principles and virtues, as a situation requiring of her a heightened sensitivity. This understanding presupposes that she is oriented toward the situation by a conception of tact and generosity she already holds. Hence, just as her understanding of the situation in which she finds herself offers her a particular perspective on the virtues and principles she takes seriously, her understanding of the situation is itself oriented by her initial projection of it as one requiring particular virtues and falling under the province of certain principles.
The relevance of this analysis of practical knowledge of the good transfers, Gadamer thinks, to legal hermeneutics. Here again, just as we can understand the good only through the means we take toward achieving it, we need to apply to a particular case a law the meaning of which we do not understand independently of the case itself. And just as we do not understand what action to take independently of our previous understanding of the good, we do not understand the case independently of the law as it has been
Gadamer insists that this relation between meaning and application entails that judicial review and legal history do not radically diverge. The meaning of the due process clause is a historical one. It has been understood in specific ways in the past because of specific cases and the issues they raised. This historically and interpretively constituted clause is the one that we possess as part of our constitutional tradition and it is therefore the one through which we understand new cases and the one on which those new cases shed new light. What a law means is thus constituted by the history of its application, the way that history orients us toward the present situations to which we now apply it, and the way our present situation orients us toward the meaning we inherit.
Significantly, Gadamer thinks that the same relation holds of the understanding of literature. We understand the texts with which we are concerned from the vantage point of our lives. No more than the due process clause does a work of literature hold a meaning apart from the way it holds meaning for an interpreter who comes to the work or the law from within a particular social, cultural, and historical context with particular concerns and issues. Further, as in legal hermeneutics, the work that an interpreter seeks to understand is a work that has already been understood from within particular social, cultural, and historical contexts and has been conceived of in terms of particular concerns and issues. The work the interpreter confronts is, to this extent, a work as it has been handed down to the interpreter
This relation between a historically situated interpreter, the perspective or “horizon” which that historical situation lends to a work of literature, and the work itself as it appears in a historically developed literary tradition is only one side of the overall interpretive situation, according to Gadamer's analysis. For if an interpreter must understand a work of literature from the horizon constituted by a particular, historical, cultural, and social situation, he or she also understands that very situation in terms informed by the work. If I am to understand it at all, in other words, I must understand the way in which it addresses me and requires a response from me. The issues and concerns it raises are issues and concerns I must take seriously if I am to understand it. If I am to understand that and why Maggie commits herself so completely to marriage, fidelity, and friendship, I must take these values and institutions seriously and consider their limits and extent. Moreover, I must examine my own assumptions about their place in my life; indeed, in asking why Maggie acts as she does, I consider why I act as I do and what I might do in her place. The point here is that in reading a work of literature I apply it to my life and circumstances to no less an extent than in trying to understand a law or moral principle: I ask what it requires of me in the situation in which I find myself. For Gadamer, this dimension of textual understanding means that all understanding is situated, not only in the sense that we always understand from a particular perspective, but also in the sense that we always understand for a particular situation. As he puts the point, the reader does not exist “who, when he has his text before him, simply reads what is there. Rather, all reading involves application, so that a person reading a text is himself part of the meaning he apprehends. He belongs to the text that he is reading” (TM34o). When we read The Golden Bowl our understanding of it is one that includes our lives as part of its meaning. We have a certain orientation toward the text because of those lives and because of the cultures and traditions to which they belong. Similarly, what we understand of The Golden Bowl provides us with a perspective on those lives, one that can reconcile us to aspects of them or reveal to us assumptions and expectations we did not know we had and require us to change.
The conclusion of Gadamer's analysis, then, is that the understanding of literature is a form of practical knowledge just as moral and legal knowledge are. Reading and literary criticism are not related to morality or law in the
It is not clear that either Posner or Nehamas would necessarily reject this analysis since neither denies that literature can have a practical effect on our lives. Nehamas claims that we can look to literature for exemplars of how to shape and create well-formed human lives, while Posner argues that literature can aid in our attempts to discover who we authentically are and would like to be. What we create or discover, however, need not be specifically moral and need not have any relevance to the abilities of judges to render sound judgments. The literature we read is rather practical in the sense that it can change the way we view ourselves and even motivate us to restructure our lives. Gadamer adds to this conception of the way literature can affect us a recognition of the impact of our lives on the literature we understand. We come to works of literature from the horizon of our lives; we bring to those works certain questions and issues, whether we have articulated them explicitly or not, and the answers we find in literature are answers to our questions, just as the questions literature asks of us are questions we apply to our lives. Gadamer thus sees the interpretation of works of literature as a dialogue in which both work and interpreter must raise and answer questions they address to one another. This structural homology to our relations to law and moral principle, however, does not mean that works of literature can be understood as themselves laws or moral principles for us.
Yet Gadamer's suggestions for the relation between morality, law, and literature go further. If literary interpretation is a form of practical as opposed to specifically moral or judicial knowledge, it nonetheless has what seems to be a moral condition. The understanding of a text is a kind of knowing how to reveal its meaning for a particular situation and arises from a particular situated perspective. But this relation between the universal, which is the text for Gadamer, and the particular situations to which it is applied and in
Nehamas, of course, thinks that most good interpretation does involve this sort of opportunistic and even cruel relation to works of literature. Gada-mer, as well, thinks that all understanding is prejudiced insofar as it is circumscribed by the light a particular history and historical situation sheds on that which an interpreter is trying to understand. Indeed, he argues that prejudices are the condition for the possibility of any understanding since they provide the framework only within which we can first appropriate or try to grasp the meaning of that which we are trying to understand. We are situated in particular histories, cultures, and circumstances, and these necessarily provide any orientation we have toward that which we are trying to understand. We can understand a certain text as a novel, for example, because we belong to a history and culture that knows what a novel is. We can understand the meaning of a particular novel because we project tentative determinations of meaning on the whole as we begin to read its initial parts. Without such projections we have no context for beginning to appropriate or understand the text, and by calling these preliminary projections prejudices Gadamer points to their relation to the historical situation from which they emerge. Prejudices or projections are not simply subjective or personal understandings of meaning. Rather, they indicate the degree to which our interpretations of meaning are grounded in the expectations we acquire from our history and situation and from the interpretations of the texts we are trying to understand that have been handed down to us as part of the culture and tradition to which we belong.
Still, for Gadamer, this structure of understanding describes only its initial condition, not its task. For if all understanding is prejudiced, we must, he thinks, nonetheless distinguish between those prejudiced and situated understandings that are simply opportunistic in that they impose a meaning and relevance on a work of literature for the present purposes of the interpreter and those understandings that genuinely do serve to illuminate
That this acknowledgment of the autonomy of the text constitutes a specifically moral form of experience for Gadamer is implied by his account of what he calls the moral experience of the Thou, an experience he thinks has its counterpart in the hermeneutical experience of literature. There are, he argues, three forms in which we might experience the Thou. The first is a kind of objectifying experience in which we understand the other person as a means to our ends. Our concern is to be able to explain and predict his or her behavior so that we might more efficiently achieve our own goals. Such objectification, which is necessary to game theory and rational choice models of ethics and politics, Gadamer calls a contradiction of the “moral definition of man” and purely “self-regarding.” Referring to Kant, he continues, “the other should never be used as a means but always as an end in himself” (TM358).
Gadamer thinks that the equivalent in the attempt to understand texts is a naive faith in our ability to extract ourselves from the horizon or prejudices through which we understand texts and to reduce them to objects. In this way, we attempt to understand them as if the meaning they had possessed no relation to who and what we understand ourselves and our experience to be. We understand them, instead, objectively, from no particular point of view. If interpretation involves a form of practical reason, however, this idea that we could achieve an objective understanding of a text or that the meaning of the text betrayed no relation to our own situation remains mythological. More importantly, in supposing the objectivity of our understanding we allow our prejudices to prevail without constraints. We make the text into an object for our own use because we assume that we have no
The second way of experiencing the Thou is equally self-regarding, Gadamer thinks, but it is self-regarding not because it uses the other for one's own purposes but because it assimilates the other to oneself. This experience of the Thou presumes to understand the other better than he or she understands him or herself, a presumption Gadamer associates with welfare work but that also seems to be at the root of Kinbote's relation to Shade in Pale Fire. In this case, “by understanding the other, by claiming to know him, one robs his claims of their legitimacy” (TM360). The fallacy here, Gadamer suggests, is the idea that one can dispense with the tension between distance and closeness in a human relationship and simply experience the other as one experiences oneself.
The equivalent to this experience of the Thou in textual understanding Gadamer calls historical consciousness. Once again, the presumption is that one can extract oneself from one's own situation and hence from the temporal relation between that situation and the situation of the text. One assumes that one can understand the text, not objectively, not now from no particular point of view as in the first relation to texts, but rather in the exact way that the author or his or her original audience understood it. But in making this presumption one simply substitutes one's present understanding for the original understanding of the author or his or her first audience. Again, one allows one's prejudices to prevail unchecked because one simply takes them for the original meaning of the text itself. If understanding is practical in the sense that it is always for and from a particular perspective, however, a historical consciousness or empathetic account of understanding misses what Gadamer considers the essential point about understanding: that it is both historically situated and capable of disclosing autonomous meaning.
The third way of experiencing the Thou, according to Gadamer, is the moral experience of the Thou in which one allows “him really to say something to us.” In this moral relationship we neither objectify the other nor claim to speak for him or her. We are rather engaged in a dialogic relation in which we are open to the other as someone who has his or her own autonomy and own claims. This relationship differs from the objectifying social scientific situation in which the scientist is to understand his or her object by learning how to predict his or her behavior. It also differs from the empathetic situation in which the empathizers deny any confinement to their own situated horizons and claim to understand the object as well or better than he or she understands him or herself. Rather, the relationship is one between two subjects who understand each other by orienting themselves to the independent claims each makes.
To see the experience of literature in the same terms is to emphasize the
Gadamer's point is a methodological one to the extent that it answers the question of how we are to construct valid interpretations of literary texts given that we are prejudiced and can understand them only from a situated point of view. The answer he gives is that we must assume that they are potentially other than what we suppose them to be and, in making this assumption, create a space in which their claims can be voiced. But Gadamer's point is also a moral one to the extent that it suggests that respect for difference is fundamental to the ability to treat people as ends rather than simply as means. In other words, treating other people as ends involves allowing their voice and their claims to their own autonomy, neither speaking for them nor reducing their claims to elements of a verbal behavior to be causally explained. To this extent, morality and literature make the same demand: that of allowing others to be and to express themselves. Rather than reducing them to either objects or ourselves, we must take them as independent beings against whose claim we can check our own prejudices and understanding. Our attempts to act morally and to understand texts require the same assumption: that others are autonomous of our ends and our ideas and must be given the space to speak their own claims.
Gadamer suggests that the same holds of the law. We cannot understand particular laws opportunistically, imposing our own purposes on them, if we are to come to a genuine understanding of them. Nor can we presume to understand them empathetically, as we think the framers of the particular laws themselves understood or intended them. Theories of legal interpretation that look to original intent mirror theories of literary criticism that equate understanding with empathy. The presumption in both cases is that one can extract oneself from one's own historical situation, with its contemporary concerns and the frameworks of interpretation it has developed, to understand the law or the literary text the way its authors or its original audience understood it. But in making this presumption, interpreters must presume a set of other conditions as well: that the authors of the law knew and understood all of their intentions with regard to it so that what they claim to have been their intentions can be taken to really accord with them; that the various contributors to the final formulation of a law, act, or constitutional
For Americans, the Supreme Court's 1896 decision in Pkssy v. Ferguson remains a prime example of just such an opportunistic and falsely inten-tionalistic reading of both the Fourteenth Amendment and alternative interpretations of it. Moreover, the decision seems to confirm the suggestions Gadamer makes about the links between moral, legal, and literary knowledge. Plessy, as is well known, upheld a Louisiana law providing for separate accommodations for blacks and whites in railway cars. Although the black community protested, the Supreme Court (with Justice Harlan dissenting) claimed that “in the nature of things” the equal protection clause “could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.” It added that if African Americans thought that separation stamped them with a “badge of inferiority,” this badge was issued not “by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Of course, the Fourteenth Amendment makes no mention of a distinction between social and political equality; nor is it clear what the nature of things is meant to be or how it shows what the intentions of the authors of the Fourteenth Amendment were. By claiming to know what these intentions were, the Supreme Court simply allows its own prejudices to hold sway. By dismissing “the colored race's” interpretation of the act as a construction they “choose” to put on it, the Court also dismisses the autonomy of African Americans and the difference their interpretations reflect. But the Court's failure here is not one only in legal interpretation or in the interpretation of texts. It is also manifestly a moral one. If the 1954 decision in Brown v. Board of Education began to correct this moral, legal, and interpretive failure, it did so in part, at least, because it restored dignity and independence to both the meaning of the amendment and the understanding African Americans had of it.
If we are to follow Gadamer's suggestions, Brown is a better decision than Plessy in moral, legal, and interpretive terms not because it is an unprejudiced one. Brown understands both the Fourteenth Amendment and black interpretations of the doctrine of “separate but equal” from a perspective
Still, we might ask how we are meant to realize this demand. We cannot suspend our prejudices or interpretive frameworks in order to create the space in which others can speak their independent claims. We can create it only by assuming that we are prejudiced and that what we are trying to understand or what is trying to speak to us is potentially different from those prejudices. To respect the otherness of a text, law, or the claims of others is thus to respect its possible difference from what we think we already know. But, Gadamer suggests, to assume that the meaning of a text differs from what we already know is to suppose that in understanding this meaning we can learn something. To this extent, genuine understanding requires that we approach texts, laws, and the interpretations of others with a respect not only for their otherness but also for their possible superiority in knowledge. We read, examine a law, or listen to others because we are interested in what they perhaps know that we do not.
The foundation here is what Gadamer calls the docta ignorantia or the So-cratic wisdom of knowing that one does not know (TM362). If we are situated in our historical horizons and if we are therefore prejudiced, but if we also want to create the space in which others can speak and in which we can listen, then we must assume that those others can say something new, something beyond what we already know. We cannot dismiss what they say in advance unless we are willing to be content with the prejudices we already have. And if we do want to learn, we must assume that what they say is at least potentially true. As Gadamer writes, “And just as we believe the news reported by a correspondent because he was present or is better informed,
This move from otherness to superiority appears to raise a problem, however. Understanding in the context of either morality, law, or literature may require a respect for difference, and a respect for difference may require that we acknowledge the possible superiority of the claims we are trying to understand. But, if so, does respect not threaten to become deference? Suppose African Americans had deferred to the supposed superiority of the claims of the Plessy v. Ferguson decision. Suppose they had tried to learn from it in the way Gadamer intimates and had even used it as a guide to rethink what they thought they knew about the principle of equality and conceptions of dignity? The concern here is that if respect for the superiority of a text or claim is a condition of understanding it, we may accord a dignity to texts, laws, and interpretations of principle that do not deserve it and learn from texts, laws, and interpretations from which we should not. Furthermore, we may overlook the extent to which their claims are ideological or pathological. To respect even the ideological content of a text or principle is to ignore what we know in deference to it and even, it would seem, if interpretation is indeed a form of practical knowledge, to pervert our own relation to ourselves.
Moreover, is it not possible to respect others by not taking their claims at face value, by realizing that the claims they raise are not those they would raise if they were behaving well or thinking at their best? This suggestion is the one Nehamas makes about Kinbote: in depriving Shade of his own voice, in assuming that he knows how to speak for him and knows his actual goodness despite his actions, Kinbote is able to make Shade into a better poet and a better man. From a Gadamerian point of view, however, it would seem that we are moral people and good interpreters not when we speak for others, even when doing so makes them into people better than they are, but when we allow them their autonomous being and meaning, whatever that may be.
A Gadamerian response to the first question of whether we might not defer to ideological claims in our efforts to respect difference and possible legitimacy looks, I think, to the distinction between accepting the claims of others and respecting them as possible paths to understanding the issues involved. We must inspect the Plessy v. Ferguson decision, for example, in terms of the possible knowledge or legitimacy contained in its account of both the equal protection clause and black Americans' account of the meaning of segregation. But to do so is not to defer ultimately to its prejudices. Rather, it is to set that “knowledge” against our own reading of the case. From a Gadamerian point of view, it is precisely by trying to see the legitimacy of Plessy, by trying to understand the truth of what it means by the nature of
Gadamer's insistence that we approach a text, law, or interpretation of a practice or principle with a prejudice in its favor, a presumption that what it says could be true or valid, is meant to provide a check against the unex-amined reign of our own prejudices. He does not insist that the presumption must work out. Rather, a presumption in favor of the truth of what we are trying to understand illuminates our own prejudices and therefore grants us the possibility of confirming or rejecting those prejudices against those of that which we are trying to understand. To approach a text or claim with the idea that one might learn from it is not to set aside one's own prejudices but to illuminate them, and it allows one to test the two conceptions, our own understanding and the one that we are trying to understand, against one another.
Still, this analysis may not be sufficient to overcome the problem, for it presupposes that the 1896 Supreme Court is simply prejudiced as opposed to ideologically motivated. Moreover, it supposes that although we ourselves are prejudiced, we are not ideologically motivated. But suppose the two interpretations that are supposedly illuminating one another are equally ideological? Suppose our understanding is such that we can accept Plessy v. Ferguson and require state governments simply to comply with it and to establish equal facilities for blacks. Such facilities might go beyond the law school Texas set up for blacks in a basement a few blocks from the regular University of Texas law school, and they might even require that black elementary school children be admitted into white schools until substan-tively equal facilities could be built for them. But if this understanding of Plessy were to replace an older one allowing for unequal facilities or tying the existence of any facilities at all to the number of blacks actively seeking them, it would be no less ideological an understanding. What can prevent or correct an endless spinning out of claims that are not simply situated accounts with their own vocabulary of understanding but are instead ideological accounts with a distorted vocabulary?
For Jurgen Habermas this possibility is similar to the case of pathologically distorted vocabularies with which mental health patients try sincerely to understand themselves and their lives. The problem here is that the language through which they try to understand is itself confused by the very set of problems they are trying to solve. The problems trace back to an original trauma, the language for which the patient has repressed and for which he or she has also found substitutes in the form of symptoms. Clarity and understanding thus require a wholly reconstructed language. The same might be said for racism. If one approaches Plessy or the Fourteenth Amendment
Gadamer does not deny the gravity of this sort of problem, but he does deny that the recourse to social theory that Habermas suggests can resolve it since any social theory will itself be subject to the hermeneutic conditions of prejudice and a horizontally circumscribed understanding. Rather, Gadamer looks to what he calls the productivity of temporal distance. Time allows the prejudices that blind understanding to fall away and the prejudices that support it to emerge. “It not only lets local and limited prejudices die away, but allows those that bring about genuine understanding to emerge clearly as such” (TMsgS). This analysis can be only cold comfort when we remember the generations of schoolchildren who had to wait while our prejudices adjusted themselves. Nor did our prejudices do so on their own. That the United States was able finally to rethink Plessy v. Ferguson owes its good fortune, in part at least, to the struggles of African Americans and their allies from the moment the decision was reached. But Gadamer does not think either understanding or morality progresses in any other way. Certainly he does not think there are any guarantees in the social theory to which Habermas appeals. Rather, he thinks that morality, law, and literature are texts that we must constantly rethink in new situations and in the light of new understandings. We have to struggle over our texts; we must disagree, argue, and look for answers to our questions, answers that we all, or most of us, find compelling.
What about the second problem we noted earlier? Surely, it is a moral virtue to be good-hearted, to look past a person's failures in judgment or action and to understand him or her as he or she could be. And surely we appreciate those who see us as we could be if we were better people, rather than as we are. Gadamer does not address this problem explicitly as he does the issue of ideology. Still, it would seem that from a Gadamerian point of view, this rose-colored relation to others is as dogmatic as one that sees only their failures. If others understand us only as they want to understand us or are used to understanding us, then, whether their orientation in doing so renders us better or worse than we are, they fail to respect our autonomy. They fail to allow us to differ from who they take us to be and hence fail to respect who we are. Respect for our difference, however, may be the basic moral virtue we are owed, and respect for their difference may be the basic moral virtue we owe others. Certainly it is a fundamental feature of struggles for recognition by women and minorities. Women struggled, in part, against an ideologically motivated enhancement of their goodness, as creatures too pure and gentle to engage in competitive careers or dirty politics. African Americans struggled against an equally ideological denigration of
What do these Gadamerian considerations mean for the conclusions that Nehamas and Posner reach about claims for the relation of literature, law, and morality? First, to focus on the moral lessons a piece of literature has to teach us may be to subtract from other meanings the work possesses and to ignore the different ways even its moral meaning might be understood. Yet if we always understand from a situated horizon, to understand a piece of literature as a moral lesson may be as legitimate as other ways of understanding it. Second, an interpretive sensitivity that allows us to understand the moral grace in the actions of characters in literature such as Maggie and Adam in James's The Golden Bowl may not directly lead to a capacity to act or judge gracefully in the different circumstances in which we find ourselves. Still, if understandings of moral principle and virtue as well as of law and literature are all forms of practical knowledge, they all reflect an ability to apply universals to particular situations in ways that illuminate and develop the meaning of both. Third, an interpretive sensitivity may as easily provide the basis for immoral actions as it does for moral ones, but a moral acknowledgment of the autonomy of others, including texts, laws, and the interpretations of others of them, remains a condition for adequate interpretation. Finally, an interpretive insensitivity and the inability to read either texts or others well may lead to a generosity to them that makes better literature out of their efforts and better people out of their characters. It may also lead to a lack of generosity that makes worse literature out of their efforts and worse people out of their characters. Neither a blind generosity toward others nor a lack of sufficient generosity seems to have the moral weight of another virtue, however: that of a respect for difference. This respect includes an appreciation of the autonomy of others, a recognition of the possible independence of their claims from one's own prejudices, a willingness to learn from them even if this willingness bears no fruit, and an acknowledgment of their possible difference from oneself and from
1. See “The Edifying School of Legal Scholarship,” in Richard A. Posner, Law and Literature (Cambridge, Mass.: Harvard University Press, 1988, 1998), 304-44. [BACK]
2. Martha C. Nussbaum, “Form and Content: Philosophy and Literature,” in Love's Knowledge: Essays on Philosophy and Literature (New York: Oxford University Press, 1990). [BACK]
3. Alexander Nehamas, “What Should We Expect from Reading? (There Are Only Aesthetic Values),” Salmagundi 111 (Summer 1996): 35. [BACK]
4. See Plessy v Ferguson, 163 U.S. 537(1896). See also Richard Kluger, Simple Justice (New York: Vintage Books, 1977), 73-83. [BACK]
5. See “The Hermeneutic Claim to Universality,” in Contemporary Hermeneutics: Method, Philosophy and Critique, ed. Josef Bleicher (London: Routledge and Kegan Paul, 1980). [BACK]