Preferred Citation: Leyh, Gregory, editor. Legal Hermeneutics: History, Theory, and Practice. Berkeley: University of California Press, c1992 1992. http://ark.cdlib.org/ark:/13030/ft4779n9h2/
 | Legal HermeneuticsHistory, Theory, and PracticeEdited By |
For Jan
Preferred Citation: Leyh, Gregory, editor. Legal Hermeneutics: History, Theory, and Practice. Berkeley: University of California Press, c1992 1992. http://ark.cdlib.org/ark:/13030/ft4779n9h2/
For Jan
PREFACE
This volume was inspired by a roundtable discussion on law and hermeneutics at the 1987 American Political Science Association meeting in Chicago, Illinois. Participants in that roundtable included Terence Ball, Gerald L. Bruns, Fred Dallmayr, and Michael J. Perry. The participants, as well as members of the audience, are thanked for their initial enthusiasm for the subject.
Three of the essays in this volume have seen the light of day elsewhere. Permission to reprint these articles made it possible to include them alongside the original contributions of other authors. James Farr's "The Americanization of Hermeneutics: Francis Lieber's Legal and Political Hermeneutics " appeared in the Journal of Politics (52 [1990]: 1027–49). It is reprinted here with the permission of the University of Texas Press. Ken Kress's "Legal Indeterminacy and Legitimacy" originally appeared in expanded form in the California Law Review (77 [1989]: 283–337). It is reprinted with the permission of the author. Michael J. Perry's "Why Constitutional Theory Matters to Constitutional Practice (And Vice Versa)" was published originally in Constitutional Commentary (6 [Summer 1989]: 231–49) and is reprinted here with the permission of the author and Constitutional Commentary .
Publication of a volume of this kind requires a considerable amount of cooperation, persistence, and patience. I wish to express my gratitude to each of the contributors for exhibiting these virtues and especially for their sustained commitment to Legal Hermeneutics .
I have incurred a special debt to Terence Ball. Terry's constant interest in the volume and his timely encouragement, advice, and prodding made the task of editing these papers a less lonely affair than it might have been. I thank Terry for his support, criticisms, and friendship.
Naomi Schneider, Betsey Scheiner, and Dan Gunter of the University of California Press were a pleasure to work with. I wish to thank each of them for helping to get this volume into print.
Finally, Janice Rector Leyh made a significant contribution to Legal Hermeneutics that deserves special acknowledgment. Since most of the editorial work on this volume was completed without the assistance of a secretarial staff, Jan helped me enormously by cheerfully performing a variety of administrative tasks that enabled me to conduct the necessary correspondence. Much more important, however, was Jan's confidence and support during the inevitable highs and lows of a project of this kind. Her presence was a constant reminder to me that there are many things far more important than a book. It is to Jan that this volume is dedicated.
INTRODUCTION
Gregory Leyh
Legal harmeneutics is, then, in reality no special case but is, on the contrary, fitted to restore the full scope of the hermeneutical problem and so to retrieve the former unity of hermeneutics, in which jurist and theologian meet the student of the humanities .
Hans-Georg Gadamer, Truth and Method
The essays in this volume were commissioned to examine the intersections between contemporary legal theory and the foundations of interpretation. It is now commonplace to observe that the considerable social and intellectual ferment surrounding recent debates over the nature and methods of legal interpretation can be usefully understood as reflecting the presence of hermeneutical contests. There is increasing acknowledgment of this fact in the legal literature.[1] Nothwithstanding some of this fine scholarship, there is a wider legal literature displaying, at its best, less than a full understanding of the configuration of law and hermeneutics. Remarking on the many divergent responses to hermeneutics in law, Brad Sherman notes that these responses "tend to be characterized by a lack of understanding of hermeneutics (that is, an unhermeneutical approach to hermeneutics)."[2]
One purpose of Legal Hermeneutics is to situate contemporary debates on legal interpretation within the broader framework of interpretation in general. The attempt to contextualize legal theory in this way assumes that hermeneutics has something to teach jurisprudence.[3] To see the problem of reading the law in terms of law's history, the linguistic constitution of law, and the political implications of the way law is read and understood is to set legal interpretation squarely within the humanist tradition. Instead of treating law as a discipline separate from the humanities because of its specialized idiom and professional ethos, law is understood here as another voice in the larger community's conversation about how to promote a more just and humane politics. This volume, then, points in the direction of a larger unity, a unity in which, as Hans-Georg Gadamer suggests, "jurist and theologian meet the student of the humanities."[4]
It is also hoped that Legal Hermeneutics offers additional evidence, if any is still needed, that borrowing from Continental philosophy to clarify legal practices does not inevitably lead to nihilism. Quite the contrary. As several of the following essays reveal, hermeneutics plays a critical role in the justification of our practical choices. Here hermeneutics helps us to see the grounds of judgment. A critical examination of how we justify our interpretive choices is a way of widening the horizons of those—perhaps especially in the law—whose practical work is so centrally interpretive.[5]
Hermeneutics is a term open to several possible interpretations.[6]Legal Hermeneutics does not presuppose any single or dogmatic conception of hermeneutics, though readers will find that the philosophical hermeneutics of Gadamer figures prominently in many of the following essays.[7] As several of the contributions explain more fully, philosophical hermeneutics is an attempt to identify the irreducible conditions of human understanding. Gadamer has often emphasized that his purpose is not to develop a set of rules or procedures for the interpretation of texts. His objective is philosophic, to identify "not what we do or what we ought to do (in interpretation), but what happens to us over and above our wanting and doing."[8] Thus, philosophical hermeneutics sets for itself an ontological task, namely, that of accounting for the ineluctable relationships between text and reader, past and present, that allow for understanding to occur in the first places.[9]
There is also a demystifying dimension to legal hermeneutics. Law, after all, purports to be a rule-governed activity. It is sometimes said that formal rules and legal doctrine provide the certainty and stability necessary for civil society. Hermeneutics seeks to disrupt this formalistic view of law, although not totally. As the following essays demonstrate, the description of law as rule-governed is what brings hermeneutics "into the fight." Hermeneutics, John Caputo argues, "pits itself against the notion that human affairs can finally be formalized into explicit rules which can or should function as a decision-procedure."[10] But the reader will soon discover that not only do the contributors to this volume question the merits of the view that law is rule-governed in some strong sense, asking instead what it means to talk about law as rules; they also interrogate legal hermeneutics itself, probing critically to locate the ground on which it purports to stand. This interrogation suggests that this volume marks the beginning of a conversation and not its end.
In the volume's lead essay Fred Dallmayr explores the relationship between rule-governance and radical contingency from the perspective of philosophical hermeneutics. Dallmayr's vehicle for this exploration is the concept of the rule of law. Does hermeneutics, with its rejection of
objective reason, threaten the idea of the rule of law? After tracing several variations on the rule-of-law concept and providing a sketch of Gadamer's hermeneutics, Dallmayr probes the hermeneutical implications of the formalization of the rule of law. In Gadamerian fashion Dallmayr steers a course between formalism and anarchy by showing how hermeneutical mediation is predicated on, rather than liberated from, the traditions and conventions that enable us to understand in the first place.
What is a legal text? Gerald L. Bruns critically reviews two competing answers to this important question. According to the view associated with analytical jurisprudence and exemplified in the writings of Ronald Dworkin, a legal text is to be understood on the model of a logical proposition. On this view legal texts can be interpreted to yield right and wrong answers. Still another answer is offered by those, such as Peter Goodrich, who see the legal text as an example of historically embedded political discourse that ought to be understood in terms of its legitimation function. This critical approach to legal texts calls on us to situate the text so that the power relations it legitimates can be clearly viewed.
The real contribution of Bruns's essay lies in his suggestion that to the degree both of these answers seek to go beyond hermeneutics, they fail. Drawing on the work of Heidegger, Bakhtin, and Goodrich, Bruns asks, what would a hermeneutics of the law do? A hermeneutics of law would not seek to resolve disputes and long-standing controversies but would begin more modestly "by detaching the thing in question from its dogmatic contexts, the fixed or institutionalized ways of thinking it."
The next several essays provide some historical context for a hermeneutics of law. In the first of these essays Peter Goodrich offers readers a detailed genealogy of English jurisprudence that reveals how a sixteenth-century common law hermeneutics emerged as a result of a series of external social factors, including the advent of the printing press and the popular translation of the Bible.[11] In response to a series of discourses external to the law and in the hope of systematizing law and legal studies, Abraham Fraunce and others strived to produce a scientific method of interpretation. Goodrich notes that the rhetoric and logic of this methodological project has remained a feature of contemporary legal thought and education. Indeed, one implication of Goodrich's essay concerns the ways in which our own legal past continues to influence us.
Francis Lieber published his Legal and Political Hermeneutics in 1837. James Farr's essay on Lieber points out that this may well have been the first American work on hermeneutics. Not unlike those about whom Goodrich writes, Lieber sought to set forth in a scientific way the first principles of textual interpretation. Lieber's efforts to make interpretation scientific were aimed at popularizing and politicizing hermeneutics, making it accessible for citizens, especially nonlawyers,
at a time in American constitutional history ripe in hermeneutical controversy. Farr's contribution is instructive as it shows how the discourse of hermeneutics was connected in American history with the discourse of a developing political science and with vigorous debates about constitutional meaning.
Jerry Stone's essay, "Christian Praxis as Reflective Action," emerges from a disciplinary perspective with its own venerable hermeneutical history with which legal hermeneutics has much in common: theology. Stone's thesis grows out of his own curiosity about the extent to which praxis is the substance of all interpretation, whether in law, literature, or theology. By way of a comparative analysis of Gadamer, Bultmann, Barth, and Ricoeur, Stone identifies the centrality of praxis in these various hermeneutical theorists. Familiar questions regarding, for example, the historicality of reason and the nature of linguisticality are thoughtfully examined from the vantage point of Christian theology. Is it possible, Stone asks, to reconcile the transcendent hermeneutics of Bultmann and Barth with the historical hermeneutics so characteristic of postmodern thought?
Part 3 of Legal Hermeneutics takes a more explicit theoretical turn and begins with Terence Ball's spirited critique of originalism. Taking originalism seriously, Ball maintains, requires that the framers' intentions be situated in the language and worldview of their age. Two aspects of the framers' linguistic and political conventions—what Ball labels their "discourse"—come under examination: the political discourse of republicanism and the scientific discourse of faculty psychology. Neither of these discourses occupies an important place—or, in the case of faculty psychology, any place at all—in the modern intellectual landscape. Originalism, Ball concludes, thus commits us to political and scientific presuppositions that are in deep conflict with contemporary knowledge.
Drucilla Cornell puts the act of legal interpretation in a distinctly new and clearer light. Cornell criticizes those, including some members of the Critical Legal Studies (CLS) movement, who push the indeterminacy thesis too far by concluding that law is ultimately without grounding in political and ethical principles. CLS scholars have called attention to what they perceive as fundamental contradictions in the liberal legal system and in its reigning legal ideology.[12] The "irrationalists" referred to by Cornell are those whose understanding of indeterminacy leads to ethical skepticism.[13]
Cornell also challenges those who regard legal interpretation as a recovery or appropriation of the past divorced from contemporary visions of justice. Cornell's attention to the promise of redemption calls on legal interpreters to project visions of the Good that fuse the future with the past. The principle of redemption serves interpreters as "a guiding
light…. We can think of a principle as the light that comes from the lighthouse, a light that guides us and prevents us from going in the wrong direction…. If a principle cannot give us one right answer, it can help us define what answers are wrong in the sense of being incompatible with its realization."
Gadamer's remarks on the relationship between understanding and application include the observation that "interpretation is not an occasional additional act subsequent to understanding, but rather understanding is always an interpretation, and hence interpretation is the explicit form of understanding…. Thus we are forced to go, as it were, one stage beyond romantic hermeneutics, by regarding not only understanding and interpretation, but also application as compromising one unified process." This observation leads Gadamer to say that because understanding is always application, if a text "is to be understood properly, ie according to the claim it makes, [it] must be understood at every moment, in every particular situation, in a new and different way."[14]
The essays by David Hoy and Steven Knapp and Walter Benn Michaels emerge from a debate regarding the value of Gadamer's hermeneutics for law. Knapp and Michaels fired the opening salvo. In "Against Theory 2: Hermeneutics and Deconstruction"[15] Knapp and Michaels attack Gadamer's conception of understanding and attempt to rebut the view, often associated with philosophical hermeneutics, that textual meaning should be understood apart from authorial intention. Knapp and Michaels defend an intentionalist account of textual interpretation. The debate is continued in these pages.
David Hoy's contribution to this volume is a defense of hermeneutics from the intentionalist critique of Knapp and Michaels and also serves to clarify what a hermeneutics of law might offer students of law and interpretation. Although hermeneutics does not deny a role for intentions in interpretation, neither does it privilege the original intentions of legal authors as textual meaning is determined. Hoy illustrates what he considers the superiority of the hermeneutical account of understanding by referring to the actual practice of judicial decision making (Gadamer employs a similar device). Hoy contends that the hermeneutical view that traditions always constrain our interpretations and that textual meaning is never separate "from the intervening tradition of interpretation … does greater justice to concrete legal practice."
In their response to Hoy, Knapp and Michaels renew their intentionalist assault against hermeneutics. What does an interpreter of the word "equal" in the Fourteenth Amendment, they ask, really want to know? The most plausible answer, they respond, is that such an interpreter seeks to know the authors' intended meaning. Following a defense of this response, Knapp and Michaels move on to consider its implications for
constitutional interpretation. Here they part company with other intentionalists, notably those who served in the Reagan administration and supported the appointment of conservative judges committed to one version or another or originalism. Adopting something like Ronald Dworkin's distinction between concepts and conceptions, Knapp and Michaels argue that fidelity to a general intention may be fully consistent with a judicial decision that is contrary to the beliefs of the authors of the legal principle applied. For these and other reasons Knapp and Michaels believe the methodological value of intentionalism is quite limited. Indeed, its chief advantage over Gadamerian hermeneutics is said to lie not in its usefulness but in the fact "that it is true."
In the final essay in this section Ken Kress surveys the various versions of the indeterminacy thesis in law. Kress's interest in indeterminacy is primarily in its effects on the problem of legitimacy. Hence, Kress's essay throws fresh analytical light on an issue raised by both Dallmayr and Cornell. Kress begins with the argument advanced by some Critical Legal Studies scholars that law is illegitimate because it is indeterminate. Next he considers the cafeteria of options for grounding legitimacy that are associated with liberal political and legal theory. Kress concludes by cautiously wondering about the relevance of indeterminacy for legitimacy and by suggesting some reasons for the indeterminacy of our legal system.
The volume's next three essays look, each in its own distinctive way, to the practical understandings and value of legal hermeneutics. Lief H. Carter spent one week in 1986 at a seminar with fourteen trial judges. This judicial retreat provided a unique opportunity for Carter to inquire whether academic theories of legal interpretation make sense to those who make law from the bench every day. Carter used his weeklong seminar as a way of testing the general correspondence between the daily work of judges and two competing conceptions of law: what Carter calls the "foundationalist conception" and the "pragmatic conception." Carter's necessarily tentative conclusions suggest that the practical experience of judging lends some support to the pragmatic—and one might add more hermeneutical—conception of law and interpretation.
Michael J. Perry's essay, "Why Constitutional Theory Matters to Constitutional Practice (And Vice Versa)," invites readers to think about whether or not anything of "real-world consequence" is at stake in the many recent exchanges about constitutional interpretation. It perhaps will not come as a surprise to readers to learn that Perry, a constitutional theorist with a significant body of writing already under his belt, believes theory is of great importance to constitutional practice. Although the focus of the essay is on the differences between originalist and nonoriginalist jurisprudence and on the consequences of using one or the other of these theories as a guide to interpretation, Perry's argument may be
usefully understood as an argument for th practical significance of legal hermeneutics.
Perry's protheory position sees constitutional theory as an effort to justify a particular approach to constitutional interpretation and practice. This justification is in turn only as good as the background judgments concerning the moral character of the polity and the nature of politics on which the justification depends. Like Cornell, who perceives legal interpretation as containing a transformative moment as it projects a vision of a just and humane future, Perry, too, sees constitutional theory as a species of political discourse about those human aspirations that the Constitution can be understood to promote.
In this section's closing essay I argue that legal education would be improved by making greater use of hermeneutical materials and perspectives. The conception of the good lawyer that underlies the modern legal curriculum is impoverished and in need of rethinking. No longer a generalist or person of letters, today's lawyer is a narrowly trained professional in a field that is growing increasingly pseudotechnical. Contrary to the prevailing view, the good lawyer might profitably be thought of as one familiar with the materials and ideas of the wider culture and able to apply these materials to the practice of law. In service of this revised conception of the good lawyer, legal education should be directed by a more humanistically grounded vision of law, a vision that connects law to other disciplines that are its natural allies in the university. The essay closes with some suggestions as to how hermeneutics might contribute to this deepening of legal learning.
The conversation about legal hermeneutics contained in these pages is marked by its interdisciplinarity. The guiding assumption is that more is likely to be learned about interpreting law if the subject is wrested from the exclusive control of either the lawyer or the philosopher of interpretation. It is in combination and in collaboration, especially in critical combinations and collaborations, that we are all most likely to see the richness of the subject and to come away with fresh insights into old problems.
Hermeneutical thinking does not produce pat answers or easy solutions to difficult legal problems. Hermeneutics neither supplies a method for correctly reading texts nor underwrites an authoritative interpretation of any given text, legal or otherwise. What, then, is legal hermeneutics? And what is the contribution of legal hermeneutics to our knowledge of law and interpretation? What work does legal hermeneutics do?
Even if I had answers to these questions, this would not be the place to test them out on readers. For these are the queries that the essayists engage in their own distinctive ways. It is worth noting, however, that the
activity of questioning and of adopting a suspicious attitude toward authority is at the heart of hermeneutical discourse. Hermeneutics involves confronting the aporias that face us, and it attempts to undermine, at least in partial ways, the calm assurances transmitted by the received views and legal orthodoxies.
This spirit of critical questioning is manifested with a vengeance in Stanley Fish's closing commentary, "Play of Surfaces: Theory and the Law." Fish offers readers a commentary on the contents of the volume that is both critical and highly suggestive. Fish collects the essays around the recurring themes of determinacy versus indeterminacy, historical versus ahistorical interpretation, and originalism versus nonoriginalism. Not only are particular arguments and conclusions challenged, but the individual essays are usefully connected to a broader framework of interpretation in general. In light of Fish's observations one might add the theme of protheory versus antitheory to his list of ideas that surface again and again in this volume. Resolution of the differences between and among contributors will require that readers enter the conversation that is only begun here, supplying their own questions and answers, however tentative they must necessarily be, to guide our thinking about law and interpretation in the future.
PART ONE
GENERAL PERSPECTIVES
Hermeneutics and the Rule of Law
Fred Dallmayr
That society has a rule-governed character is a standard sociological axiom; in fact, every continuous human enterprise or activity—whether individual or collective—is assumed to be rule-governed in some sense. Without this feature of rule-governance, the assumption goes, individual and social behavior is bound to lapse into randomness and radical contingency. Although plausible on a high level of generality, the assumption is beset with major difficulties that have been recognized increasingly in recent decades. Ever since Wittgenstein's observations on "rule-following" it has been acknowledged that the application of rules cannot in turn be strictly rule-governed without conjuring up an infinite regress of stipulated rules (for their own application). More important, the range of rule-governance itself has been contested in philosophical and social-theoretical literature, especially through the introduction of a sharp contrast or dichotomy between regular and irregular or between normal and abnormal practices and contexts. Although the application of rules in normal settings is manageable though complicated, rule-governance entirely breaks down in irregular conditions or in the hiatus between rule-governed discourses or "paradigms." Thus, to mention only one example, Richard Rorty in Philosophy and the Mirror of Nature distinguishes sharply between "normal" and "abnormal" discourses—a distinction that in his presentation coincides with the opposition between epistemology and hermeneutics or between "commensuration" and "conversation." Whereas normal discourse, in his view, is conducted "within an agreed-upon set of conventions about what counts as relevant contribution," the abnormal variant is practiced by someone "who is ignorant of these conventions or who sets them aside."[1]
The problems surrounding rule-governance are not restricted to a narrowly academic level. Directly or indirectly they affect one of the most time-honored and revered ingredients of Western culture, traceable at least as far back as Plato's Laws: the doctrine of the "rule of law." According to a powerful tradition of Western political thought, good government or the ideal regime is defined by rule-governance, namely, as a "government of laws and not of men." This doctrine is not simply an accidental political bias but is linked with central premises and hierarchical postulates endemic to Western civilization: particularly the rule of reason over arbitrary will, of universal principle over particular circumstances, and ultimately of idea over matter. Given this cultural-historical background, questions concerning the status of rule-governance are bound to have a deeply unsettling effect by touching the fiber of political and intellectual life: hence the unease and suspicion engendered by contemporary trends fomenting such questions—especially trends associated with hermeneutics and deconstruction. In Rorty's distinction (noted above) hermeneutics stands as the antithesis to "systematic" and epistemic knowledge, although elsewhere he has differentiated more carefully between a normal or ordinary hermeneutics and a more radical or "extraordinary" type (bent on dislodging familiar rules or conventions). The latter nuance is basically discarded by Stanley Rosen in Hermeneutics as Politics . Taking the side of epistemic knowledge and rational rule-governance, Rosen views hermeneutics (in its predominant strands) as an invitation to arbitrariness and thus as pacemaker to intellectual and political disorder.[2] I intend to explore not so much the relation between hermeneutics and politics in general but the impact of the former on that dimension of political life traditionally thematized as the rule of law. In a first step I want to retrieve and recount the chief facets of this dimension as it has been articulated in the history of Western political thought. In a second step I turn to the recent ascendancy of hermeneutics, with a main focus on legal hermeneutics or the intimate connection between interpretation and jurisprudence. By way of conclusion I review the effect of hermeneutics on rule-governance, with an eye toward finding a path between normality and abnormality or between convention and invention.
Given its prominence in Western culture, the rule of law has occasioned a considerable amount of literature and commentary; for present purposes I can only highlight some main facets of its historical trajectory. One point that needs to be noted in this account is the unstable meaning of the phrase—the fact that, like the notion of reason, rule and law are themselves the targets of continuous interpretation and reinterpretation. Thus, in classical Greek thought legal rule-governance was
ultimately tied to a higher rule governing the cosmos in which human reason was meant to participate—a far cry from the modern conception of law as an outgrowth of human rationality or an innate faculty of reason. In Plato's political philosophy, public lawfulness was linked either with the philosopher's special insight or else with settled institutional arrangements; but rule or law was never merely an abstract norm but a complex web of relationships attentive to concrete situations and diverse modes of proper conduct (or "natural right"). With some modifications this view was shared by Aristotle, whose notion of good government, as differentiated from "bad" regimes, was predicated on the prevalence of justice seen as an equitable and nonrepressive way of life transgressing selfishness. In the Roman republic lawfulness largely approximated this concrete form of equity; with the expansion of the Roman empire, however, law in the sense of rational rule-governance was increasingly elevated above local contingency and broadened into a universal maxim. In Stoic thought human law was designed to reflect ultimately the universal logos or "flame" of reason, a flame whose sparks were assumed to be more or less equally distributed among all human beings.[3] The conception of a universal principle and its juxtaposition to local contingency were continued in the medieval distinction—familiar from Thomas Aquinas but more widely accepted—between universal "natural law" and local "human law," a distinction that in turn was premised on the difference between reason and will and between universalism and particularism.
The theme of law, however, exceeds philosophical speculation. In medieval Europe rule-governance was most prominently anchored and institutionally secured in Magna Carta (1215), particularly in the section stating that no one (or no "freeman") could be deprived of property except in accordance with the established "law of the land." During subsequent centuries the clause developed into a bulwark against absolutism and into the pacesetter of a steadily expanding and solidified rule of law. Under the Stuarts and during the Civil War period the rule was championed by lawyers and parliamentarians against both royal and military claims to absolute power; speaking for a rising middle class anxious for peace and prosperity, James Harrington in his Oceana (1656) defined good government (and particularly British government) as an "empire of laws and not of men." Although still contested in Harrington's time, lawfulness or rule-governance was the motto of the postrevolutionary settlement and generally emerged as the mainstay of modern liberalism or liberal regimes. According to John Locke, lawfulness was characteristic both of humanity's precivil condition in the "state of nature" and of organized civil society, with lawfulness being a synonym here for the dictates of natural or unaided human reason. In terms of the Second
Treatise: "The state of nature has a law of nature to govern it which obliges everyone; and reason which is this law teaches all mankind (who will but consult it) that, being all equal and independent, no one ought harm another in his life, health, liberty or possessions." Lawfulness and rule-governance were not set aside but rather supplemented and reinforced in civil society through the enactment of positive laws backed up by legal magistrates. Holding that the "great end of men's entering society" was the secure enjoyment of life and property, Locke argued that the central instrument or means for reaching this goal was "the laws established in that society." Accordingly, he proclaimed it as the central task and as "the first and fundamental positive law" of all commonwealths to institute or establish a legislature or "legislative power," an institution that was to be not only "the supreme power of the commonwealth" but "sacred and unalterable in the hands where the community have once placed it."[4]
Although insisting on the supremacy of lawmaking over all types of royal or executive prerogative, Locke was by no means ready to condone an unlimited or arbitrary exercise of legislative power. In the Second Treatise —which basically stipulated the parameters of liberal-parliamentary government—civil legislation was hedged in by several safeguards or restrictions. First, although installed as supreme authority in the commonwealth, the legislature's power "is not nor can possibly be absolutely arbitrary over the lives and fortunes of the people," the chief reason being that the rules of the state of nature prescribing equal liberty do not cease to exist in civil society but are only corroborated by positive enactments; hence, "the law of nature stands as an eternal rule to all men, legislators as well as others." The second safeguard derived from the obligation of the legislature to enact only general or universally applicable laws and not rules tailored to particular circumstances or contingencies. Being the representative or mouthpiece of the collective good or of the combined interests of all members of society, the legislature, Locke argued, "cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws and known authorized judges." The prohibition of arbitrariness and legal particularism was the central pillar of good governments as articulated in the Second Treatise: "Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government." Summarizing his thoughts on lawmaking and lawfulness, Locke arrived at an eloquent formulation of the rule of law—a formulation echoing through the subsequent history of the doctrine. Legislators, he wrote, "are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at
court and the countryman at plow." The laws enacted by the legislature were designed ultimately for no other end than the common "good of the people."[5]
The circumscribed or rule-governed character of legislative authority was enhanced in the eighteenth century through the doctrine of the division and tensional "balance" of governmental powers—a doctrine commonly attributed to Montesquieu's Spirit of the Laws although rudiments of the idea antedated this work. In the French context lawfulness or rule-governance was a main pillar of Enlightenment thought, a legacy that was fully preserved by Rousseau (despite his presumed proclivity for revolutionary turbulence). Like Locke, it is true, Rousseau was no advocate of a separation or balanced division of powers but accorded supremacy to the lawmaking or legislative authority. Moreover, in the figure of the "Legislator" he made room for an extraordinary or extranormal dimension of creative political invention transgressing settled conventions. Nevertheless, once a commonwealth or republic was inaugurated, Rousseau insisted firmly on the need for lawfulness and the prevalence of general and established laws representing the collective interest of all citizens or the "general will." As he wrote in The Social Contract, the general will "cannot relate to any particular object" or circumstance but only the body politic at large or the people as a whole. When a community in its entirety or viewed as a collective body "makes rules for the people as a whole," it is "dealing only with itself" and not with an isolated part or fragment. Accordingly, he noted, the matter concerning which a rule is made "is as general as the will which makes it. And this is the kind of act which I call a law." Underscoring the distinction between universalism and particularism or between rational rule-governance and arbitrariness, Rousseau added: "When I say that the province of the law is always general, I mean that the law considers all subjects collectively and all actions in the abstract; it does not consider any individual man or any specific action." Continuing this train of thought, The Social Contract went so far as to equate state or polis with lawfulness or the rule of law: "Any state which is ruled by law I call a 'republic,' whatever the form of the constitution; for then, and then alone, does the public interest govern and then alone is the 'public thing' or res publica a reality."[6]
In large measure, French Enlightenment thought and British parliamentary liberalism set the pattern for American republicanism and constitutional government. Even prior to the establishment of the national government, various colonial or state charters reflected the combined impact of this legacy. Particularly noteworthy in this regard is the constitution of Massachusetts (1780). In addition to containing a lengthy list of individual rights or liberties, the document provided for the separation of the powers of government into legislative, executive,
and judicial branches—and for a clearly stated purpose, namely, "to the end it may be a government of laws and not of men."[7] The federal Constitution inaugurated in 1787 reflected a similar inspiration. Suspicious of any arbitrary power, including the absolute supremacy of the legislature, the founders adopted the principle of separated powers, though hedged in by complicated checks and balances. Moreover, going beyond Locke's vague safeguards, they proclaimed the Constitution itself the supreme law of the land, a law binding even on Congress. As Alexander Hamilton stated in the Federalist papers: "No legislative act … contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than his principle, that the servant is above his master." By subordinating legislative acts to the Constitution as the supreme law of the land, Hamilton also shifted the accent from congressional supremacy to that branch of the government specifically entrusted with the maintenance and interpretation of the supreme law: the judicial branch. "If it be said," he added, "that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption." It was more reasonable or rational in Hamilton's view to suppose "that the courts were designed to be an intermediary body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts."[8]
With this shift of accent to the courts Hamilton's comments implicitly inaugurated or anticipated the principle of "judicial review" that was to become a mainstay of the rule of law in America. As the Federalist continued (in the cited section): "A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." In normal circumstances the presumption was in favor of the congruence or concordance between foundation and specific enactment, between the general and the particular law. However, in case of an "irreconcilable variance" between the two, Hamilton insisted that "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Although foreshadowed in Hamilton's statements, judicial review of congressional enactments was not actually exercised or implemented until some fifteen years later in John Marshall's famous ruling in Marbury v. Madison (1803). In this decision—renowned for its subtlety and shrewdness—Marshall clearly subordinated legislative acts of any kind to the higher law of the Constitution. "The question whether an act, repugnant to the constitution, can become the law of the land," he argued, "is a
question deeply interesting to the United States—but happily not of an intricacy proportioned to its interest." To decide the question it was only necessary, in his view, to recollect and recognize certain "well established" principles, particularly the principle that the government of the United States was one of separate and limited powers, with a written constitution explicitly designed to safeguard these limitations. "Certainly," Marshall added, "all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation; and consequently, the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void." More specifically, it was the duty of the judicial branch represented by the highest court to implement this theory and to invalidate unconstitutional acts. Invoking the language of Harrington and the Massachusetts charter, Marshall concluded that "the government of the United States has been emphatically termed a government of laws and not of men."[9]
As inaugurated by such classical formulations of the Enlightenment period, rule-governance developed into a central pillar of liberal and constitutional government during the nineteenth century. This development, however, was not entirely smooth or free of theoretical and political complications. By solidifying into a doctrine, rule-governance or the rule of law also underwent a subtle change: namely, in the direction of a steady formalization and legalization, although this trend was more pronounced in continental Europe than in the Anglo-American context. In earlier formulations law and lawfulness were still closely linked with notions of the common good and thereby with broader substantive concerns. Thus (as indicated), Locke saw legislative power circumscribed by demands of the collective good, whereas Hamilton viewed the written constitution as an expression of the will of the people as a whole (as contrasted with congressional authority). Formalization during the nineteenth century was chiefly evident in the association of rule-governance with formal state structures, an association epitomized by the notion of the "law state" or "state of law," better known under the German and French labels of Rechtsstaat and état de droit . In the French setting the idea of the état de droit was first articulated by such liberal thinkers as Guizot and Benjamin Constant and subsequently adopted and fleshed out by jurists during the Third Republic. In German thought the concept of the Rechtsstaat was anticipated in Kant's stipulation that the function of the state be restricted to the realization of law or the "idea of law" (Rechtsidee ), as distinguished from welfare and police functions. This initiative was carried forward, with variations, by a string of liberal philosophers and jurists ranging from Friedrich Julius Stahl to Robert von Mohl to Rudolf von Gneist. In his Philosophy of Right (1830) Stahl offered a purely formal definition of the rule of law as embodied in the
Rechtsstaat: namely, by distinguishing the latter rigorously both from the traditional "patrimonial" state—where law was the tool of monarchs or princes—and from popular-democratic conceptions of state and law as emanating ultimately from popular will.[10]
Although undoubtedly entailing cognitive benefits, formalization from the beginning was beset with theoretical as well as political quandaries and aporias—which were bound to come to the fore with the passage of time. On the political level the distinction between Rechtsstaat and popular-democratic government was evidently problematical, especially in an era of growing democratization (whether under nationalist or socialist auspices). In an unusually forthright manner the conflict or tension was pinpointed by Gottfried Dietze in The Two Concepts of the Rule of Law . Following a suggestion by Carl Friedrich, Dietze observed, "Democratism threatens constitutionalism, for democracy, like other forms of government, contains the germ of degeneration into a state of might, arbitrariness, and injustice." As can readily be seen, the formulation pits rule-governance against popular rule, lawfulness against political power, and reason against (arbitrary) will—without sufficiently exploring how law can govern independently of politics and reason without an element of willing. Although generally favoring constitutionalism over "democratism," Dietze in the end argued in favor of a balance between the rule of law and public power centered in the state, or between the "law state" (Rechtsstaat ) and "state law" (Staatsrecht ). As he pointed out, the tensional balance is already implicit in the phrase "rule of law" itself, given that the accent in the phrase can be placed either on "rule" or on "law." To the extent that the latter term is accentuated, the political dimension of the phrase remains opaque or underdetermined. By contrast, if the "ruling" character of law is highlighted, the dividing line from public power is blurred: "Since the rule of law is a rule of men, insofar as in the last analysis it is determined by men, it approaches the 'rule of men' quite closely."[11]
As propounded by Dietze, tensional balance has a precarious status—not only politically (the focus on state power) but also, and more importantly, for theoretical or philosophical reasons. As it happens, the rift between rule-governance and politics or between reason and willing has been intensified in our century to the point of antithesis. From the perspective of logical positivism, reason was stylized into a capacity of formal (logical or linguistic) analysis, a capacity applied in an extrinsic manner to empirical reality or the contingent data found in the world. Adapting this outlook to the field of jurisprudence, Hans Kelsen developed a completely formal or "pure" theory of law, a theory in which legal rules are linked in a strictly deductive nexus independent from (or only extrinsically related to) social and political life. In Kelsen's view legal normativity
is self-grounded or self-grounding (by being anchored in a basic norm or Grundnorm ), whereas normlessness is identified with the abyss of irrational contingency and abnormality. Embracing the opposite side of this theoretical antinomy, Carl Schmitt extolled the political grounding of normative or legal systems, the fact that such systems are ultimately generated and maintained by a sovereign political power or will. Defining politics or "the political" as the demarcation between the normal and the un-normed, between the familiar and the alien (or between friend and foe), Schmitt identified sovereignty with the capacity to decide on the "state of exception," that is, on issues exceeding rule-governed normalcy. As formulated by these jurists and their disciples, the issue of rule-governance and politics defies rational settlement, ending in aporia. Nowhere was this aporia more keenly perceived than in Franz Neumann's celebrated study The Rule of Law: Political Theory and the Legal System of Modernity . Neumann distinguished sharply between two conflicting poles of public life: namely, between politics and legality or, in his terms, between "state sovereignty" and the "rule of law." As he wrote: "Both sovereignty and the rule of law are constitutive elements of the modern state. Both, however, are irreconcilable with each other, for highest might and highest right cannot at one and the same time be realized in a common sphere." Far from being mutually complementary, sovereignty and rule-governance are exclusive of each other, and "wherever an attempt at reconciliation is made, we come up against insoluble contradictions."[12]
Going beyond the extrinsic relation between power and rule-governance, Neumann's study carried the conflict or aporia into the concept of law itself. As he pointed out, it is necessary to recognize a "dual notion of law," one in which law is refracted into a "political" and a "material" dimension. Under the political rubric is encompassed "every general norm and every individual command imputable to the state, whether just or unjust, convenient or inconvenient." From the political vantage every decision of the sovereign state organ has to be viewed as legal; accordingly, law "is only voluntas and not ratio " (a phrase reminiscent of the Hobbesian dictum auctoritas non veritas facit legem ). By contrast, law in its material dimension refers to "such norms of the state as are compatible with defined ethical postulates, whether such postulates be those of justice, liberty or equality, or anything else." Seen from this angle, law or lawfulness is equivalent to rational normativity, since "the essence of norms is the reasonable principle (logos ) which it embodies" and which is "wholly transparent to the speculative intelligence." What remain excluded from this principle and thus "opaque to reason" are only the "accidents" of its realization, and these are only an "inevitable imperfection" and by no means a constitutive feature of the rule of
law. Ultimately, the gulf yawning between rational transparency and political power cannot be bridged—as little as it is possible to reconcile normal rule-governance and sovereign intervention in the legal fabric: "Not every voluntas is therefore in correspondence with the demand of a certain ratio . Material law and absolute sovereignty are clearly mutually exclusive."[13]
Neumann's study has justly been acclaimed as one of the most perceptive accounts of the complexities surrounding the rule of law; yet despite its subtlety the book hardly pressed issues far enough. Even when pursued or transplanted into the conception of law itself, the initial aporia persists: the "political" and "material" dimensions of law remain extrinsically related and thus ultimately incommensurable. Actually, however, the situation is still more complicated and entangled: at a closer look rule-governance and politics, ratio and voluntas, seem more intricately correlated or interlaced. This aspect can be perceived through a glance at the concrete operation of rule-governance. In the prevalent view (shared by Neumann) rule-governance or the "rule of law" means first of all that the law can be known independently of circumstances as a purely rational proposition, and furthermore that the rule is the same for all or applies in the same manner to all individuals (in a given jurisdiction) or at least to all individuals placed in the same circumstances. At this point, however, a hermeneutical problem—or rather a host of problems—arises: how can the law or its content be fully known apart from any contextual concretization—given that the law can never exhaustively stipulate its range of application? Moreover, how can the "sameness" of the rule or the sameness of its application be grasped apart from interpretation—given that individuals and concrete situations are never entirely identical or exchangeable? As we know already from Aristotle, sameness and difference of human conditions are not simply empirical facts or amenable to apodictic cognition but rather depend on insightful judgment and comparison, that is, on some degree of artful imagination.
Questions of this kind are not novel discoveries but endemic to the history of Western thought, from Greek and Roman jurisprudence down to the present. In a particularly acute and provocative manner these questions were at the forefront of Nietzsche's iconoclastic inquiries. As he remarked on numerous occasions, "sameness" of circumstances is not simply an empirically ascertainable fact but depends on perspective and contextual framework: instead of being the work of nature sameness and difference derive from human interpretation. Applying this thought to physics and the so-called laws of nature, Nietzsche stated in Beyond Good and Evil: "One will forgive, I hope, an old philologist who cannot desist from the malice of pointing his finger at poor interpretation. But really, that 'conformity of nature unto law' of which you physicists talk so
proudly … is the result only of your explication de texte, of your bad philology." Without great difficulty a similar argument could also he directed at the notion of a "conformity" of human beings unto law, that is, at legal rule-governance in the social domain. Pursuing a radically antipositivist path (opposing all modes of simple givenness), Nietzsche in the end arrived at an agonal perspectivism, a view of reality as refracted into a multitude of conflicting construals and interpretations. As he wrote in a letter of 1888: "The basic presupposition that there is a correct interpretation at all—or rather one single correct one—seems to me to be empirically false…. In a word, the old philologist says: there is a no single beatific interpretation."[14]
Quite apart from Nietzschean perspectivism, issues of interpretation cannot rigorously be exiled or segregated from normative rule-governance; in fact, the more normativity is formalized and elevated above contingencies, the more its content appears in need of interpretive retrieval and assessment. In our century no one has more clearly perceived and articulated this nexus than has Hans-Georg Gadamer. In Truth and Method Gadamer underscored the intimate and not merely extrinsic relationship between rule-governance and concrete-contextual interpretation. Reviewing the philosophical literature on hermeneutics, he noted a progressive tendency during the last century to privilege the cognitive grasp of texts over concrete-practical exegesis, that is, the aspect of rule knowledge over rule application; in traditional terminology the development meant the downgrading and erosion of the subtilitas applicandi in favor of semantic understanding and explication. Attributing this tendency to a mentalist or privatizing bent, Gadamer's own view of hermeneutics sought to recover the interdependence and mutual implication of these interpretive components. As one should note, recovery of application in his case was not synonymous with a turn to "applied science"—as if practical exegesis were somehow posterior to, or derivative from, a prior rule knowledge; on the contrary, the point was precisely the impossibility of their neat segregation. As Gadamer observed, "Our reflections have led us to see that understanding always involves something like an application of the text to be understood to the present situation of the interpreter"; accordingly, we are compelled to move beyond the nineteenth-century view by regarding semantic perspicacity and practical exegesis as a comprehensive or "unified process." In this process different interpretive components are not merely extrinsically conjoined or collated; instead, "we hold that application is as integral a part of the hermeneutical act as are understanding and explication."[15]
Guided by these considerations, Gadamer turned his attention to the history or genealogy of hermeneutics and particularly to its origins in philology, theology, and jurisprudence. As he noted, these disciplines are marked by their inability rigidly to separate cognitive from practical
concerns. "The original close connection linking philological with legal and theological hermeneutics," he wrote, "derived from the recognition of application as an integral element of all understanding. In both legal and theological hermeneutics there is the essential tension between the established text (the law or the revealed proclamation), on the one hand, and on the other, the sense arrived at by its application in the particular moment of interpretation, either in a legal decision or in preaching." Neither theology nor jurisprudence in his view are able to distance or stylize their respective texts into a set of objective propositions amenable to a purely "scientific" or value-neutral analysis. Just as the meaning of Scripture could not properly be grasped and transmitted except in the mode of practical exegesis, so too, a legal text or statute is not merely there "to be historically known or understood but to be concretized through interpretation in its current validity." The linkage of understanding and praxis is not restricted to the disciplines of jurisprudence and theology but carries implications for hermeneutics in general and for the status of the humanities and the human sciences. If these observations are correct, Gadamer wrote, "then we confront the task of having to redefine anew the hermeneutics of the human sciences in terms, or on the basis, of legal and theological hermeneutics." Given the close connection between jurisprudence and public life, the study even speaks of the "exemplary significance of legal hermeneutics" for the humanities and a proper conception of interpretation as such.[16]
While stressing the nexus of understanding and praxis, Gadamer did not deny the possibility of a certain distantiation of texts within limited confines and for specific purposes. Thus, commenting on Emilio Betti's classificatory distinction between the legal historian and the practicing lawyer or jurist—that is, between the cognition and the application of the law—he readily admitted a difference of accent and concern: "The jurist grasps the meaning of the law from the vantage of the present case and for the sake of that case. By contrast, the legal historian has no case from which to start, but rather seeks to determine the meaning of the law by considering constructively the whole range of its application." Despite this concession, however, Gadamer strenuously resisted the segregation of concerns, the opposition between an "objective" meaning of the law available to the historian and a merely contingent or particular meaning superimposed on the law by the practicing jurist in a given case. Countering Betti, he considered it inadequate to say that the historian's objective is simply to "reconstruct the original meaning of a legal text," whereas the jurist's task is to "harmonize that meaning with the present living actuality" (Lebensaktualität ). In reality neither the historian nor the jurist can fully extricate themselves from a lived or practical engagement with the law. According to Truth and Method, even the most meticulous
legal historian cannot help but approach a statute or legal text from a given field of experience and thus perform a certain kind of application. The legal historian "is apparently concerned only with the original meaning of the law, the way in which it was meant and the validity it had when it was first promulgated. But how can he know this meaning? Can he know it without being aware of the change of circumstances that separates his own present time from the past"—that is, without mediating in some way the past with the present? This kind of mediation, however, is precisely the labor undertaken by the practicing judge or jurist. Thus, Gadamer insisted, "the hermeneutical situation of both the historian and the jurist seems to me to be the same in that, when faced with any text, we have an immediate expectation of meaning (or pre-understanding). There can be no such thing as a direct approach to a historical phenomenon that would objectively yield its sense or status: the historian has to undertake the same task of reflection as the jurist."[17]
Throughout Truth and Method Gadamer's emphasis was on correlation and mediation—of text and application, of past and present, of understanding and preunderstanding. The assumption was by no means that of a smooth convergence or coincidence of elements or of a harmony accomplished without practical and reflective labor; in fact, Gadamer repeatedly spoke of tension or "tensional relationship" (Spannungsverhältnis ). Ultimately, this tension or mediating labor is the hallmark of the "hermeneutical circle" in which interpretation is always already enmeshed—which does not cancel the task of clarification or the distinction between better and worse modes of understanding. Apart from other customary antinomies, hermeneutical mediation was particularly designed to undercut the traditional subject-object dichotomy familiar from Cartesian and Kantian philosophy. "Inasmuch," Gadamer wrote, "as the actual target of historical understanding is not isolated events but their 'significance,' it is clearly not a correct description of such understanding to speak of an 'object' existing in itself and then of the approach of the 'subject' to it." Such a description thoughtlessly tears asunder what is basically correlative and mutually implicated in hermeneutics: "The truth is that historical understanding always contains the idea that the tradition handed down to us speaks to the present and must be understood in this mediation—indeed, as this mediation." Seen from this vantage, legal hermeneutics is not really a "special case" but, on the contrary, is "fitted to restore the full range of the hermeneutical problem and so to retrieve the former unity of hermeneutics in which jurist and theologian meet the student of the humanities."[18]
Since the publication of Truth and Method, hermeneutics and interpretation theory have entered on a broad scale into the field of
jurisprudence, both on the Continent and in America. Increasingly, students of law and practicing jurists have come to acknowledge the operation of a "hermeneutical circle" in their work and inquiries, although the notion seems more congenial to common law practitioners than to adepts of statutory and civil law. To be sure, the impact of hermeneutics is not restricted to the somewhat subdued and circumspect version formulated by Gadamer. Partly under the influence of Nietzsche (and also of legal theories of the Weimar period), a more aggressive and conflictual variant has entered the legal domain, a variant generally hostile to the role of precedents. Following in the footsteps of a radical perspectivism, interpretation is sometimes described as the work of a constructive or constitutive praxis—or, in traditional terminology, of the faculty of application (subtilitas applicandi ) virtually exempt from the demands of understanding and explication. Occasionally the interpreter is assigned a nearly sovereign power over texts, a power reducing meaning to performance and convention to invention. Against this background the issue of the present pages comes starkly into view: the precarious status of the rule of law in our time. On radical-perspectivist premises an inescapably human and political factor seems to enter the law or legal practice in a manner jeopardizing a central theme or intent of Western political thought. For with the intrusion of politics the rule of law is in danger of collapsing into the very "government of men" that it was originally meant to forestall. This danger conjures up a host of related worries: Does law here not become a captive or instrument of arbitrary caprice, of the whim of particular interpreters? Are we not witnessing here the triumph of power over law, of voluntas over ratio (which the hermeneutical circle had hoped to obviate)?
The triumph of radical or "deconstructive" voluntas is precisely the target of Rosen's critique in Hermeneutics as Politics . In Rosen's view the entire thrust of modern thought—of which postmodernism is only the most recent offshoot—downgrades objective reason in favor of arbitrary praxis, cognitive truth in favor of spontaneity. Inaugurated by Enlightenment philosophy and German idealism, this development gathered momentum in Nietzsche and finally culminated in contemporary hermeneutics ("the characteristic obsession of postmodernism"). In the course of a trend spanning two centuries, Rosen writes, "theory (the contemplation of truth) is replaced by interpretation (a perspectival fiction, masquerading as a theory). All thinking is then interpretation." The recent turn to interpretation is only the "last convulsion" in the death throes of modernity and its celebration of willfulness: "If we grant at the outset that human existence is nothing more than self-interpretation, or in other words that to be is to he interpreted, then understanding becomes, if not a convulsion, the dance of signifiers in the ballroom of our semantical imagination." For Rosen the political import
of hermeneutics derives from its complicity with power politics, its more-or-less overt endorsement of a Nietzschean will to power. Far from generating a new kind of political order, however, this endorsement only underwrites the subversion of order, just as deconstruction is only a camouflage for destruction. "Edifying hermeneutics," he concludes, "is the exoteric doctrine of the will to power, an instrument of the cunning of reason, a stage in the dialectical self-destruction of bourgeois civilization. In political terms, edifying hermeneutics (and perhaps even unedifying hermeneutics) is an expression of middle-class fear of the violent and repressive nature of truth."[19]
Although prompted by a genuine concern, Rosen's reaction is no doubt farfetched and excessive—particularly if it is focused on hermeneutics. The corrosive effects feared by Rosen clearly obtain only if interpretive praxis is entirely sundered from understanding and explication, that is, if exegesis is cut off or removed from the cultural and political context in which interpreters are at best participants but not sovereign masters. Attentiveness to this contextual bond is a central feature of historical and textual hermeneutics, especially in its Gadamerian version. As previously indicated, hermeneutical mediation in Gadamer's view is precisely a means for bypassing traditional antinomies, in particular the bifurcation between subject and object, text and application; from this vantage, questioning the objective givenness of a text or law is not equivalent to the simple acceptance of interpretive caprice. As Gadamer writes, with reference to legal interpretation seen as the concretization of law in a given case: "The creative adjustment and supplementation of the law that is involved here is a task reserved to the judge—but he is subject to the law in the same way as every other member of the legal community. It is part of the idea of a legal order that the judge's decision does not proceed from an arbitrary and unpredictable whim, but from the just weighing of the entire situation in a holistic context." According to Truth and Method, the nexus of text and exegesis is operative in different modes in philological, theological, and legal settings; the common ingredient, however, is that textual meaning discloses itself only in concretely engaged interpretation, which in turn remains embedded in a social fabric of understanding. Thus, Gadamer adds, "we can pinpoint the truly common feature of all forms of hermeneutics in the fact that the meaning to be understood finds its concrete and complete sense only in (applied) interpretation, but that this interpretive activity remains wholly committed and tied to the meaning of the text. Neither the jurist nor the theologian regards the task of application as involving an emancipation from, or setting aside of, the text."[20]
Hermeneutical mediation comes to an end whenever one party arrogates to itself a sovereign prerogative, that is, the capacity to determine the meaning of legal and other texts unilaterally in a binding fashion. At
this point mediation is replaced by the stark antithesis between text and praxis, between law and politics—an antithesis typically resolved through the absorption of law by power, of reason by sovereign commands. Differently phrased: understanding gives way to a "state of nature" remediable only through absolute fiat. This alternative is fully recognized by Gadamer in his stress on the shared meanings of a legal community. Where such a shared fabric is lacking, he observes, where—as in the case of royal absolutism—"the will of the absolute ruler is above the law," there is "no room for hermeneutics" (legal or otherwise). In this case the ruler can assign to words meanings departing entirely from common understandings or practices. In terms of jurisprudence the point here is not to interpret the law in such a way that the particular case is decided properly or justly in accordance with the "legal meaning" of the law. Instead, "the will of the monarch who is not bound by the law" can effect or implement his preferences or views of justice "without regard for the law, that is, without the labor of interpretation." Needless to say, these observations can be extended beyond the range of royal absolutism to any kind of sovereign privilege, whether it be claimed by an intellectual elite, a radical party, or a class.[21]
While acknowledging exceptional circumstances, Gadamer's hermeneutics cautiously avoids a Hobbesian scenario by insisting on the cultivation of shared meanings and a shared public space as a premise of interpretive praxis. It is hardly an accident that in Truth and Method the comments on legal hermeneutics and its significance are directly preceded by a section dealing with the "hermeneutical relevance of Aristotle"—a section presenting the Aristotelian conception of practical-moral judgment (or phronesis ) as dependent on learning experiences garnered in a shared moral way of life (or ethos ). As in the case of jurisprudence, practical judgment is embedded in and nurtured by historically transmitted understandings and beliefs, although the latter can be refined, sharpened, and even creatively modified in a given instance or application. Similar Aristotelian underpinnings can be found in Emilio Betti's theory of interpretation, despite the obvious differences between his position and Gadamer's. Pointing to the inevitable incompleteness and elusiveness of rule-governance, Betti assigns to jurisprudence, and particularly to practical legal exegesis, the task of functioning as an "organ of community consciousness," though not an organ subservient to the currents of public opinion. As he notes, such a function is starkly at odds with an empiricist (or logical-empiricist) construal in which text and interpretation, rational rule-governance and legal praxis, are sundered and in which practicing jurists are treated as "isolated atoms uprooted from the holistic context of which they are a part." What is chiefly neglected in this construal is the intimate nexus between interpretation
and the common beliefs (or common sense) of a community and the fact that jurists are not so much autonomous masters as representative participants in a shared way of life. Echoing Aristotelian teachings, Betti exhorts jurists not to place their trust exclusively in statutory clauses or conceptual formulas but to nurture a common moral sense, a "sensitivity and understanding for the legal ethos (of their community) including the future-oriented demands of society."[22]
For contemporary readers Gadamer's and Betti's notion of shared meanings or a shared way of life may seem excessively benign, if not entirely misleading. From both Marxian and Nietzschean vantages, social life is not a consensual abode but an embattled arena marked by profound rifts or contradictions and by a more-or-less overt struggle for power. In poststructuralist terminology, meanings circulating in the public realm are basically contested and permanently contestable notions, with efforts at stabilization typically seen as a camouflage for subtle modes of dominance. As noted above, contemporary jurisprudence is not alien or averse to agonal-conflictual models, sometimes to the point of encouraging a radical rupture between law and politics, between rule governance and interpretive praxis. As it seems to me, this tendency needs critical assessment. While serving as a corrective to a placid consensualism, agonal contestation in my view cannot entirely cancel (Gadamerian) hermeneutics, at least in its guiding intent. At this point it may be advisable to recollect another conflictual model that is not so much extrinsic as crucially endemic to understanding and lawfulness: Hegel's notion of the struggle for recognition. In this model shared meanings and public reason are not so much the premises as they are the outgrowth or corollary of mutual contestation—an outgrowth that remains fragile and always dependent on concrete-historical learning experiences. Hegel's notion, I believe, contains a lesson for the rule of law in an age of political instability and social dislocation. Taken by itself or as a purely deductive system, rule-governance cannot sustain a community but rather provokes as its supplement the rule of power (or the "government of men"), just as abstract reason invites the inroads of private caprice. By contrast, although it is not reducible to rational maxims, public life can and should be pervaded by a common reasonableness or a reasonable common sense, a sense preventing lawlessness and engendered precisely at the intersection of concrete agon and mutual recognition. This sense, I take it, is at the core of the Greek view of ethos and also of the Hegelian concept of Sittlichkeit (construed in a nonidealist fashion).
Expressed in mundane political terms, courts and lawyers cannot maintain lawfulness or the rule of law in a society rent by deep ethnic, economic, or other fissures or where there is a widespread sense of corruption, unfairness, and inequity. Only by remedying or healing these
fissures through concrete engagement (or a struggle for recognition) is it possible to restore the common reasonableness that is the nourishing soil of legal rule-governance. On a cross-cultural or international level only concretely shared learning experiences and not abstract edicts, I believe, can overcome or counterbalance the ingrained "state of nature" between feuding nation-states. By the same token, present social-political conflicts cannot be set aside by appeal to a common "tradition" or consensus presumably operative in the past: contrary to a facile reading of Gadamer's work, tradition is not a compact formula capable of overriding present (and expected future) agonies. If, as Hamilton argued, the Constitution is the expression of the common sense of the people (as distinguished from more circumscribed legislative power), then this sense cannot be frozen or congealed at a given moment, silencing subsequent generations or subjecting them to a rigid ancestral cult. In this case, too, hermeneutical mediation surely must do its work, linking past and present understandings without granting sovereign mastery to "original intent" (or any other isolated intent or preference); such privileging would stylize the Constitution into an abstract document removed from the labor of interpretive praxis, thereby undercutting the productive, often agonally sustained continuity of public reasonableness or Sittlichkeit . As Hegel remarked in the Philosophy of Right, public Sittlichkeit manifests the mediation of the objectively given law and the subjective autonomy of the interpreting agent or citizen. "The unity of the subjective with the objective and absolute good," he wrote, "is Sittlichkeit or ethical life; in it we find reconciliation as it accords with the concept (of goodness)." And he added: "Law and (subjective) morality cannot exist independently, but must have the ethical [Sittliche ] as their support and sustaining ground.[23]
Law and Language: A Hermeneutics of the Legal Text
Gerald L. Bruns
All by itself the logos does not make language.
Martin Heidegger, Introduction to Metaphysics
On my (admittedly incomplete) reading of recent legal theory, one question appears to urge itself with special force: What is a legal text? This is not a formal question about genres of legal composition, say, the writing of opinions or statutes, nor is it (just) a question about the canonization of certain sorts of binding texts or about what it is for a text to be binding; rather, it is a question about the various competing textual models that have turned up in recent arguments about what the law is and how it is to be understood. This is an open-ended question. Indeed, in our current intellectual environment the textuality of the law entails a questioning of law itself.
There are, if I understand, roughly two poles of thought that can help to orient one's thinking. On the one hand there is the idea that the legal text is to be construed on the model of the logical proposition, that is, as a statement that can be judged as (in some sense) true or false according to the rules of consecutive reasoning. On the the other hand there is the idea that the legal text is always historically embedded and politically motivated, so that it is no longer possible to take the law simply as the product of reason and argument: one must also (always) construe it according to categories of materiality—power, technology, social relations, sexual difference, and so on.
So on the one side there is someone like Ronald Dworkin, whose views are developed elegantly in A Matter of Principle and Law's Empire .[1] Dworkin takes it that the law is made of propositions and that the main task of "analytical jurisprudence" is to determine the sense and force that these propositions have (MP, 146). As it happens, however, Dworkin wants to take this idea a half step back from legal positivism, where everything reduces to rule-governed behavior; but he doesn't, of course,
want to go so far back as relativism and skepticism, which call into question the possibility of "right answers in hard cases" (MP, 143). So he takes recourse to what he calls the "aesthetic hypothesis," in which a legal text is said to be like a literary work produced by many authors, each of whom is determined, as of one mind, to create "the best work of art." Literary interpretation, as Dworkin understands it, is aesthetic interpretation, that is, "an interpretation of a piece of literature [that] attempts to show which way of reading … the text reveals it as the best work of art" (MP, 149). The legal equivalent of such a work of art would be a legal proposition or chain of propositions that exhibits what Dworkin calls "legal integrity." "Law as integrity," he says, "ask judges to assume, so far as this is possible, that the law is structured by a coherent set of principles about justice and fairness and procedural due process, and it asks them to enforce these in the fresh cases that come before them, so that each person's situation is fair and just according to the same standards" (LE, 243). On this model the right interpretation of a legal text would be that which shows it in the best light possible with respect to the principle of integrity. The idea is always, whether writing or interpreting the law, to make the law express itself. Analytically, or by analogy with analytic philosophy of language, this approach means laying bare the deep structure of the law, the "coherent set of principles" that make the law semantically intelligible and judicially forceful—in a word, just. The task of analytic jurisprudence, in other words, is to describe, or enforce, the law of the law.
On the other side there is someone like Peter Goodrich, author of Reading the Law: A Critical Introduction to Legal Method and Techniques .[2] Goodrich says, "Legal discourse is … simply one of many competing normative disciplinary discourses, discourses of morality, religion, and social custom, to which it is closely related and from which it draws many if not all of its justificatory arguments. It is a discourse which should ideally be read in terms of control—of dominance and subordination—and of social power-relations portrayed and addressed to a far more general audience than that of law-breakers and wrong-doers alone" (RL, 20). For Goodrich the legal text must always be historicized; that is, it always needs to be situated within the states of affairs in which it helps power to circulate in the desired direction. Goodrich himself approaches the law in terms of the history of its canonizations as so many binding or coercive texts, such as Justinian's Corpus Iuris, which Goodrich regards as a prototype of the legal text because "[i]t wrote down an archaic and alien law for political and ideological reasons; that it subsequently became the object of an almost mystical awe had more to do with the political needs of the later western governments than it had to do with the substantive legal content of the codification as a whole" (RL, 32). The lesson of the history of law, he says, is that the force of the law is
independent of its sense. The law expresses itself in the form of power, not reason, despite the claims of legal doctrine "to a logic of law and of law-application." Goodrich writes: "Innovations in ideology, changes in the manner in which the legal community represents and justifies its social and political roles, should not blind the student of legal texts to the fact that the claim that there is a strict logic of legal interpretation or the belief that 'legal reason' can alone provide 'correct' answers to legal problems are nothing more than exaggerated (dogmatic) assertions that the law be respected and obeyed" (RL, 141). As if the deep structure of the law were the will to power.
Borrowing from Mikhail Bakhtin, Goodrich describes the language of the law as a "unitary language," a system of usage that stands outside of and tries to control "the conflicting usages and differently oriented accents of social dialogue" (RL, 188). It translates social reality into its own terms in order to control it. These terms, moreover, are themselves "open to intentional manipulation, that is, to multiple possible usages." Goodrich's idea is that the indeterminacy of legal language, in which words such as right, duty, obligation, corporation, contract, and so on are capable of a broad and heterogeneous range of application, means that legal language is more a rhetoric than a code, that is, a rhetoric disguised as a logic.[3]
For someone like Dworkin, or more explicitly Owen Fiss, this is nihilism.[4] But Goodrich would call it criticism. "What is at issue … in the debate as to law and criticism is not so much the reality of the meanings and values wearily peddled by the legal doctrinal community but rather whether or not it is desirable to allow the profession to continue to transmit those values and doctrines, that ideology and those myths, without being made explicitly accountable for the political choices underlying the development of the law" (RL, 219). This is also Roberto Unger's point in The Critical Legal Studies Movement . The indeterminacy of legal doctrine—the idea that such basic notions as property, contract, rights, freedom, democracy, and so on can receive and in fact have always received "alternative institutional embodiments"—is emancipatory rather than destructive. It opens up the possibility of a theory of legal practice as the mounting of arguments among alternative social or institutional ideals, as against the underwriting of tradition or the established order by means of ritual appeals to precedent and the internal necessity of rules.[5]
It is interesting, and perhaps not accidental, that both sides—the formal or aesthetic and the critical or historical—think of themselves as having gone "beyond hermeneutics." On the one side there is in the analytical tradition, as part of its self-definition, the idea that interpretation has to be got away from or brought under rigorous argumentative
control so that as little as possible, if anything, remains left open to it. Interpretation is always a tacit admission of the failure or shortfall of knowledge and reason. The very idea of legal interpretation weakens our sense of the law's legitimacy. Insofar as interpretations are necessary, they should be strict and final. We need to determine the logic of interpretation. Thus, for people like Dworkin hermeneutics is simply a synonym for relativism and skepticism because (he thinks) it denies the possibility of right answers in hard cases. Hermeneutics is too much in love with rhetoric, too suspicious of logic. It is, someone like Fiss would add, what people like Unger and especially Goodrich are in favor of, namely, the end of rationality and therefore the legal order as we know it. For people like Goodrich and Unger, on the other side, hermeneutics is a method of getting the present to correspond to the past: in Goodrich's words, "hermeneutics preserves tradition and constantly endeavours to emulate or repeat the logic of a past culture" (RL, 165). It is a method of resolving, or suppressing, conflicts of interpretation; it is the production of single-mindedness or monological agreement; it is the erasure of difference and the construction of hegemony. Hermeneutics is what formalists and objectivists, whatever they think they are doing, are actually doing. Thus, the one side would point to Hans-Georg Gadamer's idea that we always understand differently if we understand at all, with its (alleged and allegedly nihilistic) implication that the meaning of the legal text changes with its interpretation; by contrast, the other side would point to Gadamer's attempt to rehabilitate the notions of authority and tradition and to his classicist claim that we are always within the normative embrace of what comes down to us from the past.[6] So hermeneutics is either radical or reactionary; it seeks either to undermine the logic of the law and legal application or to mystify the law as a body of original meanings and authoritative doctrines handed down from a divine origin through successive generations of priestly interpreters.
I think that both sides are wrong about hermeneutics, but no matter. My interest here is not to try to correct them. The struggle with incorrigibility is about as exciting and productive as the struggle with bureaucracy. I do think, however, that both sides need to be pushed further into hermeneutics in order to accomplish the tasks they set for themselves. Had I the time and space I would try to argue that legal theory generally needs to loosen up its notion of rationality and that Gadamer's notion of hermeneutics, which attempts (among other things) to clarify the practical rationality of life in terms of phronesis as against procedural and instrumentalist reasoning, shows at least that one does not have to choose between uncritical, implausible accounts of legal reasoning and apocalyptic visions of crisis, irrationality, skepticism, nihilism, and despair.[7] However, I would have to say that one ought not to confuse tradition with the institutions that try to control it. Gadamer's idea (which is
anything but conservative) is that what comes down to us from the past, including the law, always exceeds our efforts to fix its meaning. Law as tradition is always excessive with respect to law as institution. Tradition is more dissemination than perpetuation. The idea of holding fast to an original construction is not how hermeneutics understands tradition.[8]
As for the law, one can begin with the proviso that hermeneutics does not think of it in terms of the conceptual or methodological interests of the legal theorist, still less in terms of the strategic interests of legal or judicial practice; rather, the concern is with the conditions in which these interests are pursued. Put it that the interests of hermeneutics are more ontological than technical. A "hermeneutics of the law" in this respect would not be the same as a theory of the law. On the contrary, hermeneutics is apt to seem a little too wayward or free in its thinking with respect to the law (or indeed any subject). This will certainly appear the case when it comes to the question of law and language, or what in hermeneutics would be called the linguisticality (Sprachlichkeit ) of the law.
Gadamer, for example, likes to think of language as the medium of human existence: existence—ordinary, everyday, "factical" existence—is linguistical. But it remains an open question how this linguisticality is to be understood, because linguisticality is heterogeneous and irreducible; that is, it is untheorizable in rather the way parole or natural languages are untheorizable.[9] From the theoretical standpoint of, say, Husserlian phenomenology, structural linguistics, analytic philosophy of language, and most literary criticisms, Sprachlichkeit is a nonidea; it lacks ideality, or portability from context to context. In order to have a theory of language or even a grammar of any sort, one has to reduce language from linguisticality; that is, one has to have distinctions between langue and parole, or between deep and surface structures, between system and event. This reduction occurs even in ordinary language philosophy, which, in order to count as a theory, has to bring linguisticality under analytical control by exposing the deep structures (the locutionary, illocutionary, and perlocutionary forms) that govern what we say when. This is the task of John Searle's speech-act theory, in contrast to Stanley Cavell's development of ordinary language philosophy, which no longer appears to have anything to do with language (but everything to do with linguisticality).[10] Meanwhile, Heidegger, whose thinking goes very much against the grain of deep-structure analysis, says that none of our theories of language has anything to do with language in its ontological character as Saying (Sage ). "Saying," he says, "will not let itself be captured in any statement.[11] One wonders what would happen if one began thinking this way about the law.
From the standpoint of hermeneutics it is certainly not enough to think of linguisticality on the model of logical grammar as so many deep structures, codes, conventions, tacit rules, systems of constraint,
paradigms, intersubjective arrangements, and so on.[12] This is not to say that grammar is a mere fiction or that there are no such things as linguistic rules, since obviously there are, but what's their point? One thing is that such structures help to keep linguisticality under control. They inscribe linguisticality in such a way as to make it rational and intelligible (controlled and predictable); without such "rules" we cannot imagine that sense could be made of anything. Language would always be getting away from us, as, of course, it inevitably does anyway. One can think of the law (or of any discipline) as an institution or mode of discourse that tries to bring linguisticality under control, or the rule of reason. The law belongs to the region of disciplinary as against sovereign power—power justified in terms of its ends rather than its origins. One can think of poetry or literature (not as Dworkin does but much more loosely) as a region of discursive practices designed to let linguisticality go in Heidegger's sense of Gelassenheit, letting-be, stepping back from representational-calculative thinking, giving up the rule of the word.[13] Such discourse tends to mark its borders with things like Finnegans Wake, a text of intersecting surfaces across which one moves in nonlinear fashion, say from pun to pun—a text that grammarians try then all the harder to rationalize by showing how. despite its crazy surface, it is (whew!) rulegoverned after all.[14] By contrast, there are in principle no puns in the law, or at least none intended.[15] But the law is surely as ambiguous in this respect as in any other because the law has, so to speak, its upside: it belongs to linguisticality—the vast, weather-system world of discourse—as much as anything does. So perhaps one could speak of the anarchy (versus the lawlike deep structure) of the legal text. When one reflects on the language of the law, or it textuality, one begins to sense what this might entail. But does any legal theorist ever seriously reflect on the language of the law? What would it be to do such a thing?[16]
Here we arrive at the threshold that Gillian Rose, in Dialectic of Nihilism: Post-Structuralism and Law, urges us not to cross, for on the way to language madness lies.[17] But other voices are more challenging—for example, Rainer Schürmann's provocative Heidegger on Being and Acting: From Principles to Anarchy, with its call "to live without why."[18] What would it be to formulate the question of the legal text not aesthetically or critically but from within an open and uncertain (anarchic) space?
The question of textuality provides this sort of space because it is a question about rationality with respect to thinking and discourse as such and not just a question about texts as structural objects that one identifies as literary or legal or rule-governed or whatever. Or perhaps one could put it that the question of the legal text is a question about how the institution of law copes with the weakness of language, or what Plato called "the weakness of the logos" (Seventh Letter, 342e); that is, how it
tries to bring language under control or how it tries to constrain or limit the ability of language to get away from us and to say something different from what we mean when we speak. There is an obvious sense, after all, in which linguistic competence is a utopian idea. The word "text," as it comes down to us in recent theory, is a dystopian word about the resistance of the word to the competent (rule-governed, deep-structured) human subject; that is, it is about the excessiveness or uncontainability of the word with respect to the categories—the structures and fixtures, the symbolic orders and overarching systems, the schemes and paradigms and frameworks, the deep structures and intersubjective arrangements—that explain how we make sense of things.[19] The text in fact is the way poststructuralists try to conceptualize linguisticality. This conceptual effort carries them, as the saying goes, "beyond structuralism" into hermeneutical anarchy. At a certain point along the way this movement entails the recognition that the task of any discipline or institution or culture or symbolic order is to bring textuality, and therefore meaning, under control, for the problem of textuality is not nonsense but too much sense. One might say that control of meaning is the first meaning, the origin or arche, of law: logos . It is controlled usage. But what of the weakness of the logos? The weakness of the logos, or of the law, is just that, starting with itself, it cannot bring everything under control.[20]
This implies a language (or a dark side of language) very different from current prison-house theories that figure it as lawlike all the way down, as a deep-structured, self-regulating system, as langue and, at a higher level, as culture, ideology, symbolic order, or metaphysics. I mean that the very idea of the weakness of the logos implies a language that is the other of system or that breaks free of system, a language that is more like historicality than totality, a language that is untheorizable, whose workings cannot he rationalized, a language of infelicities or délire, a language opaque to the analytical gaze, a language whose deep structure cannot be laid open to view because it is all surface, a language that Frege thought no one could ever or would ever want to have a philosophy of, a language that is more letter than spirit, more body than mind, more earth than world, a language of excess and residue, of libidinal density and sacred rage—a language not, saving some considerable cultural adjustments, for speaking.[21]
Naturally, the very idea of law presupposes the repression or unthinkability of such a language, this dark side (or nonthought) of language, even as such a language presupposes the unthinkability, or the end or limit, of the law, not to say the end of philosophy or metaphysics or of all such thoughts of beginnings and endings. It is easy to see that such a notion of language is self-contradictory: it confounds the very idea of language, which is, in current theory, nothing if not modeled on the very
idea of law (the model of the self-regulating system). Indeed, come to think of it, it's a little odd to be asking about the legal text because the answer to this question is already given in our lawlike theories of language. The notion of an untheorizable language, of a language not for speaking—call it a paralanguage or a parody of language, an apocalyptic or end-of-language language, the mystified language of a negative theology (that is, a language in which to avoid speaking), the language of Finnegans Wake, délire, Heideggerian Sage (whatever that is)—is just anarchic, a nonnotion: an idea no one could have and still have what is called an idea.[22] But if, from the standpoint of hermeneutics, it has never made much sense to conceptualize linguisticality in terms of the linguistic competence bestowed by grammars, codes, conventions, or other models drawn from the idealist warehouse of deep-structuring systems, what are we to think?
It might make greater sense to think of language the way Bakhtin does, that is, as a heteroglossia, a Babel of conflicting tongues that are, however, not sealed off from one another but are porous, intersecting, caught up in a dialogism that cannot be idealized as a basic I-thou communication or intersubjective transference of identities but is rather the historically embedded, finite, and contingent condition of linguisticality that always has us talking at cross-purposes. In a word: anarchy.
How to understand this anarchy? I mentioned that Goodrich associates the legal text, or the law, with Bakhtin's conception of unitary language. This is an obviously important insight, but it needs some qualification. Bakhtin figures language not as a total system immanent in local discursive effects but as a plurality of social or "verbal-ideological" languages, a heteroglossia agitated by a play of centripetal and centrifugal forces.[23] In Bakhtin's favorite metaphor, language is "stratified"; it is multilanguaged or irreducibly heterogeneous. There is always more than one language in language.[24] The task of describing this stratification of language is impossibly difficult, but very roughly Bakhtin breaks things down into generic, professional, and social "languages" (DI, 288–300). The tension or conflict between unitary and heteroglot forces is applicable in every one of these discursive regions. "Unitary language," Bakhtin says, "constitutes the theoretical expression … of the centripetal forces of language … and at every moment of its linguistic life it is opposed to the realities of heteroglossia." The heteroglossia is centrifugal, anarchic. Unitary language is lawlike: "A common unitary language is a system of linguistic norms. But these norms do not constitute an abstract imperative; they are rather the generative forces of linguistic life, forces that struggle to overcome the heteroglossia of language, forces that unite and centralize verbal-ideological thought, creating within a heteroglot national language the firm, stable linguistic nucleus of an officially recognized literary language" (DI, 270…71).
The point to remember is that each language in the heterogiossia is itself caught up in a conflict between centrifugal and centripetal forces, or between unitary language and heteroglossia. And this condition applies to the language of law as well as to any of the "socio-ideological" languages that make up not just one's native tongue but the linguisticality of existence. So we must imagine the law, for example, not as a unitary language purely and simply, since there is no such thing, but also as always struggling to bring its own centrifugal forces, its "dialogized heteroglossia," under control. The distinction I made earlier between law as tradition and law as institution would only be an abstract, preliminary way of characterizing the stratification and irreducibility of the legal text. Indeed, the intertextuality of legal tradition implies statification beyond description, as if the law were a vast text whose center is everywhere and whose circumference is hypothetical; a text that is in a constant state of heterogeneous reinscription owing to random semantic disturbances occurring everywhere; a text that generates countless reformulations of the question of what counts as a legal text; a text that is expanding in unpredictable directions and according to laws invalidated as conceived; a text, in short, that is multiple and conflicting, charged with competing systems and contradictory meanings, a thoroughly historicized test. The whole idea of a legal institution would consist in the attempt to unify and centralize this heteroglossia into something coherent and manageable.[25]
Doubtless this is a vision of the law only an anarchist or nonexpert could have. Experts are to be counted on as having clearer, cleaner, uncrazy views:
Sentimental lawyers cherish an old trope: they say that law works itself pure. The figure imagines two forms or states of the same system of law, the nobler form latent in the less noble, the impure, present law gradually transforming itself into its own purer ambition, haltingly to be sure, with slides as well as gains, never worked finally pure, but better in each generation than the last. There is matter in this mysterious image, and it adds to both the complexity and the power of law as integrity. (LE, 400).
Of course, Dworkin writes this for outsiders like me in order to reassure me concerning the fundamental, self-regulating, one shouldn't hesitate to say Hegelian rationality of the law. But the argument currently going on in legal theory between aestheticism and criticism is testimony to the "dialogized heterogiossia"—let us say the linguisticality—of the legal institution. Legal tradition is not a monological unfolding of the idea; it is "a Tower-of-Babel mixing of languages" (DI, 278), an always highly charged environment of intersecting (bisecting and dissecting) dialogues in which the very idea of law itself is in constant revision—in play, as hermeneuticians say, contested, irreducible, resistant to conceptual determination, always in question, open to unforeseen contextualizations. As if the task
of legal theory were not to conceptualize the law but simply to know where to look for it among its different and singular configurations; as if to understand the law would always be to understand it differently; as if understanding the law would be hardly distinguishable from the study of its situatedness, its historicality, its exposure to Wirkungsgeschichte .
One thing a hermeneutics of the law would look for is where the arguments are and what is being contested against what competing backgrounds or traditions of thinking. A hermeneutics of the law would not be a theory of it but an event in which the question of the law is opened up, placed in question, no longer resolvable in its usual terms but released from the terms in which it is familiar to us, exposed to what look like crazy ideas, made radically questionable. From the standpoint of hermeneutics the law is a Sache, the thing in question, the matter for thinking (not the object of description and analysis). As such it can emerge only in a space that is logically anarchic, what Gadamer calls a place of "open indeterminacy" where the thing is suddenly otherwise than we thought (TM, 325–30). The law, like most subjects (justice, the good life, politics, philosophy, the right decision, Hamlet, whatever makes us think, or anyway think twice), belongs to this space; that is, it is always contested, always in question. A hermeneutics of anything always begins by detaching the thing in question from its dogmatic contexts, the fixed or institutionalized ways of thinking it. So the idea in the present case would be not to resolve the conflict of interpretation between aestheticism and criticism (as if merely seeking a right answer in a hard case) but to enter more deeply into it, to search out the events in which it occurs, and to understand them as one would understand a contest or argument—because, after all, it is an argument in which one is implicated or involved even if (especially if) one is not a legal scholar.
One way of being implicated—of being caught up in the argument, brought up short by it in Gadamer's sense of finding oneself exposed and called on to respond—is in terms of one's gender. Indeed, a hermeneutics of the law is just what begins to happen when, for example, Catharine MacKinnon's polemical argument about the maleness of the law cuts across or through the serene aesthetic surface of legal integrity and liberal legal reasoning: "The law," she says, "sees and treats women the way men see and treat women."[26] Here is how MacKinnon analyzes the deep structure of the legal text:
Formally, the state is male in that objectivity is its norm. Objectivity is liberal legalism's conception of itself. It legitimizes itself by reflecting its view of existing society, a society it made and makes by so seeing it, and calling that view, and that relation, practical rationality. If rationality is measured by point-of-viewlessness, what counts as reason will be that which corresponds to the way things are. Practical will mean that which can be done
without changing anything. In this framework, the task of legal interpretation becomes "to perfect the state as mirror of the society." Objectivist epistemology is the law of the law…. The rule form, which unites scientific knowledge with state control in its conception of what law is, institutionalizes the objective stance as jurisprudence. (644–45)
Here the law no longer inhabits a separate domain of the spirit (the disinterested realm of the "judicial state") but is construed as a "social discourse" whose underlying form cannot be adequately described in terms of the norms and conventions, the schemes of arrangement, of a logical and coherent order.[27] On the contrary, critical theory turns the law as a unified and coherent system upside down, or inside out, so that the logical form of the legal text now constitutes a "surface structure" that authorizes a social subtext, namely, the various institutions of the law and their discursive operations and effects. This upside-down law is what Goodrich's Legal Discourse takes for its subject: "Rules of statutory interpretation and the doctrine of precedent, together with the much more detailed and generally less than explicit features of the 'legal art' of interpretation and argumentation within specific legal disciplines or bodies of law (the role and status, for example, of Equity or of specific principles, presumptions, customs and maxims), together combine to determine an institutional and discursive hierarchy of authorisation over who may think and speak and what may be thought or said." Goodrich is thinking here particularly of the law school, which doubles as the medium of access to legal discourse and as the source of a powerful mystification that covers up the groundlessness of such discourse: "The apparently determinate ordering of legal texts according to an institutionalised, social ontology of sources of law, shields legal discourse from the potential threat of having to justify the form and content of the exercise of administrative power in terms of any discourse other than the traditional, patriarchal, and essentially a priori or given, legitimation internal to the legal hierarchy itself" (LD, 173).
Understood in this way as social rather than prepositional discourse, the law is without ground ("without why"); it is not a system working itself pure but a play of surfaces, a heterogeneous cultural practice that cannot be formally reduced but needs to be studied locally in terms of its position and effects within specific social and political situations. The hard part is getting clear about the consequences entailed in such a view of legal study. One consequence is evidently the end of analytical jurisprudence, not in the sense that such jurisprudence now stops or abandons as useless its deep-structure style of analytical rigor; rather, it means that we now see (in a way we have otherwise seemed to miss) the obviously narrow limits of such jurisprudence, with its flattened-out theories of language and text. Doubtless from the analytic standpoint the
idea of law as social discourse exposes the law to skepticism, only now it no longer makes much sense to locate the law in skepticism's way; that is, it no longer makes sense to think of the rationality of the law as (just) cognitive and prepositional. One is reminded here of Stanley Cavell's insight that the truth of skepticism, its moral, is that our relation to the world is not one of knowing, or what we think of as knowing, but entails something very like Heidegger's idea of letting go.[28] As a first step one ought to unhook the law from such insupportable distinctions as the one between logic and rhetoric, not to mention the one between knowledge and power. Here critical theorists might try working out the sense in which law as social discourse is not technical or strategic, not just a species of instrumental reasoning deployed within the confrontation of adversaries. The idea of the repressiveness of the legal text, so prominent in Goodrich's critical analysis, needs to be loosened up by some further reflection on the fragmentariness of the legal text, its multifariousness, its surplus distribution within or across heterogeneous forms of life, its labyrinthine character, its comedy, its inherently utopian content, its ironic, satirical, and even subversive relation to efforts to represent and control it—say its uncanny ability to disclose other, unprecedented sides of itself: its anarchy as well as its open- or multiendedness (its being "without why"). Here the law is not a genre within the prison-house of language but instead subscribes to the freedom of linguisticality—as if the main idea with respect to the law were not the order and coherence of logical systems or the integrity of beautiful works of art, much less the power of hegemonic superstructures bearing down on us from every side, inside as well as out; as if indeed the idea worth thinking about were the relation of law and freedom: the way the law, confounded as it is, brings us down or sends us up and sometimes even lets us go, comic rascals that we are.
PART TWO
HISTORY
Ars Bablativa : Ramism, Rhetoric, and the Genealogy of English Jurisprudence
Peter Goodrich
The emergence of an English jurisprudential literature may be traced with some precision to a genre of legal writing that first appeared in the closing decades of the sixteenth century. In a superficial sense this new genre was concerned exclusively with questions of method and was based on a series of reversals. Whereas earlier jurisprudential literature had accepted the civilian definition of law as "true philosophy," it had not developed as a distinctive discipline or science. For the bulk of the fifteenth and sixteenth centuries, studies of the philosophy and method of law were to be found in surprisingly disparate dialogues and tracts. Advice on the sources of law and the forms of legal interpretation was to be found in religious polemics,[1] in rhetorical manuals,[2] in notarial handbooks of the ars dictandi,[3] and in dissertations on education,[4] grammar,[5] legal terms,[6] politics,[7] and indeed poetry.[8] The authors of such works were correspondingly diverse and ranged from scholarly printers such as John Rastell to theologians, civilian and canon lawyers, political theorists, grammarians, and rhetoricians. By the first decades of the seventeenth century that order of precedence and disciplines had been reversed. A distinctive jurisprudential literature now emanated primarily from the Inns of Court, and its explicit object of study was no longer a branch of some other discipline—of theology, rhetoric, or poetics—but rather a discrete concern with a vernacular legal method and specifically juridical forms of argumentation or dialectic.
The most immediate context of the new discourse was the importation of Continental theory and specifically that brand of Scholasticism associated with Petrus Ramus and Omar Talon.[9] It was to Ramism and to the alluring slogans of a nascent modernity that the systematizers of common law turned in their efforts to produce a dogmatic science
that would both reflect the glories of the English tradition and stand comparison with the philological or scientific exactitude of the Continental lawyers and the glossatorial transmission of ratio scripta . Initially intended as little more than a gloss on, or reordering of, the traditional poetic and rhetorical divisions and figures, the new literature on the study and method of law associated with Doctor John Cowell,[10] Sir John Doderidge,[11] Sir John Ferne,[12] Henry Finch,[13] Abraham Fraunce,[14] William Fulbecke,[15] and others turned to Scholastic logic and its tropes of certitude and truth to present a discrete account of the method of English law. The subjection of common law to the principles of Scholastic method enabled the new jurisprudential literature to present a properly doctrinal account of the disparate strands of the legal tradition. The common law became in their texts a unitary discourse, a professional écriture, a unique discursive logic, and ultimately an empire of truth supported by a veridical language or orthodoxy that was peculiar to the law alone. In short, the imported and translated Scholastic philology enabled the doctrinal systematizers to establish a common law hermeneutic or, by its classical name, a science of interpretation (scientia interpretationis ). True to its name, the function of such a hermeneutic was to herald the truths of legal discourse in a didactic and oracular way. The truths in question were drawn from elsewhere, from time immemorial or from divine law, and only doctrine or the peculiar hermeneutic of the common law could safely extract them from their textual custody in the appropriately foreign languages of the ancient tradition.
In genealogical[16] terms the above historical fiction combines two questions of extreme interest to the inhabitants of an era and discourse that has challenged the veridical language, the truths, and the certainties of doctrinal transmission. The first concerns of impetus or motive of closure. The earliest accounts of a systematic jurisprudence and accompanying hermeneutic presented the common law tradition as being radically separate—in geographical, historical, linguistic, and institutional terms—from all other contemporary discourses. It was either, as Coke saw it, an antidote to other discourses—an immunization against foreign influences—or it was to be understood more simply as prior discourse, which preceded and in consequence also defined and structured those other discourses with which it came into contact. The properly genealogical question that the impetus toward closure raises is that of the hidden filiations of an exclusory discourse. The legal hermeneutic is one of annunciation, and it is consequently unaccountable in its immediate forms of presentation. The genealogical reconstruction of doctrine, however, interestingly implicates legal doctrine in a series of other discourses. It will be argued in historical detail that far from being a technical and internal development the new jurisprudence responded to and was
molded by a series of discourses external to law. Jurisprudence was marked by external discourses and desires, and its subsequent reformulations still carry those marks even though the historians of law prefer to recycle the juridical fiction of a true discourse and its authoritative judgments.
The initial task of a genealogy of English jurisprudence is simply the supplementary one of tracing the repressed discursive affiliations of doctrine, or what Foucault termed the "unconscious" of a science.[17] In the first section of the ensuing argument I will trace the polemical context of legal doctrine. The printing press, the popular indictment of a massively expanding profession, the translation of the Bible, and the nationalistic advocacy of vernacular languages all played a significant role in forcing the profession to produce an apologetic or defensive literature that would serve both to authenticate the credentials of lawyers and to exclude any nonprofessional participation in the discourse of law. The correlate of that polemical defense of law and of the mythology of an English ius commune buried in sacred time was the more scholarly systematization of a "logic" or method of common law associated with Ramism and the movement to modernize and vernacularize all the classical arts. The second portion of the paper will trace the disciplinary development of jurisprudence in relation to its contemporary domains of scholarship. The argument concerns the relationship of a legal hermeneutic to the emergence of the other vernacular disciplines and most particularly poetics, rhetoric, and dialectic. Scholasticism brought with it the theocratic dogmas of the Roman tradition.[18] The genealogical analysis of legal scholarship at the time that it produced its first properly jurisprudential literature indicates that the institutional expansion of the profession was accompanied by a comparable discursive imperialism. In developing a specifically legal hermeneutic, the new jurisprudence advanced juridical notions of linguistic contract and of linguistic notation, of bonding or of faithful tie between word and referent, that far exceeded the specifically legal context of their initial elaboration.
Ignoramus, or the English Lawyer
English jurisprudence arrived at its proper destination or found its appropriate role somewhat late in history and certainly more than four centuries after comparable developments in the Continental legal tradition.[19] Although there were clear intimations of a desire to provide a defense of the legal faith in Sir John Fortescue's De Laudibus Legum Angliae of 1460, it was only with the advent of print that the threat of a legal reformation became sufficiently immediate to require the established institution to develop a systematic and systematically polemical legal
apologetics. The development of a doctrinal defense of law adopted precisely the same strategies and the same structure of argument as had the defense of the established church against the popularizing creed of Protestantism and the vernacular translation of the Bible. A dogmatic theology of law needed first to base itself on a conception of sacral origination, of another time and place at the source of legal communication or from whence legal signs are writ and sent. It needed second to elaborate a rigorously esoteric hermeneutic that would guard the legal missive from profane interpretations. With respect to both requirements contemporary theological polemics provided the requisite conceptual apparatuses.
Print, Protest, and Legal Theology
In the course of a lengthy polemic against the lawyer Saint German, Thomas More remarked, in a discussion of misinterpretations of his work, that "if their books be once put abroad in print, it is a thing very hard to get them well in again."[20] In a later addition to the same dispute More echoed this fear of the ready diffusion of heretical ideas made available through print, in this case the criticism of laws and statutes, in remarking that "be they of the church or the realm … to put out books in writing abroad among the people against them, that I would neither do myself, nor in the doing commend any man that does."[21] More's fear was a commonly expressed one on the part of the established church, and it adequately captures one of the principal ingredients of the transformation in cultural communication introduced by the presses. Although it has been convincingly shown in the work of M. T. Clanchy, B. Stock, and others[22] that the scribal age had laid the foundations for a culture of books, the scale of dissemination of heretical ideas made possible by printing was an indispensable element in the Reformation. As E. Eisenstein notes[23] the shift in the mode of production of books took place at the expense of the monasteries and of the clergy, and one of its more immediate consequences was that of challenging the privileges of clerical and legal elites.[24] The initial manner in which it did so was relatively indirect and took the form of the translation of the Bible. A coincident advocacy of national languages that would support a market for vernacular Scripture became a principal object of doctrinal debate.
Scribal culture had been a preserve of the church and had barely managed to supply the needs of the priesthood for liturgical and devotional works. Print technology shattered the restraints of the scribal culture and its limited distribution of texts. It was seen for that reason by some as an instrument of the devil,[25] and bibliolatry (the "inke-divinitie") entered the list of sins condemned by the Catholic church. One of the main threats represented by print was that of secularization and popularization of religious and legal texts. In doctrinal terms this threat was
manifested in acerbic debates on language, most particularly on the primacy of the word as against that of the church (traditio ); these debates included elaborate digressions on the significance of signs, miracles, and sacraments. The reformers were textualists believing in the literal and accessible truth of Scripture and the sacraments, which William Tyndale, the first translator of the Bible into English, argued should be removed from the "mist of [papal] sophistry"[26] and placed in the hands of a "feeling" as opposed to a "historical" (unwritten) faith.[27]
For Tyndale, Robert Barnes, and their fellow reformers the word preceded the church, and Scripture was in consequence to be read as the truth, for "the pith and substance in general of everything necessary unto our soul's health, both of what we ought to believe, and what we ought to do, was written.[28] Similarly, the sacraments were to be taken out of the hands of the pope and their meaning made plain by the text as opposed to being hidden in the dumb puppetry and superstitious ceremonies of the papists. In institutional terms the demand that Scripture be placed in the hands of the public had two radical implications. First, it challenged the supremacy of doctrine and in Tyndale's metaphor took the Bible from under the feet of the pope, where it had lain hidden "in latin from the common people." Further: "from them that understand latin they hide the true sense with a thousand false glosses…. And I say that the pope keeps the scriptures as did the pharisees, to make merchandise of it."[29] The second consequence of the argument was to deprive the "ordinaries," the church lawyers, of their power of interpretation. Scripture had "the authority of him that sent it, that is to wit God, which the miracles did testify, and not of the man that brought it."[30] Of the ordinaries Tyndale remarked appropriately "that they be lawyers ordained by the pope and can no more skill of the scriptures than they that never saw it … they be right hangmen to murder whosoever desires for the doctrine that God have given to be the ordinary of our faith."[31] Tyndale himself, of course, later met his maker at the hands of the hangmen lawyers.
For More, sometime reader at Lincoln's Inn and incumbent lord chancellor, Tyndale was proud, presumptuous, and unwise, "for the people may have every necessary truth of scripture, and every thing necessary for them to know … truly taught and preached unto them, though the corps and body of the scripture be not translated into the mother tongue."[32] The historical faith, protected and transmitted by the unwritten tradition of a church that admittedly had frequently changed its mind, preceded Scripture and determined what in those writings was true and what false and unholy. The greatest authority rested with the "word of God unwritten" and with the holy tradition that kept and interpreted it in accord with its special and allegorical senses.[33] The doctrinal
argument saw the written word as a sign of grace and as a figure of holy mysteries: "for our matter is not of scripture, as it is taken for bare writing, such as every scrivener's boy writes in his master's shop, but as it signifies such holy writing as God causes to be written and binds folk to believe, upon the peril of their soul."[34] In institutional terms the argument reasserted the necessity that the text be kept and protected by the church, which alone could search the visible, the laws, and "outward sensible signs and sacraments"[35] to reveal their inward signification of grace. Drawing on the negative conclusions of a royal commission appointed by Henry VIII,[36] More anticipated the very words of the defenders of law French in arguing that Scripture in the English tongue would cause the unlearned to draw conclusions that would do them deadly harm. As to the professional interpreters of the text, "God whose plenteous spirit endyghted [wrote] the scripture, foresaw full well himself that many godly allegories holy men should by his inspiration at divers times draw out thereof. And sometime he wrote it … that the letter had none other sense than mysteries and allegories."[37]
The parallel between the defense of the established church and its ordinaries and the legal institution whose "inkhorn" texts were also made visible by print was foreseen by More at one point in the Confutacyon . Tyndale in his Answer repeatedly raised the question of why necessary points of the faith should have been omitted from Scripture, to which More responded that the argument "is much as Tyndale would affirm that all the laws of England be written, and whatsoever were unwritten were no law. And when he had long wrestled therewith and could not prove it, would then ask me, has the realm of England any laws that be not written? to what purpose I pray you should they be left unwritten?"[38] More's answer to that question in relation to the common law came in his later polemic with Christopher Saint German in terms of the sovereign power of the judiciary: "But surely (as I have often heard that great wise and right worshipped man Sir John Fineux say, late Chief Justice of the King's Bench) who so takes from a justice the order of his discretion, takes surely from him more than half his office."[39] Elsewhere, in the course of a lengthy and repetitive polemic, the argument in support of the esoteric tradition and institutional interpreters of the law occurred again and again, primarily in relation to More's advocacy of the ex officio suit under the statute De Haeretico Comburendo,[40] whereby heretics could be summoned by the ordinaries on suspicion of heresy and without the need for indictment or open accusation.[41]
The Slaves of Language
The movement for reform and the advocacy of translation into the mother tongue divided the European faith, and scholarship more generally, according to national linguistic boundaries.[42] The popularizing
impetus behind the translation of the Bible rapidly expanded from its religious beginnings into a movement for the vernacular and for standardization. In his Treatise Concerning the Division Between the Spirituality and Temporality Saint German attacked the authority of the church and the abuses of the canon lawyers in a vernacular polemic.[43] His theme and his method of arguing according to ordinary language ("somesays") was reasserted in Salem and Bizance . In response to More's criticism of his having thereby grossly overpublicized abuses of faith and law, Saint German defended his tract and its vernacular presentation on the grounds that "the said treatise was made for the people of this realm, and therefore the English tongue in this realm was the most convenient."[44]
The contentious argument put forward by Eisenstein that printing had its greatest effects on professional languages and literatures gains some support from the experience of the common law.[45] During the course of the fifteenth century the advocacy of English was powerfully asserted in the form of vernacular presentations of most of the disciplines. English works on theology, history,[46] rhetoric, poetics,[47] education, and grammar[48] all stressed the popular benefits and the national virtues of English as against continued servitude to the "darke" rhetoric of Rome. Although law printing was rapidly regulated and restricted by means of a system of royal licenses,[49] print bestowed on legal texts a visibility that both generated criticism of their language and also created a demand for a more stable use of precedent. One of the earliest of such critiques again came in the context of a theological dialogue.[50] The dialogue between Cardinal Pole and Thomas Lupset is most often referred to as evidence of an argument in favor of a reception of Roman law in Renaissance England.[51] Although the possibility of codifying English law was certainly raised, it occurred in the course of a critical discussion of the chaotic state of common law precedent and the haphazard nature of judicial decision making: "There is no stable ground therin, nor sure stay; but everyone that can colour reason makes a stop to the best law that is before-time devised. The subtlety of one seargant shall inert and destroy all the judgments of many wise men before-time received…. The judgment of years he infinite and full of much controversy, and beside that, of small authority. The judges are not bounden, as I understand, to follow them as a rule."[52] Far from advocating the abandonment of English law in favor of the Roman, Pole was concerned that English law be standardized, its procedural abuses remedied, and its method rationalized. Although Roman law could provide an exemplar of method and conceptual clarity, his "wish" was "that all these laws should be brought into some small number, and to be written also in our mother tongue" rather than the barbarous tongue Old French, "which serves no purpose else."[53] That his primary leaning was toward a national law was echoed in his repeated concern that the common law, this "great blot on
our polity," was a foreign import "writ in a strange tongue, as thought the law were written to strangers," and he was unrestrained in his reference to "the great infamy and rot that remains in us, to be governed by laws given us of such a barbarous nation as the Normans be."[54]
The other significant theme of the Dialogue castigated the members of the legal profession and judiciary for being pharisees and making merchandise of the law and of justice: "lucre and affection ruleth all therin." According to Pole, the common lawyers inhabited a fantastical and delirious mental realm; blindness, reverie, and babble supplanted any order or rule of right reason as the lawyers "appl[ied] themselves to fulfilling of their vain pleasures and foolish fantasy; wherefore they be taken, as it were, with a common frenzy."[55] It was not, of course, Roman law but rather the Reformation and the printing presses that gained a reception in England, and with them came an ever more vehement and popular denunciation of the "dunsmen" lawyers and their "dunsicalities."[56] On the Continent Luther condemned "juristerey" as a "doctrine not of grace but of wrath" and law itself as ugly dogma.[57] A more general resistance to the growth of the legal profession in Europe saw civilian lawyers expelled from Hungary in the 1460s,[58] banned from the Spanish colony of Peru in 1529,[59] subjected to varying oaths most commonly forbidding immoral argument, lies, and inflated fees,[60] and equally subjected to abuse and being labeled as chicaneux,[61] liars, blasphemers, and fools.
In England the popular attack on the lawyers was only slightly slower and lacked none of the vigor of that of the Continental reformers.[62] Its principal themes were those of the number of lawyers, delay, uncertainty, expense, autocracy, pomposity, and incomprehensibility, to which more learned critics added rampant particularism with special reference to the law of misprision, procedural abuses,[63] excessive lines, poor scholarship, and worse rhetoric. Regarding the more popular criticisms, complaints about excessive fees and malpractice[64] were sufficiently common for Anthony Munday, in a formulary rhetoric published toward the end of the century, to include the argument that a lawyer is a profitable member of the commonwealth as one of a list of paradoxes against common opinion that the aspiring advocate had to defend by way of learning by ordeal. The list also included exercises in praise of blindness, poverty, ignorance, and deformity.[65] Another striking version of popular sentiments that stressed the excessive number of lawyers and the pervasiveness of their categories comes from the introduction to Fulbecke's Parallele: "And I have had a very great desire to have some understanding of law, because I would not swim against the stream, nor be unlike unto my neighbours, who are so full of law-points, that when they sweat it is nothing but law; when they breathe it is nothing but law, when they
sneeze it is perfect law, when they dream it is profound law. The book of Littleton's Tenures is their breakfast, their dinner, their boier [tea], their supper and their rare banquet."[66] The underlying current and theme, however, was that of legal language, which precisely prevented acquisition of the knowledge for which Fulbecke's "country man" pleads. The preponderant argument was initially simply that it made no sense to expect the subjects of the realm to know and obey a law so colored, "hotchpotch," and "inkhorn" in its languages as to make little sense even to those learned in the mysteries of law.
The initial argument put forward by lawyers such as Fulbecke and Fraunce, by theologians such as Cardinal Pole and indeed More in his Utopia,[67] and by Rastell in the introduction to his dictionary[68] gained considerably in intensity when it came to be linked to the reformers' nationalistic advocacy of the vernacular. Law French was not simply the barbarous usage of an ominous guild of secular ordinaries: its continued existence served to remind the inhabitants of the new commonwealth of the origin of law's mysteries in an earlier invasion and subjugation. The blight of lawyers imposed on the realm was compounded by the fact that their pervasive laws were not even English laws. For John Hare this surviving "tincture of Normanism" was a mountainous dishonour, a cause of shame and grief, as though some strange hero "who being captived, and marked for a slave, should have his senses so captivated also, as to be more ambitious to be chambered in his jail, and to glitter in gilt fetters, rather than to be restored to his lost freedom and reputation."[69] A brief glance at the laws was enough to show that they "still scorn to speak otherwise, than in the conqueror's language, and are for the most part, his introductions, shutting up the remaining liberties of our nation … as if we were no further to be accounted free, than infranchised."[70] Others attacked the foreign "ink-pot" terms of the voces venales ;[71] the "pettyfogging" Norman mentality, in John Warr's view, ensnared but did not remedy the people's ills. Law was the greatest of the commonwealth's wounds and of itself a sin for which only a "reformation of the laws of England" could atone.[72]
Dogma and Heterodoxy
In a discussion of the temporal abuses of the clergy, Saint German remarked that "as long as the spiritual rulers will pretend, that their authority is so high, and so immediately derived from God, that the people are bound to obey them, without argument or resistance, then so long the light of grace will not appear."[73] The argument that the spirituality refused to listen to criticism but rather denounced it in an oracular fashion was given a further twist when Saint German observed that "if [prelates] preach heresy … it is certain, that they would look to
be believed … for they would say, they were no heresies that they preached."[74] In other words, doctrine, though it may change, is always true as stated by the requisite authorities (sources) and must bse obeyed. The doctrinal defense of English law against the profusion of criticisms adopted a comparable strategy.
The best known, most visible, and most enduring response to the critics of England's tainted laws and venal profession was to adapt the arguments as to their particularism and their history of foreign influence, turning them into a eulogy to the spirit of the people enshrined in custom and legally presented in an idiosyncratic but wholly English garb. If historians were likely to be recalcitrant to Sir Edward Coke's claims to a birthright extending back unalloyed to the first kings of the Britons (and even to the reign of Arthur), then "to the grave and learned writers of histories, my advice is, that they meddle not with any point or secret of any art or science, especially with the laws of this realm, before they confer with some learned in the profession." This view was repeated when the records of the antiquity of the laws were said to be "of that authority that they need not the aid of any historian."[75] History and legal history, in other words, are far from being branches of the same discipline; rather, they are to be carefully separated according to the dictates of doctrine to allow the lawyers, in an ironic and proleptic turn, to have a history of their own invention in praise of national law. The model for such eulogies was Fortescue's De Laudibus, while its exemplars were Coke and Sir John Davies and to a lesser extent the doctor and the student of common law in Saint German's Doctor and Student .
The forging of the myth of a native legal tradition in the face both of a long history of hostility to law and lawyers and in contradiction of a number of apparent and known political and linguistic facts had a necessarily polemical structure. It also, perhaps ironically, borrowed much of its conceptual method and content from the civilians.[76] Elements of the general argument, however, were sophisticated and important to the parallel development of an English jurisprudential tradition. The most obviously polemical feature of all of the doctrinal apologia was their particularism: each work endeavored a detailed rebuttal of specific criticisms of English law and English lawyers. The points dealt with largely mirrored the criticisms elaborated earlier in terms of delay, uncertainty, procedural abuse, professional integrity, antiquity, language, and nationalism.[77] The latter three issues were of central jurisprudential significance as well as being constitutive of what might be termed the sacral myth of English law, a doctrinal myth that lives on to the present. At all events the three categories were linked. The myth of antiquity is best viewed as a theory of sources (auctoritates ), of lost origins that served to equate the law with the word both written and unwritten. For English
lawyers the church (traditio ) came before the word and assigned the text its allegorical and other senses. Legal language had therefore to be seen as something more than profane; it was no mere writing of "any scriveners boy in his master's shop"[78] but rather the carrier of meanings that move in mysterious ways.[79] Finally, the idiosyncracy of law French, in comparative terms at least, required a theory of national particularity whereby the oddity of legal language could be explained by the privilege of national character and by its proximity to God. The arguments will be outlined in turn.
The attribution of authority to English law initially took a conceptual form in the civilian manner. All of the authors under discussion agreed that positive law has its origin in God's law. It is "a true sign constituted by human tradition and authority … with a view to some spiritual or temporal end consonant with reason (and) with the law of God."[80] Fortescue likewise asserted the filial fear of God as the necessity underlying the study of law. Human laws are sacred and their science or profession is the art of what is good and equal while those who administer the law, "who sit and preside in the courts of justice, are therefore not improperly, called sacerdotes (being one who gives or teaches Holy things."[81] The genealogy of customary law renders arguments as to their antiquity in a different light. The assertion of the fact that English law is the very oldest and very best was only incidentally a historical argument. It was primarily a doctrinal notation of laws variously described by Fortescue as solemn, magnificent, exceeding valuable, excellent, sublime, and "superior to the civil law in that [they] accord more closely to the scriptures and the writings of the Church fathers."[82] They were dispensed by literati who appeared publicly for only three hours on dies juridicos, spending the rest of their time studying the laws and reading Scripture.[83]
This patristic presentation of customary law gained its most explicit formulation in Davies's Primer Report . It is law most perfect, and most excellent, and without comparison the best: "as the law of nature, which the schoolmen do call ius commune, and which is also ius non scriptum, being written only in the hearts of men, is better than all written laws … so the customary law of England, which we do likewise call ius commune as coming nearest to the law of nature, which is the root and touchstone of all good laws, and which is also ius non scriptum, [is] written only in the memory of man.[84] Inscribed time out of mind in the collective memory of the legal profession, customary law is sanctioned, protected, transmitted through the ages, and finally delivered by a tradition of the unwritten word, "for the common law of England is a Tradition and learned by Tradition as well as by Books."[85] It is precisely because tradition precedes Scripture in the apparently Catholic profession of the law that when
writing is referred to it must be understood as a sign, as bearing the authority of its author and source and the meanings of the speech from whence it came. It is in consequence no ordinary writing but a mixture of senses literal, allegorical, mysterious, and other. Once the primary position of tradition is settled and the institution and its bearers put in their proper place, then it should occasion no surprise to find that the language and even the script of the law will appear strange to the common or unlearned eye.
If the assertions of the antiquity and continuity of English law appear extreme, it is worth observing that the more philologically minded members of the profession were not reticent in dismissing such history as no more than pleasing myth.[86] The audience of the discourse, however, was not primarily the profession but its critics. The language of the law had been an obvious and constant focus of popular indictment. It was also seen, not unreasonably, as lingering evidence of foreign and unreformed practices that could scarcely be justified in the new age of print and vernacular translations. The doctrinal answer to such criticisms paralleled the annexation of history with an annexation of linguistics. Fortescue again set the tone with the inventive argument that because law French was not a spoken tongue, it had in effect managed to remain an originary language, a pristine and pure scientific terminology, a tradition in its own right. If any comparison was to be made between legal language and the modern vernaculars, then the former must hold the day: "modern French is not the same as that used by our lawyers in the Courts of Law, but is much altered and depraved by common use."[87] Appearances to the contrary, even language turns to gold in the copious coffers of the law.
Coke, Davies, and others simply needed to expand the argument provided by Fortescue. Far from being illiterate remnants of a scribal culture, the legal profession was entrusted with the sacred duty of preserving the special coinage of law. For this purpose it had devised its own university, the Inns of Court, its own disciplinary techniques of study, and its own scientific lexicon. In the face of the popular experience of litigation as protracted and uncertain wrangling monopolized by the practitioners of ars bablativa, Coke and Davies simply asserted the certainty of law and the clarity of its language. Where there were doubts as to law, Coke argued, that was because it had been interfered with by Parliament or tampered with by the unlearned: in hominis vitium non professionis .[88] Legal language thus explicitly served the exclusory function of keeping the law within the legal institution and subject to the singular techniques of its interpretive tradition. This exclusion, according to Coke, spared the unlearned from immolating themselves and their possessions through lack of a specialist and unwritten knowledge that came before the word: in lectione non verba sed veritas est amanda .[89]
When placed together, the arguments as to antiquity and language were said to create the most English and excellent of all systems of laws. The English were more intelligent, of greater "rank and distinction,"[90] than the Continentals, and in Littleton's language of withernams, formedons, essoines, recaptions, vouchers, seneschalls, and the like "our native common lawyers"[91] had forged a hermetic science as close to perfection, to true reason and God, as any on earth. The study that Erasmus had observed to be "as far as is possible from true learning"[92] was depicted by the doctrinal polemicists as being not simply the purest of all legal sciences but also the queen of the disciplines, the highest branch of all knowledge. The profession was for Davies lux in tenebris, light in our darkness, and the oracle of justice, for "doth she [our law] not register and keep in memory the best of our Nation? Does she not preserve our ancient customs and form of government…. Are not the records of her acts and proceedings so precious, as they are kept in the king's treasury, like jewels of the crown, and reputed a principal part of the Royal treasure?"[93] Not surprisingly, criticism of the profession had transpired to be mistaken, vulgar, and ignorant. Coke would not bother to "sharpen the nib of [his] pen" against the critics of his histories or of Littleton, "a work of as absolute perfection in its kind, and as free of error, as any book that I have known written of any human learning."[94] In institutional terms the profession alone stood between the "lady and queen of all moral virtues" and barbarism. Without the interpreters, in other words, justice would have no tongue.[95]
Law and Scholarship
The most remarkable feature of the doctrinal defense of law was its limited scholarship. Perhaps, like the most effective rhetoric, it was strikingly simple not least because it stood sure of the centrality of the profession to the political development of the modern state. What is clear, however, is that as a genre of legal writing it did not greatly impress scholars either within or without the profession.[96] In addition to tracing the explicitly polemical elaboration of a native tradition, it is further necessary to account for the relationship of jurisprudence to the growth of the vernacular disciplines and to the sixteenth-century renaissance of learning in general. The differentiating feature of the more scholarly jurisprudential literature was a desire to provide a theory of law as a discipline, a theory that would defend the legal order against both the popular criticism of legal dunsmen and their "hotchpot" study as well as the more academic criticism of a branch of learning that lacked a classical order and book. If law was to be properly presented as a reformed vernacular learning and as an order created through a revitalized national
scholarship, then its obvious deficiency in comparison to the other disciplines was the absence of a disciplinary text, an Aristotle, Euclid, or Galen or in legal terms a Gaius or Justininian, a Budé or Badouin.[97] The Ramist concern with method and with the specific differentiating features of each of the disciplines within the greater order of the sciences was an ideal though by no means exclusive source for the emergence of a laicized conception of legal studies.
The Poetic Contract
The defense of law against the popular indictment of lawyers and their language first received a learned representation in secularized terms in the work of the rhetoricians. For obvious reasons rhetoricians were interested in and dissatisfied with the curriculum of legal study. From the available evidence of distribution[98] as well as on the basis of textual references,[99] it would seem likely that most of those who studied at the Inns of Court would at some point study rhetoric in its Ciceronian and so forensic aspects. The first scholarly works to attempt to present an account of the form of law as argumentation were curricular/rhetorical manuals. Works such as those of Leonard Cox (1530), Thomas Wilson (1553), Richard Rainolde (1563), and George Puttenham (1589) devoted extensive attention to law and to legal examples. Although they tended toward a formulary treatment of their subject, there are two senses in which their work may be adduced in relation to the emergent jurisprudence at a conceptual as opposed to purely institutional level. The first is in terms of a poetic or rhetorical contract at the origin of the social and hence legal form, a theory of speech as logos that was incorporated into the dialectical conception of notation and at a more abstract level was repeated in the primary motive force of Ramist jurisprudence, the search for and imposition of a linguistic order on the positive manifestations of a higher law. The second is in terms of topics or commonplaces of legal argument organized according to criteria drawn from the rhetorical art of memory and subsequently and ironically developed in an explicit form in the jurisprudential account of method.
The initial demand was simply that lawyers and their schools of manners at the Inns of Court should not sever all links with scholarship. For Cox, "judicial oratory belongs to controversies in the law and pleas, which kind of oration in time past belonged only to judges and men of law but now for the greater part it is neglected by them though there is nothing more necessary than to quicken them in crafty and wise handling of their matters."[100] Such criticism was echoed and expanded in later works on the basis of both historical and conceptual lineages. In terms of its practice, law was the art of pleading and of arguing a cause. By virtue of that subject matter it was, and had always been, intrinsically
linked to rhetoric: it was impossible either to plead or to argue skillfully without the aid of the art that set out and explained the appropriate forms of all argumentation. That rhetoric was essential to law was indisputable. What occasioned concern was that the rhetoric employed was so frequently bad rhetoric. In such a fashion Puttenham argued that "in all deliberations of importance where counsellors are allowed freely to opine and show their conceits, good persuasion is no less requisite than speech itself."[101] Good persuasion was impossible without a knowledge of the figures and order of speech. What was wrong with law was simply the appalling state of the rhetorical art in legal practice, a point that Wilson and Puttenham, both of whom were members of the Inns of Court, labored to the extreme. Pleadings were ambiguous,[102] narrations disordered,[103] figures inappropriate,[104] language "inkhorn" and "powdered,"[105] style opaque, and topics unseemly.[106] The consequence was that poor lawyering led to clients losing their possessions and their lives, and the commonwealth was in consequence endangered.[107]
Rhetorical concern for the decay of legal argument was predicated not simply on the immediate harm caused by legal ineptitude but more profoundly on a notion of linguistic contact. To abuse language was a sin against both the order of disciplines and the linguistic fabric of social life. In an argument that in this instance stemmed alternately from the myth of Hegesias[108] and from Cicero's De Inventione,[109] the original ground of language was poetry; through the poetic apprehension of reality through language, rhetoric, as successful communication, was to be understood as the bond on which all social order relied. In the argument's strongest form, as presented by Puttenham, poetry creates and describes the social world through the use of images. Without the creative power of poetic language, society would never have formed, knowledge would have been impossible, and law irrelevant: "The profession and use of poetry is most ancient from the beginning, and not as many erroneously suppose, after, but before any civil society was among men. For it is written that poetry was the original cause and occasion of their first assemblies.[110] Observing that the speech of God was originally presented in metrical forms, Puttenham elaborated on classical histories in which the first instances of all forms of knowledge, the first priests, oracles, seers (videntes ), politicians, and lawyers were all poets. Using the terminology of rhetoric and contract rather than that of poetics, the same theme was pervasive in Wilson's Arte of Rhetorique: only by virtue of eloquence, the "gift of utterance," was the state of nature transformed into that of civil society, such is "the force of the tongue and such is the power of eloquence and reason, that most men are forced even to yield in that which most stands against their will."[111] It was thus in a discussion of the second part of rhetoric, namely disposition, that Wilson specified the
linguistic basis of all law in terms of proper and proportionate speech: "I know that all things stand by order and without order nothing can be. For by an order we are born, by an order we live, and by an order we make our end. By an order one ruleth as head and others obey as members. By an order realms stand and laws take their force."[112]
The order to which Wilson attributed such primordial force was a rhetorical or argumentative one based on the appropriate use and disposition of the figures and topics of the genres of speech. Without that intrinsically poetic order, laws would lose their force and governments would fall into disrepute.[113] In terms of the forensic art this emphasis was spelled out in the demand that lawyers accept the originary linguistic mediation of all law and observe the appropriate forms of argument and proof. Although emphasis varied between the formulary and the Ciceronian rhetorical schemes, a theme common to all vernacular accounts was that the mother tongue could be ordered and expanded to provide a national rhetoric equal to that of the classics.[114] The new national rhetorics were to pay considerable technical attention to law, with the judicial oration figuring prominently in the analysis of argumentative (sentential) and "proving" figures.[115] With respect to later elaborations of dialectic it is worth emphasizing that the delineation of the legal genre paid special attention to the political and so practical facility of rhetorical method, which was taken to include both invention and disposition or judgment. Forensic rhetoric would therefore cover the topics and logic of proof, the figures of argument, the method of memory, and the proportionate style. So, too, it would cover the order of narration, questions of law and of fact, fallacies (elenches ) of argumentation, and vices (cacozelia ) of style.[116] In short, a body of scholarship devoted to the cause of rescuing lawyers from the barbarity of their language and the sophistical casuistry of their argumentation already existed and lay open to exploitation at the time that Fraunce and other proponents of the new jurisprudence attempted to set out a distinctive method of legal studies.
The Addiction to Law
The rhetorical concern with the primacy of language entailed a privileging of speech over writing and of communication over specialism. Its desire to apprehend and represent an originary linguistic order may have inserted the category of language as a mediating institution between God and humanity, but its theoretical basis was self-evidently theocratic. In terms of the disciplinary discourse of the various arts, the apparently democratic and nationalistic demand that the sovereign and its subordinate institutions communicate according to rules of rhetorical felicity, rules of visibility and clarity, was predicated on a conception of preordained truths that emanated, through the word, from the divine will.
The order that language represented was an order that was already given and that words and signs could recollect but could not challenge or vary. The concern with argumentation and with the accessibility of the various knowledges to their national audiences was similarly based on a form of anamnesis, or of knowledge as recollection of the already existent natural order. The utility of argument was not, therefore, that of analyzing what it meant to think and to argue but rather that of organizing and dividing the categories of thought to reflect the preestablished order of their object.[117] In that important respect the rhetorical schemata must be understood as having a second-order status: the criticism of the legal institution was of its deviation or distance from an original bond between word and meaning; the positive task of the rhetorical method was that of providing pedagogic rules whereby the relevant topics and appropriate words could be inculcated and remembered.
In broader genealogical terms, rhetoric thus took its place within an order of discourse concerned to remember and defend a primary knowledge. Superimposed on that fundamentally theological enterprise, rhetoric came closest to being legitimately regarded as a jurisprudential discipline by virtue both of its object and its techniques. It had the advantage of being a classical art. One of its three parts was specifically concerned with the legal genre of argumentation. As the study of discourse it comprehended the other disciplines that might be deemed relevant to law, most notably history, politics, logic, and the nascent philology. It was not simply a learned art but also and crucially a technique that was concerned directly with questions of practice and the spoken word. In that context it had a further virtue of inestimable value to the legal profession, for it provided a practical tool that would enable lawyers to challenge the popular protest against the profession and to elaborate a distinctive and persuasive map of a specifically legal curriculum. The Ramists may have changed the name of their preferred art from rhetoric to dialectic, but that change has to be understood in terms of contemporary academic debates and the attack on humanist Scholasticism. In an era that had treated Aristotle as something of a sacred text, even the most minor deviation from the canon was a threateningly aggressive and somewhat blasphemous act.[118] It was, at all events, the Ramist Gabriel Harvey's lectures on rhetoric that Abraham Fraunce attended at Cambridge, and it was to rhetoric and poetics that most of his nonlegal writings were devoted.
Lost Innocence . The desire to introduce the rules of Scholastic method to the scholarly study of law did not lack a precedent. The civilian tradition, of course, already provided a model for such an enterprise, and a number of academic studies offered systematizations of English
law based on the theoretical schema of Justinian's Institutions . Cowell, in his Institutiones Juris Anglicani, thus argued that English law could acquire respectability by admitting the historical influence and utility of the Romanist studies, for "the civilians of other nations, have by their mutual industries raised this kind of work in their profession, to an unexpected excellency…. And by this example would I gladly invite the learned in our common laws and antiquities of England, yet to lend their advice, to the gaining of some comfortable lights and prospects toward the beautifying of this ancient palace, that has hitherto been … but dark and melancholy."[119] The Ramist Fulbecke interestingly confirmed both of Cowell's understated proposals, noting first, in terms of historical influence, that "the common law cannot otherwise be divided from the civil and canon laws than the flower from the root and stalk," and second, in terms of method, exclaiming, "[W]ould that God would vouchsafe our Inns of Court with some second Budaeus, that is a third Varro, whose skill in the laws might be exquisite, whose pains extreme, whose reward excellent."[120] In both instances, however, the invocation of Roman influence and methods was somewhat too explicit and direct for an embattled profession that was concerned to save its native history and to propound its national excellence. If there was to be a foreign influence, it had to be secondary and covert, subordinate to the polemically necessary exposition of a fully indigenous scholarship and its peculiar yet vernacular language.
The civilian method had been the subject of unstinted nationalist attack in the work of Coke and Davies. Although they had both made copious use of civilian concepts in their substantive legal elaborations, they had followed Fortescue in praising the superiority and appropriateness of the common law. English antiquity provided institutions of greater justice and customs of greater clarity, free of the inextricable web of glosses that had accrued to the written law: there was no need for commentaries on Littleton, Davies pronounced.[121] The theme was taken up by Fraunce, but to different effect. Extensively influenced by Francois Hotman's superb indictment of glossatorial method and commentary, Fraunce fully agreed that the sources of Justinian's law were too numerous and unreliable and that "as for Justinian's method, it does not so content the civilian's, but that they daily contend with new innovations and continual printing of fresh methods, to bring it into better order."[122] Nonetheless, the weaknesses of the civilian tradition could hardly be taken to exonerate the appalling lack of scholarship in the Inns of Court. Although Fraunce and the other Ramists all sought to defend the substance of English law and to relate custom to a nationalist notion of the principal legal institutions, their criticism of the state of learning at the Inns was detailed and damning.
Fraunce's position was exceptional in that he had a career in literature at Cambridge and was already the author of one unpublished treatise[123] before changing direction and entering Gray's Inn in the early 1580s. While at Gray's Inn he produced works on poetry, rhetoric, and heraldry, and his attacks on legal method reflect a critical distance from the prevalent legal ideology that was perhaps exceptional and left him somewhat isolated.[124] In view of the depth of Fraunce's hostility to the profession "of upstart rabulae forenses, " that isolation is also unsurprising. He viewed the members of the profession quite simply as a menace "who under the pretence of law, become altogether quite lawless, to the continued molestation of ignorant men, and general overcharging of the country, with an overflowing multitude of seditious cavillers, who … having in seven years space met with six French words, home they ride like brave Magnificoes, and dash their neighbours children quite out of countenance, with villen in gros, villen regardant, and Tenant per curtesie."[125] The nonsensical hotchpot French of ill-informed and poorly trained lawyers was for Fraunce the inevitable product of their method of study and could be corrected only if the barbarity of their curriculum and books was reformed. Such reform would be possible only if lawyers would abandon their guild mentality, which had hitherto excluded all nonlegal forms of knowledge and all other disciplines from the supposedly unique realm of law: "you would love the law but sine rivali: you would reign, but alone: hinc illae lachrymae ."[126]
In contrast to the later and somewhat incidental criticism of the profession presented by Doderidge and Fulbecke,[127] Fraunce alone offered a detailed and substantive indictment of the legal curriculum with an explicit view to joining law and scholarship, to establishing a properly legal hermeneutic according to the precepts of method. Aside from an institutional hostility toward scholarship, the failing of the common law tradition had been that of a virtually complete lack of systematic study. Despite the occasional exception, Britton and Bracton in particular, lawyers had preferred to leave the law "in vast volumes confusedly scattered and utterly undigested."[128] Such systematization as there had been in legal practice was no better than that of "dunces in schools and silly babblers in pulpits" and fell generally under the heading of rhetorical fallacies (elenches ): "this is a lamentable want in our law, I mean exact divisions, in place whereof we have nothing else, but either ABC method without coherence or primo notandum, two not three, not four, not five, so on until he come to decimotertio notandum."[129]
The primary fault was that of intransigent particularism together with poor reporting of the cases in the yearbooks. Far from providing definitions and divisions of their subject matter, wherein the general nature of institutions such as garde and villen could be elaborated and their
particularities specified, the reports casuistically discussed opaque and obscure intricacies relating to general concepts never defined: "the greedy desire of a superficial show in unnecessary trifles makes us want the true substance: … and we by a moot book and a Brookes abridgement climb to the bar, and bar ourselves utterly from the substance of the common law."[130] Elsewhere an essentially comparable criticism was interestingly elaborated in relation to the common law's willful obfuscation of statutory texts: "digressions be sometimes tolerable upon necessary occasions: but impertinent, or rather repugnant imaginations continually cast in, mar all. A man takes upon himself to read from the statute of fines, and he thrummeth [throws] in fifty scattered and undigested cases of estate tail in possession, and as many in reversion, with a cluster of sophistical and incoherent points … he should not make a well meaning statute the cloak of two hundred ambiguities."[131] The conclusion that Fraunce arrived at was in appearance at least fully coincident with Ramist precepts of logical method: the alphabetical brevaries that tore and dismembered the law should be discarded in favor of the systematization of the whole body of English law in the light of the newly imported discipline of dialectic. It might be, he observed, that the law of England was already too wrapped up in obscure particularities and too subject to change and alteration ever to be a proper art, but the joining of rhetoric and logic to legal method could at least provide a degree of precision and straightness to the disputations of an otherwise dark and melancholy science.[132]
The Rule of Reason . The sources and the extent of Ramism in sixteenth-century England were hotly disputed at the time and remain somewhat unclear. There was already, most notably in Wilson's Rule of Reason and Lever's Arte of Reason, a vernacular tradition of logic, and the former work paid not inconsiderable attention to method.[133] Exempting the two vernacular translations of Ramus's Dialectique by MacIlmaine and Dudley Fenner, it should also be noted that for all the Scholastic vitriol aimed at the critics of the Aristotelian tradition, the new school of logic was concerned with changes of emphasis rather than substance and that it was distinctly critical in its reception of Ramism.[134] Leaving points of detail aside, the most that can be said is that the Ramists introduced a virulently reformist style to the study of logic, which, largely in response to the new technology of print, demanded a presentation of the vernacular discipline in a manner that could be seen to be ordered and discrete. It did not endeavor to change the substance of the discipline but rather to order its subject matter in a didactic and memorable way: "the 'Ramist man' must smash the images both within and without, must substitute
for the old idolatrous art the new image-less way of remembering through abstract dialectical order."[135]
With regard to the "unprecedented"[136] introduction of logic to law, the question of Ramism may usefully be reduced to two issues, both of which relate to method. The first is that of the relationship of law to the new order of disciplines, the second is the more specific and enduring question of the relationship of logic to rhetoric. With respect to each issue Ramism is best viewed both in the context of a wider polemic as to the new national forms of study and also in terms of the perceived need to defend law from its external critics. When viewed in those contexts, the application of the rule of reason to the study of law can be interpreted as a somewhat symptomatic case. The new jurisprudence raised issues that potentially related to all the emergent disciplines and to a tradition of legal philosophy that extended far beyond its initial period of elaboration. In short, the designation of a distinctive method of legal scholarship and of a rhetoric peculiar to law received a doctrinal presentation and was asserted with a polemical force that was far too easily incorporated into the institutional mythology of a professional discipline. The lawyers were no more scrupulous with the texts of their contemporaries than Coke had been with those of the historians and philologists: although Ramism may have been taken to have saved the discipline of law in the eyes of scholarship, a closer analysis of the relevant texts shows that view to be internally undermined by the very disciplines that method brought to bear on the incoherent body of traditional legal writing.
The three fundamental precepts of any art were enthusiastically spelled out by MacIlmaine in the introduction to his translation of the Logic . The first is that each discipline must be elaborated solely in terms of its own subject matter and to the exclusion of all extraneous considerations: to write on law requires disavowing all considerations of grammar, divinity, or physics, and if asked of contracts or obligations, it is a mockery of method to reply in terms of liberty or bondage.[137] Each discipline is in other words wholly discrete. The second precept is that method proceeds through teaching necessary truths, through transmitting the received and accepted wisdom of the subject. According to the third precept this transmission should follow an order of dispositive clarity from general truths of the discipline to particular and less absolute truths by means of a procedure of definition and subsequent specification in terms of available topics. Method, which applies universally, treats the topics of argument according to the classical division of rhetoric into invention and disposition: it "stores" and arranges available arguments so that truth may be memorized. The overriding goal of each of the precepts is
that "the auditor may better retain thy sayings."[138] Having thus dealt in monumental fashion with the two major categories of rhetoric as divisions of dialectic, rhetoric is left as the discipline that studies eloquence (elocution), the figural addition of ornaments or "exornations."[139]
While the polemical division, made in the name of method, between reason and eloquence was explicit, its practical or substantive import was covert and insidious and has been largely ignored.[140] First, in terms of the separation of the disciplines the presentational requirement of method had no greater substantive effect than that of enforcing a formal precept, namely, that jurisprudence be defined as a discrete discipline and so systematized according to its own institutional requisites. It is, of course, apparent that such a precept offered abundant possibilities for legalistic or doctrinal misinterpretation, but if the relevant categories of dialectical invention are examined in detail it is self-evident that the new jurisprudence expanded rather than contracted the relevant topics of legal argument. In substantive as opposed to preceptive terms there was a long tradition to the restriction of rhetorical topics to the particular subject matter of the individual disciplines. Rhetoric was practical and local and covered the probable arguments as well as the relevant proofs of the various arts.[141] It thus supplemented the dialectical study of the logic of proof and the verisimilitude of probable arguments, and it was simply bad rhetoric that abandoned the extraction of arguments from all the disciplines as they applied to any one.[142]
Good rhetoric was, for the Ramists, a part of dialectic and treated issues of serious argumentation.[143] Fraunce—in being the first to attempt systematically to save lawyers from the incoherence of their disciplinary writings and in being an outsider to the Inns of Court and a critic of legal abuses and mysteries—gave the greatest emphasis to the preliminary issue of the logical ordering of the argumentation. His work was prefaced by a poem and began with a political polemic. The first book established the goal of the work in comparative as well as Ramist terms. As regards method he drew on the classics—on Plato, Aristotle, and Cicero—as well as their contemporary expositors to argue that the natural order of reason be applied to the "artificial" reasoning of the school at Westminster.[144] Although logic was defined formally as "a methodical disposition of true and coherent precepts, for the more easy perceiving and better remembering of the same,"[145] the first book repeatedly stressed the rhetorical function of dialectic in matters of degree as they appear in artificial reason: logic "framing orderly, proving strongly, expounding plainly, persuading forcibly."[146] Logic "disputes all things, necessary or contingent or whatsoever," and deals both with certain knowledge and with opinion. Although the ideal logical argument is a syllogism based on an axiomatic proposition, Fraunce was in no doubt
that as a logical device the syllogism was simply a necessary inference; its manner of reaching consequences or conclusions was necessary, "yea, notwithstanding, the premises of themselves be false."[147]
The principal subject matter of the first book of the Lawiers Logike was the use of precedent and the other literary authorities of the common law as topics of argumentative premises. The terms argument, reason, and proof are simply synonyms for what the Greeks termed categoremes, topics or categories, and the Roman loci or fontes, places, seats, springs, or fountains of argument.[148] The canons, maxims, and rules of the common law form a vast resource of topics for legal argument. They should be ordered systematically according to general heads of argument (axioms), and these in turn should be categorized according to the classical schema of causes, which are efficient, material, formal, and final. The causes and their subject matter vary in their degree of probability, and therefore the selection of a relevant topic should be differentiated on a spectrum that runs from principle to special or from general and accepted truths within the discipline to particular and less certain matters of opinion.[149] The degree of authority of any given topic or definition will depend on its source and so ranges from precepts of natural law to long-established precedents and customs to maxims of civil and canon law to the relative darkness of ill-remembered points of the communis opinio of the bar. In each such instance of "borrowed argument," however, it is worth recollecting that the primary force of argument is still reason itself and not the testimony of others, which is of itself "rather violence and compulsion," a point that Fraunce reinforced by citing Plowden to the effect that "precedents and course do not rule the law, but the laws will rule them."[150] Doderidge provided a more interesting and general version of the same view in the maxim sed scienda instrumenta sunt formae discenderi .[151] The topics, in other words, are simply memorable resources for argument; they vary in putative authority but are never any better than their use in argumentation.
The arrangement of topics that would define the starting point of legal arguments was subsequently subjected to an intrinsically rhetorical elaboration of the various aids to argument available in relation to all the causes listed. Definition by genus and species can be substantiated by division according to subject and adjunct. The whole may be described and its parts distributed according to their effects; contrary arguments may be dismissed and analogies adduced. As regards analogies or "compared arguments," they are to be based on likeness or proportion, for, citing Plowden again, "semblable reason semblable ley."[152] Fraunce listed the fallacies of argumentation and in the second book, on judgment and disposition, set out the terms within which logic "does artificially place, settle, and dispose" arguments both single (noetical) and compound
(dianoetical), and the use of judgment and discretion in the assessment of the probability and interpretation of specific axioms. The ordering and conjunction of arguments was treated in a formulaic fashion according to congregative, corrective, distinctive, and discretive axioms. The forms of axiom were distinguished by reference to the opposition of science to opinion. Most importantly, Fraunce again recognized that a large proportion of legal topics are merely probable but insisted that insofar as is feasible the general and accepted be separated from the contingent and questionable, a rule that, if observed in the law, "then all repugnant dreams of serjeants and counsellors that serve the time and speak for money should not run so current for good law: nay every judgment given either without reason, or with partiality, should not stand for justice: every semble should not pass for sentence, nor every dictum fuit, for a dictators constitution."[153] The final section of the work returned to the polemical issue of method as the proper ordering and reasoning of legal argument and impugned both bad rhetoric and worse lawyering.
Fraunce's principal concern was with providing reasoned tools for rational discourse in the realm of law. He did so with copious reference to and examples from common law sources. He also made constant reference to civilian sources and maxims and to the other liberal arts—to rhetoric, ethics, physics, and so on—in confirmation or disproof of the rationality of specific topics. The standard of legal argumentation could be improved only by recourse to precepts drawn from the disciplines appropriate to the particular subject matter of the different types of law, namely the law of nature, the law of nations, the civil law, common law, customary law, and equity.[154] In its crudest form the argument as to the relevance of other disciplines can be simply stated in terms of reason. In that law aspires through method to the status of reasoned discourse, it must make use of the learning relevant to the reasoning of any subject matter dealt with by legal argument, which includes, on even the most obvious counts, theology, natural and moral philosophy, politics, economics, rhetoric, and grammar. In more classical terms the accepted definition of law was rerum divinarum humanarumque scientia, knowledge of things divine and human, and the study of law was therefore, in Doderidge's terms, to be understood as both a speculative and a practical knowledge. In its speculative aspect jurisprudence was to be the discourse that "treats of the principles, ground-rules and originals of law and justice, being the chain of human society, without which it cannot consist." In more pragmatic terms speculative reason alone could "purge English laws from the great confusions, tedious superfluous iterations, with which the reports are infested; [and] quit it of these manifold contrarieties, wherewith it is so greatly overcharged."[155]
With the exception of Finch's Law, which provided a critical institutional account of the major divisions of English law specified in terms of
possessions, wrongs, and actions,[156] the exclusive focus of the jurisprudential literature was legal reasoning, understood as the discourse of law. Lodged historically at the point of intersection of a predominantly oral tradition and a new technology of print, jurisprudence grappled to provide an account of legal reason that would order an increasingly visible and contested literature according to the intrinsic precepts of a vernacular or national hermeneutic. In doing so the Ramists relied increasingly on a veridical notion of language and on a correlative conception of the truth of law as a sign of sacral depths. Fulbecke, for instance, presented the eminently practical view that "the reason and conscience of the lawyer is not simply a question of the knowledge he has by the written law [for] when words are obscure … we imagine that more was spoken than written, and more intended than uttered … then the tongue yieldeth to the heart, and the words do give place to the meaning."[157] In concluding this account of the rule of reason as it came to law, a number of themes can be drawn together by pointing to the fateful implications of Fulbecke's reinvocation of the tradition that precedes the word or of the church that comes before the gospel.
For all the popular appeal and polemical value of the call to method and modernity, the superficial banner under which legal reason emerged as an independent domain of study should not blind historiography to the substance of its claims. In positive terms the study of invention and judgment in law drew on and expanded the Scholastic rhetorical tradition of place logics or topics into a discursive theory of legal argumentation or dialectic. Principally concerned with the reasoning of legal argumentation, dialectic insisted on the probable character of the genre and in subordinating probable topics to reason allowed space for disciplines other than common law. The negative aspect of Ramism as a polemic in favor of method and doctrine was, however, always likely to be more amenable to the institutional and political needs of the profession. In its polemical guise Ramism privileged dogmatics and gave pride of place to the custodial art of memory. Method organized the subject matter of any given discipline to the end of teaching and transmitting a series of dogmatic truths. If, as was subsequently to happen, the doctrinal aspect of Ramism was taken at face value, then jurisprudence could become what the ecclesiastics termed a historical as opposed to a feeling or "lived" faith. In law as in theology, tradition could be invoked as the guardian of an originary and unwritten word and as the institutional custodian of a linguistic contract that now preexisted memory and could be recollected only through the oracular pronouncements of professional dogmatics.
The argument from tradition to a notion of the special status of the legal word as a sign is not directly available in Fraunce's work. Its derivation can, however, be traced to an argument as to language that Fraunce
used in the analysis of definitions. Under the heading of secondary arguments appeared a lengthy analysis of notation or etymology, the interpretation of words according to their origins or more accurately their true and original meaning: etymologia, id est, veriloquium .[158] Fraunce's argument was the classical nominalist one that words are originally (by agreement) notes of things and from all words either "derivative or compound" arguments may be drawn and interpretations devised. Interpretation should agree with the name, a principle that Fraunce put to interesting use in a lengthy analysis of legal terms ranging from contract, to mortmain, to wapentake, mancipation, and manumission . He concluded by arguing, "I have properly inserted a number of notations, for that I would make it plain, how the notion of the thing is oftentimes expressed by the notation of the word, contrary to the prejudiced opinion of some silly penmen, and illogical lawyers, who think it a fruitless point of superfluous curiosity, to understand words of a man's own profession."[159]
In Doderidge the same argument was put forward in relation to nominal definitions; here, though, it was no longer a secondary argument but a primary one: notation defines and explains the true signification and the effects of words, which are themselves but original signs of things.[160] The notations of a variety of legal words were then provided, and the crucial significance of language to law was repeated by reference to the various forms of language used in law proceedings, namely, Latin, law Latin, neologisms from Saxon and French, and finally terms of art that were not known to the ancients. In endeavoring to explain the continued use of an archaic and arcane terminology, Doderidge put forward two interesting propositions. The first was that all the arts were invented to further nature's operation through precepts. The precepts once put together form an art, and such arts have devised "many ways, by cypher, by counters and by other forms to assist nature."[161] The peculiar terminology and form of legal record was justified as "serving to convey to posterity our memorials and records and not our debate or speech."[162] The link between an immemorial nature and artistic language was exemplified, second, by reference to language as the content of law: "if a record once say the word, no man shall aver; speak against it; or impugn the same. No though such record contain manifest and known falsehood."[163]
It is but a short step from the sanctity of records, of each letter and syllable "significant and known to the law," to a conception of an originary contract in which the unwritten word was bestowed to the custody of tradition. The connection between an originary language and customary law was made initially by Fulbecke, who referred to the "words of the law [which] may be compared to certain images called sileni Alcibiades, whose outward feature was deformed and ugly, but within they were full
of jewels and precious stones."[164] The theme was expanded in terms of the artificiality of legal writing, whose words "the inventors of art have devised for acquainting the mind with the mysteries and rules of their art, because words fitly and accomodately used, are the very images and representations of things which do lead … to the apprehension and perfect knowledge of the things themselves."[165] It needs only be added that the inward meaning of legal signs and of an "image-serving" law was a question of authority and memory internal to the institution and unavailable to those without: rationem ubique habet sed non ubique conspicuam .[166] In Fulbecke's own words, "speech is an external act, which is ordained for the declaration of inward meaning, and therefore words are said to be the limits of our meaning."[167] Only those who hold the key to tradition and guard the unwritten meanings can properly determine whether or not the text is to be taken in its "plain signification" or whether it is rather to be understood in an esoteric sense that accords more accurately with the hidden and immemorial reason of the oldest and most excellent of all laws. Finch provided the final and most explicit designation: positive laws are framed in the light of natural law and reason, "and from thence come the grounds and maxims of all common law, for that which we call common law, is not a word new and strange and barbarous … but the right term for all other laws."[168]
Excursus
A genealogical study cannot claim to attribute causes, nor can it legitimately provide general conclusions that would somehow link the discontinuities studied to an explanation of their contemporary institution. However, insofar as genealogical analysis is the study of figures of descent, of the contingent affiliations and alien sources, the inessential qualities of emergence of specific textual communities, it raises properly hermeneutic issues. Those questions relate to the specific form of the legal textual community and the metaphysics of belonging to it or speaking for it. Hermeneutics is equally the study of tradition, and insofar as that textual community is "our" tradition, that metaphysics will play a part in defining who "we"; are.[169] Even restricting analysis to the concepts of origin, essence, truth, and transmission present in the earliest printed jurisprudential literature, we may nonetheless recognize a hermeneutic over which we still fight, a tradition of which we are still—however uneasily—the incumbents. I will end by simply listing certain of the more striking or inescapable features of that tradition, of that distance and those dark letters that are law for us.
1. Origin and otherness . The first principle of legal community is theocratic. It is the attribution of an originary status and authority to the
speech of the law. Legal discourse and the texts through which it gains its positive formulations are simple representations of a primary speech that preexists and authorizes the legal textual community. That origin is hidden, distant, and dark. It is the logos, the source or oracle of law that our authors variously name as God, nature, time immemorial, or that even more peculiarly English phenomenon, the unwritten constitution. Just as the constitution binds invisibly—it is simply "how things are"—so the discourse of law remembers and repeats an ideal that is ever elsewhere, an origin or absolute other into whose face we may never look. In more contemporary terms we may note jurisprudential preferences for sources rather than arguments or dialogues, for validity rather than value, for judgment rather than justification or accountability as the authenticating marks of juridical speech.
2. Essence and absence . Origin connotes essence as the survival of that quality which was first and which forms the basis of tradition. Tradition is the custody of that which is already there, and its essence is expressed in the separation of spirit from substance. Legal hermeneutics thus distinguishes the material form or letter from the spirit of the text or the unwritten tradition by which doctrine alone may name the values and meanings of the text. The spiritual orientation of legal interpretation continuously subordinates the material qualities of tradition—the words, the texts, the notations as profane objects—to the search for their hidden meaning or essence. Where it is a question of essence, then ceremony and ritual, theatrical framing, and other emblems and insignia of the absolute (of that which is absent) are of greater importance than the simple materials of language.
3. Truth and faith . Tradition is predicated on a notion of recollection of identificatory essences; through tradition we belong to communities. To belong is in some measure to be faithful to the creed. In legal terms faith is faith in the origin, fidelity to the source of which the note or sign is the mere representation. To be lawful is to be true, by which enigma we may understand that truth is the faithful recollection of the message, the representation of the content of tradition in its own peculiar symbolic language. Literalism as a technique of legal hermeneutics has its place at this point in tradition: the legal sign may be taken literally, we may believe in the instrument or deed or record, precisely because of its symbolic membership of the tradition.
4. Transmission and death . The art of legal hermeneutics esssentially epistolary. It is a question of constantly replenishing a veridical language and simultaneously reaffirming the lawfulness of the message. Were one forced to offer a conclusion as to the significance of the legal tradition, it would be in terms of a system of transmission, of messages and so of texts, specialized writing systems or structures of notation. Were one to
build a critique of that tradition of transmission, it would have to start with the question of texts and of the linguistics of legal texts. In terms of grammatology, of the study of systems of writing, the critique might well begin by questioning the limited pretensions of the legal profession. It may well be that the full aspiration of legal hermeneutics is no greater than that of putting a certain textual system into social circulation, but those texts are sufficiently coercive, their notation of meaning sufficiently restrictive and life-destroying, to lend credence to the parable wherein only in death, in articulo mortis, can the subject perceive the secret of law.
The Americanization of Hermeneutics:
Francis Lieber's Legal and Political Hermeneutics
James Farr
In 1837 Francis Lieber published the first edition of Legal and Political Hermeneutics . Ten years a resident of the United States, this Prussian émigré sought to articulate the Principles of Interpretation and Construction in Law and Politics, as his subtitle made perfectly clear. The Hermeneutics made its appearance in a land ripe for hermeneutical reflections, and to quote his later editor, it "opened to the American public a new field of thought."[1]
This new field of thought was not entirely new either to Lieber or to anyone else, since few things seldom are. But the later proud editor was on to something. Lieber was one of the first authors, if not the very first author, of an American book on "hermeneutics" explicitly so called. He also helped to broaden the reference of hermeneutics to things legal and political. Previous usage had been confined largely to theological circles "in Britain and America" and to philological circles "in Germany" (LPH, 54). Of course, much more than a term was at stake; so too were the very practices of interpretation and construction in a new republic where "the law reigns [and] every citizen honors it as his birthright."[2] America was already notorious for its legal wrangling, political bombast, and theological bickering.
Despite being set in ink, the Constitution seemed more to provoke than to ameliorate these wordy energies. As Lieber himself remarked in the preface to the second edition (1839) of the Hermeneutics:
One of the first articles which I read after my landing at New York, now nearly twelve years ago, was in a paper opposed to the administration of Mr. Adams. The construction of the Constitution formed one of the points on which the writer founded his objections to the president and his party.
The subject, as a distinction of political men and measures, was new to me, as political construction in this aspect, is peculiarly American. (LPH, vii)
Lieber's Hermeneutics may be understood as providing a hermeneutical foundation for this "peculiarly American" practice. Symbolically, it dates the Americanization of legal and political hermeneutics.
In composing the Hermeneutics, Lieber hoped to set out the principles of constitutional interpretation and construction "like a recipe of a cookery book."[3] But principally he sought to clarify the linguistic foundations and political commitments of the first principles of interpretation and construction as such. "There is no reason," he said, "why this term [hermeneutics] should not be used in all sciences in which interpretation and construction become necessary; in short in all branches in which we are bound to ascertain the senses of words and regulate actions according to their spirit and true import" [LPH, 52–53). Citizens constituted the principal audience for hermeneutics, so conceived, because it is "necessary for every citizen to know how to interpret and construct correctly and faithfully" (LPH, 65). Here then was a project by a German-American political theorist to "lay down the most essential principles" of hermeneutics, to broaden its scope, to politicize and popularize its terminology, and to mobilize its practical energies for the citizens of a new constitutional republic.
In what follows, I aim to recover and reconstruct the essential features of Lieber's Hermeneutics . Primary attention will be paid to the "rules and principles" that constitute hermeneutics as "a branch of science" (LPH, 5). (A list of them will figure in an appendix.) But consistent with this very science we may initially, though briefly, situate the work in contexts constituted by a series of discourses on the Constitution, on the idea of a science of politics, on republicanism, and on hermeneutics.
The focus on this single work and its discursive contexts is justified, I think, because it is such a prominent and sustained reflection on hermeneutics at such an early and important stage in the development of legal and political theorizing in America. Moreover, despite its importance it has been relatively unattended to, at least since the closing decades of the nineteenth century. Now that hermeneutics has (once again) become such a fashionable and contested topic in all sorts of quarters, bringing with it the insistence on the historical dimensions of human inquiry, remembering hermeneutics' own history seems eminently in order.
The Text in its Contexts
A number of contexts help us to situate Lieber's Hermeneutics of 1837. In the next section we will look at the hermeneutic and republican discourses that establish two of these contexts. In this section we may survey
two other contexts, one political, one methodological. These contexts are constituted by discourses (1) on the interpretation and construction of the Constitution and (2) on the nature of a science of politics in a new world. In the 1830s these two discursive contexts were not separate; they were intimately connected. Lieber's other works and activities of the same period also help set the scene for understanding Lieber's efforts.
The year 1837 marked the fiftieth anniversary of the composition of the Constitution. Yet the Constitution had hardly achieved the status of a symbol of national identity. When the Golden Jubilee began (an event infinitely less hagiographical than our recent Bicentennial), "a constitutional consensus was lacking as the first half century under national government drew to a close. A decade of volatile public disputes had made that clear, as had Constitutional commentaries, textbooks, glosses, and manuals that appeared after 1829."[4] A number of increasingly nationalistic Supreme Court decisions (presided over by John Marshall, who had died in 1835) had been met not only with obstreperous state governments but with a barrage of pamphlets urging states' rights, strict construction, and even nullification. The Constitution's sometimes ambiguous references to—if not utter silence about—federalism, commerce, slavery, Western territories, banking, state jurisdiction, judicial review, due process, and the republican form of government occasioned these various disputes and commentaries. Indeed, the document itself, whether as instrument of government or as the palladium of our liberties, was often the subject of heated controversy, as the Nullification Crisis made eminently if dangerously clear.
America's leading voices and pens entered these various disputes, in speeches, articles, pamphlets, and multivolumed commentaries. So too did justices, legislators, presidents, and presidential aspirants. Among them could be counted several of Francis Lieber's closest acquaintances, including John C. Calhoun, Daniel Webster, Jared Sparks, Simon Greenleaf, Edward Livingston, Washington Irving, and James Kent, the chancellor of New York to whom the second (1839) edition of the Hermeneutics was dedicated. Henry Clay, Charles Sumner, and Supreme Court Justice Joseph Story—Lieber's most trusted friends and patrons—were also party to the vociferous debates. In this distinguished company perhaps Kent and Story stand out, at least in that their respective Commentaries helped to establish new heights in the standards governing constitutional interpretation.
The specter of James Madison (who had died in 1836) hovered over these figures, their works, and their disputes—and in ways that not all could fully appreciate. Not only had he been the fourth president and the acknowledged father of the Constitution, but his Notes on the Federal Convention, dutifully scrivened in Philadelphia in the summer of 1787,
were being prepared for publication. Though he had kept his notes from public perusal, he had already intimated some of his views about their complex relationship to constitutional interpretation, as well as to political understanding more broadly. In a letter of 1821 Madison had made the disclaimer that the Notes or the debates they recounted could "have no authoritative character…. [T]he legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be … the sense attached to it by the people in their respective State Conventions where it received all the authority it possesses." More constructively, however, the Notes should gratify "the laudable curiousity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Government."[5]
The reference to the "Science of Government" was not incidental. The debates over the nature of such a science—or its sibling, the "Science of Politics"—went back to the debates over the Constitution itself, especially during the ratification process. Madison himself had been a particularly important contributor to these debates. As "Publius" he had mobilized a view of the science of politics whose Humean and Newtonian bona fides bestowed no mathematical or divine guarantees but certainly a "highly probable" degree of knowledge that a compound federal republic would best solve American's post-Confederation crisis.[6] The Antifederalist Brutus emphatically denied this claim, though he, too, drew to his support the "science of government" and the "science of politics."[7] Such a science required a less centralized governmental structure, not to mention some explicit guarantees for popular rights.
This dispute over the science of politics, like the dispute over the Constitution itself, did not subside as America's first half century came to an end. Indeed, by 1837 the scope of these debates had widened. The positivism of August Comte was already being noticed in the United States;[8] so, too, was the utilitarian "science of government" propounded by James Mill and Jeremy Bentham (whom Lieber had met in 1827 en route to the United States). Within a few years Lieber's friend and correspondent, Alexis de Tocqueville, would reflect on these various debates and the country that gave birth to them, remarking that in America "a new political science was needed for a world itself quite new."[9]
South Carolina College had been Lieber's academic home for a year and a half when he published the first edition of Legal and Political Hermeneutics . He was both prompted by and intended to contribute to the two debates—those, that is, over the interpretation and construction of the Constitution and those over the methods appropriate to the science of politics. The former debates had especially captured the attention of Lieber since, as noted at the outset, he saw something "peculiarly American" about them (LPH, vii).
The latter methodological debates had already engaged Lieber, at least in that he had written about some of the (nonhermeneutical) methods appropriate to a science of politics. In particular he had defended (in his 1835 inaugural address at South Carolina College) the necessity of discovering and explaining political phenomena by causal generalizations. He also had called for "a careful collection of detailed facts, and the endeavor to arrive at general results by a comprehensive view and judicious combination of them." This plea was lodged in his 1836 Memorial Relative to Proposals for a Work on the Statistics of the United States[10] and read into the Senate records by none other than John C. Calhoun. Calhoun agreed with Lieber that the collecting of statistics—and formulating the generalizations they made possible—was not a merely academic matter. The state itself needed better information and reasoning—"state-istics"—to govern wisely and efficiently.[11]
The conceptual tie between the state and statistics was related to yet other of Lieber's writings in and around 1837, especially the Manual of Political Ethics (1838).[12] (The Hermeneutics was itself the expanded version of some remarks originally planned to make up only two chapters of this work.) Despite its normative title, Political Ethics was an extended (and arguably the very first) treatise on the state in America. This "book on the State" (as he put it in the Hermeneutics [128]) opens with a discussion of science in general, and before its two hefty volumes come to a close, he glorifies the "noble object" of political science and grants to it "the whole great question of constitutions" and much else besides (PE 1: 69, 393). In its inclusive grasp political science seeks to provide an ethical foundation for the state, a theoretical analysis of the relationships that constitute it as a "jural" society, and an empirical account of the legal and extralegal institutions through which it acts. In this context Lieber acknowledges that no set of causal generalizations and certainly no "pedantic accumulation of facts" (PE 1: 2) could exhaust the methods of a political science theoretically useful for intellectuals and teachers, much less a political science practically useful for citizens and statesmen. A genuine science of politics must also articulate the methods by which one could interpret political practices and legal texts such as the Constitution, as well as adapt or construe them to meet the needs and overcome the crises facing a new republic. In a word, political science must articulate a legal and political hermeneutics.
Hermeneutics, Language, and Politics
Lieber construed "hermeneutics" rather broadly. To him it was "that branch of science which establishes the principles and rules of interpretation and construction" (LPH, 52). Characteristically, Lieber provided an etymological warrant for his construal. "Hermeneutics" was "from
the Greek … to explain, to interpret," as contrasted with "exegesis," likewise "from the Greek," for "explanation." Thus, hermeneutics was to exegesis as theory was to practice. His own broad construal, again, covered "all branches [of science] in which we are bound carefully to ascertain the sense of words and regulate actions according to their spirit and true import" (LPH, 53).
In using "hermeneutics" in this rather broad way, Lieber was actually drawing on the lessons he had learned in his native Germany. In particular he drew on the philological and historical work of Barthold Niebuhr and Alexander and Wilhelm von Humboldt, all of whom were known, more or less intimately, by Lieber. He wrote reminiscences of Niebuhr and Alexander von Humboldt, and he sent a number of philological and linguistic materials to Wilhelm von Humboldt. He even moved to have the Rocky Mountains renamed the "Humboldt Andes" in honor of the latter. Lieber also drew on the theological reflections and nationalist agitations of his teacher Friedrich D. E. Schleiermacher. It was Schleiermacher in particular who had transformed and modernized hermeneutics by pressing it beyond debates over philological methods and the interpretation of the Bible and by generalizing it to the "art of understanding" as such.[13]
But in emphasizing the establishment of rules and principles along scientific lines, Lieber was perhaps most indebted to the pre-Schleiermacherian hermeneutics of Johann August Ernesti.[14] Ernesti's fixation on words, contexts of use, and authorial intent left indelible marks on Lieber's imagination. Ernesti's Institutio Interpretationis is cited or discussed at several junctures in the Hermeneutics . Moses Stuart, professor of divinity at Yale, had translated the works of Ernesti—as well as those of Schleiermacher—into English for an American press in the 1820s and 1830s. Stuart's discussions and correspondence with Lieber—not to mention his many articles on religious matters for Lieber's first edition of the Encyclopedia Americana —doubtless were in mind when Lieber declared that in America hermeneutics had previously been confined to theologians.
In Lieber's synthetic and posttheological view hermeneutics provided rules and principles for understanding all things of significance, particularly signs and their use. Although there could be divine signs, a legal and political hermeneutics was obviously directed to a certain class of human signs. This class of signs still carved out an enormous domain, including "deeds … gestures, telegraphs, monuments, sculptures of all kinds, pictorial and hieroglyphic signs, the stamp on coins, seals, beacons, buoys, insignia, ejaculations, articulate sounds, or their representations, that is, phonetic characters on stones, wood, leaves, etc., entire periods, or single words" (LPH, 1, 5). The last item, especially in the
form of "plain words and the human use of them," composed the single most important subclass of signs, especially "in law and politics" (LPH, 5, 64). Words could be uttered involuntarily, as in waking from a dream. But paradigmatically they were uttered or written voluntarily. As such they figured in speech as well as in texts such as the Bible or the Constitution—the bible of republicans.
Seizing as he did on words, Lieber underscored the importance of language to human life. He also intimated that the rules and methods of hermeneutic science had as their foundation the linguisticality of human experience. Lieber never developed his intimations into anything like a general theory. But the theoretical contours of his thinking are identifiable in a variety of places, not only in the Hermeneutics but also in The Vocal Sounds of Laura Bridgman, "What Is Our Constitution?" "The First Constituents of Civilization," and "On the Study of Foreign Languages" (also published in 1837).[15]
In brief, Lieber believed that language instantiates a system of intentional signs that function for communication, action, and the constitution of certain social practices. Of the first of these functions Lieber says that language is essential for "the most wonderful and most important [process] on this earth," namely, "the conveying of ideas from one distinct individual to another; for the communion of mind with mind" (MW 1: 442). Here language empowers the "primeval principle in man … to represent outwardly what moves him within" (LPH, 2). But language is also essential for action. Sometimes actions are carried out in and through language in what these days we call speech acts .[16] More generally, however, language "regulates actions" in that spoken words or written texts prompt or prohibit certain behaviors in legal or political settings (LPH, 52).
Because language makes communication and certain actions possible, it also has the consequence of making certain social practices possible. This is so at the highest level of practice, namely society itself. For what is language if not "the greatest link and tie of humanity" (PE 2: 262) and the very first "constituent of civilization" (MW 1: 209)? But particular languages also help to constitute social practices on a national scale. In this way language helps to provide the identity of a nation and its people. The American people, for example, were native English speakers who also had a republican "mania as to the idioms of classical antiquity" (MW 1: 500). But the American people were also changing the English language and had for some time been using its resources to help constitute a new nation. Lieber helped to answer the question "What Is Our Constitution?" by looking back to a colonial precursor from 1754. "The people are everywhere referred to as 'homologous,' and these papers homologated them" (MW 2: 101n). In short, a word referring to the
concept of a unified people played a role in a written constitution which in turn helped to create or constitute a unified people.[17]
Even during periods of change, language—or the lack or loss of language—is no less evident in making human life what it is. For language and life go together and change together. "In the first French revolution," for example, "the words virtue, patriotism, and consistency had received entirely new meanings," meanings that in turn influenced the development of postrevolutionary acts and the constitution of its practices (PE 2: 263n). More generally, a "living language" is one that can "expand and adapt itself to new relations, things, and wider or minuter thoughts" (MW 2: 142). The law—and especially constitutional law—must be precisely like language in this sense, Lieber thought, on pain of national extinction. This is so because there are darker and more disordered times when law, language, and life lose their meaning. Amid the constitutional wranglings and rhetoric of 1837—portents of greater troubles ahead—Lieber cites Thucydides's famous passage where "words lose their meaning" and comments: "Party spirit many run so high that the greatest link and tie of humanity, language, loses its very essence, and people cease to understand one another, when even the best-intended words … are unintentionally yet passionately or wilfully wronged, misconstrued, wrung from their very sense" (PE 2: 262).
These observations on the linguisticality of human experience undergird the scientific rules of hermeneutics, to which we turn presently. They also reveal the extension and continuation in America of a hermeneutic discourse previously developed mainly in Germany. But the above-mentioned Thucydidean sensibilities also suggest that Lieber's construal of hermeneutics reflects some demonstrative political judgments as well, and these of a generally republican sort. Many of these judgments emerge as warnings to his fellow republicans and nationalists against those who would manipulate language, interpretation, or construction for their own interests, for the purposes of espionage, or even for tyranny (LPH, xii, 55, 14). There were those engaged in "sinister interpretation," others in "malconstruction," yet others in the "mischievous process of throwing a novel term around an old and well worn offence, in the expectation that a legalizing effect will result from the adoption of a new word having a technical sound" (LPH, 55, 69; 1862, 5). When thinking about this in 1837, Lieber singled out the example of "Lynch law" (PE 1: 204), as if using "law" at all could glaze over the felony of mob hangings. Later, on the eve of the Civil War, "secession" deserved attention, for "sucession is a word to drug the consciences of ignorant men who are [otherwise] averse to treason" (MW 2: 95). Then, of course, there were those who, in the name of "strict construction" or "literal interpretation," would actually "wrench [words] from their
sense … under the guise of strict adherence [to them]" (LPH, 56, 59). In this way, "enormous crimes and egregious follies have been committed under the pretended sanction of literal interpretation" (LPH, 56).[18]
Lieber accepted the consequences of this warning against literal interpretation, doing so in the name of civil liberty and self-government, republicanism and nationalism. Not only will there always be interpretation, but "the freer the country the more necessary becomes interpretation" (LPH, 46). A free country is one ruled by its citizens in a variety of civic capacities in accordance with the law. Legislators, judges, and administrators need "proper, safe, and sound rules" for interpretation and construction (LPH, 41). So, too, do lawyers, who in any case cannot be trusted with the fate of the republic for the most part of them form an "invincible legion of harpies" (LPH, 38). But principally citizens themselves need safe and sound rules. In a crucial passage of the Hermeneutics Lieber indicates the most important domain of hermeneutic objects "in law and politics."
The chief subjects we have to interpret or construe, as citizens, are spoken words or entire speeches, letters, orders and directions, deeds, contracts, wills, laws, compacts and constitutions or charters, declaring and defining fundamental rights or privileges. Whether we are lawyers or not, we may be called upon to vote upon subjects requiring the interpretation of some of these; and whether we shall ever be members of legislative bodies or not, every citizen of a free country is not only permitted to form his opinion upon all prominent features of his government, fundamental laws, public men, and important measures, but it his duty to do so. (LPH, 64)
Then, too, there was the demonstrably and unavoidably interpretive responsibilities of "the most sacred character a citizen can assume, namely, as a juror" (LPH, 65). To be a juror, to voice an opinion, to judge leaders, to declare rights, to obey the law—in short, to be a citizen—all this requires interpretation and construction. These activities in turn require the discipline of rules and principles "established by reason" (LPH, 9). Lieber's Hermeneutics was dedicated to this civic and scientific enterprise.
The Principles
Hermeneutics has as its principal task the formulation of a set of elementary or general principles for interpretation and construction. To this end Lieber constructs nine "elementary principles of interpretation" and sixteen "general principles of construction." Conceived at a fairly high level of abstraction, these principles function as regulative maxims, even though they are arrayed "like a recipe in a cookery book."[19] As regulative maxims, these principles regulate the understanding and so
make interpretation and construction possible. In accordance with this conception of their nature and function Lieber endeavors only "to lay down the most essential principles, sufficient at least to direct attention to the main points" (LPH, 65). He acknowledges the place of lower-level, applied, and exegetical rules of interpretation and construction, and in the course of the Hermeneutics he intimates what some of them look like. But generally Lieber thinks that only regulative maxims lie within the scope of a "science" properly so-called.
Derivative principles (at a similarly high level of abstraction) are subsequently formulated for particular texts or tasks, as in the crucial case of constitutional hermeneutics. In this way Lieber's most general contribution to debates over the Constitution was to show that the rules and principles that govern its interpretation and construction are entailed or implied by even more elementary or general ones. Lieber, in brief, provides a place for constitutional hermeneutics within the broader science of interpretation and construction, which in turn is necessary "on account of the character of human language" (LPH, 157).
The elementary principles of interpretation help to systematize and correct the interpretive practices of everyday political life. These practices are inevitable because the words in utterances or texts are often ambiguous, obscure, technical, or susceptible to contextual differences. This ambiguity does not mean that the meaning—nay, the "one true meaning"—of words cannot be discovered or represented. Indeed, Lieber's very first principle states the rather lofty conviction—reminiscent of Ernesti—that words "can have but one true meaning." But it most assuredly suggests that words cannot be taken literally or at face value. It also suggests that definitions are only of provisional assistance because they, too, are composed of words susceptible to the same infirmities. "However minutely we may define, somewhere we needs must trust at last to common sense and good faith" (LPH, 19–20).
The trust we have to place in common sense and good faith is memorialized by Lieber as the second elementary principle of interpretation. One wants to know, of course, just what sort of sense common sense is, and just what is common about it. But this principle seems to have behind it the evocation of the classical humanist appeal to the sensus communis .[20] It must also be seen as a contribution to the fight against "extravagant" or "predestined" readings of texts, whether legal, political, or biblical (LPH, 59–60). Moreover, nothing could better fit the image of an Americanized hermeneutics than the appeal to common sense, with its bracketing of speculation and its pragmatic appeal to what seems to work. Lieber renders into a principle of interpretation what his friend de Tocqueville noticed about the American character. Similarly, Chancellor Kent praised the Hermeneutics with the somewhat backhanded but
illuminating observation that until perusing the principles of Lieber's "learned, accurate, and interesting Essay," he had thought that good common sense had sufficed.[21]
The third principle goes on to recognize that "words are to be taken as the utterer probably meant them to be taken." The "probably" is not a hedge on the principle itself; it is a recognition of the practical difficulties that afflict the attempt to discover and represent "what those persons who used the sign intend to convey to the mind of the beholder or hearer" (LPH, 7). Difficulties notwithstanding, Lieber's third principle goes to the heart of interpretation. Meaning can be understood only by the recovery of intentions . In short, Lieber argues for a strong intentionalist program in hermeneutics. In this approach he follows the principal hermeneuticians of the nineteenth century, especially his teachers Schleiermacher and von Humboldt (PE 1: 126). The "one true meaning" of a word, text, or act is to be interpreted not in terms of unconscious motives or invariant linguistic structures but in terms of the intentions of the writer, speaker, or actor. Ordinary political communication, whether forthright or not, must be interpreted in such an intentionalist way. Even if a person is bent on deceiving, "meaning is not twofold: his intention is simply not to express his opinion" (LPH, 75).
Of course, there is no guarantee that interpreters will always recover the real intentions at work. But such success as they can have depends on their exercising good faith and common sense (principle two) and keeping "tropes as tropes" (principle three). This exercise of good faith foregoes the "artful interpretation" of those who would take forensic advantage of the literary openness and creativity of language (LPH, 61). Furthermore, understanding the intentions that lie behind a word, text, or act relies on the determination of "that which is probable, fair and customary" (as principle six puts it). This determination—invariably practical in character and under constant threat of "subterfuge, quibbles and political shuffling" (LPH, 81)—in turn requires considerable contextual sensitivity and exploration. For example, the grammatical, classical, or extraordinary meaning of a word generally should be eschewed for the customary and ordinary (says principle three), except in those contexts where there is evidence that such words govern the discourse and that the writer or speaker intended the words to be taken in that sense. "Military language" usually provides such a context; so too do a number of business practices and "certain arts, sciences, sects, or provinces" (LPH, 89).
Lieber recognizes, as he must, that we often discover conflicting evidence where two or more meanings of a word or theory are possible. The one true meaning is then fixed by that which agrees with "the general and declared object of the text" (LPH, 100). This is one of the
paradigmatic cases (of principle four) in which the general and superior must never be defeated by the particular and inferior in the text.[22] We may also be forced to go outside the text, but always to that which is "near, before proceeding to that which is less so." If, as Lieber glosses this eighth principle, the examination of the whole text "leads us to no more satisfactory result" in interpreting the meaning of a word or part of the text, then "we examine other writings, etc., of the same author or authority; if that does not suffice, we resort to contemporary writers, or declarations or laws similar to that which forms our text" (LPH, 107)—and so on.
For all the guidance in our civic or scientific tasks that these elementary principles provide us, interpretation has its limits. It has its limits especially in those texts, acts, or institutions that prove to have "contradictory parts" within them (LPH, 65) or that continue to govern our lives in new or changed circumstances. Not only does the Constitution fit this (latter) description, so, too, do judicial review, presidential prerogative, local participation, the scope of free speech, the nature of public education, and much else besides. Here "superior conditions" exist (as hinted at in the ninth and last elementary principle of interpretation) that require that we press beyond interpretation itself. Here, that is, we must construe and "go on" (as Lieber says, or as Wittgenstein later would put it) beyond the word, text, or act. Thus, construction is required, which Lieber defines as "the drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit, though not within the letter of the text" (LPH, 56).
In general, Lieber argues for what he calls "close construction" but not "strict construction" (LPH, 54–59). Close construction respects intent and "the directest possible application of the text … to new or unprovided cases" (LPH, 65). But strict construction refuses to go beyond the text at all. It could well be understood as a sort of hermeneutic fundamentalism: "Just read the Word, and the truth will come to you." But, strictly speaking, strict construction is impossible. It is impossible for a people in a republic like ours, where "times and the relations of things change" (LPH, 126) and where never-anticipated problems or crises emerge. It is also impossible for a people who share a language that undergoes constant change. As language undergoes change, our understanding and interpretation of our political practices undergo change. Indeed, as intimated above, our political practices themselves may change because our language changes. Construction might be understood, then, as a disciplined participation in the inevitable processes of political innovation and linguistic change.
Construction has its "general principles," the first of which invokes any or all of the elementary principles of interpretation when applicable.
The ninth, fifteenth, and sixteenth principles similarly reproduce their interpretive counterparts, which deal with the entire text, its spirit, and the faith we owe to it. This repetition underscores Lieber's general observation that "in many cases, interpretation and construction must closely approach to one another; but still the distinction is clear" (LPH, 53). Thus, Lieber goes on to press the distinction by stipulating the remaining general principles, making them even more directly applicable to matters of constitutional law and national politics.
Where intentionality governs interpretation, analogy governs construction. Analogy or parallel reasoning, as the second and most important principle states, is the "main guide" or "primary rule" of construction (LPH, 115).
If, for instance, a political constitution or charter has been adopted or granted, to regulate our political actions, and a case occurs which has not been directly provided for, but which is of an undoubted political character, we have faithfully to search for its true spirit, and act accordingly in the case under consideration. Analogy, or rather parallel reasoning in this signification of construction, is the essential means of effecting it. (LPH, 46).
The new or unprovided case, that is, must parallel, "resemble," or be analogous to another case in "the same speech, will, law, or constitution" (LPH, 47, 114). Failing that, we may have to turn to similar acts by the same speaker or authority, next to the commentaries of the speaker or authority, next to the commentaries of those related to the speaker or authority in the same period, finally perhaps to "the whole literature of the language" if need be (LPH, 115); in short, "we have carefully to begin with that which is near, and proceed to that which is less so, accordingly, only, as we find ourselves unable to construe without seeking means in a wider circle" (LPH, 114). Thus, when constructing by analogy—indeed, when interpreting at all—we move within an expanding hermeneutic circle .
Legal constructors are also guided by the "aim" or the "causes" of a law, a point Lieber specifies in the third and fourth principles. Discovering them is often a matter of interpretation, but mobilizing them in new or unprovided cases is by definition a matter of construction. Here, too, the constructor proceeds analogously and with what we would call these days a subjunctive or counterfactual imagination. He or she must imagine—through a process of "sympathy" (PE 1: 50)—what the law (or text) would have prescribed had it addressed the case at issue. There are "dangers" here, imagination being what it is (LPH, 53). Thus constructors must proceed as "closely" to the text as possible, a point intimated above. Although this process might be dictated in part by the age of the text (principle eleven) or by judgments about what can be humanly demanded (principle five), close construction is especially crucial when "the
text partakes of the nature of a compact or solemn agreement" (principle seven). Constitutions are often of this sort—as is the U.S. Constitution—the close construction of which is essential to individual liberty. The twelfth principle makes this point abundantly clear.
Beyond these general principles, Lieber specifies still others that have to do with the effects or consequences of constructing a text or law in one way rather than another. Indeed, he makes this application explicit in its own right in the tenth principle. But the sixth and fourteenth principles give this ethical and political concreteness. The former is posed with Kantian attention to "the commonest principle of fairness" (LPH, 130): "Privileges, or favors, are to be construed so as to be least injurious to the non-privileged or unfavored." The latter invokes "mercy" in cases of doubt, especially for those who are "weak" and deserve the benefit of the doubt.
The spirit and often the letter of these general principles of construction inform a number of special or derivative hermeneutics. Constitutional hermeneutics crowns a list that includes letters, journals, private notes, speeches, contracts, deeds, wills, treaties, and laws. The rules and principles in this derivative hermeneutic science are of particular importance because "a constitution is to apply in every sphere of political action and hold good for many generations" (LPH, 170). With asides to the commerce clause of the U.S. Constitution, as well to a number of other constitutions, written and unwritten, Lieber reminds his American readers "once more, that wherever human language is used, interpretation and construction become indispensable, even with regard to constitutions" (LPH, 169).
As can be seen by his abbreviated list (reproduced in the Appendix), Lieber remains faithful to his elementary principles of interpretation and his general principles of construction when turning to their constitutional derivative. Indeed, the discussion would be outright redundant if it were not for the examples he provides and for the introduction of "public welfare" as a regulative maxim of the highest order on a par with intentionality and analogy.
Redundancy, especially in matters of close construction, was no sin for Lieber. Given the context of 1837 (and after) and his recognition of the "peculiarly American" (LPH, vii) importance of constitutional construction, the generally applicable arguments for close construction have particular poignancy in questions about the Constitution. This poignancy is due in part to "the principle of nationality" (LPH, 168) that animates the Constitution (and constitutions like it). As he puts it in "What Is Our Constitution?": "It is a national law, having proceeded from the fullness of the national necessity, national consciousness, and national will, is expressive of a national destiny" (MW 2: 117). Besides providing identity
and continuity for the people, as well as a frame of government and a set of guarantees for individual liberty, it is the veritable "organism of national life" (MW 2: 117). Close construction is therefore essential, especially regarding the founders' "granting power to the national government" (LPH, 175). Although the political judgments expressed here are not undeservedly called conservative,[23] Lieber's rejection of "strict construction" and his loathing for "the most prominent extremists on the State-rights side" (LPH, 59; MW 2: 119) give the appellation its historical purchase.
Even then Lieber recognizes the limits of close construction. There are cases in which, as he puts it in his seventh and eleventh principles of constitutional hermeneutics, there must be more "comprehensive," even "transcendent," construction that goes beyond the text and intent. Lieber puts this in a number of different ways, in the process speaking for individual liberty and an independent judiciary.
In his third principle Lieber offers "the public welfare" as the most general expression of "the supremest law" to which the rules of constitutional hermeneutics must be prepared to bow. Americans, the British, "even the Chinese" recognize salus populi supreme lex . "There can be no construction, therefore, contrary to this law of laws" (LPH, 171). Wisely, Lieber points out that self-interested and even tyrannical men have abused the appeal to the public welfare in constructing the Constitution this way or that. Vigilance is thereby in order. Yet a living constitution is impossible without such a law of laws. "Those states are doomed to decline and fall to ruin which endeavor to rule by ancient laws and forms only, and obstinately resist the progress and spirit of the age" (LPH, 174). The "welfare of the people" must animate our constitutional construals.
It is impossible not to hear in this discussion the conceptual materials out of which the discourse of the "welfare state" emerged, especially given Lieber's other work on the state. It is by now equally impossible, I hope, not to recognize the hermeneutic sensibilities that helped to bring these conceptual materials to bear in the first place.
Hermeneutics Received and Forgotten
Founded on the linguistic dimensions of human experience, dedicated to and partly constitutive of the citizen politics of a free nation under law, Lieber's Hermeneutics contributed to the discourses on the Constitution, political science, and republicanism. It also Americanized hermeneutics in the process of covering legal and political texts and processes. Hermeneutics was governed by a series of regulative maxims to guide and discipline the practical science of interpretation and construction in law and politics. It conceived of its audience as composed principally of
citizens, thereby serving the republican, national, and constitutional politics of the new American state.
Interestingly enough, the very name of the work scared some off when it first appeared. "What, in God's name, made you choose 'Hermeneutics'?" asked Chancellor Kent's son William. "Had you called your … book 'principles of Interpretation' … many an honest fellow, now frightened away, would have read and enjoyed the writings."[24] But in the main the work was well received and influential, at least in its second (1839) edition. Kent, Story, and Greenleaf were all complimentary in the extreme. The Hermeneutics was even cited in a brief before the Supreme Court by G. S. Hillard. And the work lived on through the middle years of the nineteenth century in the disquisitions of young lawyers, "repeatedly copied" by students, "frequently quoted by judges" (LPH, 289).
The editor of 1880 reintroduced Lieber's principles, especially in their recipelike array (as presented below in the appendix), as "probably more familiar to the present generation of American lawyers than any other part of his work; perhaps more so than any part of any other work on the same subject." Yet the familiarity of principles did not entail recognition of their authorship. Thanks to the edition of 1880, "many of those who have long been familiar with the rules will learn now for the first time to whom they were indebted for their introduction to American law" (LPH, 289). To the extent that this comment is true, we may perhaps see how Lieber helped to Americanize hermeneutics in the nineteenth century all the more fully and effectively by his having been virtually forgotten. Whatever revolutions in hermeneutics and American thought that have occurred since then, it is tempting to conclude that, at least as far as our forgetfulness is concerned, not much has changed in a century.
Appendix: Lieber's Principles of Interpretation and Construction
Interpretation
[Interpretation is] the discovery and representation of the true meaning of any signs, used to convey ideas. The "true meaning" of any signs is that meaning which those who used them were desirous of expressing.
The Elementary Principles
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Construction
[Construction is] the drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit, though not within the letter of the text.
The General Principles
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Principles of Constitutional Hermeneutics
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Christian Praxis as Reflective Action
Jerry H. Stone
In the Greek and Roman mythologies and genealogies, the past is re-presented as an everlasting foundation. In the Hebrew and Christian view of history the past is a promise to the future; consequently, the interpretation of the past becomes a prophecy in reverse, demonstrating the past as a meaningful "preparation "for the future.
K. Löwith, Meaning in History
For Aristotle praxis meant reflective action informed by phronesis, the practical knowledge and skill that enables a person to transform a tradition's meaning into the immediate social context. We use the term praxis in hermeneutical discourse because its closest English equivalent, practice, often connotes action divorced from reflection, practice unencumbered by the constraints of a tradition-based theory.[1] "The preacher and lawyer practice ; the theologian and legal scholar theorize, " we sometimes say.
Just how praxis combines action and theory in theological hermeneutics constitutes the theme of my essay, and the epigraph above suggests my general direction—that is, a praxis-oriented hermeneutic that rejects tradition as a static entity we retrieve from the past to apply in the present (be that tradition gold or fool's gold). Tradition is not distant from town center like a mountain lake; rather, it flows through and waters the city like a river. Theory and practice blend in the "immersed" citizen who emerges as a voice for the present with overtones for the future—mediator for the city with implications for downstream inhabitants. To interpretation through application rather than from interpretation to application: well enough sounding, and the direction is pleasingly postmodern, too.
However, further reflection on the current status of praxis-oriented hermeneutics casts us into a sea of mixed hermeneutical understandings. Disputes about the nature of praxis often lead into a morass of shaded meanings, if not a dead end of disagreements. David Tracy prepares us for such confusions by the title of his book of theological hermeneutics: Plurality and Ambiguity . Yet as James Robinson points out, one definition of hermeneutics is "bringing the unclear into clarity."[2] Tracy's title
sounds ironic from this perspective, does it not? Or perhaps it forebodes disappointment for the well-intentioned hermeneutical thinkers, who, while meaning to introduce clear-eyed Athena, ushers her veiled figure into a darkened room.
The considerable hermeneutical disarray across the disciplines arises in good part from confusions about the place of praxis in the interpretive process, about how we apply present understanding to interpretation of the past.[3] How is the theologian to interpret biblical literature, which expresses the spirit-filled world of a prescientific mentality, when he lives and thinks in a post-Enlightenment, scientific age? And how is the judge to interpret the constitutional guarantee of equal rights before the law when she experiences life in a world of evolving racial and gender attitudes? Behind these specific questions lies the more general question for this essay: To what extent does praxis as reflective action best describe what we should do, can do, and sometimes do do as interpreters?
I will move from the severance of theory and practice in earlier theological hermeneutics to the present efforts to combine them in a revised understanding of praxis. Using Hans-Georg Gadamer's formulation of praxis as the framework for discussion, I will consider the views of Rudolph Bultmann, Karl Barth, and Paul Ricouer along with appropriate references to more radical action-centered theological movements such as liberation theology. And since the problems of a praxis-oriented hermeneutic are similar across all disciplines, my focus will at times expand beyond Gadamer into the field of general hermeneutics.
Although I will not formally compare theological and legal hermeneutics, the similarities between them should be evident at almost every turn. Some of those similarities are the institutionalized authority of certain texts such as the Bible and the Constitution; the neverending disputes between liberals and conservatives about the authority of the text's original meaning in relation to the authority of ongoing community meaning; and the felt political or religious obligations of the judge, legal scholar, priest, minister, theologian, and biblical scholar to heed the authoritative texts while responding to the pressing needs of the community moment.
Until recently, theological hermeneuticians focused primarily on the past, on the historical and cultural horizon of the text, giving only secondary attention to the text's application in the present. Thus, post-Reformation biblical scholars established a tripartite hermeneutical process: exegesis inquired into the text's meaning in its original time and place, interpretation explored the contemporary significance of that meaning, and hermeneutics formulated the rules and methods to get from
exegesis to interpretation.[4] This division surrendered the search for textual meaning to the technical scholar, who presumably alone possessed the skills to understand the text in its original time, place, and language—in its Sitz im Leben . With the text's meaning thus established, its application was usually left to the subjective impressions of imaginative, but less technically skilled, theologians and preachers.[5]
First understand the text, and second interpret it—this is the traditional formulation that praxis as applied exegesis challenges, a challenge brought to popular attention by Walter Wink in The Bible in Human Transformation . "Historical biblical criticism is bankrupt," he charges. Like a bank with skilled personnel and technical equipment intact yet no longer making money, so biblical research with all its scholars and resources is unable to achieve its real purpose, which, says Wink, "is so to interpret the scriptures that the past becomes alive and illumines our present with new possibilities for personal and social transformation."[6]
The concern for praxis pervades the modern theological consciousness at deeper levels than Wink's somewhat sensationalist book might suggest. Karl Barth had challenged the traditional separation between exegesis and interpretation in his Epistle to the Romans (1919). Barth's commentary was more than an exegesis of the apostle Paul's letter in its first-century context; it proclaimed Paul's message anew in the language of the twentieth century. (Gadamer, incidentally, later called it a "hermeneutical manifesto.") Barth himself said at the time, "Our questions, if we understand ourselves aright, are the questions of Paul, and Paul's answers, if their light illumines us, must be our answers…. The understanding of history is a continuous, increasingly open and urgent discussion between the wisdom of yesterday and the wisdom of tomorrow, which are one and the same."[7]
Barth's assertion that textual understanding involves both exegesis and application caused many traditional biblical scholars to dismiss his work as unscholarly. James Robinson observes that the New Testament scholars who reviewed Barth's Romans associated his "failures in mastering critical historical detail with his achievement in letting the subject matter of the text put us in question, to conclude that his commentary was merely practical and edifying, i.e., of no further interest to scholarship."[8] Robinson's observation dramatically discloses earlier negative attitudes toward praxis, attitudes grounded in understandings beyond which most contemporary biblical scholars have moved. I turn now to these more recent understandings.
Hans-Georg Gadamer's formulation of praxis expands the hermeneutical movements described above, movements already underway at the time he wrote. Thus, Gadamer observes: "Basically I do not propose
a method, I only describe what is . I do not think one can seriously contest that the situation is as I describe it."[9] Gadamer's reference to "what is" suggests that our method of interpretation always presupposes a preunderstanding of the text's subject matter; this insight led Barth to say that our questions are the questions of Paul, and it led both Barth and Gadamer to conclude that the hermeneutical quest presupposes a participation of the text and reader in a common subject matter, a participation that is disclosed in praxis.
Yet Gadamer's understanding of praxis attracts us as original in the imaginative way it blends interpretation and application in "play," or Spiel, on the model of artistic expression. Just as the dancer's interpretation brings the dance into fresh expression through action, so the living community's interpretation brings the textual tradition into fresh expression through application. True play is mimesis as figurative praxis, as re enactment rather than replication of the past.[10] Mimesis does not "mimic" the external characteristics of the original; rather, it re -presents the original by evoking its essence in contemporary form. Thus, the modern passion play "mimics" to the extent it acts out Christ's passion week in a literal, surface presentation of the gospel narrative. In contrast, figurative praxis occurs in Aeschylus's ancient tragedy Agamemnon . Home from the Trojan war, King Agamemnon reenacts the tragic history of the House of Atreus when he succumbs to his wife Clytemnestra's will by stepping on the sacred crimson carpet. He "tramples" the crimson carpet just as his ancestors "trampled" their children by cooking and eating them, just as Agamemnon himself "trampled" his daughter Ephigenia by sacrificing her, and just as he "trampled" Troy. Agamemnon interprets his terrifying, crimson-blooded heritage by applying it; he brings it afresh into its tragic being; he fuses the past with the present—or as Gadamer would say, Agamemnon unites interpretation and application in a "fusion of horizons."[11]
Gadamer's phrase "fusion of horizons" (Horizontverschmelzung, literally "horizon melting") is as aesthetically pleasing as are its artistic embodiments. But we must unravel the tangled levels of meaning behind this phrase in order to comprehend it. Cultural horizons are bound within their history and language; therefore, we understand ourselves only from within our linguistic and cultural-historical horizon, Gadamer says. The past was similarly bound within its own horizon. Thus, our culturebound past manifests itself to us in the only way it possibly can—in the linguistic form of our inherited texts. (It also manifests itself in other forms such as the visual arts, but we comprehend these forms only as they are brought into linguistic expression.)
Behind this notion of "horizon-boundedness" lies Gadamer's concept of the self as a bundle of linguistically mediated, temporally extended experiences, which recalls David Hume's notion of the self as a bundle of
sensory impressions.[12] The self does not endure as an entity behind, under, or beyond the flux of the historical process; it is not a soul with underground reaches into a transcendent realm. Neither can the self, even less ambitiously, attain some ahistorical footing or Archimedian point free of the "two horizons" by which to evaluate those horizons. In short, no ultimate truth is available to the self because of the self's linguistic boundedness within a horizon.
Still, a "truth" does reside in historically contingent human beings. As Brice Wachterhauser says, "Gadamer belongs to a tradition of ontological theories of truth that take their point of departure from the ontology of the subject matter."[13] The subject matter, human beings, may be contingent, but this condition does not necessarily exclude possible "truths" about them. A historical truth does unfold in praxis, in living out one's tradition through the exercise of phronesis. Phronesis is neither metaphysical truth—sophia —nor scientifically demonstrable truth—episteme/techne . Rather, it is a practical truth about how the self functions; one becomes a true self, a properly functioning and understanding self, in the reflective application of one's tradition—in praxis.[14]
But praxis cannot occur without dialogue between the two horizons, and fortunately our present horizon is not so confining as to preclude such a dialogue, says Gadamer. Just as our physical horizon moves ahead as we approach it, so our cultural horizon expands as we reach its edges, edges where we dialogically engage our past horizon—our tradition—as it meets us in its own linguistic form. Thus, our horizon is not a darkened cell designed for solitary confinement and soliloquies. Instead, it has windows open for conversations with the past, windows that let in "fresh horizonal breezes." Thus, the furnishings of our present cultural house—our cultural prejudices—are not hermetically sealed into their interior setting. Instead, they constitute the breeze-touched "enabling prejudices" that receive cross-horizonal meaning. This openness in turn gives rise to the reenactment of the past in praxis. Certainly we cannot penetrate or circumvent our language to divine some supposed meaning of the past apart from our reconstruction of it, nor can we reconstruct the pure intention of a text's author or of a text's original meaning. But we can recognize the past in the text's own linguistic expression, and since the text's essence grasps us only in our application of it within our present linguistic horizon, our application is itself a linguistic process.[15]
We will keep Gadamer's formulation of praxis in mind as we move now to the theological hermeneuticians, beginning with Rudolph Bultmann. Bultmann towers over modern times as one of its great biblical scholars. He was also evangelically driven to translate the New Testament message—the kerygma —into contemporary terms. Although brilliant as an exegete, his passion to apply the gospel in a modern
framework compelled him to reject the split between application and exegesis. He is probably best known for his program of demythology, which is above all a tour de force in the application of the kerygma to our post-Enlightenment, scientific age. For him the biblical text unfolds both its original and present meaning only as we understand it through the horizonal preunderstanding of our "existential consciousness." Bultmann's "existential consciousness" presupposes a concept of the self possessed of an inner awareness that transcends language and tradition, an awareness that provides a spiritual link between biblical and modern selves. Unlike Gadamer, who perceives the self as confined within linguistic and historical boundaries, Bultmann assumes a universal, unbounded selfhood as common ground for human understanding, a selfhood that, as said above, connects the world of the biblical text with the world of the modern reader. As Bultmann says, "The presupposition of understanding is the bond between the text and the interpreter, which is established by the interpreter's prior relation to the subject matter mediated by the text . Here, too, the presupposition of understanding is a preunderstanding of the subject matter" (my italics).[16]
The subject matter mediated by the text and preunderstood by the reader is, of course, an existential awareness of God. Such awareness does not mean that selves possess direct knowledge of God, but it does mean that selves across history share a universal question about God that binds them. Bultmann describes this dimension of the existential self in the following way: "Unless our existence is moved (consciously or unconsciously) by the question about God in the sense of Augustine's 'Thou hast made us for thyself, and our heart is restless until it rests in thee,' we would not be able to recognize God as God in any revelation."[17] (My purpose here is to relate Bultmann's view of the existential self to his hermeneutical understanding; it is not to argue the merits of that view itself.)
Bultmann depicts this existential self in a mixture of biblical and Heideggerian terms. We experience ourselves as impermanent creatures "thrown" into a world where we move inexorably toward death. Ironically enough, we seek in the world a security and permanence that we already know we cannot attain because we experience the world as transient.[18] This anxious awareness is more than just an individual and occasional psychological state; it is the existential condition of all human existence. As a constitutive element of that existence it transcends every cultural-historical period. This consciousness of "fallenness" forms the preunderstanding that first-century persons brought and we moderns bring to the kerygma. Moreover, we can trace this shared awareness in biblical passages such as "Do not lay up for yourselves treasures on earth" and "Do not be anxious about your life," even though the writers
framed their understanding of those passages in a bygone, three-storied worldview adorned with supernatural beings and powers who intervened in everyday physical and historical happenings (thus the biblical descriptions of angels who descend from above and demons who surface from below and the account of the physical resurrection and ascension of Christ as historical events).[19]
Thoughtful modern persons cannot accept this prescientific worldview without a sacrifice of intelligence, for the conflicting secular vision introduced by the Enlightenment and the scientific age shapes their intellectual horizon, says Bultmann. This modern vision of a closed physical universe governed by natural law permeates the modern horizon, which means that the biblical description of supernatural spirits as entities who intervene in daily human affairs can carry no real meaning for the modern interpreter. The text cannot mean until it is re-presented in terms of existentialist experience. Since the original experience cannot be repeated in its biblical form, it can only be reenacted as mimetic figuration; it must unfold in intelligible modern experience for praxis tooccur, for the Spiel to begin. Thus, the believer does not discover the kerygma in the external biblical narrative that describes the physical resurrection of Christ as an objective historical event. Instead, she experiences it as resurrection in her own heart, which is the same resurrection experienced by the original believers who articulated their encounter in the mythological terms of the prescientific worldview available to them. In Bultmann's well-known words: "The event of Easter, insofar as it can he referred to as a historical event alongside of the cross, is nothing other than the emergence of faith in the risen one in which the proclamation has its origin. The event of Easter as the resurrection of Christ is not a historical event; the only thing that can be comprehended as a historical event is the Easter faith of the first disciples."[20]
But this interpretation of Christ's resurrection as faith emerging in the believer's heart is considerably more aggressive than Gadamer's preunderstanding, which engages and interprets the text within the constraints of language and history. Unconstrained by such forms, Bultmann's famous "demythologizing program" reconstructs in existential terms the text's historical expression of Christ's resurrection. Praxis as demythology dissolves the surface, linguistic meaning of the text and reformulates it as a reality in the inner experience of the believer; the text's proclamation of Christ's physical resurrection vanishes to reappear as emergence of faith in the believer's heart. The present horizonal meaning moves from a dialogical engagement with the original horizonal meaning to a monological invasion of it. But more of this later in a comparative analysis of Gadamer, Bultmann, and Barth. We turn now to Karl Barth.
Writing much earlier than Gadamer, Barth offers insights that seem in part to presage modern hermeneutical directions. "There is no possibility of a valid and fruitful examination of what is said to us in Scripture, or reflection upon it, unless, proceeding further, it develops into an appropriation of it…. The proof of our openness to the object is that our observation and reflection on what is said leads to its assimilation," he says.[21] Barth, like Gadamer, rejects the notion of an Archimedian point from which human reason forces the past into conformity with the present, yet he also knows that the world of the past cannot be brought into the present without transformation: "But I think I also know that the same thing cannot and should not return, and that we have to think in our time for our time."[22]
Yet the application of a text must acknowledge the object to which it directs us, Barth cautions. He rejects Bultmann's existentialist praxis, which locates the object of biblical interpretation in a subjective human experience rather than in the historical object to which the biblical text points.[23] It is pointless to gaze into the biblical text as if it were a mirror of our own experience, and it is fruitless to pursue the psychological state or personal motivations of the author; instead, we should direct our attention to the referent of the biblical testimony. "The universal rule of interpretation is that a text can be read and understood and expounded only with reference to and in light of its theme, or object," he asserts.[24] For Barth, the central object to which the biblical text points is, of course, Christ's resurrection as an objective, historical event. Therefore, a proper reading of the text will take seriously the author's account of this occurrence rather than presume that the reader's own interpretation is what really occurred or is what the author intended. In light of Bultmann's effort to interpret existentially the author's state of mind, we can understand Barth's own lively rebuttal: "My exposition (of the referent of the biblical text) cannot possibly consist in an interpretation of the speaker's meaning. Did he say something to me only to display himself? I should be guilty of a shameless violence against him, if the only result of my encounter with him were that I now knew him or knew him better than before. What a lack of love! Did he not say anything to me at all?[25]
According to Barth, Bultmann's existentialist interpretation not only reduces the object of the text to a particular state of mind but also presses the text into a Procrustean bed of demythologized terms. Thus, a modern philosophical system—existentialism—becomes the preunderstanding for praxis; it also reigns as the Archimedian point from which to interpret the past. (And it is a rather poor and irrelevant philosophy at that, Barth thinks.) In sum, Barth affirms an internal connection
between interpretation and application in which interpretation unfolds through application, but he insists that praxis as reflective action respect the object on which it reflects.
Barth, Bultmann, and Gadamer all exemplify the modern trend toward the integration of interpretation and application, toward a recovery of the past through praxis as reflective action in the present. Yet their differing views of just how praxis brings the past into the present confront us with, as earlier said, a morass of shaded meanings, if not a dead end of disagreements. I shall focus on two of these differences: the function of language in communicating praxis and the search for a norm, a critical standard, by which to evaluate it.
I begin with the function of language. We have seen in part how language functions for Gadamer. Culturally and linguistically bound as we are, he says, we receive tradition in its linguistic form, converse with it from within our particular linguistic boundaries, and express it in our own linguistic "mimetic figuration." Since we possess no "transcendent ego" or "Archimedian point" from outside tradition by which to assess application, the only source of criticism resides within our particular application of tradition. Furthermore, since we are privy to truth only within the linguistic boundedness of phronesis—"practical knowledge"—and because thought itself is shaped by language, our words make manifest that truth rather than convey it.[26] Thus, for Gadamer language possesses the iconic power to structure our understanding; language shapes our critical capacity, our sense of truth and moral oughtness, and our very consciousness itself. It is true that human transformation can occur through "play," through application as the mimetic reenactment of our tradition, yet even this freedom remains within the linguistic and historic boundaries of the two horizons. In short, praxis never provides surety or "salvation"; it cannot transport us into a consciousness that transcends our linguistic limits. Praxis is not inspired by Prospero's "white magic," a kind of "holy knowledge" that empowers him to reshape civilization and that inspires Miranda to exclaim, "O brave new world that has such people in't!" Thus, mimesis as reenactment of the past never engenders a sea change.[27] More moderately, it carries us waterbound along our cultural and linguistic surfaces to constrained culminations on rising and subsiding crests.
By contrast, Bultmann speaks in more expansive, Romantic-age terms of a sea change. Praxis transports us beyond the cultural-linguistic waters of Gadamer's two horizons. Our connection with the past is not restricted to the dialogical interchange along the edges of linguistic horizons; we are not limited to a linguistic appropriation of our textual
tradition. Rather, a "fusion of horizons" occurs in the common existential experience that surfaces when we uncover the universal meaning beneath the text through demythologizing it. Thus, Bultmann provides the interpreter a formula by which to decode the text's inner meaning and thereby release it from the constraints of the text's surface expression. Language is decoded to discover the message it conveys . Language is not iconic; content is not bound to the form of discourse. If it were, we could not break into its kernel of inner meaning, then discard the external linguistic shell. In short, we could not demythologize it. The absence of external linguistic constraints provides the interpreter with license to decide as an individual what the text means, what the truth of the tradition is.[28] The linguistically expressed horizon of the biblical text no longer exists in polar tension with the interpreter's horizon. Content is unharnessed from form. The interpreter runs with the text where he will—the reader as horse with bit in his teeth. Thus, Bultmann proposes a form of praxis that Gadamer admires but must reject to the extent that it refers to a reality disembodied from historical-linguistic construction. For this reason Gadamer believes that the theologians Ernst Fuchs and Gerhard Ebeling take a positive step beyond Bultmann's existential interpretation to link religious experience to the linguistic event. The word is not simply a neutral entity that happens to describe powerful religious forces that exist independently of it: "The word, rather, is like a flash of lightning—it strikes." Gadamer goes on to quote Ebeling: "The hermeneutical problem undergoes its uttermost compression in the act of preaching.[29] Thus, Gadamer confirms Ebeling's view: language and reality compress into the fusion of linguistic form and content as a part of the fusion of horizons.
Barth joins Bultmann in rejecting the notion that language carries the iconic power to manifest reality. The historical Christ event manifests reality; the biblical words only point beyond themselves to that event, says Barth. (We remember that the Barth-Bultmann dispute has to do with the nature of the truth that biblical language conveys—the historical event for Barth and the existential experience for Bultmann.) Thus, the biblical language conveys a truth beyond itself, it does not manifest a truth embedded within a particular linguistic form of expression. Content is freed from the form of discourse; God is freed from human conceptions of the divine. To be sure, the biblical words remain indispensable as the original recorded testimony of the Christ event. Still, the words themselves are subject to critical analysis since they carry no intrinsic authority as conveyors of that event. Here both fundamentalist and liberal Christians become disenchanted with Barth, the former for his rejection of the Bible as literal authority and the latter for his elevation of the Christ event as a seemingly heteronomous authority.
The problem of authority to which I now turn is the problem of the norm, the quest for a critical standard by which to evaluate praxis. Barth insists on the authority of the biblical text as a unique disclosure of ultimate meaning, yet he also maintains that an understanding of the text cannot occur separately from its application; we cannot not intrude our own aspirations into our chosen forms of praxis.[30] While holding both the text and its application in the forefront, he further insists that they both be brought under the critical judgment of the Word of God as an object from outside the linguistic and cultural context within which they appear. The objection to Barth's position is, of course, that he appeals to a transcendent, unassailable authority beyond the legitimate boundaries of critical reason. Barth responds to his critics with his dialectical approach to theology. Whereas culture and language are the necessary forms through which the Christian subject matter is conveyed, for Barth no such culture and language—biblical, modern, or otherwise—can circumscribe the divine subject matter to which it points. As Thomas Provence says, "It is impossible [in Barth's view] to deal with the words of the Bible without understanding them through some preexisting [cultural] presuppositions; yet, when the object of the text encounters us, all such human presuppositions [including Bultmann's existentialism] must be surrendered in order that we might be challenged by the subject matter itself."[31]
Limited as we are to language and culture, we can still recognize (dialectically) an authority from outside our present and past horizons, according to Barth. Assuredly, we apply that authority within our modern categories; we express it in praxis as reflective action, for we can neither repeat the past nor crank a deus ex machina onto the human stage as divine director. But if we proceed dialectically, we retain a standard by which to evaluate our particular praxis. Delightful to one person's set of sensibilities because of the "double-talk" into which a dialectical understanding of ambiguous existence necessarily and appropriately moves us, Barth's approach is maddeningly nonsensical to others because it seems to take back with one hand what it gives with the other. (As with Bultmann, my purpose is to explore the hermeneutical importance of Barth's theology, not to argue its merits.)
It should be obvious that Barth chooses a textual meaning with questionable significance when viewed solely from a post-Enlightenment secular perspective. But Barth is convinced that the interpreter is free to choose a text's meaning from outside his own horizonal preunderstandings, an approach reminiscent of E. D. Hirsch's position. Hirsch rejects what he calls a "cultural Kantianism" wherein post-Enlightenment preunderstandings limit the possible meanings of a text. Instead, the interpreter can choose someone else's, perhaps another culture's
understanding as its best meaning—an allocratic ("other-governed") choice—then allow this delegated meaning to stand in critical judgment of the interpretation that seems most significant in the present moment.[32] As a contrast to the "realists" who make allocratic choices, Hirsch describes the "cultural Kantians" as "idealists" who believe that the only authoritative interpretation is the autocratic one, that is, the self-governed one that emerges from within a person's own horizon.
Following Hirsch's schematic, we see that Barth distinguishes between the meaning to which the biblical text points and its particular significance for the Christian community at any one time, whereas Bultmann identifies the text's meaning with its presumed existential significance for our particular time. For Bultmann the biblical text can have no other meaning than its significance for us, whereas Barth holds open the possibility of a textual meaning that brings "significance for us" under the critical judgment of the meaning to which the biblical text refers. Barth believes that human beings, embedded as they are within their language and culture, can nevertheless recognize (dialectically) an authority that speaks through the text from outside their own cultural horizon.
It is true that Barth is often dismissed as an obscurantist. As justified as that dismissal may or may not be, we should remember that Barth's hermeneutical approach extends far beyond his own particular theology to the Protestant principle of ecclesia semper reformanda ("the church must continually reform itself"), which states that every expression of Christian community stands under the judgment of God as a relative, ambiguous expression of praxis as reflective action. This Protestant principle necessarily affirms the dialectical notion of God as Deus Absconditus, the "hidden God" who is both disclosed to and concealed from human experience. In spite of the difficulties with this principle, which Barth adopts and many humanists dismiss, its hermeneutical significance is that it provides a critical base from which to evaluate praxis, or "action oriented understanding," as Jürgen Habermas describes it. As problematic, even wrongheaded, as their solution might be for many, Protestantism and Barth do provide a critical standard or norm by which to assess the historical-cultural application of Christianity. The need for a critical standard by which to evaluate praxis is a hermeneutical principle that appears from the beginning of the Judeo-Christian literary tradition, for example, when the pre-exilic prophets called the Jewish praxis back to its norm, to its original covenant with the God who freed the Israelites from their bondage in Egypt. Moreover, this hermeneutical principle endures as an urgent and unresolved issue in postmodern hermeneutics across all disciplines, as is evident from the debates in the legal academy.
Jürgen Habermas charges that Gadamer's understanding of praxis lacks just such a hermeneutical principle. We remember that for
Gadamer the text and its interpreter converse within the linguistic and cultural boundaries of their respective traditions. This conversation gives birth to a praxis that, like its tradition-bound progenitors, lacks an external critical perspective from which to assess its tradition critically. According to Habermas, when Gadamer rejects a normative principle from outside the cultural stream by which to establish meaning, he abandons a rational foundation for the critical review of praxis. By accepting the notion that rational thought is itself historically and linguistically bound, Gadamer divests praxis of its capacity for critical reflection. In the absence of such a standard for critical reflection praxis becomes subjectivized, impressionistic, and incapable of rigorous self-criticism, says Habermas.[33]
The concern for a standard by which to evaluate praxis has led traditional Christianity to approach with caution, if not downright hostility, the more unbridled expressions of Christian praxis that sometimes have, in the name of relevance, jettisoned much of the theological baggage carried by the church through the centuries. We find such interpretations in old-time liberal theology and in some formulations of its contemporary, more volatile counterpart, liberation theology. These theologies engage in various praxes that often reject or ignore the traditional vision of God as a transcendent power who engages in the immanent affairs of human history. Carroll Wise, for instance, develops a thoroughly psychologized form of religion in which the principles and energies informing it emerge primarily from modern psychotherapy, clinical psychology, and psychosocial theorists such as Erich Fromm. Wise can say, "The majority of the problems expressing themselves in religious terms arise as a result of emotional conflict rather than on a strictly intellectual basis."[34] The understanding of love and personality care that informs Wise's work constitutes more than a horizonal preunderstanding that engages the biblical horizon; rather, this secular preunderstanding so dominates the dialogical process that it preempts the biblical horizon, too. Christian praxis appears as psychological healing; the kingdom of God emerges as the kingdom of maturing personalities.
Similarly, in a sociopolitical context the liberation theologian Juan Luis Segundo argues for a direct causal connection between a political order as liberation praxis and the eschatological kingdom of God. Segundo is critical of that political theology which separates the absolute kingdom of God from all relative political orders, thereby reducing political orders to no more than "analogical images" of the kingdom of God. Segundo asks, "But who dedicates their life to an 'analogy'?[35] He asks this question from his conviction that human beings will never make ultimate commitments to a vision of God not directly manifested in the praxis of social and political liberation.[36]
For Wise and Segundo, present understanding molds the past into its modern secular image. Healthy personalities and liberated human societies are the kingdom of God. In this way Christian praxis is severed from its traditional transcendent ground. Christian meaning appears without remainder on the surface of things; the tension between human action and the "unsaid," between worldly praxis and the "otherness" of God, vanishes. Secular praxis shapes religious interpretation. It does not continue the dance through reenactment; it starts the dance over from scratch.[37] Thus, the challenge for a praxis-oriented theological hermeneutic is to establish a critical base for its evaluation. For instance, by what criteria do we establish an acceptable association between the Christian message and the Sandinistan revolution, or between the gospel and Bultmann's existentialist interpretation of it?
Yet for many hermeneuticians across the disciplines, the problem of theological hermeneutics goes deeper than the establishment of a standard for critical evaluation. Some critics categorically assert that a Christian praxis grounded in a religious authority can be neither meaningful nor significant in our modern secular society. According to these critics, the traditional gods have now become what Ludwig Feuerbach called them a century ago—imaginative human projections, social constructions of ultimate reality that have had their day. Alasdair MacIntyre, for one, thinks that the secularization of modern society leaves Christian interpretation irrelevant. According to MacIntyre, Protestantism itself helped to create our modern world, a world that rid itself of magic and made itself available for scientific truth. Protestantism's notion of the Deus Absconditus introduced a god that cannot be identified with any ascertainable object. This notion resulted in a Christian vocabulary bereft of a secular and scientific content and thus incomprehensible to a modern society that requires such a content for rational coherence.[38] If MacIntyre is right, the boundaries of our modern secular horizon are closed to dialogue with the past Christian horizon insofar as that earlier horizon affirms the disruption of the natural order by supernatural events or beings. Efforts to dialogue with the Christian past could be relevant only when reduced to monologues within the present secular horizon, such as those of Carroll Wise and Juan Luis Segundo. MacIntyre's analysis suggests that for many reflective persons the transcendental element in religion's subject matter—God—presents a unique and seemingly insurmountable hermeneutical problem for relating Christian praxis to traditional Christian beliefs. It is important to note, however, that MacIntyre is not presuming to make ontological judgments about Christian claims for a transcendent reality. Rather, he is saying that discourse about such a reality is not intelligible in modern secular society. Thus, our secular
social context obstructs the meaningful communication of traditional Christian beliefs.
However accurate MacIntyre's analysis may or may not be, a similar problem appears in general hermeneutics: How can any past horizon carry authority as a dialogical partner in our modern pluralistic social context? In Richard Bernstein's opinion our pluralistic, fragmented society fails to experience community nomos as the shared acceptance of social and ethical norms that emerge from an ongoing tradition. If we accept Bernstein's view, then the very things that enable dialogical engagement between two horizons—a community nomos and rational discourse about the governing norms for our practical lives—are largely absent from present-day society. Bernstein says that Gadamer, too, is aware of this cleavage between the "two horizons" when he tells us that "the concept of praxis which was developed in the last two centuries is an awful deformation of what practice really is" and when he speaks of "the peculiar falsehood of modern consciousness: the idolatry of scientific method and the anonymous authority of the sciences."[39] Thus, according to Bernstein, Gadamer himself questions the continuity between past and present that is necessary for meaningful praxis. This observation suggests that if the normative values that legitimate practical knowledge and establish criteria to verify that knowledge are absent, praxis in general becomes more a choice of life-style than an expression of nomos, and praxis as Christian community becomes more a matter of taste (for MacIntyre a misguided taste) than a meaningful expression of religious truth. It also suggests that although it may be true that Christian praxis facesthe unique problem of how to dialogue with a prescientific worldview presumably inaccessible to the modern secular mentality, it may also be true that the breakdown of dialogue with the past presents a unique problem for hermeneutics in general.
Bernstein further argues that continuity across the two horizons becomes even more problematic when we realize that Gadamer's notion of dialogical engagement between the horizons is not strictly analogous to a dialogue between persons. Two persons converse as the give-and-take, or "play," of their interchange generates adjusted insights and revised conceptual directions. But Gadamer knows as well as Bernstein that one of the partners in the hermeneutical conversation—the text—is at least literally silent: "Texts are 'permanently fixed expressions of life' which have to be understood. This means that one partner in the hermeneutical conversation, the text, is expressed only through the other partner, the interpreter." Still, the conversation with text and tradition is for Gadamer like a living conversation "in that it is the common object that unites the partners, the text and the interpreter.[40] Yet for Bernstein, if
the conversation as common object breaks down in the absence of an ongoing community nomos as referent for the conversation, then we are led to the practical task of concretely realizing the social conditions under which a community nomos might appear, thus enabling conversation to occur. Of course, Bernstein's criticism, even if valid, does not mean that Gadamer's hermeneutical position is wrong; in fact, Bernstein has great sympathy for it. Rather, it means that present social conditions obstruct its implementation. Here Bernstein's argument sounds similar to MacIntyre's; they both accept, with Gadamer, the historicity of understanding but raise problems for the appropriation of tradition as praxis in changing social conditions.
With this excursus into the impact of changing social contexts on praxis we return to Bultmann and Barth, who, each in his own way and different from Gadamer, nevertheless affirm with him a continuity of human experience across changing social contexts that does not dissolve even under the corrosive influence of modern secular culture. Bultmann's link is the "existential experience" behind text and tradition, whereas Barth sees text and tradition as the indispensable signposts that point to the historical event of Christ, an event that Christians realize through praxis and critically evaluate through dialectical thinking.
Still, just how telling are criticisms such as MacIntyre's? How relevant are Bultmann and Barth to the present postmodern or poststructuralist era, which, as Gregory Leyh says, "vigorously resists views of reason and rationality as historically disengaged; denies that truth is transcendent; and holds untenable the idea that language is a neutral instrument capable of impartially representing objects in the world" ?[41] For both "existential experience" (Bultmann) and Christ's resurrection as "historical event" (Barth) refer to transcendent truths, view language as representative of other objects and realities, and thus paint landscapes not appearing on the postmodern horizon. Yet we should think twice before dismissing Bultmann and Barth, for perspectives such as theirs still permeate much of modern thought. Moreover, to understand postmodernism requires a grasp of the aspects of tradition it rejects, such as the transcendentalism that both Bultmann and Barth affirm. Finally, as relevant as postmodernism might be, we can probably never be certain that any set of assumptions provides an entirely adequate or satisfactory alternative to the set of sensibilities expressed by Bultmann and Barth. Still, it would be premature to terminate this essay with a face-off between traditional and postmodern views, for postmodernism has had a significant influence on traditional theological hermeneutics, too.
Paul Ricoeur is a biblical interpreter who attempts to bridge the gap between the transcendental elements in the Christian tradition and postmodernism, between the social contexts that, according to MacIntyre,
divide earlier Christian from modern secular society. Ricouer rejects the notion of a "transcendental ego" (in either a Cartesian or existentialist sense) that stands outside the biblical text to provide its definitive interpretation. He rejects as well the notion of the biblical text as a signpost pointing beyond itself to a transcendent historical reality, for such a signpost refers to a landscape not observable through the lens of the modern interpreter. Instead, says Ricouer, the historically conditioned language of the text makes manifest, suggests from within itself, its transcendent meaning. Following Gadamer, Ricoeur claims that language contains the iconic power within itself to re-present that transcendent meaning in mimetic figuration. Once the biblical text takes on written form, it assumes an iconic force of its own; it carries the power to influence history disengaged from the finite intentional horizon of the author and from the context of its original setting as well. The text bursts out of the world of the author and its hearers; it "decontextualizes" itself to establish its own autonomous world.[42] This "world of the text" is no longer a past world that I as reader seek to find behind the text; rather, it appears as a world in front of me, which "I may inhabit and wherein I can project my ownmost possibilities."[43] Thus, I can enter into the world of the text and imaginatively appropriate it to my own situation.
For Ricoeur the world that the biblical text presents does refer to a transcendent reality beyond it, but it does not describe that reality as an entity subject to empirical verification. Rather, it is the referential function of biblical language as poetic discourse to create a world that suspends the descriptive function of ordinary language. Biblical language as poetic discourse carries an iconic or revelatory power in that it "incarnates a concept of truth that escapes the … criteria of falsification and verification. Here truth no longer means verification, but manifestation, i.e., letting what shows itself be. What shows itself is in each instance a proposed world, a world I may inhabit and wherein I can project my ownmost possibilities. It is in this sense of manifestation that language in its poetic function is a vehicle of revelation.[44] We miss Ricoeur's point entirely if we understand the transcendent reference of poetic discourse as a truth or reality beyond the text subject to ordinary verification. Rather, the discourse itself (and Ricoeur identifies many forms of biblical poetic discourse) suggests to the imaginative reader a world along the outside or underside edges of that discourse, an "Atlantis submerged in the network of objects submitted to the domination of our preoccupations."[45] For instance, the Pentateuch does not assert on a propositional level that "God exists as an immutable, omnipotent being." Instead, the infinite one above human thoughts and speech mysteriously appears in that text as "I am who I am"—a name that does not define God but that signifies both a mysterious presence and the empirical act
of deliverance through Moses and the Exodus.[46] The nonempirical poetic discourse does not tell us how things literally are, but what things are like in ways that "are closest to the symbolic depths of our existence."[47] In this sense Ricoeur means to speak not only to an earlier Christian world but to MacIntyre's modern world as well.
This proposed world of the text, then, becomes the "horizon" into which the reader moves. The past is not re-presented as an everlasting foundation; rather, the past is reincarnated into the world in front of us through the language of the text. The text presents the past as a new world before the reader, a new world as promise for the future. In Gadamer's dialogical sense the reader appropriates that world for his own and applies it to his future. In more concrete terms, the "I am who I am" deliverance stories such as Exodus and the Resurrection are not presented as authoritative, end-in-themselves accomplishments; instead, they are perennially reenacted in fresh forms within the reader's own horizon. Thus, praxis as "mimetic figuration" occurs. The "play" begins.
Ironically enough, Ricoeur employs the postmodern assumption that all knowledge is historically and linguistically bound to defend the iconic power of the text to manifest a transcendent dimension. Ricoeur insists that for the poetry of biblical language to engage us we must be open to the double levels—transcendent and immanent levels—of meaning that unfold from within those linguistic boundaries. This does not mean that both levels are empirically demonstrable, but it does mean that if the reader's own epistemological assumptions cause her to categorically reject the notion of transcendence under all conditions, then that reader forces the textual meaning to conform to her own "pretension of consciousness." Said another way, when the reader chooses to restrict the possible meanings of language and history to a set of ahistorical assumptions about reason and logic, then her choice discloses her "pretension of consciousness." As Ricoeur says, the formula "Whoever would save his life must lose it," when transposed into the realm of reflection, becomes "Whoever would posit himself as a constituting consciousness will miss (the alternative possibilities of) his destiny.[48]
Ricoeur may overstate the case when he asserts that the autonomous text presents a world in front of us divorced from synchronic connection to its own historical frame of reference.[49] This notion suggests that we can engage the world of the text whether or not the tradition behind it remains socially embodied and historically extended into our present time, and that we can therefore grasp the possible transcendent meanings of poetic discourse in spite of our modern secular rejection of such meanings. Alasdair MacIntyre, as we have seen, rejects such an understanding because the modern secular age rejects the earlier social
context that made the idea of Christian transcendence comprehensible. Since we cannot identify a transcendent God with any particular existing object, religious language is left without any remaining secular content, according to MacIntyre. Thus, the world of the biblical text abstracted from its own social context cannot provide a world that a reasonable person may authentically inhabit, a world into which he can project his "ownmost possibilities." For a person to identify with the text in the way Ricoeur suggests would mean, says MacIntyre, that "he has to supply a social context which is now lacking and abstract a social context which is now present.[50]
As responsive as Ricoeur is to issues arising in the postmodern age, the basic hermeneutical question for my essay remains only partially answered—and that question is, Can praxis as reflective action bring the past into the present in a way that on the one hand does not present it as a heteronomous authority abstracted from another age and on the other does not relativize it in the excessive desire to join the modern age?
We have seen that Bultmann, Barth, and Ricoeur each presupposes a religious knowledge that enables praxis at least partially to accomplish this hermeneutical task. Although Gadamer's solutions do not move in these transcendent regions, his reintroduction of phronesis as practical knowledge also provides a foundation for conversation across cultures. Yet we have seen that phronesis presupposes a common strand of culture that provides the unifying force necessary for a conversation to occur, precisely the element that seems so lacking in our modern pluralistic society. As said earlier, Richard Bernstein believes we must create the social conditions under which this conversation can begin. He affirms that belief in his important book Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis, suggesting that we will not solve these problems by new arguments alone. He calls us further to ethical action, to "dedicate ourselves to the practical task of furthering the type of solidarity, participation, and mutual recognition that is founded in dialogical communities."[51]
This noble call for action, indeed for the transformation of social conditions, seems a secular version of the traditional Christian call for unity and renewed direction in the church, which from earliest times has sought fruition as the communal "body of Christ." Whether such a praxis as reflective action can appear in either general or theological hermeneutics remains to be seen. Meanwhile, theological hermeneutics, hopefully possessed of the first fruits, labors on in the fallen garden, "groaning in travail together with the whole creation," as the apostle Paul said centuries ago.
PART THREE
THEORY
Constitutional Interpretation and Conceptual Change
Terence Ball
My aim in this essay is to take another look at a current, or rather recurring, hermeneutical controversy. That controversy centers around a set of questions about what the Constitution "means" and how it should be interpreted. Is the meaning of this particular (or perhaps any) text extensionally equivalent to a (re)statement of its authors' beliefs and intentions? Or does the meaning of this (or any) text change over time and vary with the changing perspectives and interests of its interpreters? Various versions of the doctrine of "originalism" answer the first question affirmatively and the second negatively. Critics of originalism tend to answer the first negatively and the second affirmatively.
Interesting as these questions (and answers) are to scholars, they are not, needless to say, purely academic. Such questions constitute what I have elsewhere called "deadly hermeneutics"—deadly inasmuch as how they are answered has an important bearing on people's lives and wellbeing.[1] I want here to take a critical second look at one way of addressing and answering these questions. That perspective—once called "strict constructionism" and, more recently, "originalism" or, in one particular version, "original intent"—holds that the meaning of a text or utterance, generally speaking, is whatever its author initially intended or could conceivably have intended it to mean. In the case of the Constitution the task of the interpreter or "interpretive community"[2] —consisting not only of legal scholars, lawyers, judges, and Supreme Court justices, but ultimately of ordinary citizens as well—is to discover what the founders originally meant by this or that word, article, phrase, or passage.[3] Much has been said in defense and in criticism of this doctrine.[4] My aim here, however, is not to retread these well-traveled and by now deeply rutted roads but to suggest an alternate route to a familiar destination.
I propose to criticize originalism by advancing and defending two claims. The first, which I take to be straightforward and noncontroversial, is that discovering an author's beliefs and intentions requires that one recover or reconstruct the language or idiom in which those beliefs and intentions were framed in the first place. Although fraught with difficulties, this task can be, and has been, performed by conceptual historians.[5] My second and more controversial claim is that there are compelling reasons why judges and Supreme Court justices—and ordinary citizens—are not now and should not become conceptual historians bent on reconstructing the world of words within which the framers expressed their beliefs and framed their intentions.
My argument proceeds in the following way. I begin by sketching, very roughly and with the fewest possible strokes, a picture of the kind of un-or half-articulated beliefs that underlie and give point and meaning to human action and intention. This crude picture I then attempt to connect with current concerns about conceptual change and commensurability in anthropology and elsewhere. These concerns, I argue, also have their counterpart in constitutional interpretation. The background beliefs and the discursive or linguistic conventions within which the founders framed their intentions are in many respects remarkably different from our own. To recover and reinstate their intentions would require that judges not only recover but that they (and we) accept as valid and legitimate the outdated or even discredited theoretical discourse of an earlier epoch. This approach, however, is a retrograde move that we cannot rationally make. Next, I suggest that although one can of course sometimes discern the intentions of any particular individual founder, one commits the "single-author" fallacy if one attempts to impute a unique or univocal intention to the founders as a group. Finally, I conclude by suggesting that the most persuasive critic of originalism is none other than the Father of the Constitution himself.
Background Beliefs and the Problem of Commensurability
It might be best to begin by stating the obvious. Our intentions are necessarily framed against the backdrop afforded by our understanding of the world and how it works. This understanding includes not only beliefs about causal connections (if you wish to bring about Y, you must first do X because X causes Y ) but also certain assumptions about human nature—what kinds of creatures human beings are, what moves or motivates them, what ends they seek, and so on. These causal beliefs and these assumptions about human nature are in their turn part of a larger picture of the world and our place in it. As Isaiah Berlin observes:
Men's beliefs in the sphere of conduct are part of their conceptions of themselves and others as human beings; and this conception in its turn, whether conscious or not, is intrinsic to their picture of the world. This picture may be complete and coherent, or shadowy or confused, but almost always … it can be shown to be dominated by one or more models or paradigms: mechanistic, organic, aesthetic, logical, mystical, shaped by the strongest influence of the day—religious, scientific, metaphysical or artistic. This model or paradigm determines the content as well as the form of beliefs and behaviour.[6]
To correctly characterize an agent's action—or an author's text—requires that one be able to identify the world picture that informs the language within which his or her intentions are (or were) framed in the first place.[7] One must, in other words, see them as somehow fitting in with a whole network of background beliefs about the world and how it works.
Yet this task often proves to be an extraordinarily difficult one to perform. Even in cases involving contemporaries with whom we presumably share a culture and a common language, we are often at a loss to say what they are doing, much less why they act as they do. One need only think, for example, of the difficulties facing a secular observer who wishes to give an account of the actions and self-understandings of someone who has undergone a religious conversion. One can of course ask what this person is doing, or intends to do, and why. But one is unlikely to accept at face value any self-understanding in which even the most ordinary events are seen as evidence of divine providence.[8]
These difficulties are doubled when observer and subject share neither a culture nor a common language. In such circumstances the so-called commensurability problem becomes both obvious and acute.[9] The epistemological perils facing anthropologists are notorious, and the opportunities for mistranslation and other forms of cross-cultural miscommunication are legion.[10] How—to take merely one example among many—can one talk about self-interested behavior in a culture or a people whose language lacks the (modern Western) concept of "economic man" or even of the individual self or "person"? After all, as Clifford Geertz notes,
[t]he Western conception of the person as a bounded, unique, more or less integrated motivational and cognitive universe, a dynamic center of awareness, emotion, judgment, and action organized into a distinctive whole and set contrastively both against other such wholes and against a social and natural background is, however incorrigible it may seem to us, a rather peculiar idea within the context of the world's cultures.[11]
The very terms that we take to be descriptive or even constitutive of who and what we are or aspire to be are not always readily translatable into
what we might call the moral languages of other cultures (nor theirs into ours). And even those terms for which translations are readily available—birth, death, marriage, friendship, worship, God, prayer, play, and a hundred others—have very different meanings in different cultures.
Such problems of translation and interpretation—of grasping the meaning or point of alien practices and actions—are perhaps most fully evident in anthropology and other disciplines that deal with other cultures and languages. But those problems are by no means unique to those disciplines. I want to suggest that the art of constitutional interpretation is fraught with dangers and difficulties at least as great, and possibly as intractable, as those facing any anthropologist.
Now this might seem absurd on its face. After all, we do—so the argument might run—share with the founders a continuous culture and a common language. We are able to recover and understand their intentions because they are, or were, framed in the very language that we still speak. It is of course true that we, like the founders, are speakers of English. But it is no less true that that language has changed in several crucial respects. First, and most obviously, many of the "same" words have quite different meanings for us than they did for the Founders. Garry Wills gives the following example:
"Your argument is obnoxious, but it will be liquidated once its specious character is discovered." That sentence would not be considered friendly if spoken today. But its terms were not hostile in the eighteenth century. We need to translate: "Your argument, though exposed to malice, will become clear when its attractive distinction is revealed."
"Minor misunderstandings," Wills continues, "can, cumulatively, become major if we forget the many small differences in usage between [the founders'] time and our own."[12]
Still, this problem, important as it is, is readily remediable with the aid of a good glossary or translation manual. But there is a second and perhaps more profound sense in which our language differs from the language in which the founders framed their intentions. What we call "our language" (or theirs, for that matter) is not all of a piece. It is instead compounded of those specialized sublanguages or idioms that we might for want of a better term call discourses .[13] Such discourses would today include, though by no means be restricted to, those that are conventionally termed legal, literary, political, ethical, educational, scientific, economic, artistic, and athletic. Such sublanguages or discourses are not, of course, hermetically sealed, much less mutually exclusive. Each tends at times to transgress on the other. (One need only think, for example, of the ways in which the discourse of sports is used today to describe and appraise political actions and practices.) Such transgressions are, indeed, one of the main sources of conceptual change and innovation.
The language of the founders resembles ours in at least one respect: it was compounded of a number of different discourses. But the important point to remember is that the discourses of which it was compounded are in many respects quite different from those with which we are familiar. If we are to understand the meaning of their actions—in this case those linguistic actions or speech acts that make up the arguments out of which and on the basis of which the Constitution was constituted—then we must know what their beliefs and intentions were. But these we cannot know without knowing something about the language in which those beliefs were expressed and intentions framed and made meaningful and intelligible in the first place. The conceptual and moral universe that the founders inhabited is of course connected with—and is indeed partially constitutive of—the one that we now inhabit; but it does not coincide with our world at all possible points. To borrow a phrase from Gadamer, their historically specific "prejudices" (or prejudgments or standpoints: Vorurteile ) are not wholly unrelated to ours, but neither are they entirely equivalent. Originalist claims to the contrary notwithstanding, the task of legal and constitutional interpretation is not to suspend or forego our own prejudices in favor of theirs, but to recognize, and if possible reconcile, our different understandings of how political society works and ought to be structured and governed.[14]
Originalism and Willful Ignorance
The founders subscribed to a particular view of politics and human nature. And this view in its turn provided the backdrop against which "power" was conceived (and checked), "liberty" understood (and promoted), and "ambition" feared (and countered). It was within this theoretical horizon or discourse that they framed their intentions and couched their arguments in defense of the new design.
That much, at least, is part of a familiar story. But the story is incomplete without a more precise and detailed account of the connection between a particular kind of discourse and the intentions capable of being formulated within it. What was the founders' discourse, and what intentions did it make possible and intelligible? Like all apparently simple questions, this one admits of no easy answer. Part of the difficulty is due to their having access to a number of discourses, not all of which were of a piece, must less mutually compatible. For the sake of simplicity I shall focus on only two, the first being the political discourse of the republican tradition, the second the scientific discourse of "faculty psychology."
Historians have of late rediscovered the remains (perhaps one should say the ruins) of an identifiable "republican" tradition that stretched from Aristotle and Polybius up through Machiavelli and Harrington to Montesquieu and the American Founding Fathers.[15] Very roughly,
republicanism was the theory that viewed the bios politikos, the life of active citizenship, as the highest human calling and that, as a corollary, viewed the self-interested pursuit of private gain as an "idiotic" (from the Greek idion ) way of life unfit for free human beings. Not surprisingly, then, the concepts constitutive of the discourse of republicanism—"liberty," "virtue," and "corruption" among them—had different meanings for say, Machiavelli or even for Montesquieu than they do for us. "Liberty," for example, referred to the free citizen's ability and opportunity to take an active part in political affairs; "virtue" to making full use of this liberty; and "corruption" to the inability or unwillingness to use—and if necessary, to take up arms to defend—one's liberty, choosing instead to pursue private gain and to lead a life of luxury and ease.[16]
The concepts of classical and Renaissance republicanism form scarcely any part of the discourse of latter-day capital-R Republicans like Ronald Reagan, of course; but neither are the rest of us on intimate terms with that tradition. We live, as Alasdair MacIntyre maintains, "after virtue"; our ethics are not the ethics of virtue, nor are our politics the politics of virtù.[17] Confronted with an author or a text in which "virtue" appears, we are likely to react much as Thomas Mann's Hans Castorp reacted to Settembrini's reliance on the discourse of "virtue":
What a vocabulary! and he uses the word virtue just like that, without the slightest embarrassment. What do you make of that? I've never taken the word in my mouth as long as I've lived; in school, when the book said "virtus," we always just said "valour" or something like that. It certainly gives me a queer feeling inside to hear him.[18]
This indeed is how modern readers might at first react to the proceedings of the Constitutional Convention and the various tracts and broadsides of the Ratification Debate. In the late 1780s "Brutus," "Publius," and other latter-day mock Romans spoke of virtue, corruption, and liberty in ways that Machiavelli would have readily understood but that we can scarcely comprehend. That this may be our loss, I do not deny; but what cannot be denied, I think, is that this discourse has been largely lost to us and is unlikely to be recovered, rehabilitated, and used once again as the common coin of communication. Yet it is on our capacity to carry out just this sort of recovery and rehabilitation that originalism rests. That doctrine, as we shall see shortly, would require a Canute-like attempt to turn back the tide of conceptual change and would doubtless meet with just about as much success.
The political and moral discourse of republicanism is not the only language lost to us; so too is at least one of the theoretical discourses employed by the founders. Emphasizing "the importance of the intellectual conventions of an age in defining an author's intentions," Daniel Walker
Howe has recently reconstructed the discourse in which the founders talked and thought about human nature. The authors of the Constitution and the Federalist papers, Howe reminds us, had ready recourse to the concepts of "faculty psychology."[19] Faculty psychology holds that human beings are endowed with certain species-specific powers or "faculties" that, taken together, constitute human nature. Human nature is therefore teleological in that each faculty impels us toward certain sorts of ends. This teleological psychology constitutes the theoretical model or background beliefs (or, in Berlin's sense, the paradigm) within which the founders framed their intentions and argued their case.
To reread the Constitution, the records of the Constitutional Convention, and the Federalist papers in the light cast by this recently recovered theoretical idiom is to better understand where the founders stood and how they thought. But it is one thing to arrive at such historical understanding and quite another to put it to present-day judicial use. To take the originalist position seriously enough to put it into (interpretive) practice would require that lawyers and judges accept that particular background theory as valid, or at any rate unproblematic, in arguing their cases and arriving at legal decisions. Were they to do so, however, they would be out of step with their contemporaries, including those whom we now call psychologists. No psychologist now subscribes to the tenets of faculty psychology, as though Freud (and even Skinner) had never lived or written a word. We can of course recognize and appreciate that the founders considered this particular theory persuasive. But human knowledge has grown; too much has transpired to allow us to accept this theory as authoritative, still less true. To the extent that the founders framed their intentions in the idiom of this theory, we can recover those intentions, but we cannot return to them and make them our own. Anyone attempting to do so would be in a position analogous to a modern sailor who steers his ship by relying on old navigational charts and maps drawn in the belief that the earth was flat.
To understand what the founders intended to convey or communicate requires that we recognize, as some say nowadays, "where they're coming from." It turns out that in the two aforementioned respects the founders were coming from a place that no longer exists on modern maps of knowledge. To reconstruct earlier cartographic theories, and the maps drawn with their aid, is often illuminating; but we would not want to put those theories and maps to present-day navigational use. Yet that is precisely what originalists propose that we do, or at any rate aspire to do.
My contention is not that judges and the rest of us cannot adopt an originalist strategy—far from it. For certain purposes—to arrive at a better understanding of the founders' historical context, for example—originalism functions as an admirable (if not readily attainable) regulative
ideal. My contention is, rather, that originalism in its several versions is defective, unwieldy, and probably unworkable as a guideline for arriving at judicial decisions. Originalism is not so much impossible as it is misguided in its aims and unworkable in practice.[20] Since in our present political climate this is a contentious claim, I want to restate and illustrate it by placing it in a more distant and, I hope, somewhat less contentious historical context.
A Distant Mirror
The current call for a return to the beliefs and intentions of the founders is hardly novel. It is a call issued periodically by fundamentalists in different domains, whether literary, legal, religious, or otherwise. It appears at first glance to provide an attractively simple solution to an otherwise very complex problem: How do we moderns understand a text produced by predecessors who did not fully share our world, our language, our beliefs and presuppositions? Answer: we simply read the text as a statement of (actual or at any rate conceivable) authorial intent, which in turn fixes the meaning of the text then, now, and forever after. In fact, however, the purported answer turns out to be extraordinarily complicated not only for the logical and conceptual reasons to which I have alluded already but for several eminently practical reasons as well. The two turn out, moreover, to be quite closely connected.
We can look, by way of illustration, not at the Bible or the Constitution or the Qur'
By the fifteenth century, however, Renaissance grammarians challenged the Bartolists by claiming, with considerable justification, that newly refined philological techniques made it possible to rediscover and recover the original meaning of Roman law. Ancient texts could be restored to their original, and presumably authoritative, meaning. With the aid of this new broom, they claimed, much of the excess verbiage of "interpretation" or "commentary" could be swept away and the original meaning of the Roman law reinstated.
This approach seemed at first sight to be eminently sensible. But it was not long before the so-called Neo-Bartolists countered by pointing out that the original discourse of the Roman lawgivers, and the intentions it made possible, presupposed beliefs, legal contexts, and linguistic conventions far removed from those of sixteenth-century Europe. To interpret the law in the light of an earlier lawgiver's "original intent" would therefore mean removing the law from the contexts in which it did its unwieldy work. Sundered from the language of the modern marketplace and contemporary morality, the law would cease to be "common," becoming not only more unwieldy and less workable but largely unintelligible to those to whose conduct it was supposed to apply. The law would, in other words, cease to reflect the beliefs, inform the intentions, and regulate the actions and activities of those who were not legal scholars and specialists. The Neo-Bartolists accordingly acknowledged that although the historical reconstruction or recovery of original meaning or initial intent had its place in judicial reasoning, jurists were not to attempt the impossible feat of recovering the past in order to return to it.
There is in this sixteenth-century case, I think, a lesson to be learned by late-twentieth-century Americans—and a warning for those willing, ready, and even eager to return to the original intent of the founders. The lesson is not that such a return is impossible either in principle or in practice. Far from it: modern conceptual historians, like Renaissance grammarians, can and regularly do restore the world of words within which intentions were initially framed, whether by lawgivers in Rome or in Philadelphia. Theirs is, to be sure, an exceedingly difficult task; but it can be, has been, and is still being performed—and sometimes at a very high level.[22] The difficulty that needs to be recognized and addressed by both proponents and critics of originalism is of a rather different sort. Even supposing that one can arrive at some approximation of the founders' intent or original meaning, what weight, if any, is it to be given? This question becomes especially important in light of the fact that the recovery of the founders' beliefs and intentions requires that one not only understand but presumably accept as authoritative the discourse(s) in which their intentions were framed in the first place. Of course, conceptual historians have no difficulty in "accepting" such
theoretical idioms; theirs is acceptance for the sake of argument and for the sake of historical understanding: they wish, that is, to restore the contexts that render intelligible the beliefs, intentions, arguments, and actions of agents long dead. The arguments in which they engage are, however, largely—and nonpejoratively—academic.
The judge or Supreme Court justice, by contrast, is faced with a very different and distinctly nonacademic task. His or hers is not the task of recovering and restoring the idioms and intentions of lawgivers long dead but of rendering decisions that apply to law benders and breakers now living—and of doing so, moreover, in terms that are more or less intelligible to those whose conduct is being judged. Of course, this remains a regulative ideal to which reality all too rarely corresponds. No one could fail to recognize that there are exceptions, breakdowns, and failures aplenty: many a criminal goes to prison with only the vaguest understanding of the letter of the law under which he has been charged, tried, and sentenced. The larger point, however, is that the criminal's contemporaries should be able to understand the law even if the criminal does not. It is in the final analysis a question of criminal intent, not original intent, and of the intelligibility of the law to those whose conduct or conscience is being appealed to. An originalist jurisprudence is blind and deaf to considerations of either sort. And that, I submit, is only one of its flaws.
The Single-Author Fallacy
Another of the flaws afflicting originalism is to be found in its treatment not of texts in general but of the Constitution in particular. Originalists who look to the intent of the framers propose to treat the Constitution as if it were the product of a single author. But in fact it is possible to give only the most minimal and abstract characterization of the (shared) intention(s) of the founders: they intended the Constitution to be the binding legal basis of a system of government in which each branch would balance and check the others and in which there was a division of powers between the federal government and the several states. Beyond that, agreement ends and intentions differ. As the Record of the Constitutional Convention clearly shows, the articles, sections, clauses, sentences, and even single words that make up this text were originally the result of often contentious and even quarrelsome collaboration and an almost endless series of compromises among its many authors.[23] And if the diaries, memoirs, and correspondence of individual founders are any indication, few were fully satisfied with the final result.[24]
To attempt to treat the Constitution as one would a text by a single author is to commit the single-author fallacy. To see just what relevance this fact has for contemporary constitutional interpretation, particularly
from the standpoint of original intent, I want to examine a case that has, as of this writing, captured considerable interest.
The case I wish to examine—Perpich et al. v. Department of Defense— involves a gubernatorial challenge to the constitutionality of section 522 of the Defense Authorization Act for fiscal year 1987.[25] Section 522, popularly known as the Montgomery Amendment, severely restricts the grounds on which state governors may withhold consent to permit their National Guard units from participating in training missions outside the United States. The Montgomery Amendment was added when several state governors balked at the Pentagon's decision, late in 1986, to expand its practice of sending National Guard units to Central America on expeditions rather euphemistically described as "training" missions. Led by Governor Rudy Perpich of Minnesota, the governors filed suit in federal district court. The gist of the plaintiffs' suit was that the Montgomery Amendment violates the militia clause (article 1, section 8) of the Constitution, which reserves to the states the right to oversee the training of their respective militias. On 6 December 1988 the Eighth U.S. Circuit Court of Appeals found for the plaintiffs, citing in its decision "the intent of the Founders" in drafting the militia clause.
Among the many ironies in this case was that the Reagan administration—which, in the persons of Attorney General Edwin Meese III, Solicitor General Charles Fried, and at least one unsuccessful nominee for the Supreme Court (Judge Robert Bork), had been a staunch advocate of the doctrine of original intent—had the tables turned on it. For the Court of Appeals' decision was couched precisely in terms of the intentions of the founders. It turns out that a judicial strategy of original intent, far from being the consistently conservative blade that Bork and Meese expected it to be, can cut in quite unexpected directions. At this writing it seems certain that the case will be appealed to the Supreme Court. And since this could prove to be a landmark case, its historical origins may be worth reviewing here.[26]
Coming as it did in the bicentennial year of 1987, the governors' law-suit was well-timed, for it reopened one of the questions so heatedly debated in Philadelphia during the hot summer months of 1787. That question was, who is to control the individual state "militias—the federal government or the states themselves?[27]
On the one side were the centralizers like Alexander Hamilton, who favored nationalizing the state militias by putting them under the control of the central government. They feared that the irregular state militias might take up arms against neighboring states and even against the federal government itseIf.[28] Their fears were not without foundation. The memory of Shays's Rebellion (1786–87) was still fresh in their minds. And their worst fears would be realized seventy-four years later
when the Southern states seceded from the Union and turned their respective militias against the federal government. On the other side were those who wanted the states to retain exclusive control over their own militias. They feared that an all-powerful central government would ride roughshod over the rights reserved to the states, using federally controlled state militias to stifle dissent.
As so often happened during the Constitutional Convention, neither side carried the day entirely, and a compromise was eventually reached. The results of that compromise can still be seen in article 1, section 8, which empowers the Congress to "raise and support armies" and to "provide and maintain a navy," both of which are to be under the exclusive jurisdiction of the federal government. As for the state militias, the new Constitution gave Congress the power "to provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions."
This wording still did not satisfy skeptical decentralizers, who insisted that the extent of congressional control over the state militias be spelled out more fully and more precisely. And so in the succeeding paragraph of article 1, section 8 we see the further fruits of that heated debate. It begins by specifying that the Congress is "[t]o provide for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States" and concludes by "reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress." In short, the centralizers who favored federal control of the militias succeeded in giving the Congress some measure of control over the state militias. And the states'-rights minded decentralizers succeeded in limiting the extent of congressional control. Each side got the proverbial half-loaf.
The governors' lawsuit claimed—and the court of appeals has now agreed—that the Montgomery Amendment reneges on the crucial compromise of 1787 by giving an additional and arguably unconstitutional slice to the federal government. Article 1, section 8 specifies that "the authority of training the militia" is to be left to the individual states, provided that this training accords with congressional guidelines regarding the appropriate regimen or "discipline." Citing "the intent of the Founders," the court of appeals agreed with Governor Perpich's claim that the Montgomery Amendment goes well beyond this. By forbidding states to withdraw their militias from foreign countries without declaring an official state emergency, that amendment is inconsistent with the original intent of the founders.
Yet, I think, the appeals court decision did not go as far as it might have had it considered the language in which the founders framed their (several) intentions and their final (univocal) compromise. A close
reading of article 1, section 8 scarcely suggests that the Congress can deploy state militias outside of our borders for any purposes whatsoever, whether they be engaged in actual combat or in training exercises. After all, "the laws of the union" do not apply outside of our borders; an "insurrection," in the eighteenth-century parlance of the founders, was a domestic, not a foreign, uprising; and an "invasion" can by definition be "repelled" only after an invader has already crossed our borders. All this suggests that the original intent of the founders—or, at any rate, the result of their compromise—is that state militias are only to be deployed domestically, that is, intranationally, not internationally. If so, not only the Montgomery Amendment but the governors' lawsuit and the court of appeals' decision are alike in resting on a constitutionally false premise.
More than that, the decision of the court of appeals commits the single-author fallacy. For while the judges were surely right in their recovery and reconstruction of the intentions of some founders, they did not succeed in recovering and respecting the intentions of Hamilton and others who wished to place the several state militias under federal control. But of course to raise questions about the particular intentions of individual founders is perforce to undermine the entire thrust—and (dare I say it?) the intent—of the original intent variant of originalism.
Madison's Critique of Originalism
If the foregoing arguments against originalism should prove to be less than completely convincing, let me turn, finally, to that last refuge of scoundrels and scholars, the argument from authority. My authority is none other than the Father of the Constitution himself, James Madison. I choose Madison simply because he, in his role as founder, is one of those to whose beliefs and intentions originalists are duty-bound to look for advice and guidance. Ironically, however, Madison sides with those who hold that the reader or interpreter must have some say in determining what a text "means." To put the point in a slightly more sophisticated (though admittedly anachronistic) way, we might say that Madison, like modern "reception" theorists, holds that texts are by their very nature essentially incomplete: even though a particular text has an author(s), it nevertheless needs a reader(s) or interpreter(s) to round it out and give it its full meaning.[29] It is, I submit, something like this position to which Madison himself subscribed and for reasons that might best be termed conceptual or linguistic.
In Federalist 37 Madison remarks, "All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation"—as the document drafted in Philadelphia surely was—"are considered as more or less obscure and equivocal, until their meaning be liquidated [i.e., clarified] and ascertained by a series of particular
discussions and adjudications."[30] Madison then goes on to enumerate three reasons for subscribing to this reception-theory account of constitutional meaning. The first has to do with "the obscurity arising from [the] objects" of constitutional deliberation. The more complex the object, the greater the possibility of mistake or misunderstanding. The second has to do with "the imperfection of the human faculties." The powers of human reason and understanding are by nature imperfect, occasionally defective, and invariably limited and must therefore be checked or compensated for. Important as they are, however, these two reasons for a reception-theory approach get short shrift in comparison to the third.
Madison's third and weightiest reason has to do with the nature of language itself. "[T]he medium through which the conceptions of men are conveyed to each other," he complains, "adds a fresh embarrassment. The use of words is to express ideas. Perspicuity therefore requires not only that the ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriated to them. But," he adds,
no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence, it must happen, that however accurately objects may be discriminated in themselves, and however accurately the discrimination may he considered, the definition of them may be rendered inaccurate by the inaccuracy of the terms in which it is delivered. And this unavoidable inaccuracy must be greater or less, accordingly to the complexity and novelty of the objects defined. When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful by the cloudy medium through which it is communicated.
Madison maintains that the medium through which human beings communicate is not contingently but necessarily a "cloudy" one. Not only is perfect clarity impossible for human beings using human language; it would be impossible even for God, were he to deign to talk to us in any human tongue.
Now if God cannot make his meaning perfectly clear, it follows that even the most godlike human legislator cannot frame and communicate his intentions with perfect precision and clarity. Not only can he not do it, says Madison, he cannot even hope to do it, given the nature of human language itself. The opacity of language is not, Madison insists, a failure or shortcoming of any particular language; it is, rather, an ineliminable feature of all language and hence, by implication, of all authors and speakers and therefore of all utterances and texts.
Madison's reflections on language and meaning are, I believe, fatally damaging to the doctrine or originalism. For that doctrine assumes that language is (or is at any rate capable of being) a transparent medium in which meanings and intentions can be framed and communicated in an absolutely unambiguous way. But such transparency, according to Madison, is impossible. Language is not, and can never be, a wholly transparent medium. Thus, that doctrine rests on what Madison might have termed the Fallacy of Perfect Clarity.
Originalist doctrine also depends on another doubtful assumption, the one that Nietzsche called the Dogma of Immaculate Perception and that I call the Dogma of Immaculate Reception. That dogma holds that a reader or listener or interpreter is, or can (or should) be, an empty vessel—a veritable tabula rasa on which a speaker, author, or text imprints its message. But human communication, as Madison certainly acknowledged, is a two-way street. It involves not only speakers and authors but also listeners and readers. The speaker or author is not simply the active agent and the listener or reader an inactive patient or passive receptacle. Both are and must be participants in any act of communication. As Madison puts it, the meaning of even the most carefully drafted law will be "more or less obscure and equivocal, until [its] meaning be liquidated and ascertained by a series of particular discussions and adjudications." And these discussions and adjudications can, and arguably must, begin in and be mediated through the theoretical, moral, legal, political, and/or scientific discourse of our day, and not simply that of the founders alone. So it would appear that Madison foresaw—and arguably attempted to forestall or, failing that, to add his own voice to—the debate over originalism.
Conclusion
The thrust of the foregoing account, if correct, is that the doctrine—or perhaps one should say the dogma—of originalism is specious in the eighteenth-century sense of that term: flashily attractive. Its obvious attractions aside, that doctrine, I have argued, is afflicted with a number of heretofore unnoticed difficulties. But if past experience is any guide, it is unlikely that this doctrine will be dislodged by argument, much less dropped altogether, at least as long as it satisfies some influential faction's rhetorical requirements. And that, arguably, is what accounts for the continuing appeal of originalism.
From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation
Drucilla Cornell
Laws—prosaic laws—free us, perhaps, from the Law by substituting for the invisible majesty of time the various constraints of space. Similarly, rules suppress, in the term "law," what power—ever primary—evokes. Rules also suppress the rights which go along with the notion of law, and establish the reign of pure procedure which—a manifestation of technical competence, of sheerknowledge—invests everything, controls everything, submits every gesture to its administration, so that there is no longer any possibility of liberation, for one can no longer speak of oppression. Kafka's trial can be interpreted as a tangle of three different realms (the Law, laws, rules) .
Maurice Blanchot, The Writing of the Disaster
My purpose in this essay is to tell three different stories about the tangle of the three realms to which Maurice Blanchot refers in the epigraph and to consider the relevance of those realms for the unfolding of a postmodern/modern jurisprudence.[1] As I interpret them, the three realms are (1) the Good, or the Law of Law, (2) the Right, or the moral law of the self-legislating subject, and (3) the principles inherent in an existing legal system. There are two senses in which I refer to the Good. First, the Good should be understood in the strong sense of the universal, as an irremissible necessity for all subjects. Second, the good should be anticipated as the immanent possibility of ethical reinterpretation of the concrete universals within a given legal system conceptualized as an indeterminate nomos . These three realms—the Good, the Right, and legal principles—are not reducible to categories of the mind, for they describe types of human interaction. The first story I will tell is Hegelian, in which the three realms are shown to be a part of the system that ultimately gives each realm its meaning. Hegel, of course, recognizes the interplay between the three realms, but even so their true meaning is given to us only in Absolute Knowledge in which the Good is fully revealed. Hegellanism is, of course, only one attempt among others to
ground an actual legal system in a conception of the Good. But I focus on Hegel for a specific reason.
Hegel rejects deontological theories of the Right as the basis for a modern legal system, arguing against the neo-Kantian view that the normativity of the Right cannot be self-grounding. Hegel, in other words, reminds us that even in modernity or postmodernity we are still caught in the tangle of the three realms. It is precisely the realm of the Good that neo-Kantian morality argues is inconsistent with modernity. In the place of the Law of Law or the Good is put the law of the self-legislating, free subject. According to Hegel, we cannot escape the Law of Law understood as a conception of the Good because theories of Right can be normatively grounded only through implicit reference to the Good. It is precisely this insistence on the inevitable interplay of the three realms that also distinguishes the postmodern stories I will tell from neo-Kantianism. As we will see, what is rejected are not the ideals of modernity, and certainly not the "gains" of a modern legal system, but instead the illusion that a normative conception of modernity can be self-grounding so that the realm of the Good is at best irrelevant and at worst a regression to the premodern. Hegel always reminds us that the very idea of law as the nomos of a community implies a story of the good life. This fundamental insight is recast but not rejected in the postmodern stories I offer.
The postmodern story has at least two versions. Neither version is directly traceable to any particular author although they borrow from a number of thinkers frequently labeled, if not by themselves, as postmodern—Jacques Derrida, Blanchot, and Emmanuel Levinas. Both versions of the postmodern story reveal the inevitable diremption of the Hegelian reconciliation of the three realms. Both versions also agree that there can be no foundationalist grounding of any given system of legal rules and norms in the Law of Law. I might also add that both versions reject not only the illusion of the normative self-grounding of the Right in transcendental subjectivity but also the positivist solution to Grundlosigkeit that finds the Law of Law within the mechanism of validation internally generated by an existing legal system. For the legal positivist the Law of Law of a modern legal system can find its grounding only in its own positivity. But for the Law of Law to be reduced to the mechanism of the perpetuation of legal rules, the legal positivist must postulate a self-maintaining, even if evolving, cognitive system in which there is normative closure. Deconstruction, by contrast, persistently exposes the fallacy of legal positivism by showing us the moment of ethical alternity inherent in any purportedly self-enclosed cognitive system, legal or otherwise.
But how is the moment of ethical alternity "presented" in deconstruction and in other strands of postmodern discourse? In the first version
of the story the Law of Law is "present" only in its absolute absence. The "never has been" of an unrecoverable past is understood as the lack of origin "presentable" only as allegory. The Law of Law, in other words, is the figure of an initial fragmentation, the loss of the Good. But this allegory is inescapable because the lack of origin is the fundamental truth. There is no horizon of reconciliation, no matter how projected into the future as the ethical promise of the not yet of the never has been. This version of the postmodern story has often been received as the "truth" of deconstruction in both American literary and legal circles. As we will see, I will reject this version of the story.
In the second version the Good remains as the disruption of ontology that continually reopens the way beyond what "is." As the call to responsibility for the Other, the Law of Law is irreducible to negative theology or to the allegory of an "initial" fragmentation. The Law of Law echoes as the call of the Good.
But does the call to witness to the Other involve the projection of a horizon of reconciliation as the promise of the never has been, which is the promise of redemption? Redemption as I use it means that we will be saved from the fallen world as it "is" in the name of a world that would try to be worthy of the beyond. But redemption, as I will suggest, cannot be envisioned as purely negative, as the endless rejection of the "is." As I hope to show, it is precisely the projection of a horizon of reconciliation that is essential to the possibility of legal interpretation. It is only once we grasp the complex relationship between the delimitation of ontology and the recognition of its inevitable reinstatement through linguistic stabilization of systems of representation that we can understand why the promise of redemption, even within a modern/postmodern legal system, remains crucial for the possibility of legal interpretation. Of course, we should not forget that deconstruction has been vigilant in reminding us that when we project the future as the promise of the past that can never be made fully present to the mind, we are inevitably unfaithful to that promise. The promise commits us to the not yet of what has never been present, cannot be fully recalled, and therefore cannot be adequately projected. Yet as we will see, this reminder both calls us to the commitment to the impossible, the full realization of the Good, and to the need to defy the impossible by projecting a horizon of reconciliation. The significance for legal interpretation of the Derridean double gesture can be understood only when we understand the double gesture not as cynical duplicity but as a response to the call of the Good.
At stake in the recent debates in American jurisprudence over the possibility of legal interpretation is the answer to the most fundamental question: Can we escape from the Penal Colony in a modern/ postmodern legal system ?[2] If law is reduced to the positive legitimation of institutional power through established legal procedure, we will know
the meaning of a legal proposition only as it is engraved in our backs. Robert Cover has rightfully insisted that we must remember that the legal sentence takes on meaning "in a field of power and violence."[3] Law has too much power to enforce its meaning. It is for this reason that the central error of the irrationalists in the Conference of Critical Legal Studies has tragic potential. The central error is to confuse Grundlosigkeit with Unsinnlosigkeit, a confusion that is repeatedly made in the tirades against deconstruction as well as by its friends in the conference.[4] If legal sentences can have no ethical meaning, not even institutionalized meaning, then the machine is free to make us feel its meaning nevertheless. The machine needs no justification to keep on running. The hope for salvation, however, is precisely in the impossibility of such a machine. The machine of Kafka's parable literally runs amok once it is no longer seen by the one who runs it as an instrument of the Good. The central message of this essay is that we cannot escape the appeal to the Good as we interpret legal sentences. Therefore, the possibility of escape from the Penal Colony can never be foreclosed as we condemn the machine in the name of the Good. The significance of this assertion is that the recent debates on legal interpretation that have predominantly turned on linguistic intelligibility have focused on the wrong question. The issue is not whether or not there is intelligibility, but rather what figure the Good can take on after the deconstruction of foundationalist philosophy. If I am right, then I have potentially answered Robert Cover's concern that the interpretive turn in American jurisprudence is ideologically dangerous because it masks the inherent violence of the legal sentence.
But let me now relate, if only very briefly, the Hegelian reconciliation of the three realms: the Law of Law; the law as the sphere of private conscience, moralität ; and the principles of an existing legal system. I have written elsewhere that the Good in Hegel is translated into the legal sphere as the realized ideal of the relations of reciprocal symmetry between persons.[5] Taking this notion as the realized Ideal or the Good, we have a rational limiting principle by which we can judge competing interpretations. This limiting principle, it may be noted, is by no means a matter of linguistic convention. This diremption is purposeful. The point is that the act of interpretation cannot be separated from an appeal to the Good because legal interpretation is justification through the appeal to the ideal, and this appeal cannot be limited to the establishment of accepted conventional meaning because it is precisely this meaning that must bejustified. In Hegel this process of justification can come full circle because the Good has been realized in history. As a result the problem of the grounding of actual legal principles in the Law of Law is solved.
The ideal of relations of reciprocal symmetry between persons is the crowning achievement of a modern legal system. For Hegel this ideal is embodied in the breakdown of the vertical plane of law. We are now legally recognized as persons. The legal person is an abstract definition of the self in which the individual is understood as irreducible to her concrete social situation. For Hegel the legal recognition of each one of us as a person expresses relations of reciprocal symmetry in the following sense. Legal relations are to be symmetrical in space—on a horizontal plane—and synchronized in time. The image evoked by Hegel of relations of reciprocal symmetry is one of two people face to face, each looking back at the other. It is precisely the realized good of relations of reciprocal symmetry that gives content to existing legal rights established by law. As a result, Hegel always leaves open the possibility that a tension will exist between the Law of Law as the Good and any system of legal rules. Hegel's account of the modern state should not then be simplistically condemned, as it often is by his liberal critics, as an apology for the current social order. The "real is rational" only to the extent that it embodies the Good, the Law of Law. Legal rules are given meaning by reference to the Good; the uniqueness of modernity is that the realized ethical Good now encompasses the sphere of private right and the principle of subjectivity. It is the recognition of the principle of subjectivity and its embodiment in the legal protection of the abstract person that separates modernity from the unmediated ethical unity that Hegel believed characterized the Greek state. Reconciliation with the greater Community is now a self-conscious achievement. It is only through the self-conscious recognition of "the we that is I and the I that is we" that we come home to ourselves in what is other.
The full recognition of the principle of subjectivity requires the protection of the sphere of private conscience or the law of self-legislating subjectivity. But in Hegel moralität cannot be self-sustaining. Hegel argued that Kant's own categorical imperative is saved from vacuity only by smuggling in the substantive Christian maxim "Do unto others as you would have them do unto you." The problem of the vacuity of the categorical imperative can be solved only if the private morality of the individual is given content in a shared ethical reality. Otherwise, the moral imperative is not only vacuous, it is an abstract "ought to be" that cannot be lived. For Hegel the only solution to this vacuity is the realization of the Good in an actual community. In Hegel each of the three realms finds its meaning in the realized Absolute. Absolute Knowledge reveals the self-realization of Geist in and through its embodiment in its Other. The self-realization of Geist in history yields the truth of "the we that is I and the I that is we." It is this truth that is also the realized Good.
For Emmanuel Levinas, Hegelian ontology, which unifies subject and substance in Geist, is the example par excellence of the violence to the Other, to the Infinite, perpetuated by Western metaphysics. The Other is reduced to the order of the Same in the metaphysical move to establish the philosophical system as a totality. Geist or cosmic subjectivity is self-constituting not only of itself as subject but of all that purportedly stands against it as the objective world. This process of self-constitution is not the simple identification of self with the Other. Yet as Levinas explains:
The identification of the same in the "I" is not produced as a monotonous tautology … I am I. The originality of identification, irreducible to the A is A formalism, would thus escape attention. It is not fixed by reflecting on the abstract representation of self by self; it is necessary to begin with the concrete relationship between I and a world. The world, foreign and hostile, should in good logic, alter the I. But the true and primordial relationship between them and that in which the I is revealed precisely as preeminently the same is produced as a sojourn in the world. The way of the I against the "Other" of the world consists in sojourning, in identifying oneself by existing here at home with oneself…. Everything is here, everything belongs to me; everything is caught up in advance with the primordial occupying of a site, everything is comprehended. The possibility of possessing, that is of suspending the very alternity of what is only first other, and other relative to me is the way of the same.[6]
The imposition of the order of the Same is imperialism. For Levinas the rhetoric of ontology that proclaims the Being of what is as the truth of the whole is a declaration of war on all that attempts escape from the "objective" order:
We do not need obscure fragments of Heraclitus to prove that being reveals itself as war to philosophical thought, that war does not truly affect it as the most patent fact, but as the very patency of the truth of the real. In war reality sends the words and images that dissimulate it to obtrude in its nudity and in its harshness. Harsh reality (this sounds like a pleonasm!), harsh object-less at the very moment of its fulguration when the droppings of illusion burn, war is produced as the pure experience of pure being. The ontological event that takes form in this black liquid is a casting into movement of beings hitherto anchored in their identity to an objective order from which there is no escape. The trial by force is test of the real.[7]
The real imposes its sentence by proclaiming itself as totality, which informs its own truth and by so doing makes itself fact. The violence of what Levinas calls ontology is also the basis for legal positivism, which must also exclude the exterior to fulfill its claim that the meaning of the legal system finds reality in itself. Positivism attempts to fill the legal universe. The individual subject gobbled up in the system has significance
only as a cog through which the legal machine works. The mobilization of war expresses this most graphically. Its ontological force breaks down attempted resistance: "The visage of being that shows itself in war is fixed in the concept of totality which dominates Western philosophy. Individuals are reduced to being bearers of forces that command them unbeknown to themselves. The meaning of individuals (invisible outside of this totality) is derived from the totality."[8]
As one more example of what Levinas calls the "ontological tradition" in Western philosophy, Hegel's closed circle of the Absolute is also a prison for the individual because there can be no transcendence of the system. The system establishes an order from which no one can keep his distance; nothing is exterior. Ontology enforces the status quo in the name of a tired, cynical realism: "This is all there is."
In this sense the condemnation of the "myth of full presence" should be understood to have self-evident political ramifications. The individual should not and indeed cannot be reduced to a container of the here and now of any system. The trace of otherness cannot be obliterated, even if the Other can be physically killed by the "war machine":
The Other who can sovereignly say no to me is exposed to the point of the sword or the revolver's bullet, and the whole unshakable firmness of his "for itself" with that intransigent no he opposes is obliterated because the sword or bullet has touched the ventricles or auricles of his heart. In the contexture of the world he is a quasi-nothing. But he can oppose to me a struggle, that is oppose to the force that strikes him not a force of resistance, but the very unforeseeableness of his reaction. He thus opposes to me not a greater force, an energy assessable and consequently presenting itself as though it were part of the whole, but the very transcendence of his being by relation to the whole; not some superlative of power, but precisely the infinity of his transcendence. This infinity stronger than murder, already resists us in his face, in his face is the primordial extremes is the first word: "you shall not commit murder."[9]
For Levinas the "trace" of otherness is inherent in a diachronic view of time in which the past can never be fully recovered and therefore comprehended yet is nevertheless "present" as the rupture of closure. The diachronic view of time inheres in the ethical relation in which the Other is precedent. The trace marks what "is" through the "anterior/posterior." The trace "constitutes" the order of the system, whether of language or in law, because for Levinas all language, and therefore the very possibility of meaning, presupposes the command of the Other, "You shall not murder me." The Other is first on the scene. The subject endures a latent birth from his contact with Her:
Signification as proximity is thus the Latent birth of the subject. Latent birth for prior to an origin, an initiative present designable and assumable,
even if by memory. It is an anarchronais birth, prior to its own present, a nonbeginning, an anarchy. As Latent birth it is never a presence, excluding the present of coinciding with itself, for it is in contact, in sensibility, in vulnerability, in exposure to the outrages by the Other.[10]
The subject is not born in an act of self-conscious assertion. He instead comes to himself in his proximity to Her. This proximity "is there" as the contact with the Other to whom we are fated to be exposed and who in turn is fated to be exposed to us. But the trace also points us toward the future as a prescriptive command. In that sense the trace of the Other is also anterior The prescriptive command "Be just" calls us not only in the particular case before us; it also calls us to judge again and to live up to the command in each new case.
The birth of the subject out of this anarchy is constitutive of the order of signification generally and more specifically of the proximity to the Other that is the "law" of responsibility to which we are called. But in Levinas the trace of the Other remains in proximity cannot be understood, as it can in Hegel, as the establishment of a fully present relationship between the three realms. As Levinas explains, our proximity constitutes me through the face of the Other: "The significance of signs. It is the humanity of man not understood on the basis of transcendental subjectivity. It is the passivity of exposure, a passivity itself exposed. Saying does not occur in consciousness nor in a commitment understood in terms of consciousness of memory; it does not form a conjecture and a synchrony."[11]
Hegelian reconciliation reduces the Other to a relation with me; even if that relationship is rooted in the stance of reciprocal symmetry, it is still violence. There is always a trace of otherness that cannot be captured by my identifying with the Other in relations of mutual recognition. She is before me, but I cannot grasp the essence of the Other in "the we that is I and the I that is we." The basis of the ethical relationship, then, is not identification with those whom we recognize as like ourselves; instead, the ethical relation inheres in the encounter with the Other, the stranger whose face beckons us to heed the call to responsibility. The precedence of the Other means that my relationship to Her is nonreciprocal and nonsymmetrical, at least if we think about reciprocal symmetry as I suggested Hegel did, as temporally rooted in a shared present and spatially based on a horizontal plane. For Levinas proximity is not a "we" in a common present. Through the encounter with the Other who calls me, the subject first experiences the resistance to encapsulation of the Beyond. We encounter God as the transcendence of the face-to-face. Transcendence is temporal not spatial, although Levinas himself frequently relies on the image of the vertical plane that reinstates the Other as master. In the face-to-face of the ethical relation we
confront the infinity that disrupts totality as a meeting with the Other who cannot be captured by me. The Law of Law or the Good is precisely the echo of the Call of the Other as a prescriptive command directed toward the future that disrupts the Hegelian system and the pretense of any system to have adequately represented the totality of what "is" Good. The Law of Law "is" as rupture of the status quo. Because of this rupture, Blanchot postulates the Law as disaster: "Would law be disaster? The supreme or external Law that is: The excessiveness of uncodifiable law—that to which we are destined without being party to it. The disaster is not our affair and has no regard for us, it is the heedless, unlimited; it cannot be measured in terms of failure as pure and simple loss."[12]
The Good as the Law of Law is also not to be understood as simply the limit of signification. Such an understanding would again establish Saying in a common frontier with what is. The Saying, in other words, would once again be reduced to a relationship synchronized with the said and therefore would no longer disrupt its claim to full presence.
But the call to responsibility by the Other does disrupt the Kantian notion of the free subject of morality. The Kantian subject is enthralled by duty, but duty is still self-imposed. The Kantian subject of morality is self-legislating. It is only by rising above contamination by the heteros that the self achieves moral freedom. For Levinas, by contrast, the subject is bound to the Other, and it is this very tie to the heteros that marks the ethical relation. Indeed, we can never truly be free from the Other, even when we try desperately to stifle Her call. If Kant gives us a morality of duty, Levinas gives us an ethic of responsibility in which the subject recognizes autonomy as illusion and and the attempt at freedom from the heteronomous as a form of denial that is profoundly unethical. For Levinas, then, the ethical cannot be self-grounding in the law of the transcendental subject
We now turn to the realm of the system of existing legal rules. How does Levinas understand the significance of the rebellion against the Hegelian system for the interpretation of legal rules? As we have seen in Hegel, legal rules are given ethical meaning by reference to the realized Good of relations of reciprocal symmetry. When I use the word meaning, I am referring not to institutionalized linguistic meaning in the sense of the intelligibility of sentences but to ethical meaning. As we have seen, Hegel understood that the dilemma of legal interpretation does not turn on whether we can cement linguistic meaning. Legal rules are justified in Hegel through the appeal to the realized relations of reciprocal symmetry that give them ethical justification. In Hegel the Good, in the strong sense of the ultimate universal, is immanent in social institutions and therefore capable of being grasped by the human mind. But as we have also seen in Levinas, the Good is precisely what eludes our full
knowledge. We cannot grasp the Good but only follow it. The Good, as the Other beyond us, is a star that beckons us to follow. (I am aware that by portraying the Good as a beckoning star I am lingering within desire, and that Blanchot, although perhaps not Levinas, would have the Law of Law eclipse even the symbolization of the Good as the star.) It is precisely the Good, the Law of Law, as responsibility to the Other that calls us to justice. In Levinas there is an inevitable diremption between the Law of Law, the Good, and the actual; nevertheless, we can also not escape our responsibility, particularly if we are law professors, judges, and lawyers, to elaborate principles of justice that can guide us in the effort to synchronize the competing claims of individuals and to adjudicate between divergent interpretations of doctrine.
In the Conference of Critical Legal Studies there is a well-developed story that has, contrary to my reading of Levinas, represented the deconstruction of antifoundationalist philosophy as the complete loss of the Good—as if such a loss could ever be represented. Although the "irrationalists" in the conference rarely cite Levinas, they have been deeply influenced by Derrida, and it is to Derrida that they often attribute their own proposition that the absence of a fully cognizable good leaves us with the irrationality of all legal and ethical choice. Ethical responsibility is reduced to a choice among other choices the individual can make. But as we have seen in Levinas, responsibility is not a choice at all but an irremissible necessity.
As we will also see in a more in-depth exploration of the relationship between Derrida and Levinas, the identification of deconstruction with ethical skepticism is a serious misinterpretation. (Indeed, as I have argued elsewhere, the very practice of deconstruction should be understood as a response to the Law of Law as the call to responsibility.)[13] Such a misappropriation of Derrida, however, has serious consequences for the way in which the postmodern story of the tangle of the three realms has been understood, at least by the irrationalists in the Conference of Critical Legal Studies.[14]
This misappropriation, in other words, has served as the basis of the first version of the postmodern story as it has been translated into law. The irrationalist story tells us that if there is no "real" Good that can guide us in our day-to-day activities as lawyers and judges, there can be no rational limiting principle by which to judge competing interpretations of legal doctrine. As there is no Good, present or immanent, in social life to guide us, there is also no transcendental ego that can legislate its own law. Instead, we have presented to us a self torn apart by conflicting impulses. The self longs both for community and for individuality, freedom and connection. There can be no hope for a rational reconciliation or synchronization between the competing impulses. Such
selves can create only a legal and social order torn apart at the center. As a result of the account of the phenomenology of the self, the Law of Law or the Good cannot be replaced by the second realm, the law of the self-legislating subject, because the self cannot overcome the contradictory impulses that rend it apart; therefore, law cannot become truly self-legislating.[15]
This situation means that the deconstruction of legal positivism carried forward by the conference leaves a vacuum that cannot be filled by an ethical vision. Legal positivism argues that legal systems are self-enclosed hierarchies that generate their own elements and procedures as part of the mechanism of the self-perpetuation of the system. In Anglo-American jurisprudence legal positivism has traditionally been based on the writings of H. L. A. Hart.[16] Hart argues that all legal systems are based on a master rule of recognition, which establishes the initial hierarchies of the elements of the legal system. From this master rule of recognition Hart argues that it is possible to derive two categories of secondary rules: the rules of process by which the law is applied and the rules of prescription we think of as a doctrine in a common law system. The early critique of Hart initiated by Ronald Dworkin shows that interpretation is fundamentally an ethical enterprise because the derivation of secondary rules cannot escape an appeal to their justification that is based only in the mechanism for the self-generation of the hierarchy of rules.[17] I will not repeat Dworkin's argument here, but I do want to add that the irrationalists in the conference have not only shown that rules of procedure cannot escape an appeal to an outside ethical justification. They have also demonstrated the falsity of the very idea of a rule as a force that pulls us down the track through each new fact situation, determining the outcome of a particular case. Therefore, no line of precedent can fully determine a particular outcome in a particular case because the rule itself is always in the process of reinterpretation as it is applied. It is interpretation that gives us the rule, not the other way around.
This insight has come to be known as the indeterminacy thesis, which has been mistakenly identified, at times by the proponents of the thesis themselves, with the proposition that there is no institutionalized meaning, no "real" intelligibility of the legal sentence. The proposition should instead be understood to be that law cannot be reduced to a set of technical rules, a self-sufficient mechanism that pulls us down the track through each new fact situation. Law, in other words, cannot be reduced to a self-generated and self-validating set of cognitive norms. Interpretation always takes us beyond a mere appeal to the status quo. I will return to the significance of this insistence on the appeal to the beyond as inherent in legal interpretation when I discuss why deconstruction is helpful in rethinking the current debates in American legal circles. It should be
noted here, however, that according to the irrationalists in the conference we cannot replace legal positivism with a rational, ethical vision. Such a vision could only be found through an appeal to the Good, the Law of Law, or to the right, the law of Kant's self-legislating subject.
As a result, ethical responsibility is reduced to an existential choice. In spite of themselves, the irrationalists in the Conference of Critical Legal Studies reinstate the subject-centered approach to the ethical that Levinas, and I would add Derrida, reject. It would be a serious mistake, however, to interpret the Irrationalists in the conference as rejecting the need to make ethical commitments because they are inevitably subjective. Indeed, their insistence on the irrationality of personal ethical commitments can itself be understood to have an ethical dimension. Under this view no one can proclaim his or her moral position as the truth of the real. Each one of us is free to make his or her choice. In other words, the irrationalists, although they have not put it in this way, want to join with Levinas to deny the ultimate hubris of ontology. The irrationalists want to interrupt the logos as "the last dominating all meaning, the word of the end, the very possibility of the ultimate and the result."[18] If one interprets the irrationalists as exposing—with Derrida and Levinas—the ethical delimitation of ontology, then it is possible to rethink the ethical significance of their message. Unfortunately, the irrationalists in the conference have not adopted this interpretation, reverting instead to a recast existentialism. As a result they have tended to confuse the deconstruction of the hubris of ontology with radical skepticism and with Unsinnlosigkeit .
The central error of the first version of the postmodern story which has made itself felt in the work of the irrationalists, is to replace the truth of reconciliation with the truth of castration. The Good is forever beyond us. It has no constituting force. The Good "is" only as absolute absence, as lack. The Good does not, in other words, leave its mark on us. On this reading the postmodern conception of the Good resembles one understanding of negative theology. Levinas, by contrast, is very careful to distinguish the Good, as "otherwise than being," from negative theology. The Good does leave its mark. Indeed, the Good constitutes the subject as responsible to the Other:
The Limits of the present in which infinity betrays itself break up. Infinity is beyond the scope of the unity of transcendental apperception, cannot be assembled into a present, and refuses being recollected. This negation of the present and of representation finds its positive form in proximity, responsibility and substitution. This makes it different from the propositions of negative theology. The refusal of presence is converted into my presence as present, that is, as a hostage delivered over as a gift to the other.[19]
Derrida has also carefully distinguished himself from the ethical skepticism that proclaims the "truth" of the absent Good as lack: "The difference
which interests me here is that—a formula to be understood as one will—the Lack does not have its place in dissemination."[20]
A second version of the significance of the postmodern deconstruction of foundationalist philosophy has been defended by writers in feminist jurisprudence. Unlike the irrationalists in the Conference of Critical Legal Studies, the feminist writers do not defend ethical skepticism. The Good is represented not as absent but as the recognition and acceptance of difference beyond any attempt to categorize others from a universal vantage point.[21] Rather than try to replace legal positivism with explicit ethical principles, we should instead simply accept the fallibility of judicial discretion as a better way to respect difference. Difference, it is argued, belies the attempt to identify universal conditions of equal personhood. It certainly belies the legitimacy of an appeal to the Good in the strong sense as an irremissible necessity for all subjects. But it also rejects the move to achieve universality even within a particular culture. The adoption of legal principles that "universalize" within a particular culture would still, so the argument goes, lead to a formal approach that is reductionist. The good judge is one who recognizes that there is no universal perspective in either of the two above senses of the Good. Nor can the law of the transcendental ego replace the appeal to the Good. There are only perspectives that represent different viewpoints. The best the judge can do is to try to weigh sensitively each competing perspective, taking each seriously and refusing to condemn any of the competing perspectives as unworthy of attention.[22]
There is an important truth in the insistence that the judge must recognize her own perspective and not pretend to speak as the law of transcendental subjectivity. But the problem, of course, is that we cannot escape the condemning power of law. Law is exclusionary. When the judge vindicates one normative interpretation over another, she necessarily delegitimates, at least for a time, one of the competing perspectives. Robert Cover has identified the silencing of competing normative perspectives through legal decision making as the "jurispathic" aspect of law. Cover does not believe we can escape this "imperial" function of the law in a complex modern state:
It is the problem of multiplicity of meaning—the fact that never only one but always many worlds are created by the too fertile forces of jurigenesis—that leads to the imperial virtues and the imperial mode of world maintenance…. The sober imperial mode of world maintenance holds the mirror of critical objectivity to meaning, imposes the discipline of institutional justice upon the names and places the constraint of peace on the void at which strong bonds cease.[23]
As Cover points out, the jurispathic aspect of law is necessary for the creation of a legal system that can effectively operate as a state-organized
mechanism of social control. It is also, however, part of the development of law as a nomos that creates a normative legal world and that helps to reengender a sense of belonging to a "community." The power of law to establish "universal" principles within a community represents both imperial power and its ability to regenerate the paideic pattern of lawmaking as a world of shared precepts:
The paideic is an etude on the theme of unity. Its primary psychological motif is attachment. The unity of every paideia is being smothered—shattered in fact, with its very creation. The imperial is an etude on the theme of diversity. Its primary psychological motif is separation. The diversity of every such world is being consumed from its onset by domination. Thus, as the meaning in a nomos disintegrates, we seek to rescue it—to maintain some coherence in the awesome proliferation of meaning lost as it is created by unleashing upon the fertile but weakly jurisgenerative calls an organizing principle itself incapable of producing the normative meaning that is life and growth.[24]
It is precisely the "jurisgenerative" power of law to create normative meaning that makes law other than a mere mechanism of social control. Since the jurispathic aspect of law inheres in its jurisgenerative power to create unified meaning through the establishment of generalizable or universal standards, we cannot escape the comparison of competing normative visions through the appeal to ethical principles. Nor do we want all differences to be recognized by the law. To do so carries within the very real danger of legally freezing hierarchies already in place. We do indeed need principles developed through the appeal to contextual universals to distinguish between differences we want to be recognized by the law from those we condemn in the name ofjustice. But, of course, the question remains, Do we need an appeal to the Good, which is the universal?
Before returning to that question, we can still insist that the mistake made in this version of feminist jurisprudence is to try to translate directly into the practice of legal decision making the postmodern insight that the Good is not, as Hegel tried to show in his Logic, fully actual in the real. But it is precisely because the Good can never be simply identified with a state of affairs that we need not fear its oppressive power to obliterate difference. The attempt at direct translation of the ethical relation into the sphere of law misunderstands the central insight of Levinas's philosophy of alternity. The ethical relation, even as it is an irremissible necessity, cannot be fully enacted in the actual. The ethical relation can be conceived only within time as a diachronic "power." As a result the Good can never be fully enacted in space. That is why as a prescriptive command it points us toward the future. The Good can only be translated differently because there is no state of affairs that the command
Be just" mandates as its exact fulfillment. Yet this being said, the command "Be just" does turn us to the situation at hand. It is only within a specific situation that we can meet the command, and the specific situation in the legal context is what gives us the contextual universals. Of course, it is true that legal principles inevitably categorize, identify, and in that sense violate difference by creating analogies between the like and the unlike. If we cannot escape this violation of difference in a legal system, however, we can still develop principles that minimize it. Even so, law is inevitably unfaithful to the ethical relationship.
But if law inevitably violates difference through the establishment of shared meaning and generalized standards, should we not then attempt to escape from legality altogether? Levinas clearly thinks not. As he reminds us, we are inevitably fated to fall into law, understood now as a system of legal principles, because I am never just alone with the Other. The entry of the third is inevitable, and with that entry comes the need to make comparisons and to synchronize the competing demands of individuals within the space of a given legal system.
The third party interrupts the face-to-face. It is with the third party that law begins. But the call to law should not be understood as an unfortunate empirical necessity, given that we are never just alone with the Other: "It is not that the entry of a third party would be an empirical fact, and that my responsibility for the Other finds itself constrained to a calculus by 'the force of things.' In the proximity of the Other, all the others than the other obsess me and already this obsession cries out for justice, demands measure and knowing, is consciousness."[25]
The aspiration to a just and egalitarian state proceeds from the irreducible responsibility of the subject to the Others. Each Other has her claim, and her claim must be heeded. All claims, however, cannot be vindicated even if they must be heard. We need legal principles that guide us through the maze of competing legal interpretations precisely because all claims cannot be vindicated: "The extraordinary commitment of the other to the third calls for control, a search for justice, society, and the State, comparison and possession, thought and science, commerce and philosophy, and outside of anarchy, the search for a principle.[26]
A principle, as I use it here, is not a rule, or at least not a force that literally pulls us down the tracks and fully determines the act of interpretation. A principle is instead only a guiding light. It involves the appeal to and enrichment of the "universal" within a particular nomos . We can think of a principle as the light that comes from the lighthouse, a light that guides us and prevents us from going in the wrong direction. A principle, however, cannot determine the exact route we must take in any particular case; a principle, in other words, does not pretend that there is only one right answer. It can, however, serve to guide us by indicating
when we are going in the wrong direction. If a principle cannot give us one right answer, it can help us define what answers are wrong in the sense of being incompatible with its realization. For example, we might not all agree what the principle of reciprocal symmetry means. But given its historical significance as the expression of the breakdown of the vertical relations of law, we can rule out certain legal outcomes as incompatible with its realization. An example that Hegel himself often used is the legal rejection in modernity of all forms of indentured servitude. Of course, this mode of interpretation is circular, but the very structure of legal argumentation is that we argue from within the nomos of law. In this specific sense the form of legal interpretation is that of discovery. As for which principles we ultimately adopt within the nomos, we are left with the process of pragmatic justification based on the ability of a principle to synchronize the competing universals embodied in the nomos . A jurisprudence of principle, then, can survive the indeterminacy thesis, which reminds us that a rule cannot fully determine the outcome of a particular case. Of course, a legal principle, even as I have just described, would not necessarily involve the appeal to the Good in the sense of an irreversible necessity for all subjects. But as I will suggest, it does in the end.
This process of elaborating principles of justice involves what Levinas calls "thematization" in the said, the world of established representational systems. In postmodern philosophy thematization is a term of art meaning the synchronization of the Good with Being in such a way as to purportedly deny the diachronic force of time. But we can also explain thematization more prosaically as the need to sound the common themes within the nomos so that it is possible to appeal to contextual principles. This attempt to sound the common themes still has the effect of synchronizing the Good with Being as a given state of legal affairs because it appeals to the Good as it has manifested itself, even if only as unrealized potential. An essential aspect of thematization is the practical use of reason to synchronize the competing demands and perspectives of individuals through the appeal to legal principle. Reason, in other words, is essential to thematization, and thematization inheres in the narratives we develop to justify a particular state of legal affairs. As Cover has explained, "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed but a world in which we live."[27]
In this sense law is embedded in ontology, in a shared social reality. But as the nomos it is also a "critical" point within ontology. This critical point allows us to engage in the struggle within our nomos to meet the
command "Be just." Thematization, then, is never just descriptive. It is precisely the critical normative dimension of law that demands reasonable assessment of competing legal principles: "Reason consists in ensuring the coexistence of these terms, the coherence of the one and the other despite their difference, in the unity of a theme; it ensures the agreement of the different terms without breaking up the present in which the theme is held."[28] Reason is not understood to ground legal principles in the traditional neo-Kantian sense. But it is a serious mistake to confuse Grundlosigkeit with irrationalism.
In law, reason is a "practical faith" we are called on to exercise as an essential aspect of the task of elaborating principles of justice. But, of course, if reason cannot ground legal principle in the foundationalist sense through the appeal to the law of the self-legislating subject, we must be ready to concede to the force of the better interpretation. The exercise of practical reason, in other words, demands that we continually engage in dialogue with one another. It demands that we make a Derridean double gesture. We need to recognize both that thematization of law is necessary and that no thematization into a system of justice can pretend to have the last word as the truth of a "reconstructive science." We must encourage the process of interruption of any current state of legal affairs not in the name of the irrationality of competing narratives but in the name of the exercise of reason itself, which demands that we participate in the acts of judgment to which the command "Be just" calls us. The Derridean double gesture invites us to new worlds as part of the very commitment to reason. The commitment to reason is essential to the exercise of ethical responsibility to the Other.
Yet both Levinas and Derrida remind us that without a foundationalist conception of reason in either the neo-Kantian or the Hegelian sense the "secularization" of the modern world will remain incomplete. I am defining secularization as the process "where ideas and knowledge are detached from their original source, and become accessible to human reason under its own power."[29] It is the reminder of the inevitability of incomplete secularization that has led to the accusation that postmodernism is premodernism in disguise and therefore an inherently conservative intellectual movement. It is, of course, true that both Derrida and Levinas reject the organization of time determined teleologically by an idea of emancipation. If one identifies modernity with a teleological organization of time guided by an idea of emancipation, then and only then can Derrida and Levinas be understood to reject modernity. Ironically, the disjuncture between the modern and the postmodern implies the very linear, narrative organization of time that both thinkers reject. Both thinkers recognize the necessity of thematization as the projection of ideals and principles of justice. It would, then, be more correct
to envision the relationship between the modern call to the realization of universal principles of justice within the nomos and the postmodern insight that we can never escape the interplay of the three realms as a "laying beside" essential to the practice of dialogic fallibilism. It reminds us of the status of the narratives we tell in order to "ground" our system of justice. The narratives we tell to justify one state of legal affairs over another are just that, narratives. They can only be judged practically.
But the crucial message inherent in the recognition of incomplete secularization is even more explicitly ethical. Derrida in particular always wants to remind us, with Cover, of the jurispathic aspect of any claim to normative closure, particularly in a legal system. Derrida is only too aware of the power of law to enforce institutionalized legal meaning. Once we correctly interpret the ethical concern of the double gesture, we can hear the message in the deconstruction of Rousseau's "delusion of presence mastered" other than as a defense of ethical skepticism because all ethical systems are inevitably opened in violence: "There is no ethics without the presence of the other, but also, and consequently without absence dissimulation, detour and difference, writing. The arche—writing is the origin of morality as of immorality. The non-ethical opening of ethics. A violent opening."[30]
It is, of course, possible to interpret the above passage to indicate that we can never ethically choose between competing normative thematizations, since they all originate in a "non-ethical opening." It is this interpretation of deconstruction that has led thoughtful commentators on Levinas to argue that Derrida is deaf to the ethical voice of Saying. Certainly, Levinas would disagree with the position that holds that ethical thematizations inevitably have a violent opening, insisting instead that the opening of the ethical in the face-to-face is not violent. I would defend Levinas's interpretation of the nonoriginal but also nonviolent opening of the ethical. But I want to give a different emphasis to the above passage. If all ethical thematizations are equal in the sense that they cannot claim to be grounded in first principles, then we must always recognize the equal claim of competing interpretations to be heard. If all interpretations are "ungrounded," then no interpretation can theoretically win out, shutting off from the very beginning the need for practical debate and assessment. Deconstruction has certainly shown us that the claim to inherent theoretical superiority of one ethical system over another is unfounded. But on the interpretation I am offering here, it would also he unethical to theoretically reduce to an inferior position the standing of competing normative perspectives. The real challenge we are left with as law professors, lawyers, and judges in the wake of deconstruction has been eloquently summarized by Cover: "The challenge presented by the absence of a single 'objective' interpretation is instead,
the need to maintain a sense of legal meaning despite the destruction of any pretense of superiority of one nomos over another.[31] The truth of Grundlosigkeit is that we are to be forever left with that challenge. We are called to remain open to the invitation to create new worlds.
I have so far emphasized the close relationship between Derrida and Levinas that is evident once deconstruction is read ethically. On an ethical reading deconstruction does not mark the inevitable delimitation of ontology in order to drop us into the abyss of skepticism and irrationalism. Instead, deconstruction exposes ethical "transcendence" within the very iteration of the same. Derrida continuously shows us that the Same is not a totality closed in on itself. As we have seen, it is also a mistake to read Levinas as if the Good were the absolutely Other. In Otherwise than Being Levinas seeks to indicate just how the unsayable echoes in the Saying of the said. The Good "is" in the day-to-day confrontation with the Other. (In his most recent essay on Levinas, Derrida clearly echoes the cry of ethical revolt of Saying; thus, Derrida, too, is concerned to heed the echo of the call in the Saying of the said.)
But there is a subtle difference between the two thinkers, a difference that is rarely brought to light because the ethical message of deconstruction has been obscured by the interpretation of Derrida as our latest irrationalist. Derrida's first essay on Levinas is often interpreted to show that the very necessities of the language in which Levinas must speak of the break-up of the domination of the logos inevitably reinscribes his testament in the language of ontology. Of course, Derrida does make this point. But Derrida's emphasis in this essay is not on the inevitable fall back into ontology. He is not concerned to show us just that Levinas's project is draggeœ back into the "is." Instead, Derrida emphasizes the "self-transcendence" of the Same. The iteration of the Same "is" as transformation. Even if Levinas is read to displace the rigid dichotomy of transcendence and immanence—and I believe this is how he should be read—he does not, like Derrida, focus our attention on the self-transcendence of the Same. Derrida always seeks to protect the radical difference of the not yet of the Saying, but he also exposes the iteration of the Same as an infinite spiral of possibility. I am aware that Derrida is rarely read as a thinker of transformative possibility. Certainly, what I am offering is an interpretation of deconstruction. But I believe that the interpretation I offer is "true" to Derrida's deconstruction of Levinas. Deconstruction, then, is not the witness to the paralysis of "repetition." To come around again is to reevolve; in this specific sense it involves a reevalution. Derrida does not focus on "the deadly work of paralysis" because he thinks we are helpless. Instead, he makes us think differently about the beyond. Iteration "is" as possibility because a system of representation given to us in language cannot be self-identical with
itself and therefore truly a totality. This possibility is an "opening" to the beyond, a threshold we are invited to cross. As "a science of the threshold" deconstruction dares us to the commitment to "cross over" and perhaps, by so doing, to avoid the horror of having the door of the Law of Law finally shut in our faces. Derrida, in other words, can be understood to displace the dichotomy of transcendence and immanence more successfully through the exposure of the "immanence" of ethical alternity in the iteration.
This displacement is important in the legal interpretation of a system of norms. The Good, as it is interpreted to be manifested in the nomos, is never simply the mere repetition of conventional norms because there can be no mere repetition. In this sense the Good or the Law of Law cannot be conceived as the truth of a self-enclosed system that perpetuates itself. The dissemination of convention as a self-enclosed legal system leaves us not with a fundamental lack but an opening. What I am suggesting is that the dissemination of convention through difference "as the non-full, non-simple, and differentiating, origin of differences" disrupts the claims of ontology to fill the universe, and more specifically the legal universe. This dissemination means that there cannot be the normative closure on which the positivist insists. The Good is beyond any of its current justifications. As a result, when we appeal "back" to what has been established, we must look forward to what "might be." As we do so, we represent what "might be." Without a simple origin the very process of discovery of legal principles from within the nomo's will also involve invention. It is this specific appeal to the "ought to be" that demands a vision of redemption that goes beyond the appeal to convention. The "origin" we evoke in our thematizations is ultimately a representation of the future. Legal interpretation demands that we remember the future.
Thus, the deconstructive emphasis on the opening of the ethical self-transcendence of any system that exposes the threshold of the "beyond" of the not yet is crucial to a conception of legal interpretation that argues that the "is" of Law can never be completely separated from the elaboration of the "should be" dependent on an appeal to the Good. Ethical alternity is not just the command of the Other; it is also the Other within the nomos that invites us to new worlds and reminds us that transformation is not only possible but inevitable.
There cannot be the radical immanence insisted on by legal positivism because the "is" of the so-called legal system is never a totality that generates its own evolution. However, even if we agreed that law as a system of norms demands an appeal to the Good, we would still be within legal positivism if the norms could be mandated as a self-enclosed system. Derrida, then, is extremely helpful to us in the development of an understanding of Law as the nomos that is not reducible to the objective
meaning of established legal convention—because the Good of the nomos is itself always undergoing transformation—and that at the same time is not just a utopian projection from the outside. Again to quote Cover:
Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative—that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative. Thus, one constitutive element of a nomos is the phenomenon George Steiner has labeled "alternity": "the 'other than the case,' the counterfactual propositions, images, shapes of will and evasion with which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence."[32]
This link between the Other, the more of a given state of legal affairs, is also the threshold we are constantly invited to cross through the delimitation of ontology, which in turn creates the opening for "new" interpretations. This link, the "threshold," is both the invitation to cross over, the call to interpretation, and yet a barrier to full accessibility. As both a barrier and an invitation, it is also the Derridean hymen. This call to interpretation is continually echoed in deconstruction: "As in La folie dujour by Maurice Blanchot, the Law of law does not command without demanding to be read, deciphered, translated. It demands transference. The double bind is in the Law."[33]
As we have seen, for Cover the double bind in the law includes the jurispathic aspect of law in the very search for and assertion of paideic unity within the community. Law creates a normative world by imposing itself in the name of the reconciled whole. But if the reconciled whole is no longer thought to be the truth of the actual as in Hegel, then it is always a myth. It is made true through the very power of the state to assert its meaning and vision against that of other communities: "There is, however, danger in forgetting the limits which are intrinsic to this activity of legal interpretation; in exaggerating the extent to which any interpretation rendered as part of the act of state violence can ever constitute a common and coherent meaning."[34]
The jurispathic power of legal decision making concerned Cover in his "Foreword to the Supreme Court Term 1982," but there he saw not just the necessity but the inevitability of interpretation. But in "Violence and the Word," written shortly before his death, the mythic status of any narrative of a reconciled whole led Cover to conclude that the very act of interpretation masked the violence of the imposition of the legal sentence. Cover used the example of the criminal defendant to make graphically his point that the "community interest" with which the criminal himself was supposed to identify was clearly a myth. The criminal "goes along" with the sentence not because he recognizes the validity of what
is happening to him in the name of a shared communal standard of the good but because of the enforcement power of the state:
Revolutionary constitutional understandings are commonly staked in blood. In them, the violence of the Law takes its most blatant form. But the relationship between legal interpretation and the infliction of pain remains operative even in the most routine of legal acts. The act of sentencing a convicted defendant is among the most routine of acts performed by judges. Yet it is immensely revealing of the way in which interpretation is shaped by violence. First, examine the event from the perspective of the defendant. The defendant's world is threatened. But he sits usually quietly as if engaged in civil discourse. If convicted, the defendant customarily walks—escorted to prolonged confinement usually without significant disturbance to the civil appearance of the event. It is, of course, grotesque to assume that the civil facade is "voluntary" except in the sense that it represents the defendant's implicit recognition of the overwhelming array of violence ranged against him, and of the hopelessness of resistance and outcry.[35]
The "Good" of the community is not the Good of the criminal. Yet, of course, if the Law of Law had been fully actualized, there would only be the one shared Good, which is why Hegel insisted that the criminal could be "reconciled" to his sentence. Both the victim and the criminal experience the rift in community caused by the criminal act. This rift unleashes "the causality of fate" in which the community seeks to overcome the rift through the punishment of the victim, who is respected as an ethical being precisely in and through his punishment. The criminal is an ethical being since he, too, is inserted in the reign of the realized Good. Legal interpretation is fidelity to the Law of Law as the realized Good enacted even in the criminal sentence. The Hegelian system pretends to heal the rift that Cover wants to remind us cannot be healed. For Cover the danger of legal interpretation is that since it purports to heal the rift, it blinds us to the wound of the fragmentation of our so-called community as we violate the perspective of the Other in the criminal sentence: "Law is never just a mental or spiritual act. A legal world is built only to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive forum of the organized violence of institutions. It reminds us that the interpretive Commitments are realized indeed in the flesh.[36]
The legal system as a mechanism of social control operates through the inscription of the sentence on the backs of its victims. Yet what Cover at least recognized in his "Foreword" was that the appeal to universality in the name of a shared good embodied in the narratives of legal opinions is not only inevitable but also essential to the creation of the Law as nomos . Therefore, we cannot escape the task of interpretation. Cover's
suspicion of the power of the state led him to conclude that we can now find shared meaning without violence only in smaller communities that cannot impose their nomos against others through force. But this belies his own insight that the very search for paideic unity is exclusionary and, indeed,jurispathic. This is the profound sense in which Derrida, by contrast, recognizes that we cannot escape the double bind of the Law of Law. The Law of Law calls us to interpretation, and this process of interpretation appeals to the promise of a reconciled whole or the Good, which is itself only an interpretation and not the last word on what the Good of the community actually could be. Indeed, it cannot be once we understand that even the appeal "back" to established principle cannot avoid the projection forward of the "might be" since the origin is not simply there. Even so, the Law of Law demands that we justify our interpretation through an appeal to the Good. What Derrida says of translation could equally well be said of legal interpretation:
Translation, as holy growth of languages, announces the messianic end, but the sign of that end and of that growth is presented only in the "Knowledge of the distance," in the remoteness that relates us to it. Yet it puts us in contact with that "language of the truth" which is the "true language" (so ist diese sprache der Wahrheit die Wahre Sprache). This contact takes place in the mode of presentiment, in the intensive mode that renders present what is absent, that allows remoteness to approach as remoteness, fort da.[37]
But the "contact" is still there. At the same time we cannot know its full meaning. Yet when one legal interpretation is vindicated as to what constitutes the Good, it is imposed against the other as if the Good had been achieved. Indeed, as Cover reminds us, this seeking to impose or universalize one's vision is the central characteristic of redemptive legal movements, which Cover defines as follows:
I shall use redemptive constitutionalism as a label for the positions of associations whose sharply different visions of the social order requires a transformational politics that cannot be contained within the autonomous insularity of the association itself…. redemption takes place with an eschatological schema that postulates: 1) the unredeemed character of reality as we know it, 2) the fundamentally different reality that should take its place, and 3) the replacement with the other.[38]
The "projection" of a redeemed world, and the commitment to realize it in this one, should be understood as an essential part of thematization. But this projection entails the opposition to the current state of legal affairs. The most obvious example of a "redemptive legal movement" is the struggle to overthrow and outlaw apartheid in South Africa. This movement does not, it should be noted, just plead that apartheid is
immoral in South Africa. It insists that apartheid is wrong any time and any place. The resistance movement does not appeal to the cultural good of a specific context but to the universal Good. If apartheid were outlawed, the normative view of the whites who had enforced their legal sentence on the flesh of blacks would indeed be silenced. And this silencing would be violence to their "difference." But as Derrida among others has reminded us, it is a deserved and necessary "violence" we are called to by any version of the Good worthy of its name. As I have already suggested, the reminder of the violent opening of ethics is not done to paralyze us. The double bind that inheres in the call to legal interpretation means that we must make a double gesture as part of the very commitment to the ethical responsibility to which we are called. We must both accept the challenge of thematization, including the projection of a redeemed world, and acknowledge the status of any interpretation we offer. The double gesture does, however, express the humility and indeed the humor that must be kept if we are to avoid the abuses of an apocalyptic rhetoric.
It would be a serious mistake, then, to read the testament of the postmodern story of the three realms, the Law of Law, the law of selflegislating subjectivity, and the principles of a legal system, as the witness to the inevitability of nihilism. Of course, to tell a story is to side with diachronic allegory, which "pretends to know how to tell stories," rather than with the other figure of memory, the synchronic allegory, which "figure[s] amnesia."[39] But then we must risk the story in order to counter the mistaken account that identifies deconstruction with nihilism. Deconstruction reminds us that the meaning of the "ethical" is necessarily displaced into the future because the Good is not fully present to the mind as it is in Hegel's system. Interpretation is transformation, and as we interpret, we are responsible for the direction of that transformation. We cannot escape our responsibility implicit in every act of interpretation. The delimitation of ontology reminds us of the positivist fallacy that the legal world is given to us as a self-perpetuating mechanism. We are left with a reminder of the inescapability of our responsibility for the nomos as it is perpetuated and thus transformed.
Intentions and the Law:
Defending Hermeneutics
David Couzens Hoy
Claiming to be pragmatists, Steven Knapp and Walter Benn Michaels attack a strong, foundationalist conception of theory as the attempt "to stand outside practice in order to govern practice from without."[1] They recognize correctly that philosophical hermeneutics is not a theory in this sense but that it takes a position different from their own. However, insofar as there is an issue between these intentionalists and a nonintentionalist like Hans-Georg Gadamer about textual meaning, that issue will seem like a theoretical one to observers of the debate.
As intentionalists, Knapp and Michaels believe that their position is correct and therefore not simply a "theory." This stance is a natural one for those who believe that their view is true. However, the very action of attacking another view, as the intentionalists are doing when they take on hermeneutics and deconstruction in their essay "Against Theory 2," becomes "theoretical," although in a weaker sense than they specify above. At least, I do not know what term other than "theory" to use to label the debate in which they engage in their essay and which I am now continuing. The problem facing me in constructing a response to their attack on hermeneutics is how to discuss their position in a productive and not simply a polemical way.
Instead of entering into a long discussion with them, the nonintentionalist defender of hermeneutics could use the same gambit that the intentionalists use when they claim not to have a "theory." The defender of hermeneutics could simply point to the hermeneutical description of interpretation, deny that this description is a "theory," and insist in turn that the intentionalists have a false theory that misdescribes the practice of interpretation. In particular, when the intentionalists claim that there are two separate operations—figuring out what the text (or a particular
statute) means and then applying it to a present case—they thereby seem to be committed to a split between theory and practice, with the first operation being the theoretical one of saying in principle what the law is and the second operation being the practical one of deciding the present case.
Hermeneutics sees this picture of understanding as overly abstract. What it offers in contrast is not so much a different "theory" or even a different "method" of interpretation as a critique of this abstract, theoretical picture. This critique is summarized in positive statements that may look equally theoretical but that are really intended to say that there is no abstract split between theory and practice in interpretation and specifically that understanding is not a separate moment from interpretive application. Thus, hermeneutics maintains that understanding is always already interpretation, suggesting thereby that understanding is always conditioned by the context in which it occurs. Similarly, understanding is always already application in the sense that the understanding not only arises from a contextual background but also focuses specific features of the context, highlighting some and thereby reconfiguring the context in the very act of reaching an understanding of the specific statute.[2]
This strategy of response to Knapp and Michaels is unlikely to be productive, however, since they are unlikely to be convinced. One troublesome feature of their view is that they shield it from counterargument by defining their own technical terms and then attacking others who use terms differently. For instance, a crucial part of their critique of hermeneutics concerns the hermeneutical acceptance of a distinction between speaker's meaning and sentence meaning, a distinction that I believe most philosophers today would accept. Relying on this distinction to argue against Knapp and Michaels will not be perceived by them as being effective because the same argument that the nonintentionalist will understand as a reductio, showing the absurdity of failing to distinguish between sentence meaning and utterance meaning, the intentionalists will rephrase in their own technical terms to "demonstrate" that intended utterance meaning is the only possible kind of meaning. Take their example from "Against Theory 2" of the automobile passenger saying to a driver coming to a train crossing as a train approaches, "Go!" On their account the driver is supposed to realize that this utterance really means "Stop!" As a defender of hermeneutics I would have concluded that the inadequacy of the intentionalists' identification of meaning and intention is shown precisely by the consequence that for the intentionalists "go" in this case really means "stop."
But instead of trying to catch them right away in a reductio ad absurdum, let me explore the consequences of their attack on the hermeneutical
attempt to distinguish what they wish to identify. The distinction at stake is roughly that between intention and meaning and can be described more exactly as that between sentence meaning and utterance meaning, or between literal meaning and intended literal meaning. The intentionalists sometimes present hermeneutics and deconstruction as if these latter positions defended the additional claim that since meaning is not determined by intention, it can be determined only by convention. But this conclusion results from the hasty assumption that there are only two alternative bases for a theory of meaning, intention or convention. Since I do not think hermeneutics is committed to the thesis that meaning is only conventional (largely because I do not find Knapp and Michaels explaining precisely enough what that thesis is), I will not deal with that point but only with the distinction between intention and meaning.[3]
Hermeneutics retains some such distinction as that between intention and literal meaning, or between sentence meaning and speaker's meaning, to account for observable linguistic phenomena such as ambiguity. An ambiguous sentence could be described as one having two different "meanings," whether both of them were intended or not. Explaining ambiguity requires making a distinction between the two sentence meanings before raising the question about which of these was intended or whether both were. So hermeneutics takes the question about the intended meaning as a secondary one that presupposes a prior understanding of "meaning" in some other sense. The intentionalists prefer to think that their account of meaning has the advantage that no interpretation is needed. But ambiguity calls for interpretation, and even the speaker is an interpreter. Moreover, the speaker, and especially the author, has no more privileged access to the sentence meanings than does any other interpreter.
The intentionalists replace the distinction between literal sentence meaning and intended speaker's meaning with their own distinction between ordinarily-intended-meaning and really-intended-meaning, in the belief that it produces fewer difficulties. As long as some such distinction is made, however, the "new pragmatists" should admit that the issue is not so much a "real" one that can be settled independently of adopting some vocabulary or other but merely one about the choice and function of terms within different technical vocabularies. Discussion could then more productively shift to the "pragmatic" question about which vocabulary is to be preferred. There may be no fact of the matter at this pragmatic level, but there are questions—interpretive ones—about criteria for preferring some vocabularies over others: for example, parsimony, connection to the tradition of inquiry, or heuristic value.
Under the category of heuristic value the new pragmatists should not take the flurry of "metatheoretical" polemics that followed "Against
Theory" as being genuinely productive. In "Against Theory 2," however, they are showing the heuristic value of their own approach by addressing the specific question of legal interpretation. Yet I shall argue that the issue of judicial review shows that hermeneutics has more heuristic value than does their intentionalist approach. Of course, no one criterion, and no ranked ordering of some group of them, will determine in an algorithmic way which vocabulary ought to be preferred. But reasons can be given for preferring some vocabularies over others, and I think hermeneutics can give good reasons for thinking that there are inadequacies with the stipulations offered by Knapp and Michaels so far . Naturally, there are several different directions still open to them, and it remains to be seen which one they want to take. My questions are intended to provoke them to clarify their position even more. At the same time I want not only to defend hermeneutics but also to clarify it in turn.
To begin, I have an internal question about the intentionalists' right to use the distinction between what is actually intended and what is ordinarily intended. They sometimes use examples of someone hearing what is really noise as an articulate utterance. Such cases seem to me to work against their view instead of for it. There is a marked difference between hearing a sentence and hearing noise. We cannot voluntarily hear sentences as noise. Furthermore, psychologists' experiments with different inputs through headsets show that sentences perceived consciously in one ear only as noise nevertheless condition the interpretation of the consciously perceived sentences that come through the other ear. These experiments suggest to me that linguistic processing can be done without attention to intention.
But looking more directly at the clearer case of the passenger saying "Go!" when he meant "Stop!" also suggests that their view needs to be stated much more precisely than it is. The criterion of parsimony would suggest that a simpler description of what the driver heard was "the command 'Go!' " and not something like "a command token that the speaker meant as the command to stop but that most speakers would have used as the command to go." The intentionalists seem to choose the more complex description for a reason. I assume that they want to stress that only the intentions of real speakers in producing specific tokens (e.g., sentences or commands) count as meaningful. Wave or computer poems are thus for them not linguistic events at all but at best could only be pretended to be such. However, in a response in Against Theory they make a further distinction that is not obviously compatible with their identification of meaning with real instances of intention. They allow that what is really noise might be heard as and believed to be meaningful speech: "If you really think that a noise you hear is someone shouting 'Fire!' you might call the fire department" (143). Again, this example
seems more like a counterexample to their view than evidence for it since on their account it would seem impossible for there to be a meaning without an intention in the first place. This example suggests that if one somehow does hear as a speech act what is really just noise, then one is nevertheless not simply pretending to hear words but genuinely hearing them, even if what was heard was not really uttered. But if that is so, I fail to see why it would be impossible in principle for arbitrarily produced sounds or marks to be read as a text. Being able to read or hear something as making some sense would be enough to talk about that sense independently of whether it was intended.
A related case alters the situation when Knapp and Michaels imagine the passenger in the car making a noise that is not a word in any language. The driver interprets this noise as meaning that the passenger thinks that she should stop, so Knapp and Michaels conclude that the passenger had not "failed to mean"—that is, that his speech act had been correctly understood and interpreted. In this case, however, I think that a more plausible analysis would be that there was no linguistic meaning at all since even if the passenger had uttered that noise with the intention of uttering a sentence with the meaning "Stop!" the inarticulate noise did not have that meaning.[4]
This problem aside, are they entitled to the counterfactual postulation of the conventional or ordinarily intended meaning as distinct from the speaker's actual meaning? Their account suggests that meaning is only ever the real intention of a specific speaker, not some counterfactually supposed intention of an indefinite hypothetical speaker or set of speakers. They might respond that "ordinarily intended meaning" means, more precisely, "frequently heard by one specific speaker to have been said distinctly by other specific speakers in the past." This emendation would more clearly differentiate their account from those that depend on a distinction between sentence meaning and speaker's meaning.
Hermeneutics could object, however, that this clarification results in a misdescription of linguistic understanding. If, as I think is true, most of the sentence tokens that are ever produced have never been produced before, and if the situations in which they are produced are novel enough not to be typified in every detail, this redescription would not be sufficient to account for the ready intelligibility of most utterances. On such a description the driver's instantaneous response of stopping at the command to go would seem to be radically underdetermined. Her processing of the command seems too quick to have taken place either (1) as a modular calculation based on empirical generalization or probabilities derived from previous occurrences of exactly the same phrase or (2) as a more general process of counterfactual reasoning about what the largest sample of possible speakers would have meant.
To this internal question about Knapp and Michaels's understanding of their own distinction I would like to add a second question about other distinctions they might want to consider trying to incorporate or at least to explain away. The distinctions have to do first with intentions and second with texts, but they are linked. Knapp and Michaels move quickly from talking about intentions at the level of specific utterances to intentions at the level of larger units such as texts. But the criteria for identifying and individuating utterances are not the same as for texts. An anti-intentionalist could agree, for instance, that nothing could count as literature that was not intended to he a literary artwork without therefore having to agree that a poem or a text had to be intended to be such.[5] So a hypothetical thought experiment about a poem produced by ocean waves might show only that we cannot evaluate it as an aesthetic work, not that we cannot understand and interpret the sense we see in the text. The thought experiment would also not demonstrate that in real cases we must equate the meanings of the parts of the text or of the specific text as a whole with discrete, correlatable intentions of the same orders.
The question for hermeneutics is thus whether the intentionalists are entitled to talk about "the meaning of the text" simply by virtue of their talk about the meaning of discrete utterances. Looking at the problem of individuating texts rather than intentions may make the issue clearer. Take as an example of a text a set of propositions that constitute an argument. Let's imagine further that the argument was left imprinted in the sand by retreating waves. Whether the text was produced arbitrarily by ocean waves would not make any difference to what it means or, more specifically, to its validity and soundness. The best intentions cannot make an argument either valid or sound.
The rules for the interpretation of other texts may not be so rigorous and may be more like "rules of thumb." Even so, the complexity of the interconnections between the units of the text may have much to do with what the text does. Reducing this complexity to the author's more general intentions to produce a certain kind of text or to say certain kinds of things or to produce certain kinds of effects seems pointless overkill that has no obvious pragmatic value. Hermeneutics is not guilty of this reduction and seems to be a better approach since it acknowledges semantic complexity. It does not exclude questions about intention when these are relevant to interpretation, but it believes that since textual meaning is not reducible to intended meaning, there are many other kinds of questions that can be asked about texts.
The fate of hermeneutics is not tied to any particular theory of meaning or of reference. Unlike semantics, hermeneutics is concerned with the different level of issues about the understanding and interpretation
of larger units such as texts and contexts. Legal interpretation is a case in point, and I think Knapp and Michaels are right to think that it is a difficult case for hermeneutics to handle, although for different reasons than they bring out.[6] As they present the difficulties, however, I think that their analysis shows the defects of moving too hastily from properties of speech acts to issues about texts. Their view that a sentence can be made to mean anything at all leaves out the hermeneutic recognition that in a text a sentence in constrained by its inherence in a context formed by the other setences. Interpretation of a text requires the double activity of maximizing its coherence and intelligibility without minimizing its internal tensions, its polysemy, and the possible undecidability of some of its parts.
Textual interpretation of a legal statute or the Constitution thus strikes me as misdescribed when compared with using a shopping list, as Walter Benn Michaels does in his "Response to Perry and Simon."[7] Unlike the shopping list, the Constitution requires an interpretation not of each part in isolation from the other parts but rather of the entire document. One interpretation could be superior to another, for instance, if it showed that a particular part normally thought to be empty or redundant had a specific use. Coming to recognize that specificity might entail restricting the interpretation of other clauses that had previously been thought to be doing the work now attributed to the clause formerly thought to be redundant.[8] In this area of interpretation several problems arise that Michaels needs to explain. First, the author's or authors' intention may not be available. In such a case, to identify the reading with the intention would be an empty stipulation. Second, legal clauses are not simply authored but must be legislated or ratified. What would therefore be important would be the intention not of the authors but of those who gave the language authority. Clearly, however, different ratifiers could have understood the clause differently, so there is no reason on Michaels's own account to believe that it means only one thing.
I therefore find it both curious and significant that intentionalists generally speak of the intention or the meaning in the singular. This problem emerges specifically in legal interpretation when it becomes necessary to ask whether the framers would have wanted constitutional clauses to apply only to cases they envisioned and not to unanticipated cases as well. The generality and abstractness of some clauses in the Constitution (in contrast to other, carefully detailed ones) suggests that the framers intended them to be interpreted to cover cases and situations unlike any they would have immediately known how to decide themselves. Hence, a hermeneutical judge who recognized that she was "supplementing" the Constitution in considering unanticipatable cases such
as wiretapping, or even school desegregation or abortion, would not thereby have to believe she was "changing" instead of simply "interpreting" the law.
The intentionalists might reply that the clause is general only if it was intended to be general, but they then need to specify exactly what can go into an intention. Telling us that the legislators intended the sentence "No vehicle shall be permitted in the park" to be general still does not tell us whether the legislators intended to exclude baby carriages or bicycles. Does the intention include simply the words of the statement (to take a well-known example from constitutional law, "due process of law") or does it include tacit provisos (such as "due process in a procedural sense" or "due process in a substantive sense")? Can the intention carry tacit subscripts (such as "due process as I the author understand it at the time of writing" versus "due process as you the reader might understand it at the time of reading")? Are the intentionalists willing to allow the author to intend that the clause be taken in the way any future judge thinks is most just? Furthermore, sentences are usually if not always uttered with ulterior purposes, so something must be said about the difference between linguistic intentions (e.g., to utter a sentence with a certain literal meaning) and nonlinguistic intentions. There are different kinds of intention involved in any single act, and the burden is on the intentionalists to clarify their idea.
They are right, though, that hermeneutics should not deny altogether the role of intentions in interpreting the law. Hermeneutics tries to describe the conditions for the practice of interpreting the law rather than legislating a "method" or "theory" that will stand outside the practice of legal interpretation, grounding and guiding it. Therefore, it must take into account that judges and lawyers sometimes look to legislative histories for evidence about the original intention and that precedents have been overruled to restore the original understanding.[9] Such cases suggest that hermeneutics should not deny intention any role in interpretation. What hermeneutics could say is that the original intention can be taken into account as one possible interpretation. The original intention is not the most privileged interpretation, however, and is not necessarily the correct or best interpretation of the entire text.
Granting original intent some role in interpretation, therefore, is not to grant the intentionalists' claim that meaning is identical to intention. On the contrary, the ability of hermeneutics to learn from the practice of legal interpretation contrasts with Knapp and Michaels's approach, which, despite their claim to be pragmatists, has little or no consequence for or application to legal interpretive practice. Or at least I infer from their remarks that they do not intend their view to have any consequences for the questions at stake about legal interpretation. For
instance, they criticize other intentionalists, such as E. D. Hirsch, Jr., for thinking that intentionalism entails that the interpreter ought to look for evidence of the author's intention. Their view is not about the evidence or justification for thinking that a particular interpretation captures the original intention. They seem to be claiming only that one is necessarily looking for the author's intention if one is genuinely trying to figure out what the text really means. If I understand them, a correct reading will be the one that does capture the intention of the legislators or the framers, but whether our evidence and justification ever shows this intention for sure is a different and apparently irrelevant matter for them.
They say explicitly that "[s]ince language has intention already built into it, no recommendation about what to do with intention has any bearing on the question of how to interpret any utterance or text."[10] In reply to critics they also deny that their notion of intention has any empirical, methodological consequences: "To insist, as we do, that the object of interpretation is always a historical intention is, once again, not to justify or even recommend the pursuit of historical scholarship. Textual editors, historical scholars, New Critical explicators, and everyone else—from the standpoint of intention—are all doing the same thing. Since it provides no help in choosing among critical procedures, the idea of intention is methodologically useless."[11] I would assume, then, that on their view the anti-intentionalist could have the correct reading of a text even without ever speaking of the author's intention; and the intentionalist who held a different reading, even if strictly on evidence of the author's intention, could well be wrong. Their view explicitly identifies knowledge with true belief, for they write, "the only epistemological claim in 'Against Theory' is that true belief and knowledge are the same."[12] This problematic epistemological equation points up the difficulty with their a priori identification of meaning and intention. If knowledge is only true belief (or "right opinion," as Plato called it in showing why it is too simple as an analysis of knowledge), then one could be said to have knowledge so long as one had a belief that was true, even if one held the belief for fallacious reasons or even if no one could ever give any reasons or justifications for holding the belief.
A more reasonable formulation of knowledge would be to call it "justified true belief," so long as one does not think that the only genuine justification was one establishing absolute certainty. Pragmatists today try to avoid such epistemological quandaries by speaking instead of "warranted assertability." Since that formulation makes warrant relative to context and purposes, however, it would suggest, contrary to Knapp and Michaels, that hermeneutics is right that the understanding of a text is not a context-free operation and in particular that it does not take place prior to and independently of the context in which it is applied.
The intentionalists' critique of hermeneutics for not keeping the moment of application separate from the supposedly prior moment of understanding thus depends on an overly abstract conception of interpretive practice. They say that their view has no consequences for practice, but only for "theories." Insofar as they would admit that hermeneutics is not a theory in their sense of legislating from outside practice, then it would seem to follow that their view has no consequences for hermeneutics. In particular, as long as the hermeneutical judge thought she was really trying to understand the law in view of an unforeseen kind of case, then she could not be accused of "rewriting" rather than interpreting the law simply because she arrives at a different decision than the original authors could or would have made.
The intentionalists admit that intention is relative to context. As Gadamer's critique of Nietzsche on history shows, hermeneutics maintains further that contexts are not to be treated as self-contained wholes that can be completely isolated from one another.[13] Hence, despite differences between past, present, and the intervening tradition, it is wrong to assume that the law can make sense only against its original background and not against a commensurable contextual background resulting from the fusion of those various (and only vaguely differentiable) horizons.[14]
Conclusion
Debates between some members of the Supreme Court and some members of the Reagan administration turned precisely on the issue of whether the Constitution is to be interpreted only according to the original intentions of the framers. Either Knapp and Michaels agree with those who claim the Constitution can be correctly interpreted only as what was originally intended, or they have to admit that the Court's more activist decisions may also be correct, so long as the Court believed it was interpreting and not just rewriting. The question here seems to have to do with the intentions not of the authors but of the interpreters. So long as judges believe they are understanding the law correctly, according to Knapp and Michaels it would not seem to matter how much attention the judges give to historical evidence for the original intentions and applications.
Knapp and Michaels could respond that issues such as whether the framers intended to use general rather than precise language may be empirical questions, and we should not expect their view to settle empirical matters or to determine what counts as good evidence for the original intentions. But I do not think that empirical research alone will settle issues in the theory of interpretation since the research itself may be conditioned by the particular theory of interpretation it presupposes. The
issue still remains whether the legal language is general because it is intended to be general or because of the generality of its phrasing. Everybody grants that some clauses are specific (such as those about how old officeholders must be) and that others (for instance, the due process clause) are general. The latter are most often controversial, but the former could be as well. I do not conceal that my view is that the generality of the language is what is important, and the question of whether the use of general language was intentional is secondary.
Furthermore, given Knapp and Michaels's theory of knowledge this appeal to empirical verification would not be open to them. On such a theory one could have knowledge even if one acquired and maintained the true beliefs for all the wrong reasons. lf justifications or warrants are irrelevant to the interpretation, and only truth matters, it would seem that a judge could simply ignore historical evidence about framers' intentions and nevertheless come up with the correct interpretation. Similarly, a judge who relied strictly on evidence of what the original intentions were seems no more likely to be right than one focusing only on present values. How one would even be able to argue empirically for the correctness of an interpretation is not clear. Skepticism threatens, and the insistence on intention appears empty if the intentionalists cannot explain why an interpreter relying on evidence of intentions is any more or less likely than a nonintentionalist interpreter to have nonarbitrary beliefs. I think either they should admit that their account does not really entail their critique, since the judge could well be correctly interpreting the original intention even if all the historical evidence weighs against this inference, or they should grant that practice does require sticking only to what the original intention would allow.
Only when the judges know that the law entails one decision and they nevertheless decide something else could they be said to be rewriting. But the intentionalists would have to show us real cases where this occurs. Hermeneutics suggests that the tradition constrains what judges can do, since they must follow certain standards and give acceptable arguments for their readings not only of the provisions in question but also of precedents. The level of abstraction of the intentionalists' account of legal interpretation causes it to underestimate the role of the doctrine of stare decisis and the authority of precedent. The hermeneutical view that textual meaning can never be fully separated from the intervening tradition of interpretation (or Wirkungsgeschichte ) does greater justice to concrete legal practice.
So either the intentionalists' critique of hermeneutics fails because it misses the point of the practical link between understanding and application, or they have to side with the intentionalism of, for instance, former attorney general Edwin Meese III against the more hermeneutical view
implicit in Justice William J. Brennan's recognition of interpretation as a function of the community of interpreters. Justice Brennan argues that insisting on the intention of the framers is "little more than arrogance cloaked as humility" and that the long-established practice of modern justices has been to look not only to "the history of the time of framing" but also to "the intervening history of interpretation" and what "the words of the text mean in our time."[15]
The differences here are not simply about the nature of interpretation but represent differing political programs as well. Michaels says in his response to Michael J. Perry and Larry Simon that the question of the meaning of the text is altogether different from the question of the authority of the text. In contrast to the intentionalists' isolation of questions of understanding from questions of application, hermeneutics maintains that although there are additional considerations when the interpreter attends to criticism and evaluation, understanding cannot abstract entirely from its present context of application. For intentionalists to deny that an account of interpretation has any further practical ramifications is to forsake practice for pure theory.
Hermeneutics does not have to remain indifferent to this debate but can side with justice Brennan's insistence on what Gadamer called the wirkungsgeschichtliches Bewubtsein (or hermeneutical awareness) of the interpreter. This notion is both descriptive and normative, although not prescriptive as Meese's intentionalism would be. It is descriptive because interpretation always occurs in a present context that is conditioned by the history of the prior interpretations leading up to it and giving it a particular perspective. It is normative because although it implies that a text is always seen through the lenses of the intervening history and tradition of interpretations, it holds that an interpretation that is more conscious of this intervening history is better and less dogmatic than one that is less conscious of it.
Hermeneutics is not prescriptive in the stronger sense implied in the claim by intentionalist (or originalist) constitutional theory that original intention is the only criterion for correct interpretation. Although hermeneutics stresses connection with the intervening tradition, it is not saying that connection with the tradition is the only relevant criterion in the practice of legal interpretation. Hermeneutics can recognize that precedents are sometimes overruled because they conflict with contemporary norms.[16] The authority of precedent is not indefeasible both because there are other criteria for preferring some interpretations over others and because no single lexical ordering of such criteria will provide an algorithm for deciding between interpretations. Hermeneutics is thus not a "theory" in the strong, prescriptive sense properly criticized by Knapp and Michaels in the name of pragmatism. At the same time,
however, it more successfully avoids appearing to be a pragmatism that remains curiously "indifferent to practice."
Intention, Identity, and the Constitution:
A Response to David Hoy
Steven Knapp
Walter Benn Michaels
Consider the following sentence: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws." Suppose an interpreter wants to know what the word "equal" in the last clause of this sentence means. Does she want to know what the authors of the sentence meant by "equal," or does she want to know what "equal" means or might mean according to the rules of English? One answer would be that she is interested only in knowing the meaning of "equal" as determined by the rules of English. Another answer would be that she wants to know both what "equal" means in English and what the authors of the sentence meant by "equal." Our answer, presented in a series of articles since 1982, is that the only plausible object of interpretation is the authors' intended meaning; what the interpreter wants to know, if she wants to know the meaning of "equal" in the equal protection clause, can only be what its authors meant by it.[1] In the following pages we wish first to summarize our reasons for holding this view and second to examine its consequences for constitutional interpretation.
How does hermeneutics understand the problem of legal interpretation posed in our introduction? According to Hans-Georg Gadamer, authorial intention is indeed relevant to but does not determine what a text means, for a judge "cannot let himself be tied by what, say, an account of the parliamentary proceedings tells him about the intentions of those who first worked out the law."[2] For Gadamer, "The real meaning of a text … does not depend on the contingencies of the author … for it is
always partly determined also by the historical situation of the interpreter" (TM, 263). The text is not simply an expression of authorial intention but is in a sense shared by authors and interpreters; it is a "common object," meaning both what its author or authors intend it to mean and what its interpreters understand it to mean. "The task of an historical hermeneutics" is consequently "to consider the tension that exists between the identity of the common object and the changing situation in which it must he understood" (TM, 276). Thus, in the case of the equal protection clause the task of hermeneutics would be to consider the tension between the "common object" (the clause itself) and the various situations (Reconstruction, the reaction to Reconstruction, the civil rights era, etc.) in which that object has acquired its various meanings.
In "Against Theory 2," however, we argued that there could be no plausible account of textual identity that would allow a text to stay the same while its meaning changed and thus to function as the sort of "common object" Gadamer imagines. Our point was not, of course, to deny that a text could remain the same text while being interpreted to mean something different from what its authors intended—in other words, that a text could be misinterpreted. The object of our critique was Gadamer's much stronger claim that a text can be correctly understood to mean something different from what its authors intended—indeed, that "a text is understood only if it is understood in a different way every time" (TM, 275–76). Where for Gadamer a text remains a single object while its meaning changes, in our view a text whose meaning changed would no longer be the same text.
If the hermeneutic account of textual identity is correct, its benefits, especially for legal interpretation, are obvious. After all, why, as Sanford Levinson has asked, should the "intentions of long-dead people from a different social world … influence us"?[3] On our account, if the authors of the Fourteenth Amendment did not intend the equal protection clause to articulate a principle that would prohibit segregated schools, then it doesn't, and insofar as the decision in Brown v. Board of Education was based on an interpretation of the Fourteenth Amendment, the decision was mistaken. But for hermeneutics a judge need not be bound by an author's intentions, which are, as Paul Ricoeur has put it, "often unknown to us, sometimes redundant, sometimes useless, and sometimes even harmful as regards the interpretation of the verbal meaning of his work."[4] Rather than settling for the object as the author left it, legal hermeneutics, in the words of Ronald Dworkin, "strives to make an object the best it can be."[5] Thus, for Dworkin the meaning of a statute is never "fixed once and for all" but belongs to a "continuing story"; its "interpretation therefore changes as the story develops" (LE, 348).
The question, then, is not whether the hermeneutic account of textual identity is attractive—in at least some respects it obviously is—but
whether it makes sense. The hermeneutic account will make sense only if there is some plausible way to specify features of the text that will allow it to remain the same text while its meaning changes. What might those features be? There are several ways of answering this question. One could, for example, simply locate the text's identity in the letters on the page. On this account the Court in Brown could give "equal" a meaning different from the one intended by the framers and still be interpreting the text the framers wrote as long as the Court didn't change the letters. This notion of textual identity is logically coherent, but its consequences would be unacceptable to hermeneutics. For what Gadamer describes as the central concern of hermeneutics—the tension between the common object and the changing situations in which it must be interpreted—disappears, since if the text's identity consists only in the identity of its letters, the common object can of course mean anything any interpreter wants it to mean. On this account, then, the equal protection clause could not only be read both as permitting and as prohibiting segregation, it could be read as permitting or prohibiting bicycles in a park; indeed, it could be read as an essay against theory or a poem about Lucy.
To preserve the tension between the commonality of the object and its changing meanings, hermeneutics requires a criterion of textual identity somewhat more restrictive than letters and finds it in what Ricoeur calls the text's "verbal meaning." For hermeneutics the text's identity consists not simply in a particular combination of letters but also in the meanings of the words those letters spell in the language in which the text is inscribed. Thus, given that the authors of the Fourteenth Amendment were writing in English, the amendment remains the same text as long as it is interpreted to mean whatever its words can mean in English.
Most of the argument against hermeneutics in "Against Theory 2" was designed to show that the verbal meaning criterion of textual identity is either arbitrary or incoherent. For if what one wants is a more restrictive notion of textual identity than that provided by letters alone, then there are others besides verbal meaning that will do just as well. For instance, instead of stipulating that the text consists of its letters plus the meanings of the words those letters spell in English, one might stipulate that the text consists of its letters plus the meanings of the antonyms of the words those letters spell in English. Why choose verbal meaning over antonyms? We argued that the only plausible reason for choosing the verbal meaning rule over other equally restrictive rules would be that, though not confined to what the author intended, the meanings permitted under this rule would at least be more closely related to what the author intended, assuming that the author intended to write in English. But as we showed, there is no reason to think that the verbal meaning rule does in fact permit meanings more closely related to the author's intention than the meanings permitted by any other rule. If a law says, "No
vehicle shall be permitted in the park," the verbal meaning rule makes it possible (at least since 1936, when I. A. Richards introduced the terms tenor and vehicle to name the two halves of a metaphor) to understand the law to exclude not only bicycles but poems. Since the verbal meaning rule doesn't provide meanings that are closer to the author's intention, what does it provide? Well, if the author is writing in English, the meanings her words can have in English may provide important clues to the meanings she intends them to have. The rules of English do not determine the meaning of the equal protection clause, but they provide important clues as to what that meaning is. If, however, the only reason to adopt the verbal meaning rule is that it gives clues to the author's intention, what sense does it make to choose the verbal meaning rule as a way of going beyond authorial intention?
In his response to "Against Theory 2" David Hoy does not defend the verbal meaning criterion of textual identity, nor does he engage our arguments against it. One reason for his indifference to these arguments may be that the version of anti-intentionalism he advocates involves a criterion of textual identity that goes beyond verbal meaning and even beyond letters. According to Hoy, any physical entity (e.g., any collection of marks or succession of noises) that can be read as a text is a text. Arguing from our examples of people seeing or hearing accidental marks or noises that resemble language, Hoy claims that the ability "to read or hear something as making some sense would be enough to talk about that sense independently of whether it was intended." Consequently, Hoy cannot "see why it would be impossible in principle for arbitrarily produced sounds or marks to be read as a text."[6]
In one sense this notion seems to us uncontroversially true: anything can of course be mistaken for a text. Thus, an interpreter may mistakenly think she is reading a text when in fact she is looking at marks accidentally produced by erosion on a beach. But does the fact that she can make this mistake mean that she is reading a meaningful text? In our view, no; that's the point of calling it a mistake. She thinks she is reading a text produced by an agent who intended to perform a speech act, but what she is in fact doing is misreading a meaningless pattern of marks. According to Hoy, however, the wave poem we imagined in "Against Theory" counts as a text precisely because it can be mistaken for a text. The mere possibility of reading these marks "as making some sense" even though they were produced by chance demonstrates for Hoy that meaning (and textual identity) are independent of intention.
But does it make sense to think that a set of marks produced by chance can be a meaningful text? In our view the claim that marks produced by chance can be meaningful raises some awkward questions. For if we agree that some marks produced by chance are meaningful, do we want
to claim that all marks produced by chance are meaningful? Presumably not. Presumably the only marks that have meaning are the ones that look like the marks humans make when they are using marks to mean something. Thus, the wave poem counts as a text because the marks it is made of look like words in English. But what about marks that don't look like words in any known language but that will look like words in some language when that language (say, five hundred years from now) has evolved? Are those marks meaningful now? Will they become meaningful later? After all, in a variation on monkeys with typewriters, given enough time and enough languages it is possible that every set of marks will come to be used in some language and therefore that all the marks that don't look like language now will come to look like language if we just wait long enough for the language to be invented. Should we say that all the accidental marks that do not yet resemble words in some known language are only temporarily meaningless and will eventually acquire meaning? Or should we say that they are already meaningful; it's just that the language in which they mean hasn't been invented yet? And what about marks that resemble words in languages that once existed but are now forgotten? Have they ceased to be the texts they were, or have they missed the opportunity to be the texts they would have been?
To think that some marks produced by chance are texts is thus apparently to commit oneself to the view that all marks produced by chance, whether they were texts once or are texts now, will eventually be texts and will be texts in an infinite number of languages.[7] Because they will be texts in an infinite number of languages, they will also have an infinite number of meanings. And if this is true of marks produced by chance, what about marks produced by agents like the framers of the Fourteenth Amendment? Since the Fourteenth Amendment on this view means whatever its marks can mean in any language (living, dead, or yet unborn), and since the number of languages it can mean in is infinite, the Fourteenth Amendment can mean anything. All one needs to do to make it mean whatever one wants is to discover or invent a language in which it has the desired meaning. But remember the situation with which we began: the interpreter wants to know what the word "equal" means, not how to make it mean whatever she wants it to mean. We have no argument against people making marks mean whatever they want them to mean by discovering or inventing new languages, or by any other technique. But discovering or inventing a language in which "equal" means whatever one wants it to mean can hardly count as finding out what "equal" means.
We have considered three different ways of imagining that a text can remain the same text (the same object of interpretation) while meaning something other than what its author intends. Probably the most
common of these is the notion that a text can mean whatever its words can mean in the language in which its author wrote it. But as we showed, the only plausible reason for restricting the text's meanings to the language in which the author wrote it is that one is interested in the author's intention; otherwise, the choice of this rule over an infinite number of alternatives would be arbitrary. But if the only point of the verbal meaning rule is that it gets one close to the author's intention, why invoke this rule as a way of going beyond the author's intention? And if one gives up the verbal meaning rule and allows the text to mean whatever its letters—or more radically, its marks—can mean in any language, then the range of possible meanings becomes infinite, and the Fourteenth Amendment, for instance, could be read to mean anything. At this point it is no longer clear in what sense the interpreter is trying to find out what the text means; indeed, it is no longer clear that there is any object, let alone any "common object," of interpretation. The text only remains an object of interpretation (and the interpreter's interest in finding out what "equal" means only makes sense) if what the text is and what it means are determined by the author's intention.[8]
If the foregoing account of textual meaning is correct, then the meaning of the equal protection clause of the Fourteenth Amendment can only be what the amendment's authors intended it to be. Suppose, then, the question arises whether the clause prohibits segregated schools. Suppose further that the available evidence suggests that the authors of the Fourteenth Amendment, if asked whether the equal protection clause prohibited segregation, would have said no.[9] Does it follow that the equal protection clause—interpreted to mean what its authors intended it to mean—permits segregated schools?
The assumption that it does underlies most accounts of intentionalism, pro and con. After all, if a text only means what its authors intend it to mean, aren't the authors of the Fourteenth Amendment the best authorities as to what the equal protection clause prohibits and permits? Not necessarily. For one thing, the authors might well be mistaken about their own intentions; or they might have forgotten them or never have correctly understood them in the first place. Or they might be lying or joking. More interestingly, they might be perfectly correct about what their intentions were and perfectly sincere in reporting those intentions, and still be mistaken as to what the equal protection clause prohibits and permits.
To see how an author can understand what a law means without knowing exactly what the law prescribes, consider a simpler example. Suppose the law we mentioned earlier prohibiting vehicles in the park was enacted before the invention of the automobile. The question before
a judge is whether the law, which has always been interpreted to prohibit bicycles and horse-drawn carriages, also prohibits automobiles. The judge knows that the legislators could not have believed that the law they enacted excluded automobiles; they had no idea what automobiles were. Nevertheless, she correctly and uncontroversially decides that the law, when interpreted to mean what its authors intended it to mean, prohibits automobiles. She does so because she decides that automobiles are the kind of thing they meant by the term vehicle and therefore that the legislators' intention to prohibit vehicles must apply to automobiles, even though the legislators could not themselves have believed that automobiles were vehicles. The invention of the automobile has not changed the meaning of the law they wrote, even if it has expanded the class of objects to which that law applies. Of course, the judge could be mistaken; by vehicles the legislators might have meant only conveyances not powered by machine. In that case the law would prohibit, say, skateboards (of which the legislators were equally ignorant) but would not prohibit automobiles. In both cases what the law prohibits is determined by what the legislators intended, but in neither case could they have known what their intention would prohibit. Their intention determined the meaning of the word vehicle, even though their beliefs were inadequate to determine what objects would count as vehicles in the sense they intended.
The case of the Fourteenth Amendment might be understood along similar lines. Suppose the authors had never heard of segregated schools and therefore had no beliefs about whether such schools did or did not conflict with the equal protection clause. A court might still correctly decide that segregated schools were forbidden by the equal protection clause because they encouraged exactly the kind of inequality the legislators intended to prohibit. But now suppose that the legislators were not only aware of segregated schools but, when asked, explicitly declared that such schools were not prohibited. We have just argued that a court can correctly go beyond the authors' beliefs while at the same time remaining bound by the authors' intentions. Does it make sense to argue further that a court remains faithful to the authors' intentions even while going against the authors' beliefs?
In our view, yes. If, as we have shown, the authors of a law can be ignorant of certain phenomena to which their law applies, there is no reason in principle why they cannot be positively mistaken about those phenomena. If the authors of the Fourteenth Amendment intended to articulate a principle that would guarantee equality for, among others, all schoolchildren, they might well have believed that segregation should be permitted on the ground that separate schooling does not in itself constitute inequality. But if it were subsequently shown that separate schooling intrinsically promotes inequality, then fidelity to the authors'
intentions would not only allow but require a court to decide that the equal protection clause prohibits school segregation. In that case it would have turned out that the authors' belief that segregated schools are not intrinsically unequal was mistaken, but this mistake—revealed by new information about the relation between inequality and segregation—would in no way affect the content of their intention itself. The court, possessing this new information, would have arrived at different beliefs about the relation between inequality and segregation, but its having such beliefs would in no way alter its account of the law's meaning.
The law's intended meaning, in other words, is what it is, independent both of the authors' old beliefs and of the court's new ones. Hence, as Dworkin has argued, a judge "with more information" than the framers had may conclude that the equal protection clause "requires legal decisions few if any of the framers anticipated."[10] She may even be justified in understanding it to prohibit discrimination on the basis of gender or sexual preference, criteria never contemplated by the authors. Although according to Dworkin the framers did not understand the law they wrote to prohibit gender discrimination, "once we have defined the principle we attribute to the framers in [a] more abstract way, we must treat their views about women as misunderstandings of the force of their own principle, which time has given us the vision to correct…. That, in effect, is what the Supreme Court has done."[11]
Dworkin thus recognizes that a view of interpretation as an attempt to find out what a law's authors intended is perfectly compatible with the view that legislators can be mistaken about the application of the law they wrote. For Dworkin, however, the fact that legislators can be mistaken about what their own laws permit or prohibit suggests the arbitrariness of an intentionalist account of legal interpretation. For if one is already required to go beyond the legislators' beliefs in order to decide how the law they wrote applies to situations they either misunderstood or never anticipated, why not take the further step of going beyond their intended meanings as well, in order to make the law they wrote "the best it can be" (LE, 53)? Indeed, by admitting that a judge may be required to go beyond the legislators' concrete beliefs in order to apply a general principle the legislators intended to articulate, haven't we already embraced Dworkin's version of legal hermeneutics? Isn't an interpretation of the equal protection clause that understands it to prohibit racial segregation (not to mention discrimination on the basis of gender or sexual preference) really a disguised attempt to do what Dworkin himself recommends, namely, to substitute an interpreter's sense of the "best" possible meaning for the meaning "fixed" by the authors at "a particular moment of history" (LE, 348)? Won't an intentionalist who subordinates "the framers' concrete opinion about segregation" to "their more
abstract convictions about equality" find that "his historicism is subverted" as "he is led steadily away from relying exclusively on what the framers thought about that particular issue" (LE, 363)?
What seems odd here is Dworkin's assumption that a general principle is somehow less historically fixed than a concrete opinion. If the framers of the Fourteenth Amendment in fact intended to articulate a general principle of equality, then that principle's generality does indeed make it applicable to a wide range of cases, many or most of which they may not have anticipated or correctly understood. But the principle's generality in no way detaches it from the framers' intention; indeed, to understand the amendment as expressing a general principle is itself to make an interpretive judgment about what its authors' particular intention was. That particular intention might even have been to articulate a principle as general as the one alluded to by Hoy when he asks whether we are "willing to allow the author to intend that the clause be taken in the way any future judge thinks is most just.[12] We are of course willing to allow authors to intend whatever they want to intend. The framers of the Fourteenth Amendment might just as easily have intended to articulate a narrow principle, or the general principle they intended to articulate might well have been different. It might have been a general principle that later judges would find repugnant, one that would seem to them to express not the best possible meaning but the worst. What the principle is (whether it is narrow or general and whether later judges approve or disapprove of it) remains a matter of historical fact.
The mention of historical fact in the previous paragraph brings us to the question of method. If a text's meaning is always a matter of historical fact, how does one recover that fact? What is the relation between recognizing that the object of textual interpretation is the authors' intended meaning and finding out what that intended meaning is? The answer cannot be the one suggested by Hoy, namely, that we think our account "has the advantage that no interpretation is needed." If authorial intention is, as we have just noted, the object of interpretation, how can it in any way substitute for interpretation? Nor do we think, as Hoy and others suppose, that intentionalism entails a methodological commitment to certain kinds of evidence, for instance, records of the framers' deliberations and debates, letters of an author to her friends, or sociological data about the period in which a text was written.
The notion that intentionalism involves a preference for so-called extrinsic evidence rests on a confusion about the nature of historical evidence; it rests on the mistaken assumption that "intrinsic" evidence (the "text itself") is somehow less historical than extrinsic evidence. Thus, both the New Critics in literary criticism and legal anti-intentionalists
such as Dworkin suppose that focusing on the meaning of the text itself (as opposed to extrinsic evidence derived from biographical data or legislative debates) involves ignoring or even repudiating authorial intention.[13] When the New Critics thought they were ignoring historical evidence of the author's intention in favor of just reading the text itself, what they failed to recognize was that the text itself was functioning as historical evidence in their accounts of what an author meant. Thus, no interpreter is ever in the situation described by Hoy when he imagines the possibility of a judge "correctly interpreting the original intention even if all the historical evidence weighs against this inference." In our view there is never a case in which a judge arrives at an interpretive inference while disregarding all the historical evidence. This is true not because all judges are committed to historicist principles of interpretation but because any evidence that ever influences any interpreter is always historical evidence of an author's intention, even if that evidence is nothing more than the text itself.[14] Indeed, there is never a case in which all the historical evidence weighs against an interpretive inference, even if the evidence in favor of the inference consists only of common sense, beliefs about human nature, the interpretive decisions of previous judges, or supernatural contact with departed legislators.
If recognizing that interpretation is always historical gives no help in deciding what counts as the best historical evidence, it also gives no help in deciding between competing interpretations of any text. Intentionalism, as we understand it, is therefore methodologically useless. In fact, one consequence of our version of intentionalism is that there can be no useful interpretive method. For if interpretation is just a matter of figuring out what some author or authors intended on some particular historical occasion, then interpreting can amount to nothing more than finding out whatever one can, by whatever means available, about what the authors in question are likely to have intended. Of course, one can call this method if by method one means nothing more than the beliefs one has about the past and about human agents, together with whatever procedures those beliefs lead one to follow. But in that case method, since it lacks any prescriptive force, turns out to be curiously devoid of methodological utility. Interpretive method can thus amount to nothing more than telling interpreters to do whatever already makes sense to them to do.
The impossibility of devising a useful method for recovering authorial intentions does not, however, mean that recovering authorial intentions is for that reason impossible. Hoy is correct to say that on our view, since ,one is necessarily looking for the author's intention," "a correct reading will be one that does capture the intention of the legislators or the framers." He is also right to note that "whether our evidence and justification
ever shows this for sure is [for us] a different and apparently irrelevant matter" (our emphasis). Showing "for sure" that an interpretation is correct is indeed different from showing that an interpretation is correct because showing for sure that any empirical judgment is correct is impossible. Showing for sure that an interpretation is correct is also irrelevant because there is no need to show for sure; the impossibility of achieving certain knowledge in no way undermines the possibility of knowing. Our view that interpretation is always and only intentionalist thus presents no obstacle to the possibility of achieving correct interpretations.[15] It is, however, devoid of what Hoy calls "heuristic value." Hoy claims that "hermeneutics has more heuristic value than [our] intentionalist approach." In our view neither intentionalism nor hermeneutics has any heuristic value. The advantage of our account over hermeneutics is not that it is more useful but that it is true.
Legal Indeterminacy and Legitimacy
Ken Kress
Assaults on traditional modes of scholarship and knowledge are the rage these days, and with good reason, no less in law than in other humanistic disciplines. Critical legal scholars, appropriating and deepening legal realist arguments that authoritative legal sources are rich enough to justify contradictory outcomes in many lawsuits, claim that law is indeterminate, incoherent, inherently contradictory, and unstable.
The claim that law is indeterminate comes in moderate and radical versions along a variety of parameters. For present purposes, four parameters will be mentioned. The first parameter is the range of cases in which there is indeterminacy. It might be that in some controversial and important cases at the highest appellate levels (state and federal supreme courts) the outcomes are indeterminate. Or it might be that indeterminacy is rampant in all supreme court cases, not merely in some. The scope of indeterminacy might be enlarged to include all appellate cases, all cases tried in lower courts, or even all cases filed (even if settled or otherwise disposed of before trial). More broadly still, legal indeterminacy might plague all disputes governed by law, not merely those resulting in formal legal action. The limit point along this first parameter might be the claim that the legal status of all acts or events is indeterminate.
The plausibility of the indeterminacy thesis increases as the scope of the situations to which it is claimed to apply decreases. Few persons would believe that in writing the prior sentence I committed assault and battery on Ronald Reagan. But many are convinced that the U.S. Supreme Court's decisions on abortion and gender discrimination were not preordained by prior law.
Second, versions of indeterminacy differ according to whether they claim that the court has complete discretion to achieve any outcome at all (execute the plaintiff who brings suit to quiet title to his cabin and surrounding property in the Rocky Mountains) or rather has a limited choice among a few options (hold for defendant or plaintiff within a limited range of monetary damages or other remedies), or some position in between. In effect, this parameter focuses on discretion in remedies, assuming that the liability issue has been somehow resolved.
Third, the rhetorical relationships constitutive of indeterminacy differ among versions of that thesis. More radical versions could claim that the law is indeterminate whenever arguments exist for multiple outcomes or inconsistent legal conclusions. Slightly less radical versions might require that all the arguments necessary to establish the multiple outcomes be presentable in open court with a straight face; that the arguments be believable or persuasive to a sizable plurality or the majority of the legal community; or that a judge be able to employ the argument in an opinion without being subject to charges of judicial irresponsibility. Alternatively, definitions of indeterminacy might require that the arguments be grounded in or flow from legally authoritative sources. Versions could differ about which materials are authoritative; rules, principles, policies, legal culture, social context, conventional or critical morality. Finally, some versions may require that the arguments showing multiple outcomes proceed according to legally authorized patterns of inference (perhaps conventionally accepted argument forms). In effect, this parameter varies in parallel with differences in theories of legal reasoning. Law is indeterminate if, according to the appropriate theory of legal reasoning, multiple outcomes are possible.
Fourth, versions of the thesis provide varying explanations of why indeterminacy arises. They Justify the claim of indeterminacy in sometimes complimentary but occasionally conflicting ways. Indeterminacy is said to arise from gaps in the scope of legally authoritative sources, from vagueness and other linguistic infirmities in canonically expressed directives, from flexibility in the interpretation of precedents, and from conflicts among standards that are not resolved by any higher level principle. Inconsistency in authoritative standards may be the result of mistakes, of changing historical circumstances, of ideological struggle among those authorized to create standards,[1] or of inconsistency within the political philosophy of individual lawmakers or within each of us.[2]
There are thus an inordinately large number of different indeterminacy theses corresponding to combinations along these four and other parameters. The indeterminacy thesis is itself indeterminate! Of course, it is not implied that each combination along these four parameters is in
fact held by some author or that each combination is plausible or even coherent. For example, along the third parameter an impoverished theory of legal reasoning that recognizes as authoritative legal materials only rules or that authorizes inferences even if they are not persuasive to a sizable portion of the legal community makes radical versions of indeterminacy along the first parameter of scope more plausible and moderate versions less plausible. But the description of the parameters is intended to convey a sense of the richness and diversity of positions that have been and could be taken and the resulting burden on any attempt to assess the thesis critically.
Naturally, one could be conservative and methodically assess each version, or each significant version, or each version that has been championed in print. But that would be boring, and life is too short. Such an approach is undesirable even though many remarks could be directed simultaneously at many relevantly similar versions. The principle of charity would counsel assessing the strongest possible version of indeterminacy. This method is especially necessary if the assessment is ultimately unfavorable; otherwise, the criticism is of a straw position. But "strongest" does not mean here most likely to be true: plausibility can be purchased at the price of content or scope and the line between falsity and triviality is thin indeed. So, for example, by restricting the claimed indeterminacy to a small subset of controversial cases in the U.S. Supreme Court, the thesis becomes plausible but insignificant. Should we look for the best mix of strength of claim and plausibility? Perhaps, but I will instead pursue an alternative strategy that will lead to a surprising conclusion.[3]
I will argue that legal indeterminacy is of great importance because many scholars think that significant indeterminacy results in illegitimacy. I will then argue that moderate indeterminacy has only minimal consequences for political legitimacy and citizens' obligations to obey law. Although most of the argument would be unaffected even if there were radical indeterminacy, I will not consider the consequences of radical indeterminacy here.[4] First, I am sufficiently sympathetic to Lon Fuller's conceptual claim that pervasive indeterminacy entails that no legal system exists[5] not to be inclined to pursue the question of legitimacy under conditions of radical indeterminacy. It is unclear that the question would be coherent. Second, I have argued elsewhere that there is at most moderate indeterminacy and that critical legal scholars' arguments for radical indeterminacy are unpersuasive.[6] Moderate indeterminacy is acknowledged to exist by conventional legal theorists from Oliver Wendell Holmes to Benjamin Cardozo to H. L. A. Hart. Gadamerian hermeneutics, as interpreted for example by Fred Dallmayr in his contribution to this collection, also acknowledges the existence of moderate
indeterminacy. As Dallmayr notes, contextual aspects of interpretation, most notably shared legal meanings embedded in shared legal and social practices, constrain outcomes sufficiently to avoid radical indeterminacy while nonetheless failing to yield perfect determinacy. Thus, I would agree with Dallmayr that Gadamerian hermeneutics would not have "corrosive effects" on rule of law values.
The motivation for my alternative strategy of examining the relationships between indeterminacy and legitimacy was foreshadowed then we noticed that some versions of indeterminacy are insignificant. We should ask what would make a version significant. Why do and should we care about indeterminacy? Indeterminacy matters because legitimacy matters. Many legal scholars hold that the legitimacy of judicial decision making depends on judges applying the law and not creating their own. They claim that judicial decisions are legitimate only if judges are constrained either completely or within narrow bounds.[7] The term legitimate is used here as it is used in classical political philosophy: if a judicial decision is legitimate, it provides a prima facie moral obligation for citizens to obey the decisions.[8] This use of legitimate should be sharply differentiated from the sociological, Weberian notion of legitimation, or perceived legitimacy. The sociological notion of legitimation asks a causal question about how the legal system induces belief in its authority and compliance with its laws.[9]
The claim that courts' legitimacy requires constraining the judiciary is not limited to legal academics. The debate about judicial activism within the nonlegal academy, the political community, and popular cultures[10] rests on a similar presupposition that a judicial decision is legitimate if it accurately applies the law but is open to question, if not downright immoral, if it reflects nonlegal factors such as the judge's personal preferences or political ideology. The indeterminacy thesis asserts that law does not constrain judges sufficiently, raising the specter that judicial decision making is often or always illegitimate.
I do not claim that the only reason indeterminacy matters is its consequences for legitimacy. But the consequences for legitimacy are prima facie the main reason why legal scholars do and should care about indeterminacy. Few are interested in indeterminacy purely as a metaphysical issue.[11] If critical legal scholars could show that the legal system is indeterminate and therefore illegitimate, they would have a powerful critique. Liberal[12] theorists would he obligated to acknowledge that critique and revise their theories to accommodate it, or if that is not possible, to relinquish belief in conventional theories of law and justice.[13]
Many critical legal scholars do urge that law is illegitimate because it is indeterminate. Joseph Singer claims that liberal legal theory requires substantial determinacy to satisfy the requirements of the rule of law.[14]
Determinacy is desirable because it restrains "arbitrary judicial power."[15] Although complete determinacy is attainable in a legal system (Singer considers the rule "The plaintiff always loses"), any completely determinate system would fail to be "just or legitimate" because it would insufficiently protect "security, privacy, reputation, freedom of movement" and other competing values.[16] On Singer's reading, liberal legal theory therefore attempts to provide the right mix of determinacy and indeterminacy. But, Singer argues, no existing legal system or legal theory provides anywhere near the amount of determinacy that is required: "Legal doctrine is far more indeterminate than traditional theorists realize it is. If traditional legal theorists are correct about the importance of determinacy to the rule of law, then—by their own criteria—the rule of law has never existed anywhere. This is the real bite of the critique."[17]
In an especially clear discussion of indeterminacy, Andrew Altman argues that the indeterminacy that flows from inconsistencies reflecting ideological struggle among lawmakers demonstrates that Ronald Dworkin's legal philosophy fails to legitimate judicial decision making because it fails to put practical constraints on judges.[18] Perhaps Duncan Kennedy, in his first published attack on liberal legal theory, best describes the connection between indeterminacy and legitimacy inherent in critical legal theory:
My … purpose in this essay is to clarify that version of the liberal theory of justice which asserts that justice consists in the impartial application of rules deriving their legitimacy from the prior consent of those subject to them … [and] to contribute to the critique of [that theory]…. My argument is that a distinction between rule making and rule applying cannot be made to legitimate the coercive power of judges….[T]his version of liberal thought has been unsuccessful in the attempt to use a theory of rules to transfer the postulated legitimacy of decision based on consent to the judicial administrators of a body of legal rules.[19]
The core connection between indeterminacy and legitimacy explicit or implicit in this critical legal scholarship can be understood as follows: Critical scholars assume (either for purposes of internal critique or without reflection) that legislative enactments are legitimated by consent.[20] Insofar as judges are merely applying rules created by the legislature, their actions are legitimate and enforcement of their decisions is justified. On some accounts, judges enjoy a carefully limited discretion to "legislate interstitially" to smooth out the rough edges in statutes and to correct minor legislative oversights.[21] Thus, judges may legitimately legislate in what Hart calls the "penumbra of uncertainty" that derives from the vagueness and open texture of the language of enactments.[22] But any more extensive lawmaking by the judiciary would usurp the authority of the people's representatives.
Radical versions of indeterminacy threaten this formalistic model by claiming that there are very few or no clear cases where law is strictly applied. The penumbra of uncertain cases swallows up the core of formalistic rule application. Every case of adjudication requires judicial legislation. In consequence, adjudication is illegitimate.
But the problem with this argument is twofold. First, the assumption that consent legitimates the state is dubious because almost no one actually or tacitly consents to the state except perhaps immigrants or foreign visitors. Second, and ore important, the argument implicitly assumes that judicial decisions can be legitimate only if they rigidly follow ("strictly interpret or construe") statutory or constitutional provisions themselves legitimated by consent. This implicit assumption—indeed, fixation—of many legal scholars is a serious mistake.[23] I cannot overemphasize how much mischief has been caused by the failure to acknowledge the possibility of other ways of legitimating adjudication. The existence of other ways of legitimating adjudication is as telling against conventional scholars who advocate strict construction or neutral principles as it is against critical scholars who employ the conventional framework for legitimating judicial review in the service of more radical ends. Thus, the argument that follows, if successful, has broad implications extending beyond the critique of critical legal studies scholarship.
I will clarify my objections to the argument that the pervasiveness of judicial legislation entails that adjudication is illegitimate by analyzing the logical structure of the assumptions and claims of both liberal legal theory (as articulated by critical legal scholarship) and the critical legal response. For simplicity of exposition I restrict the analysis to statutory law.
Critical scholarship reads liberal legal theory to assert the following:
|
Critical legal scholars accept arguendo (1) and (2) but urge that the indeterminacy thesis shows (3) to be false. Thus, they urge that (4) has not been demonstrated.[25] But the order of these premises is not arbitrary; each premise's relevance depends on the truth of the prior premise. It is because (1) proclaims the legitimacy of legislative rules that (2), the claim that adjudication is legitimate when the judge applies legislative
rules, is plausible. The logical form of (2), "If judges apply rules, then judicial decisions are legitimate," makes it antecedent, (3) "Judges always apply rules," relevant to legitimacy. And it is because (3) is relevant to legitimacy that the critical legal scholars' denial of (3), in consequence of the indeterminacy thesis, is relevant to legitimacy. But because (1) is false, and patently so, (2) is irrelevant. In consequence, (3) also is irrelevant, as is the critical scholar's denial of (3). Indeterminacy may be a red herring.
I have taken care not to claim that indeterminacy is a red herring, irrelevant to legitimacy. I have done so because, as should be obvious, there are many potential grounds for legitimizing judicial decision making, and those grounds may turn out to be affected by the truth of the indeterminacy thesis. Although the above argument from consent fails, that does not end the matter. Some other potential ground for legitimacy may succeed. Thus, contrary to the desires of many critical legal scholars and strict constructionists, indeterminacy, even if true, does not, for all we have seen so far, entail that adjudication is illegitimate. At most, indeterminacy shows that one route to legitimacy has been blocked. We must still examine the other routes. For the same reason, the rejection of consent as legitimating the legislature does not show that indeterminacy is irrelevant to legitimacy. It merely shows that one argument connecting the two fails. To ascertain whether indeterminacy is relevant to legitimacy, we must consider each of the potential grounds for legitimacy that liberal theory invokes and see if indeterminacy of the law is relevant or decisive to any such ground.
On what basis does liberal theory claim that political decision making is legitimate? It is now a commonplace assertion of liberal political theory that not one of the most prominent and plausible grounds of political obligation alone is sufficient to establish a general obligation to obey the law.[26] Not consent, tacit consent, fair play, the duty to uphold just institutions, legitimate authority, fraternity, utility, or gratitude succeeds, by itself, in generating political obligations applicable to all or most citizens. While no potential ground of legitimacy succeeds in establishing a general obligation for all citizens to obey the law, some grounds may nonetheless, under certain circumstances, obligate some citizens to obey some or all laws.
For example, consent does not create a general obligation for all citizens to obey law because most citizens have not consented to the state. But some naturalized citizens may have consented to the state, and government officials may have agreed to follow the law in their official capacities. Thus, consent may obligate some citizens to obey all laws and others to obey some or all laws in their official capacities. Similarly, the other theories of political obligation, such as the principle of fair play, may be seen to generate grounds that obligate some citizens to obey some or all
laws under particular circumstances. Thus, the situations in which there are obligations to obey, and the range of laws that are obligatory, may vary among citizens, depending upon which, if any, grounds apply to each citizen. For some, there may be no obligation to obey or only obligations over limited areas. Summing the obligations arising from each of the particular grounds yields the full scope of citizens' obligations to obey law. This is the new orthodoxy.[27] Indeterminacy will be relevant to legitimacy only to the extent of the sum of its relevance to each of these particular grounds of obligation. If indeterminacy turns out to have little relevance to each ground on an individual basis, then its overall relevance will be modest at best.
My argument proceeds as follows: There is no general moral obligation to obey the law just because it is the law. But there may be particular local and context-dependent grounds that obligate particular individuals over some portion or the entirety of the law. For nearly every such alleged ground, with only occasional exceptions, either (1) the ground fails to generate a true moral obligation to obey, or if it does obligate, then (2) it obligates even when the law is indeterminate.[28]
Consider, for example, consent. Since most citizens have not freely consented to the state (perhaps some naturalized citizens are the exception), consent does not generate a general obligation for all citizens to obey the law.[29] Moreover, for those who have consented, the scope and content of the obligation will depend on the particulars of the act that constitutes undertaking a voluntary, deliberate obligation to obey. Did they consent to obey all judicial decisions or only those decisions grounded in determinate authoritative sources? It is thus in part an empirical matter how often indeterminacy is relevant to consent-generated legitimacy. Thus, although it is possible that some might consent to government only if law is not too indeterminate or only over the range where law is determinate, it seems unlikely that this is frequently the case. Most who consent will have consented to the government or some institution in toto, indeterminacy (if any) and all.
Tacit consent arguments fare no better. The most common version of tacit consent as a general ground of obligation is residence. Rousseau, for example, contends, "After the State is instituted, residence implies consent: To inhabit the territory is to submit to the sovereign."[30] But residence cannot constitute tacit consent to government because it is unreasonable to suppose that resident revolutionaries, anarchists, and outlaws consent to a government that they actively oppose.[31] Moreover, as Hume argues, the costs of emigration vitiate the voluntariness of a decision not to emigrate: "Can we seriously say, that a poor peasant or artisan has a free choice to leave his country, when he knows no foreign language or manners, and lives from day to day, by the small wages which he acquires? We may as well assert, that a man, by remaining in a vessel,
freely consents to the dominion of the master; though he was carried on board while asleep, and must leap into the ocean, and perish, the moment he leaves her."[32] Perhaps foreign visitors tacitly consent to a state's laws when their passports are stamped on entering the jurisdiction. If that is so, would not that tacit consent extend to areas where the law is indeterminate?
Indeterminacy is even less likely to be relevant to obligations stemming from the principle of fair play than it is to be relevant to obligations based on consent or tacit consent. Speaking very roughly, the principle of fair play holds that those who voluntarily accept the benefits of a scheme of social cooperation must accept the burdens of that scheme.[33] This ground of political obligation differs from consent in that one need not voluntarily commit to undertake the burdens of the scheme to be obligated; one need only voluntarily accept the benefits. (Indeed, this is its advantage over consent as a ground of political obligation.) Thus, the scope of the obligation depends not on the content of some voluntary undertaking by the citizen but on the terms of the scheme of social cooperation. The scheme can (though it need not) obligate a participant to the outcome of an adjudicatory process even if the outcome is indeterminate, provided that the outcome is not excessively unjust. Indeed, as part of the overall cooperative scheme, individuals accepting a fair share of governmental benefits may well be obligated to comply with unfavorable outcomes of both determinate and indeterminate adjudicatory processes.
The relevance of the duty to uphold just institutions to indeterminacy and legitimacy requires more extended discussion.[34] The standard criticism of the duty to uphold just institutions is that it fails to capture the intimate nature of a citizen's obligation to his country;[35] it cannot explain, for example, why Americans have a special duty to the United States government that they do not have to other equally just governments. Thus, it could be argued that the duty to uphold just institutions, even if it exists, does not explain political obligation.
This conclusion, however, is premature. The argument only shows that current expositions of the duty to uphold just institutions are incomplete. It is not implausible to suppose that one has a duty to uphold all just institutions, but that what that duty requires may be highly context-dependent. Thus, assuming that the British, French, and American governments are just, an American's duty to uphold just institutions may require only that she not hinder the just actions of the French government. Yet her obligations to Britain, which she frequently visits, may be far greater and might include obeying British law while visiting; they would not, however, extend to supporting or fighting in its armed forces. Certainly, her obligations to her country of citizenship would be greater
still. That she has little opportunity to uphold French institutions, modest opportunities to aid British institutions, and frequent opportunities to support American institutions does not explain these varying obligations.[36] After all, she could as easily send a check to the French government as to the Internal Revenue Service, and if she can travel to Britain, surely France is within her means. So advocates of the duty to uphold just institutions still owe us an explanation for why what the duty requires varies in the ways we have just seen. If that explanation is sound and does not smuggle in some other ground of political obligation, the traditional objection will be tamed. Part, but not all, of the explanation will rely on the fact that American law applies to Americans while French law does not apply to Americans. Hence, it appears that rejection of the duty to uphold just institutions as a ground of political obligation is premature.
We must therefore ask whether indeterminacy is relevant to obligation under the duty to support just institutions. Critical legal scholars will undoubtedly argue that an institution plagued by indeterminacy is less just and therefore less legitimate than is a determinate one, all else being equal. This is so, they argue, because in practice indeterminacy is a cloak for partial and arbitrary actions in the interest of the ruling elite. But then it is the partiality and arbitrariness of the institution, and not its indeterminacy, that makes it unjust. Moreover, it is arguable that justice not only permits but indeed requires moderate indeterminacy. Although justice demands that most things be settled in advance, there must be room for flexibility in marginal and exceptional cases in order that equity be done.
Under Joseph Raz's normal justification thesis for legitimate authority, an authority is legitimate for an individual over a particular subject matter if (among other conditions) the individual is more likely to do the act required by the reasons that apply to him if he attempts to follow the directives of the authority than if he makes his own independent calculation of what right reason requires.[37] Where indeterminacy prevails, courts, owing to their impartiality, training, and experience, are especially likely to be better guides to what right reason requires than are citizens who have only untutored judgments to guide them. Under the normal justification thesis, far from delegitimating courts, indeterminacy may well enhance courts' legitimacy and citizens' obligations to obey.
It must be conceded, however, that for a small class of individuals in certain areas, indeterminacy may be relevant to courts' authority over them. Indeterminacy will delegitimate courts' authority respecting particular areas for those individuals who are better than courts at calculating what reason requires where legal reasoning is indeterminate yet worse than courts where legal reasoning is determinate.
Moderate indeterminacy is no bar to legitimacy under Dworkin's recent revival of the ideal of fraternity or associational obligation.[38] Rather, moderate indeterminacy is the occasion for dialogue and necessary for the flourishing of the interpretive attitude that plays a central role in his political and legal theory.[39] Indeterminacy would bar legitimacy for Dworkin only if it reflected a substantial breakdown in community that ensured that dialogue about the best interpretation of our legal practices could not succeed.
Utilitarianism is in such disrepute these days that one might be excused from discussing utilitarian grounds for legitimacy. Although I am sympathetic to many of the standard objections to utilitarian thinking, it would nevertheless be a mistake not to consider utilitarian grounds for legitimacy, for under some utilitarian and coordination-of-behavior arguments, indeterminacy may well be relevant to legitimacy. Bentham, for example, thought that the purpose of law was to settle people's expectations. If a government failed in this task, it would, for Bentham, lack legitimacy.[40] Yet even here complete determinacy and predictability must be weighed against the need for flexibility. Flexibility is needed to permit experimentation with and investigation of alternative normative structures, to ensure fairness, and to promote other substantive values in situations not anticipated or fully appreciated in advance. Additionally, the inefficiency of indeterminacy can be mitigated insofar as areas of indeterminacy can be identified. We may be certain that here the law is uncertain.
Moreover, even if law were fully determinate and predictable, public expectations would not be perfectly settled because public knowledge would not reflect that determinacy. Even attorneys would be likely to give mistaken advice on occasion. It is possible, therefore, that moderate indeterminacy will have only minimal consequences for public expectations and that minimal loss in settled expectations will be outweighed in a utilitarian calculus by the substantive values the indeterminacy promotes. Thus, as I concluded in my discussion of the duty to uphold just institutions, indeterminacy that cloaks unjust and arbitrary decisions undercuts legitimacy, but indeterminacy that promotes equity enhances legitimacy.[41]
The duty of gratitude may be dealt with summarily. The duty of gratitude is insufficient on its own to generate political obligations, although it may enhance the force of other potential grounds of obligation.[42]
In summary, indeterminacy appears to have limited relevance to legitimacy because only infrequently does any valid ground of obligation require determinacy to succeed. For each potential ground of political obligation, either the specified ground fails to obligate, or if it does obligate where law is determinate, it also obligates (with respect to judicial
decisions) where law is indeterminate. In essence, determinacy is neither necessary nor sufficient for legitimacy at the global level and only rarely necessary or sufficient at the local or individual level.
Much more than these primitive thoughts must be ventured before it can be conclusively concluded that indeterminacy is in fact largely irrelevant to legitimacy. But suppose that large claim could be defended. Where would we be? Critical legal scholarship often aims at exposing liberal reform as at best a palliative for patriarchal, hegemonic, and oppressive social structures. Radical surgery is required if we are to have even a hope of achieving a moderately just and egalitarian society. The indeterminacy thesis plays a crucial role in the critique of the rule of law and liberal claims of the legitimacy of adjudication and the legitimacy of the law. But, if one may critique the critics, their attack on judicial decision making itself appears superficial, the removal of a minor and perhaps irrelevant blemish on a liberal doctrine with a decayed foundation. Insofar as critical legal scholarship accepts the postulate that the state is legitimated by the consent of the governed, it fails to go for the jugular and enfeebles it own critique. In this way, it is insufficiently radical. It should regroup and address the legitimacy of the state and of adjudication at its foundation.
But where does this leave the issue of indeterminacy itself? Is it simply irrelevant? Not at all. Radical indeterminacy may vitiate legality, as Fuller argues.[43] It may betoken that in fact no legal system exists in the relevant society. Moderate indeterminacy is compatible with legality. But it serves to put us on inquiry. Why is this rule, area of law, or entire legal system so indeterminate? The reason may be to allow flexibility in application because of our inability to determine the ramifications of unforeseen circumstances, as the due care standard in negligence law is said to do.[44] Or it may be due to the inherent abstractness of the requirements of justice and the contingency that no authority has had the need or the occasion to resolve the indeterminacy. Or it may be a cloak for partial or arbitrary action. Or indeterminacy may exist for any one of a myriad of other reasons, singly or in combination. So indeterminacy may, on occasion, be the visible manifestation of serious trouble at a deeper level. But we must engage in a contextually sensitive inquiry into the reasons for the indeterminacy before reaching that grave charge. No blanket condemnation—or celebration—of indeterminacy is either possible or desirable.
PART FOUR
PRACTICE
How Trial Judges Talk: Speculations About Foundationalism and Pragmatism in Legal Culture
Lief H. Carter
If any one issue underlies the many contentious jurisprudential debates of our time, it is the disagreement about the role and significance of doctrine, rules, rights, principles, and other legally prescribed forms in making political choices. I call foundationalists those who presume or assert that the good political choice necessarily reinforces the doctrines, principles, and normative structures that constitute the community. Foundationalism asserts that the goodness of a community depends on some degree of consistency or commensurability between the behavior and attitudes of community members and the authoritative commands and norms that claim to govern it.
Pragmatism defines community in a way that downplays the importance of the linkage between rules and choices. The pragmatic community is constituted by achieving and maintaining some qualities of effective communication among its members. A good pragmatic political choice appears not as an analytically sound conclusion but as an appealing narrative that reinforces trust in community capacity to converse about the meaning of experience. Experience constantly changes, and politics and science constantly examine and revise the lessons experience teaches. Formal principles of law, doctrinal philosophy, and academic analytical forms are incompatible with the narrative and conversational character of a pragmatic world.[1]
My distinction between foundationalism and pragmatism follows the prominent work of Richard Rorty.[2] Rorty, who describes himself as a modern Deweyan, proposes that we abandon a foundational philosophy of "knowledge as accurate representation, made possible by special mental processes, and intelligible through a general theory of representation."[3] Foundationalism does not deliver on its promises because we
cannot generate criteria for assessing the accuracy of representation and the intelligibility of general theory that are themselves beyond debate about their accuracy and intelligibility. Foundational debate rests either on a vicious circle of self-justification or on the infinitely regressive search for a philosophical bottom line. The contrasting pragmatic approach emphasizes the ways narrative and conversation connect us by creating and performing common elements of personal experiences.
Pragmatism as I use it here does not therefore state a justification for amoral and self-satisfying social action, nor does it advise stoic resignation to the imperfections of social life. Pragmatism claims to describe our experience of philosophical discourse accurately and to ground evaluative criteria in our experience of communication itself.[4]
Owing perhaps to the rule of law tradition in American political rhetoric—as indicated in the slogan "a government of laws, not of men"—much jurisprudence in the late twentieth century remains strongly foundational. This condition is hardly surprising since law's political role is to set authoritative but artificial boundaries to choice and debate so that polities can escape vicious circles and infinite regresses. Both the conservative "jurisprudence of original intention" of Robert Bork and Edwin Meese III and the liberal dignitarian jurisprudence of Ronald Dworkin are not compatible with discursive philosophy, for they, like the conventional view of law itself, claim to identify a method for specifying "correct" legal results. By contrast, the writings of James Boyd White expose law's narrative and edifying character. Judicial opinions, according to White, resemble poems. Legal and literary narratives and poems alike create a momentarily bounded space that is itself a model of democratic community. The reader participates and no voice is authoritatively final.[5]
The shift to pragmatism thus challenges jurisprudential conventions, including, perhaps, hermeneutic approaches developed in this volume. Pragmatism challenges academic rhetoric and discourse in at least two respects. First, if the standards for evaluating academic performance shift from those that attend the persuasiveness of conclusions to those that judge the narrative and communicative character of academic performances, we necessarily shift our critical posture. With respect to the hermeneutic concepts advanced in this volume, the question becomes not which hermeneutic technique most accurately connects us to the past but rather how each academic creation succeeds or fails to increase our connections with and commitment to our own academic community. Second, the shift to pragmatism raises the possibility that academic rhetoric may, as it preserves and builds academic community, differ so radically from the rhetoric of the legal world we attempt to describe that we cannot identify many significant features of legal experience.
The language of trial judges I describe here makes the possibility of such a trade-off seem more credible. If foundational views of law correspond closely to the experience of law doing, we should expect that practicing judges, gathering to reflect in private on the quality of their work, would talk about the meaning of legal doctrine, legal history, and intrepretive methods. Conversely, we would expect judges in a pragmatic world to talk about the quality of courtroom communication and about how well courtroom experiences correspond to empirical, affective, and moral components "of social life. Indeed, we would expect that such conversations would seek primarily to build community among the conversationalists themselves and that this goal might foreclose reaching any definitive conclusions about the legal process.
The Context of this Study
The judges whose talk I report here seem to live in a pragmatic, not a foundational, world. In 1986 I spent a week "on retreat" with fourteen trial judges from eight counties (two urban, three suburban, and three rural) in a moderately progressive state west of the Mississippi River. The week combined study and reflection on the nature of the judicial process, the role of the judge in society, and the judges' personal job satisfaction, with eating, drinking, singing, play reading, walking in the woods, and general good fellowship.
Their talk about law struck me as candid and uninhibited. I observed that the detailed exploration of and fidelity to legal and political doctrines and principles simply didn't interest these judges. But the failure of rules, doctrines, and procedural forms to fit with what experience and common sense taught them provided a nearly ubiquitous source of conversation. Indeed, just as White's jurisprudence suggests, storytelling more than analytical debate marked our conversations. The storytelling process enabled the judges to corroborate or improve interpretations of their personal experiences and thereby to strengthen their own small community.
There are, of course, many analytical pitfalls in the approach I use here. For reasons I give below, I did not tape or take verbatim notes of the conference. Most notes on the conversations I report here as verbatim I in fact worked out in my room at the close of a session from notes I scribbled down as time permitted during our talks. I am not confident that I have a representative sample of trial judges. There is every reason to believe that putting judges in a retreat setting would very much encourage the kind of talk I heard. I cannot say how well this talk transfers to the courtroom. Also, readers familiar with my recent writings will see that what I report here confirms my theoretical argument.[6] Such readers
might understandably dismiss the whole exercise as self-serving. My best response can only be, let's talk about it.
However, I cannot resist signaling one minor and one major inference we might draw from what follows. The minor inference (minor because it is in most respects already obvious) is that the political move to return the United States federal bench to some kind of mechanistic jurisprudence is an extraordinarily significant political event. If our dominant legal and political culture is in fact pragmatic, the imposition of a foundational model of legal and political goodness from the federal bench may substantially increase political tensions.
My major speculation, to which I return at the end, concerns the state of judicial behavior research. If our legal culture is pragmatic—that is, if my observations do transfer to the courtroom, though I hardly prove that here—then we may have some explanation for the persistently low correlations we find between judicial attitudes, social backgrounds, role orientations, and personality characteristics on one hand and case outcomes on the other.[7] These variables may be analytically puny because they, like conventional jurisprudence, belong in a foundational academic world that does not fully appreciate the fluidity and openness of communal discourse.
The Conference and its Participants
The Experienced Trial Judges Symposium, which took place in a comfortable rural resort on a lake, was the brainchild of a trial judge in his early fifties. The retreat invited superior court judges (general jurisdiction) with a minimum of five years experience on the bench to "recharge their batteries." The budget for this experience (the first of its kind in the state) covered nearly all the judges' expenses, but the judges consumed a week of their vacation time to attend. Spouses were excluded. Fourteen of the fifteen available slots were taken.
Except for a few hours each afternoon, the week's schedule was structured fairly tightly. For two and a half hours each morning the group focused on jurisprudential issues. These sessions, which I organized and directed rather like a graduate seminar, required the judges to read or skim approximately five hundred pages of material, which I distributed a month in advance. The reading included my Reason in Law (1984) and a ring-bound collection of news clippings, short scholarly articles, and one long case opinion concerning removal of the feeding tube from an elderly and irreversibly comatose patient.
Sessions scheduled for late afternoons and evening covered stress reduction techniques, comparative law, race relations, play reading (The Caine Mutiny Court-Martial ), folksinging, and a beer and taco party. We
were seated at one time for all lunches and dinners. I and all the judges attended virtually all scheduled meals, discussion sessions, and social activities. Dress was informal throughout the week.
In addition to my morning seminar responsibilities, my role obliged me throughout the week to become as complete a member of the community as possible. To have taken exhaustive notes would have interfered with free give-and-take in seminars, at meals, or over a beer, so I rely here on comments scribbled in such odd places as the margins of the readings, supplemented by my memory and the conversations I wrote down in my room, perhaps between lunch and a squash game or before turning in for bed. I invited the judges to let me know privately of any objections they might have to my writing of my experience for a scholarly audience. Obviously, no one objected. They were instead mildly amused at the prospect that their conversations might rise to the dignity of scholarly data.
My presence did not seem to inhibit candid talk. For example, during the retreat the state legislature was putting together the final budget package for the coming year (one that included judicial salaries), and we received reports from the retreat coordinator from the capital twice daily. Before lunch on the first full day the coordinator announced that a House committee had just cut the budget for the state court administrator's office in half. She then half-jokingly said, "I've got a roll of quarters and I'm going to stand by the pay phone in the lobby for the next half hour. I want you to call and complain before you eat!"
I chose not to gather and record detailed information on each judge. I did learn that the fourteen judges (twelve white males and two white females, one of whom came from a Spanish-surname family originating in Mexico) ranged in age from late thirties to mid-sixties. In social conversation I learned that at least one considered himself a Reagan Republican and several were New Deal Democrats. Nearly all had been appointed to the bench initially by a governor, and most had stood for reelection at least once. Most described themselves as having been moderately active in politics, and perhaps a third had served as prosecuting attorneys early in their careers. The group included college graduates from Stanford, Berkeley, Carleton, and the major colleges of the state. Their law degrees came from Minnesota, Colorado, Hastings, the University of Chicago, and of course the state university.
I asked the judges if they thought they typified their state's superior court bench. The judges seemed to believe that they did. "We're just the ones who happened to have the break in our docket at the right time and could fit it in," said one. I was not so sure. I found the group more articulate and liberally educated than I would have guessed. As an icebreaker the first afternoon the coordinator (the judge who organized the
conference) asked each of us to give a short autobiography that included two specifics: our favorite course in college and favorite pastime. The responses were not those of television watchers or bridge players, and in most cases they were specific enough to remove doubts about patterned response. The amateur astronomer avidly maintained his college interest in all aspects of Civil War history. Many fondly recalled courses in Greek and Roman history. Half listed an active present interest in music performance and music theory. The group contained six singers, two guitarists, a jazz trumpet player," and a violinist. One judge, who read Queeg's breakdown in our play more powerfully than did Bogart in the film, devotes his spare time to motorcycling.
I kept a separate sheet on which I jotted conversation topics unrelated to law. While the judges engaged in the usual conversations about families, hobbies, and spectator sports (though I encountered very little interest in organized sports), I noted the following informal discussion topics:
|
Presumably the call to reflect on one's professional life attracted judges who enjoy reflecting. Also, every judge knew at least one other participant very well, and it is possible that my group was largely selfselected for mutuality of interest. However, if these biases tended to produce a group of cerebral judges, we might expect the biases to exaggerate their interest in doctrine, logic, and analytical abstractions. Despite the fact that these judges were, by any standards of good academic performance, impressively articulate, insightful, self-confident, and ready to challenge each other's positions, formal doctrine and theory and the logical application of abstractions did not interest them or drive their talk.
Judicial Philosophy
At our first meeting (a Sunday afternoon) I was given an hour to introduce myself and describe my expectations for our upcoming morning discussions. After giving my short autobiography, I explained that we would discuss judicial philosophy during the week and asked them each to write a one-page answer to the question "What is your judicial philosophy?" I told them I would collect their responses at the end of the week and asked them not to sign their names. I explained that I wanted a record of what a "philosophy of judging" meant to them uncontaminated by my own "ivory tower" perspective. The group asked me to clarify what I meant by a philosophy of judging, and I (who had not anticipated the question) advised them to describe and differentiate the conditions in which they went home from work feeling satisfied and dissatisfied about how they had done their jobs.
All of their statements appear verbatim in the Appendix, in random order. (Two judges arrived after the introductory session, so I collected comments from twelve judges.)
What language and concepts might judges in a foundationalist system use to describe their philosophies? I would expect them to care about the institutional role of courts in politics, about "knowing the law," about their impartiality, and about preserving the dignity and hence legitimacy of the courtroom. I would also expect them to employ a rather uniform vocabulary and similar clichés to describe their philosophy. I would expect such judges to measure fairness and justice in terms of consistency with rights, rules, etc. I would not expect them to stress the interactive and communicative quality of their work or to define fairness experientially, for example, as "creative problem solving" or "being a good listener."
I am not trained in the techniques of content analysis, but I found the following categories of comments in the Appendix, which I urge you to read:
Concern for fairness/justice independent of law: 5
Responsiveness to community expectations: 2
Personal communications skills (patience, being a good listener): 7
Maintaining trust in institutional/societal, dispute settlement: 1
Being creative/dynamic problem solver: 3
Explaining/selling the decision to the parties: 2
Impartiality concern ing race, sex, etc.: 1
I found fewer clichés than I expected, and pragmatic concerns seem to me to occur more frequently than formal or legal concerns. For example,
these comments hardly mention "being up on the law." Of course, my suggestion that judges report what made them feel satisfied or dissatisfied about their work encouraged pragmatic (experiential) rather than formal responses. Even so, phrases such as "Occasionally I see their eyes, and they see mine, and we know it" or "I have not had an opportunity to weep over the tragedies I have dealt with" surprised me. In these uncontaminated and spontaneously written comments the majority of these judges seemed to associate legal fairness quite powerfully with the quality of communication in the courtroom community.
Legal Reasoning
In order to introduce my "themes" for the week I posed to the group at the initial meeting a hypothetical legal problem (one I had used successfully in college classes) for which I believed no obvious legal solution existed: Sanford Levinson's "On Interpretation: The Adultery Clause of the Ten Commandments."[8] I read, with minor modifications irrelevant here, the first three pages of the exercise, which begins this way:
In 1970, a number of concerned citizens, worried about what they regard as corruption of American life, met to consider what could be done. During the course of the discussion, one of the speakers electrified the audience with the following comments:
The cure for our ills is a return to old-time religion and the best single guide remains the Ten Commandments. Whenever I am perplexed as to what I ought to do, I turn to the Commandments for the answer, and I am never disappointed. Sometimes I don't immediately like what I discover, but then I think more about the problem and realize how limited my perspective is compared to that of the framer of those great words. Indeed, all that is necessary is for every one to obey the Ten Commandments, and our problems will all be solved.
Within several hours the following plan was devised: As part of the effort to encourage a return to the "old-time religion" of the Ten Commandments, a number of young people would be asked to take an oath on their eighteenth birthday to "obey, protect, support, and defend the Ten Commandments" in all of their actions. If the person complied with the oath for seventeen years, he or she would receive an award of $ 10,000 on his or her thirty-fifth birthday.
The group creates a "Foundation for the Ten Commandments," which in short order raised an endowment from a national campaign with income sufficient to cover 500 annual awards beginning in 1987. I asked each judge to assume the role of the foundation's sole trustee, whose job it is in 1987 to decide if each oath taker had complied with the oath. The problem continues:
"Claimant A is a married male. Although freely admitting that he has had sexual intercourse with a number of women other than his wife during their marriage, he brings to your attention the fact that "adultery," at the time of Biblical Israel, referred only to the voluntary intercourse of a married woman with a man other than her husband. He specifically notes the following passage from the article Adultery, I Jewish Encyclopedia 314:
The extramarital intercourse of a married man is not per se a crime in biblical or later Jewish law. This distinction stems from the economic aspect of Israelite marriage: The wife as the husband's possession…., and adultery, constituted a violation of the husband's exclusive right to her; the wife, as the husband's possession, had no such right to him.
A has taken great care to make sure that all his sexual partners were unmarried, and thus he claims to have been faithful to the original understanding of the Ten Commandments. However, we might define "adultery" today, he argues, is irrelevant. His oath was to comply with the Ten Commandments; he claims to have done so. (It is stipulated that A, like all the other claimants, has complied with all the commandments; the only question involves compliance with the commandment against adultery.)
Upon further questioning, you discover that no line-by-line explication of the Ten Commandments was proffered in 1970 at the time that A took the oath. But says A, whenever a question arose in his mind as to what the Ten Commandments required of him, he made conscientious attempts to research the particular issue. He initially shared your (presumed) surprise at the results of his research, but further study indicated that all authorities agreed with the scholars who wrote the Jewish Encyclopedia regarding the original understanding of the Commandment.
The trustee in Levinson's problem faces a total of five cases, including that of B, A's wife, "who admits that she has had extramarital relationships with other men. She notes, though, that these affairs were entered into with the consent of her husband. In response to the fact that she undoubtedly violated the ancient understanding of 'adultery,' she states that that understanding is fatally outdated."
I assumed that this amusing and provocative problem would, in addition to breaking the ice if that proved necessary, quickly stimulate a lively discussion that would introduce the inevitable ambiguities and indeterminacies in legal reasoning. But the exercise fell flat, unlike my experiences with the identical exercise in three academic settings. When I asked for a show of hands first on A 's case and then B 's, all but two judges voted confidently against giving the award to either A or B . What I took to be a surefire teaser was for them a simple case because, as one judge puts it, "Everybody knows what adultery is." Another said, "As I see it, this is a straightforward contractual agreement calling for standard contractual analysis of the mutuality of intent. I think it's safe to infer that at the time they entered the agreement, neither party could fairly be
understood as endorsing the ancient Hebrew definition of these concepts." "Old-time religion" seemed obviously to refer to good old family values, not to the religion of the "framer(s)" of either the Ten Commandments or of the private morality oath. I asked whether A 's good faith made a difference: "Doesn't it matter whether A 's lawyer discovered this excuse in the Jewish Encyclopedia two weeks before A 's thirty-fifth birthday, on the one hand, or that, on the other hand, A used the Jewish Encyclopedia from his eighteenth birthday onward whenever he confronted an interpretive problem?" One judge said he'd have to think about that more and switched to abstain regarding A .
In conversations during the week I learned why this problem, and particularly the ambiguous reference to "old-time religion" and "the framer of those great words," did not challenge the judges: all these judges agreed in principle that they hold a representative office comparable to a legislator's. Judges quite properly work to keep governmental action in line with fundamental community expectations and values. When confronted with an ambiguity in law, these judges imagined themselves both capable of and empowered to resolve the ambiguity not through deeper legal research and analysis but by opting for that choice which better fit their vision of community values and experiences. They distinguished this democratic impulse from community pressure, perhaps through the press in specific cases, which was both annoying and inappropriate. These judges did not, in other words, define themselves out of or separate from their communities, and they believed that their experiences as citizens properly influenced their hard choices.
The Dominant Pattern of Structured Conversation
In the morning sessions I began by introducing the main theoretical topics in the assigned reading, but discussion quickly left the theoretical starting point far behind. Here I reconstruct a page from my notes and trace the pragmatic and experience-driven conversation it generated. The illustration, which I designed to stimulate a discussion of how judges determine community expectations, led instead to my polling them about the distribution of hard and easy cases reported in table 1.
LHC: Often a legal rule in isolation seems quite clear. Ambiguity arises because you have to decide whether or how a rule fits the case facts. Here's my version of a hypothetical suggested by Mark Tushnet in a talk I heard last year. Imagine three constitutional rules we all presumably believe are clear:
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Now suppose an 18-year-old Hindu fundamentalist—we'll call him Ganghi—from Reindeer, Oregon, gets himself on a hypothetical Democratic presidential primary ballot in Oregon. Let us assume that Ganghi is a bright person by anybody's standards and that a lot of non-Hindu voters believe he radiates a deep and positive spiritual understanding. Assume that another Democrat on the ballot fears that Ganghi will siphon off a disproportionately high number of his votes and brings suit to disqualify Ganghi on age grounds. Ganghi defends that he is in his second reincarnation, that he is in fact 109 years old, and that thousands of his followers so believe. I assume you'd all rule as a matter of law that Ganghi fails to meet the required age of 35; but my point is that the rule wouldn't dictate that result: you'd reach that result by somehow "reading" our culture and then concluding that in those terms Ganghi is 18, not 109.
Paul: I wouldn't rule that way. I'd say it was a political question and let the party handle it. This is a real can of worms that I'd just as soon avoid if I could.
Bob: Well, maybe this is a political question, but the real problem is that the public increasingly sees courts and judges as a place to test their pet theories. The courts are becoming a sort of Hyde Park. A lot of cases, what I call "recreational litigation," are pretty ridiculous and frivolous.
LHC: I'd really like to know what percentage of cases strike you as frivolous—cases that raise no serious legal or factual issue and that waste time and money.
Henry: In my experience there's usually—in fact I'd say there's almost always—a hard kernel of legitimate uncertainty. It's not hard to find a good issue in a pretty ridiculous case—like your hypothetical. But the real problem is time. It's so scarce. I know, because we've discussed this before, that custody cases are about the hardest, the most stressful, cases we face. And we tend to be very patient. Almost any custody case in which you look at people's characters can uncover all sorts of hard questions. They can go on forever, but we can't take the time.
Norman: I sure agree that custody cases are tough, but on this recreational litigation thing, I know in my county [an urban jurisdiction] pro se's [civil suits filed by plaintiffs without legal counsel] are becoming an epidemic. I just, as politely as possible, throw most of them out and keep my fingers crossed that the court of appeals will bail me out.
LHC: How about the Prochow case I asked you to look at for today? [In Prochow v. Prochow, 1957, the Wisconsin Supreme Court upheld a paternity ruling despite the introduction in evidence of two uncontroverted blood tests showing the "father's" blood type incompatible with paternity.] That strikes me as a completely frivolous case. If you let the case go to the jury without
any evidentiary basis for doubting the accuracy of the blood tests, aren't we saying that the jury can speculate on the will of God or any other crazy thing?
Don: There's a fiction in this case, but I don't think the court there was necessarily frivolous. In fact I think I agree with the result. At least I agree if we read the statute as asking juries to decide whether a kid ought to have a father. We all know the difference it can make to grow up without a father, or not knowing who your father is. And [Prochow ] isn't one of those cases where if X isn't the father Y is. If the court doesn't find that Robert is the father the kid won't have a father, period. I avoid reaching that result every way I can.
LHC: OK. I hear a real disagreement. Some of you experience more frivolous litigation than others, so I'd like to take a poll.
My poll suggested less judicial agreement about the distribution of frivolous versus hard cases than I would have expected. I asked the judges to think of their rulings on motions and decisions in trials without juries as falling in any of three mutually exclusive categories. I asked them to list the following as percentages:
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In a foundational world we would expect more uniform agreement on the clarity of rules and cases than these results suggest. It would seem instead that the frivolity of a case depends primarily on individualjudicial experiences, preferences, and values.
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This discussion pattern repeated itself each morning. The conversation would quickly drift from the theoretical points I had introduced—for example, why objectively there is no such thing as legislative intent—and move into personal reflections and stories. Often the point of the stories related only dimly to my starting point. And as the excerpt above suggests, the judges felt no pressure to restrict their impulse to talk to the substance of the previous comment.
At first this pattern, which sometimes resembled free association, frustrated me. Lacking my accustomed ability to steer conversations because I had no power to award grades, I had to abandon my format frequently. But as I've suggested, these judges were well-read, mentally agile, energetic, and at least partially self-selected by their interest in the deeper workings of the law. I believe the dominant pattern of these conversations seems more purposeful and coherent if we imagine that the judges engage in a pragmatic community-building process of their own.
By this I mean two things. First, if these judges' sense of the goodness of their own community for our week depended on the openness and honesty with which they converse about their personal experiences, then the first order of business is to get one's experiences on the table. The linear discussion I tried initially to encourage inhibited judges from expressing what they felt like saying. Second, if the judges define the justice that they do on the job and the fundamental fairness of the legal process in terms of the quality of communication in trial courts, then they may not have changed the subject at all. For them the story of an 18-year-old presidential candidate who claims a reincarnated age of 109 wasn't about applying rules to facts in the first place. It was a story about when courts can and can't be effective problem solvers. Paul, Bob, Henry, Don, and Norman all do talk about that.
As I've indicated, conversations throughout the week repeatedly turned into discussions of specific issues and frustrations. Judges sought to build community among themselves not by working toward a consensus definition of a problem and solution but by telling stories. Here are three examples. (Separate quotations indicate different judges speaking to the same issue.)
1. | Question: Wouldn't you improve communication in the courtroom if you gave some kind of informal posttrial explanation of the outcome to the losing party? Response: "I think there are lots of good reasons not to do that. If you're really candid, you may sometimes give the loser the impression that they should sue their own attorney for malpractice." "In a difficult custody case, where I awarded custody to the father, I bent over backward to reassure the sensitive and nervous mother that I wasn't saying she was a bad person. By the time I was done, I didn't know why I'd ruled for the father. All I'd done was given her greater incentive to appeal." |
2. | Question: How do you go about announcing a decision? Response: "We have very few written trial court opinions in this state, and we get little or no training in the art of delivering oral opinions. I feel ineffective whatever I do. If I start off announcing winner and loser, the loser gets mad and turns off. But if I start off doing the facts point by point, the parties get fidgety. Sometimes when they don't know whether they've won or lost they can't tell how what I'm saying explains my decision." |
3. | Question: How conscious are you of changing your decision or your reasoning to avoid a reversal? Response: "Sure, you occasionally have results that just don't write, but most of the time you reach the result that's fair and then build your thinking around it. I don't feel I reach an unfair result very often." "We disregard precedents, but we sure try to avoid reversals. Nobody likes to be chastised. If I'm going to ignore a pretty clear line of cases I've gotta have some signals that our supreme court is ready to change. Fortunately, those signals are pretty clear a lot of the time." "Well, I don't know. Maybe it's just that I'm in a rural county a long way from [the capital], but there are cases where I say to myself, 'Well, the precedent is on all fours, but I think it's wrong, and those guys are over in [the capital], and by God, I'm deciding this case.' Sometimes I just feel sort of defiant." "I had a marijuana bust based on an officer's statement that he had identified a plot of marijuana from a small airplane flying at fifteen hundred feet. On a motion to suppress, defendant puts on a botany expert who says neither he nor anyone else could identify a marijuana patch from fifteen hundred feet. I didn't suppress the officer's testimony, even though the expert was uncontested. I just decided he could be wrong." |
Law and Politics
Gauging from the groans, sighs, and other body language that accompanied the topic, the uncertainties of their political world bothered the judges more deeply and uniformly than did any other aspect of their work. Elections were, not surprisingly, the most stressful political environment of all. This section integrates three lively conversations on the subject:
"What a depressing topic! We all know someone—a competent judge we respect—who's lost an election. I can think of four or five during my time, including Henry here [the organizer of the conference, whom the governor had subsequently reappointed to the bench]."
[Henry:] "Yeah. And I can tell you it doesn't feel good at all. Your ego and your hopes get so wrapped up that losing is just about the most emotionally devastating thing imaginable."
"I think in this state and maybe in others the biggest problem is that your retirement system doesn't vest until you've served fifteen years. It's terrible. You don't even get your own contribution back. So you get ten or
twelve years under your belt, suddenly you face a challenge, and it just eats you up emotionally. In an election the only thing you can count on to come up in meetings and the papers is how tough you are on crime. So you give talks to groups that you know are a bunch of crap. It's demeaning and corrosive on the psyche. I don't go out and shout that we should throw drug pushers in prison for life, but I hear myself trying to sound a little like that, and I know it isn't me and it isn't honest."
"That's right. It's damn politics that prevents me from being candid and getting into the issues I care about."
"Well, it's not just elections. I was once interviewed for a possible federal district court appointment. And one of the first questions they asked was 'Would you legislate from the bench?' You can't answer that question honestly in just a sentence or two. So you say something like 'Of course not,' and then feel badly afterwards.
"You try not to let it influence your actual decisions, but sometimes in criminal cases in the press during a campaign it's tough. I'm sure it's easier to say the policeman was probably right. And if you can shade something where it won't make a real difference, you do that. In that case we discussed a couple of days ago [Repouille v. U.S., 1947], I'm sure that's all Learned Hand was doing. He was juggling political expectations [opposition to mercy killing] against the [naturalization law], and that was OK because it was only technical and Repouille was going to get his citizenship either way."
"I don't know. I'm not sure whether there's too much political influence or not enough. At one end we have the average citizen who has a very short attention span and tends to be mobilized by right-wing causes. At the other end there's the U.S. Supreme Court. We lawyers sort of represent upper-middle-class businessmen, and we're caught in the middle. I've developed a little Chamber of Commerce speech where I give some hypothetical search and seizure problems and ask the audience whether they think the thing is reasonable just in their gut, not on the law. Most of what they say is pretty close to what the Warren Court said. They're sometimes surprised when I point that out, but this seems to generate some sympathy I might not get otherwise."
"I've only had one serious election challenge, which I won, so in retrospect I feel pretty good about it. But I will say that it forced me to get my act together a little better on some things. You can't duck behind the canons of judicial ethics in a campaign."
"But don't you agree there's a decline in respect for judges, a general decline from Vietnam and Watergate in respect for political authority of all sorts? I think the whole ballgame may be changing and that we're inevitably becoming more politicized. Look at the massive dollars spent in California [to unseat California Chief Justice Rose Bird]. Once our opponents get really well organized and well financed, we will either have to roll over and play dead or play that game."
"Yes, and we all know that in a hot political case honest legal craftsmanship doesn't get you very far. We all know about Judge [X ]. I think that
ruling [in a controversial federal Native American land case in which the award granted Native American control of land previously occupied by whites] shortened his life by five years. He was a conservative Republican, but he read the treaty in a perfectly straightforward way. He always made a brave show in public, but I knew it just ate away at him to drive home at night and see so many cars with ugly, hateful bumper stickers about him. And he had thought that opinion was the greatest work of his life."
Again, I do not replicate these comments at such length to prove hypotheses about the effects of politics on the legal system. I am only interested in how judges talk about politics. Judges come to terms with an issue (in this case politics) by transforming the abstraction into experiences and stories through the open flow of conversation. It is no small irony that their frustrations with electoral politics center on how the campaign environment so frequently corrupts the possibility of open conversation.
Summary and Speculations
I hope I have not given the impression that my own morning sessions flopped and that I've written this paper to explain away a personal failure. The program evaluations at the end of the week were positive about nearly every aspect of the symposium. Evaluative comments expressed appreciation for the chance to think more deeply about the legal process, and I was asked on the last two days to increase the length of my morning sessions.
Still, I drastically underestimated the extent to which these judges understood and accepted the creative character of their roles. I had written in my introductory talk this passage:
We're told that ours is a government of laws not men. You judges need to announce that you rule for defendant because "the law says X," not because "I say the law says X." "I say the law says X" is a government of men, not law…. The essence of the material we'll talk about this week holds that it's OK to reach a result because you believe the law says so. Justice depends on the process of communicating and justifying your conclusion, not on proving that you got the "one right answer." Proving that you got the one right answer is in fact an impossible task.
None of the judges found that distinction helpful or insightful. These experienced judges had already resolved the cognitive dissonance inherent in the "government of laws not men" philosophy by accepting their ability and their authority to shape legal outcomes to conform to their own visions of community expectations. In nearly every case this acceptance seemed essential to their personal job satisfaction.
The methodological softness of my project warrants only speculative conclusions. I did not observe judges in their native decision-making habitat. I have suggested that "knowing the law" seemed relatively unimportant to these judges, but that impression might be due to the presence of easy on-the-job routines for locating the law. "Knowing the law" might be a routine of no concern to these judges, but in the courtroom habitat these judges might well communicate in much more formal and law-driven ways.
I do, however, hazard the speculation that if what I saw indicated what judges think they do or ought to do in court, then I may have observed something of their internal decision-making-processes, even if their outward behavior on the bench differed. If so, then decision making is significantly driven by the judge's aesthetic impulse to make the idiosyncratic and unique elements of specific cases fit both with each other and with some commonsense view of collective community experience.
My hunch is that in the quest for statistical associations between the independent variables of judicial attitudes, role orientations, social backgrounds, and personality characteristics and the dependent variable of legal choice, the more pragmatic the legal culture the weaker these associations would be. That is, the more the decision process reflects the judge's attempt to create out of courtroom conversations a good (if temporary) community, and the more good conversation strives to make sense of and share personal experience, the more fluid the outcome relative to the conventional independent variables of social science. I would, in other words, expect higher correlations between judicial attitudes and outcomes in a more foundational legal culture because attitudes, as we now measure them, attach more readily to doctrines than to experience.[9]
This consideration brings me to my final speculative question: What forces within the academic culture of the social sciences lead us to expect to find (or care about finding) strong associations between the stable characteristics of a judge and his or her decisions? I wonder if the social science enterprise has not built its research questions and methods on foundational premises. In law we rightly abandoned the substance of mechanical jurisprudence, but I doubt that we have abandoned its metaphor. Legal theorists may seek a world governed by principles and theory and doctrines much as Ed Meese pretended to do. The frequently unimpressive correlations might, of course, become more impressive with better measurement techniques, and the routines of normal science certainly make it legitimate to seek them. But perhaps we persist because we believe the legitimacy of law requires some showing of its disciplined regularity. If we traded in foundational assumptions about the legitimacy of the legal process for pragmatic and therefore more fluid ones,
we might improve our powers to describe, explain and conceivably even predict legal outcomes.
Appendix: Trial Judges' Self-Reported Judicial Philosophy
The following reports are reprinted with corrections of minor punctuation and spelling errors.
A. Basic to my judging is to meet, at least in part, my ideal of making the process work and achieve a reasonable measure of justice. There is an intellectual component, to neatly "solve" the legal problem, like a chess problem, but that is secondary. I am troubled when the system, jury verdict or rule I accept doesn't seem fair—although perhaps I can justify it in long term results. The frustration of being unable to "solve" hard custody cases, being unsure of who is lying, of seeing poor legal work by the lawyer hurt the client is very real and hard to accept. I do not feel very "stressed," but possibly I am merely unaware of the facts.
B. I am generally satisfied with my role as a judge and my contribution to the law and society generally. I am probably as fulfilled in that sense as anyone can reasonably expect to be.
My commitment to my job affords me the opportunity to bring to bear with varying degrees of "subtleness" my beliefs, philosophy (faith), etc. in ways I believe give me an extra measure of effectiveness.
That is to say that my belief in patience, the importance of restraint, the recognition of the importance of the individual, or declaring the significance of an organized system for resolving disputes between individuals and institutions in a civilized society all come to bear in every case as well as through my contributions to the essential administrative features in the court system.
In short, I believe I have some contributions to make as a mature, sensible designated representative of my fellow human beings to the special business of insuring a humane and civilized society.
I feel it is a privilege—and an opportunity to grow every day.
C. (a) I go home frustrated because:
The system has failed to be fair and the search for the truth has failed because of:
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(b) I go home feeling fulfilled because:
The system seems to be fair and the search of the truth seems to work in spite of 1, 2, 3, etc.
My philosophy of judging is to try to make the system as fair as possible and as responsible as possible to community expectations without giving in to the "Cry of the Mob."
D. As a lawyer my philosophy was generally creative. I tried to tell and help clients do what they wanted to do—not just that they couldn't or that it was difficult. But—when it came to techniques of drafting, trial strategy, etc, that I was the boss. We did it my way or not at all.
I have taken that philosophy with me to the bench. I try to be creative—and have only been reversed once for so-trying. But I let the lawyers know up front that I am running the show. Some people—particularly lawyers—object to this on the basis that it prevents parties from fully exploring all the factual and legal issues from their viewpoint, etc. However in 4 judicial evaluation polls I have consistently got high scores in almost all areas, including such matters as "reads and listens to briefs and oral argument"—"articulates reasons for ruling," etc. So, this philosophy is apparently working for me.
E. My philosophy of judging is to resolve the disputes that come before me fairly, that is, to use the guides provided by the law, my common sense and the guides of the culture, without bias—or at least be conscious of bias and bull headedness. This means making decisions with the appearance of fairness, as well as actual fairness, so that whatever the result it will be reasonably acceptable.
I believe in a dynamic interpretation of the law in the light of present culture and needs and not a rigid application except where specifically requested.
F. I. If I feel: (1) that I have heard and understand all the arguments; (2) that I have considered all the arguments; (3) that I have considered how the parties feel and will be impacted by the decisions; (4) that I have clearly communicated my understanding of the above; (5) that I have had time for enough reflection so that I can say that it feels good in my gut (or innermost being); and (6) that I have, by my style in rendering my decision "sold" the decision to the parties and their lawyers,—then I feel good.
II. But if I feel the lawyers and/or their clients (or any one of them) have not accepted the decision and the controversy continues—OR if on further reflection in my heart of hearts it does not feel right—OR if I have not had an opportunity to weep over the tragedies I have dealt with and let go of them—then I feel bad.
III. Basic philosophy is I am "selling" a decision and justice is the goal .
G. I consider that justice consists mainly of fair procedures rather than right results.
I feel good when I come home believing that the litigants know that I tried hard—that I listened —that I gave each side a chance to present—that I understood their point of view—and that I obviously struggled to explain my reasoning and my judgment. Occasionally I see their eyes, and they see mine, and we know it.
I feel bad about my job when I can't reconcile the values; when the case seems too hard to decide.
I feel bad when I find that I had to change my ruling, especially if it's for the 2nd (or 3rd!) time. (This happens on evidentiary issues some; sometime on substantive rulings).
I feel badly if I got too short and didn't give both (or one) sides enough time or patience.
I feel that nearly every case is pretty important. I almost never get sleepy or bored. I feel very good about my attitude toward most cases.
H. I feel satisfied at the end of a day when I am satisfied that I understood the problems that were presented and the respective positions taken by the parties and that the resolution I have fashioned is consistent with the fact and law that may be present within the problem. My sense of justice is derived from those values that I hold which are reflective of community values—for the most part—community values as they may be or as I in some cases think they are.
I. (1) To be a good listener and (in a court trial without a jury) to ask questions of lawyers to probe their arguments (as contrasted to a judge who just listens and then decides the case with little probing from the bench).
(2) To decide case promptly at the conclusion of the trial without taking the case "under advisement" (except in very rare instances, and in those cases to decide the case within only a few days of the conclusion of the trial).
(3) To be totally nonracist and nonsexist in my decisions with litigants and lawyers.
(4) To hold back my desire to decide the case in "mid-stream" and to truly wait until after all the evidence and arguments are completed before deciding the case.
J. I see my role as largely being a problem solver: an expediter. I make decisions that the parties and their lawyers are unable, or unwilling, to make themselves. Most of the decisions involve either close questions or have painful consequences. I think I am basically sensitive and
reasonably competent and broadly open minded. It distresses me that I am not always regarded as such by lawyers who, I at least feel, seek scapegoats for their failure to understand their side well enough. I consider my task to be intellectual—a search for true facts and a reasonable and logical application of legal principles. It is always a disappointment that lawyers, and to a lesser degree their clients, most often, judge the decision from the viewpoint of their own self-interest.
The many cases which do not provide a "right" answer are my biggest frustration. The sentence which neither deters nor reforms, the distribution of assets and liabilities in a divorce that leaves both parties unable to cope—not because the decision was faulty but because there simply were insufficient assets. These are the cases I bring home with me.
K. What is my philosophy of judging?
I feel good when I go home Friday evening when I feel that I have provided an atmosphere where litigants can air their disputes thoroughly, before a jury that appears to be fair and open minded, instructed on the law giving both sides fair opportunity to argue their case. My job is to remain fair and neutral, to be patient yet firm, to preside with dignity and respect for our legal system, to make timely rulings on motions and objections, and to render decisions that recognize arguments presented by all sides with respect to the dignity of every person before me.
I feel frustrated when high caseloads or other administrative demands prevent me from providing the kind of atmosphere I have described in the first paragraph.
L. Persons come to court because they cannot resolve a problem that rests between themselves. Therefore, a most important job for the judge is to listen to each part of the problem. Listening with the goal to hear what a person is saying is hard work. The judge must hear beyond the words the person speaks and can learn by asking questions when he doesn't understand or when the person needs encouragement. Being able to actively listen makes a day worthwhile.
But hearing people necessitates understanding the content of a problem. The judge must know the rules and law into which the facts fit. Because I do not know all law and rules, I know I must continually open my mind, to learn while calling on my education.
The challenge of maintaining a truly accepting mind-set, attempting "to hear" spokesmen, and to give the appearance of understanding makes the job the most exciting, challenging possible.
My philosophy as a trial judge, on a practical level, is to provide a setting in which people feel they have had their say and the system of law has resolved a conflict.
Why Constitutional Theory Matters to Constitutional Practice (and Vice Versa)
Michael J. Perry
What does it mean to "interpret" a text? What is a "text"? Is interpretation a constrained or an unconstrained activity?[1] If constrained, what are the constraints?
These and related questions constitute a principal area of inquiry in a wide variety of discourses: theological, philosophical, legal, literary, historical, social-scientific, even natural-scientific.[2] Indeed, theories of interpretation (including antitheories),[3] in the sense of systematically elaborated answers to questions like these, are one of the hottest and most hotly debated topics in contemporary intellectual life.
Is this concern with the nature of interpretation simply an academically fashionable obsession? Or is something of real-world, flesh-and-blood consequence at stake in debates about interpretation? If so, what?
Against the background of my work in constitutional theory,[4] the particular question I shall address in this essay is whether something of real-world consequence is at stake in debates about constitutional interpretation. Whether something of real-world consequence is at stake in debates about other sorts of interpretation—for example, literary interpretation—is a question I must leave to others.
Constitutional practice—by which I mean, roughly, discourse about the constitutional legitimacy of political institutions and policies—is certainly consequential in real-world terms: constitutional discourse (reasoning, argument) influences judges to decide constitutional cases, to resolve constitutional conflicts, one way rather than another.[5] In this essay I argue that constitutional theory matters to constitutional practice. If I'm right, then constitutional theory is consequential in real-world terms because constitutional practice is consequential in real-world terms.
After making some preliminary observations about texts and interpretation generally, I indicate how the two principal contending constitutional-theoretical positions—"originalism" and "nonoriginalism"—answer the question of what it means, or at least should mean, to "interpret" the Constitution. (Originalism and nonoriginalism are each partly a theory of constitutional interpretation and partly a theory of proper judicial role. As I shall argue later, the question of interpretation and the question of judicial role are inextricably linked.) I then explain why constitutional-theoretical debate, in particular originalist/nonoriginalist debate, matters to constitutional practice—and why constitutional practice matters to constitutional theory.
By "text" I mean simply "object of interpretation." If one wants to reserve "text" for some subset of objects of interpretation—for example, for written objects, such as poems,[6] and perhaps also for some unwritten objects, such as paintings or musical compositions—one can refer to other kinds of objects of interpretation as "text analogues." Nothing of consequence depends on the terminological choice.
To say that something—anything, marks on a page, colors on a canvas, sounds, whatever—is a text (and not just marks on a page, etc.) is to say that that something is meaning-ful: meaningful, full of meaning. For a person to say that something is a text when that something is not (yet) meaningful to her—perhaps because it is written (constructed, composed) in a language or code she does not (yet) understand—is for her to conclude, perhaps only tentatively, that that something is a text for someone, that it is, potentially at least, meaningful to someone, perhaps even (potentially) to her.
Given the broad range of kinds of texts—or of texts and text analogues—can anything useful be said about interpretation generally? Can we say what it means to "interpret" a text in the sense of any text, or can we say only what it means to "interpret" a specific kind of text? What do any of the following activities have in common, if anything, with any of the others: a critic interpreting a film, a homilist interpreting a scriptural passage, a biochemist interpreting laboratory data, a parent interpreting a child's facial expression, a pianist interpreting a concerto, an ethicist interpreting a moral tradition, an actor interpreting a dramatic role, a person whose sight has just been restored interpreting a flood of visual sense impressions, an anthropologist interpreting a ritual, a judge interpreting a constitutional provision, and so on?
At least a few useful things can be said about interpretation generally. I want to make several observations that will serve us when we consider the debate between originalism and nonoriginalism.
To try to "interpret" a text (or text analogue) is to try to understand (or to understand more fully, or to understand differently) something that is at the beginning at least somewhat strange or alien; to try to discern its meaning (or meanings, which may be quite various); to try to grasp its intelligibility(ies), a basic aspect of which is the thing's embeddedness in, connectedness to, a context. To try to interpret is to try to render familiar (or more familiar, or familiar in a different way), to contextualize in the sense of "place in a context" (or to contextualize more fully, or to contextualize differently).[7]
And to understand is to interpret. All understanding, even natural-scientific understanding, despite now discredited positivist pretensions to the contrary,[8] is interpretive or "hermeneutic." "Every time we act, deliberate, judge, understand, or even experience, we are interpreting. To understand at all is to interpret."[9]
None of this is to deny that there are significant differences among the various interpretive activities listed above (a critic interpreting a film, etc.), just to observe that all such activities have something in common.
To (try to) "interpret" a text is not necessarily to (try to) understand it in the way the author of the text intended that it be understood. First, as some of the interpretive activities listed above illustrate, not every text has an author—at least, not every text has an author in the conventional sense that some texts do. Second, even a text that has an author(s) in the conventional sense can be understood—interpreted—in a way(s) the author did not intend. Such an understanding (interpretation) is a misunderstanding (misinterpretation) only if the aim is to ascertain what the author intended the text to mean. But sometimes that is demonstrably not the aim of an interpreter. It is not invariably the aim of an interpreter of a scriptural passage, for example, or of a constitutional provision, to ascertain what the author intended the text to mean. Sometimes the interpreter's aim is not "what the author intended it to mean" but "what it means."
What an author intended a text to mean may, for one reason or another, be impossible to ascertain. But it doesn't follow that the text doesn't have an ascertainable meaning. A text can be meaningful independent of, it can mean something other than, the author's intended meaning. Indeed, given that not every text has an author in the conventional sense, a text can be meaningful even if there is no author and therefore no author's intended meaning. But even if a text has an author in the conventional sense, what the author intended the text to mean—that is, to mean to me, as one of its readers—is not necessarily what the
text does in fact mean to me, after I've struggled to read, to interpret/ understand, it.
Is interpretation then an unconstrained activity—"arbitrary" or "willful"? Can an interpreter make a text mean whatever she wants it to mean? A few brief comments about the matter of interpretation and constraint are in order.
Imagine that you see in front of you something you conclude to be a small rubber ball. To see something as a small rubber ball is to interpret that something. To interpret something as one thing rather than another is to act. No human act is unconstrained. Every human act, including every act of interpretation, is constrained—or so I believe, as does John Mackie—for example, I believe[10] —even if the crucial constraints are sometimes "internal" (e.g., one's values) rather than "external" (e.g., inadequate lighting) and even if it is difficult or impossible to specify all the constraints.[11] Moreover, to interpret something as one thing rather than another might be to make a mistake. To interpret something as a parachute rather than as a small rubber ball might be to make a fatal mistake. Imagine that you see in front of you something you conclude to be the text of the Constitution. To see something as the constitutional text is to interpret that something, and that interpretive act is neither unconstrained nor necessarily correct.
Assume that the small rubber ball is one with which we can play any of several games. The ball does not itself constrain us to play a particular game. Nor, indeed, does our decision to play with the ball—to play some one of the several games that can be played with the ball—constrain us to play a particular game. To say "Let's play ball" (without otherwise indicating which game) is not necessarily to suggest that a particular game be played; it may be to suggest merely that some game be played—presumably one that can be played with the ball. (Of course, to say "Let's play ball" may in context be to suggest that a particular game be played.) As contemporary debates in constitutional theory illustrate, the constitutional text is one with which we—in particular, the Supreme Court—can play more than one game.[12] To say "Let's interpret the Constitution" (without otherwise indicating which interpretive game) is not necessarily to suggest that a particular game be played but perhaps only that some game be played—presumably one that can be played with the constitutional text.[13]
Of course, our decision to play with the ball does rule out some games—those that require a different sort of ball and those that aren't played with a ball. One can't do just anything with a ball—use it for a parachute, for example. Similarly, the constitutional text does not itself constrain us to play a particular game, although, of course, our decision to interpret the Constitution does rule out some interpretive games—those
that require a different sort of text. It is difficult to see how three actors could interpret the Constitution in the sense they could interpret, in performing, Sam Shepard's True West .
Suppose we do indeed decide to play, with the ball, not just some game but a particular game. That decision, like a decision to play a particular interpretive game with the Constitution, is constrained and constraining: constrained just as every act is constrained, and constraining us to engage in the practices—to "follow the rules"—constitutive of the game in question.
What is the originalist game—the interpretive game that, according to originalism, the Supreme Court should play with the constitutional text? And what is the nonoriginalist game I'd have the Court play? (I hope it's clear I'm not using game in any demeaning or pejorative sense.)
I've discussed originalism and nonoriginalism at length elsewhere.[14] Drawing on that fuller discussion, I want merely to sketch enough of the two positions to clarify the disagreement between them with respect to the nature of constitutional "interpretation."
In American political-legal culture it is axiomatic that the Constitution is authoritative—indeed, supremely authoritative—in constitutional adjudication.[15] That is, it is axiomatic that constitutional cases should be decided on the basis of, according to, the Constitution. Thus, in deciding constitutional cases judges should interpret the Constitution. (Similarly, in American political-legal culture "the law" is axiomatically authoritative in adjudication: it is axiomatic that judges should decide cases "according to law."[16] Judges should therefore interpret the law.) This much is common ground between originalism and nonoriginalism.
It is not axiomatic, however, what it means to say that the Constitution is authoritative.[17] (Similarly, it is not axiomatic what it means to say that judges should decide cases according to law.) According to originalism,[18] what does it mean to say that the Constitution is authoritative; and, relatedly, what does it mean to "interpret" the Constitution? What does it mean to say that the Constitution is authoritative, and what does it mean to "interpret" the Constitution, according to nonoriginalism (that is, according to the nonoriginalist theory I've elaborated and defended elsewhere)?[19]
All agree that the Constitution is a text—that those marks on a page are meaningful. What the Constitution means, to the originalist, is what it originally meant. Its meaning to the originalist is its original meaning . For the originalist, to enforce the Constitution is to enforce it as originally understood (by the ratifiers or the framers and ratifiers).[20]
For originalism, then, to "interpret" the Constitution is to ascertain the original meaning—the norm the textual provision at issue was
originally understood to signify—and then to answer the question what significance, if any, that norm has for the conflict at hand: what that norm, if accepted, requires the court to do, if anything, with respect to the conflict at hand. Thus, for originalism the interpretation of a constitutional provision comprises two interpretive moments: a moment in which the original meaning/understanding of the provision is ascertained (to the extent possible) and a second moment in which the significance of that meaning for the conflict at hand is ascertained.
To the nonoriginalist, too, of course, the constitutional text is meaning-ful. But to the nonoriginalist the meaning of the text is not singular. One meaning of the constitutional text, to the nonoriginalist, is the original meaning. To the nonoriginalist, however, that is not the only meaning of the text.
A text can have multiple meanings. Indeed, one meaning of a text can contradict another meaning of the text. Meaning is always meaning to someone, and what a text means to one person is not necessarily what it means to another. But is it the case that a text can mean more than one thing to a person?[21] Yes, to the extent the text is more than one thing to her. To many Americans—myself included—the constitutional text (to use the example at hand), in certain of its aspects, is more than one thing: It is a communication to us (the present) from the ratifiers and framers (the past). And in virtue of a role it has come to play in the life of our political community—a role not necessarily foreseen much less authorized by any group of ratifiers and framers—the Constitution is also a symbol of fundamental aspirations of the political tradition. That is, what the constitutional text means to us, what it signifies to us (in addition to the original meaning), are certain basic, constitutive aspirations or principles or ideals of the American political community and tradition. Thus, were someone to ask me what the equal protection clause means, I might say: "As a communication to us from the ratifiers and framers of the Fourteenth Amendment, it means … But as a symbol of a fundamental aspiration of our political tradition, it means, it has come to mean, more than that; it means …" There is, after all, no rule that a text must be one and only one thing to a person—or, therefore, that it must mean one and only one thing to a person. Things are not so simple. Like some other texts (like every other text?), the constitutional text is polysemic.
To the nonoriginalist, then, unlike the originalist, what the Constitution means is not merely what it originally meant. Some provisions of the constitutional text have a meaning in addition to the original meaning: some provisions signify fundamental aspirations of the American political tradition.[22] Not every provision of the text signifies such aspirations, but some do. The least controversial examples of such provisions are
probably the First Amendment, signifying the tradition's aspirations to the freedoms of speech, press, and religion; the Fifth Amendment, signifying the aspiration to due process of law; and the Fourteenth Amendment, signifying the aspirations to due process and equal protection.
It seems invariably (though not necessarily) the case that the aspirational meaning of a constitutional provision, like the free speech clause of the First Amendment, has grown out of the original meaning. The aspirational meaning has emerged over time—in the course of constitutional adjudication and, more generally, of political discourse, including political discourse precipitated by constitutional conflict and adjudication—as a progressive generalization of the original meaning. (We need not fear that the aspirational meaning of the Constitution might permit what the original meaning forbids. As a progressive generalization of the original meaning, the aspirational meaning does not permit what the original meaning forbids, though it forbids some of what the original meaning permits.)
The point bears amplification: constitutional adjudication in particular and political discourse in general are principal matrices of the Constitution's aspirational meaning to us; and constitutional precedent and, more generally, the ways in which political controversies, especially major ones, have been resolved—the story of the New Deal comes to mind—are principal shaping influences on the contours of that meaning.[23] Which constitutional provisions signify aspirations? How can a judge know? One important place to look, though not the only place, is constitutional case law, constitutional "precedent," not because such materials are necessarily authoritative but because they are informative, illuminating, as to which provisions are aspirational and as to the shape, the content, of the aspirations.[24]
For nonoriginalism, then, to "interpret" some provisions of the Constitution is, in the main, to ascertain their aspirational meaning and then to bring that meaning to bear—that is, to answer the question of what significance, if any, the aspiration signified by the relevant provision has for the conflict at hand: what that aspiration, if accepted, requires the court to do, if anything, with respect to the conflict at hand. Thus, for nonoriginalism no less than for originalism the interpretation of a constitutional provision comprises two interpretive moments: a moment in which the aspirational meaning of the provision is ascertained and a second moment in which the significance of that meaning for the conflict at hand is ascertained.[25]
Whereas the first interpretive moment yields a norm(s) to be applied, the second moment yields the significance of that norm for the conflict at hand. In the second moment the norm yielded in the first moment is specified, rendered more determinate. We might say that in the first
moment the objective is the "preliminary" meaning of the constitutional provision, and in the second moment the objective is the "final" meaning—final, that is, for purposes of the case at hand. Whereas the preliminary meaning is relatively general, abstract, formal, verbal, the final meaning is relatively particular, concrete, substantial, existential. For the originalist the proper objective of the first interpretive moment—that is, the proper preliminary meaning—is the original meaning. For the nonoriginalist, by contrast, it is the aspirational meaning. The originalist first asks how the provision was originally understood: what was its original meaning? She then inquires what the provision, as originally understood, means in the context of the case at hand. The nonoriginalist asks, with an eye on relevant precedent, not how the provision was originally understood but how it has come to be understood. She then inquires what the provision, as now understood, means in the context of the case at hand. (The difference between the originalist and nonoriginalist approaches to interpretation is discussed at greater length later in the essay.)
The distinction between "preliminary" meaning and "final" meaning is not the same as the sharp distinction between "meaning" and "application." Reliance on the former distinction is not inconsistent with David Hoy's point, in criticizing the latter distinction, that "[i]n finding that the text is at all intelligible, the moment of application … has already taken place for us. A text only makes sense insofar as it inheres in a context, and for us even to be able to understand the text at all, we must presuppose an understanding of that context. … [A] text is never apprehended independently of a context, but … any understanding of the text has already found that the text applies in a shared context."[26]
My problem with the meaning/application distinction—at least in the conventional version Hoy takes on, according to which meaning is meaning and application is application and never the twain shall meet—is not only that meaning always already involves application (Hoy's point) but also that application is always (further) specification of meaning. Consider, for example, the principle that government may not deny anyone the equal protection of the laws.[27] To respond to the question "What does the principle mean?" that government may not discriminate on the basis of race—or, more generally, that government may not discriminate on the basis of an "irrational prejudice"—is to begin to specify the meaning of the principle. For a court to conclude, in the context of a case, that the equal-protection principle forbids government to segregate public schools on the basis of race,[28] to outlaw interracial marriages,[29] or to fence small-group homes for the mentally retarded out of residential neighborhoods[30] is to specify the meaning of the principle even further. In terms of the distinction between preliminary and final meaning, for
both originalists and nonoriginalists final meaning is always a specification of preliminary meaning.
Although originalists and nonoriginalists agree that the constitutional text is authoritative in constitutional adjudication, they strenuously disagree about what it means to say that the text is authoritative. They disagree about that, we can now see, because they disagree about the meaning of the text. Whereas to the originalist the meaning of the constitutional text is singular—the meaning of the text is the original meaning—to the nonoriginalist the situation is more complicated. For reasons I've given elsewhere,[31] a nonoriginalist judge is interested in the original meaning of the Constitution; to her, too, one meaning of the text is the original meaning, but that is not the text's only meaning. For the originalist the constitutional text is authoritative in the sense that the original meaning is authoritative. For the nonoriginalist some provisions of the text are authoritative in the sense that their aspirational meaning—the aspirations they signify—is authoritative. To a nonoriginalist judge the authoritative meaning of some provisions of the constitutional text is not their narrow original meaning but a broader present meaning—their aspirational meaning.[32]
With this sketch of originalism and nonoriginalism, and of the difference between them, now behind us, let's turn to the chief question: How does constitutional theory matter to constitutional practice, if at all? In particular, how does the originalist/nonoriginalist debate about constitutional interpretation matter to constitutional practice? What is the real-world importance, the "cash value," of constitutional-theoretical debate? Why should anyone care about constitutional theory (other than, of course, the theorists themselves)?
What precisely is constitutional theory? Theory can mean different things.[33] Although theory does not invariably matter to practice, it sometimes does. Whether it matters depends on the sort of theory in question. Consider, for example, two contending epistemological theories in the philosophy of science, in particular natural science: "realism" and "conventionalism."[34] Each theory constitutes a position on the issue of the relation, if any, between the fruit of (natural-) scientific practice—that is, scientific "truth" or "knowledge"—and reality as it is in itself, independent of how anyone, including any scientist, perceives or conceives it.[35] As it happens, neither theory is of consequence to contemporary scientific practice. No particle physicist, for example, is better off qua particle physicist for informing herself about, much less adopting a position with respect to, realist/conventionalist debates in the philosophy of science. Scientific practice underdetermines the choice between realist and
conventionalist theories; it does not presuppose either a realist or a conventionalist position.[36] So, theory does not always matter to practice.[37]
But constitutional theory is different. It does matter. In contrast to realist and conventionalist theories in the philosophy of science, both originalism and nonoriginalism are primarily justificatory theories: each aims to justify or revise (critique, reform, reject) constitutional practice. Of course, each must characterize (and therefore interpret) the particular practice it then tries to justify or revise, but the characterization is part of the normative enterprise. (Each may conclude that only a practice revised in one or more respects is finally justifiable.) Such theory is of great consequence to the practice that is its concern. Every judge who must sometimes adjudicate constitutional conflicts is better off qua judge for attending to constitutional-theoretical debates about constitutional interpretation. Constitutional practice—that is, particular interpretive styles of, approaches to, constitutional discourse—often presupposes either an originalist or a nonoriginalist position. It often presupposes either an originalist or a nonoriginalist conception of proper judicial role.
Constitutional theory, then, like normative political theory generally (of which it is a part) and unlike epistemological theories in the philosophy of science, is a justificatory argument. A constitutional theory—originalism, say, or nonoriginalism—is an argument for (or against) a particular interpretive style of constitutional discourse that has been put in question, a style whose political-theoretical propriety or "legitimacy" has, for one reason or another, been challenged .[38] It aims to justify or revise a particular style of constitutional discourse. Because a particular interpretive style entails a particular judicial role—the role constituted in part by the style—a constitutional theory is partly a political-theoretical argument about, it aims to justify or revise a particular conception of, proper judicial role.[39]
The point can be put the other way around, too: because a particular judicial role entails a particular interpretive style—the style required by and partly constitutive of the role—a constitutional theory is partly an argument about proper interpretive style. However put, the basic point is that justificatory arguments about proper interpretive style and proper judicial role are inextricably linked: interpretive style entails—is (partly) constitutive of—judicial role, and judicial role entails—necessitates and is constituted by—interpretive style. To argue for or against a particular interpretive style is to argue for or against a particular judicial role, and vice versa.[40]
This, then, is why constitutional theory matters to constitutional practice. An interpretive style of, approach to, constitutional discourse whose legitimacy is suspect—and the judicial role it partly constitutes—is harder
to maintain and easier to oppose, politically as well as intellectually, if there is no plausible justification for it, and easier to maintain and harder to oppose if there is.
So, although theory does not always matter to the practice that is its concern, constitutional theory matters to constitutional practice. No particle physicist would be rejected as unfit for membership on the Board of the National Science Foundation because of her position—realist or conventionalist—on epistemological issues contested in the philosophy of science. Robert Bork, however, was rejected as unfit for membership on the Supreme Court principally because of his position—originalist—on issues contested in constitutional theory. His theoretical position, unlike the particle physicist's, was relevant precisely because it mattered to, it had implications for, his practice—disturbing implications, in the view of many who voted against him.
To say that constitutional theory matters to constitutional practice is not to say that constitutional theory of every sort matters to constitutional practice of every sort. The central debate of contemporary constitutional theory—the contest between originalism and nonoriginalism over the nature of constitutional interpretation and the connected issue of proper judicial role—is obviously inconsequential in real-world terms with respect to interpretation of constitutional provisions whose original understanding is equivalent in relevant respects to their present understanding. An example of such a provision is the requirement that anyone who would be president must be at least thirty-five years old.[41] Are the principal constitutional provisions regarding both the "vertical" separation of powers between the federal government and the governments of the states and the "horizontal" separation of powers among the three branches of the federal government perhaps further examples? For example, if the original understanding of Congress's power "to regulate commerce among the several states"[42] was as broad or indeterminate as some historians have suggested,[43] then it is difficult to see how the original understanding differs in relevant respects from the present understanding.[44] (That in the eighteenth century the framers and ratifiers of the Constitution could not have imagined how in the twentieth-century Congress would use its commerce power does not entail that the original understanding of the commerce clause was different in relevant respects from the present understanding.)[45]
To say that the contest between originalism and nonoriginalism is not consequential in real-world terms with respect to interpretation of a provision whose original understanding is roughly equivalent, as a practical matter, to its present understanding is not to deny that some
debates about proper judicial role—debates other than the originalist/nonoriginalist one—can be consequential with respect to such a provision. Consider a constitutional provision whose original understanding is practically equivalent to its present understanding. If the understanding of the provision is relatively determinate—that is, if at this point in the life of the political-constitutional community the provision happens to be widely understood in a way that is determinate—with respect to the situations that implicate the provision, constitutional adjudication is not likely to arise with respect to the provision. The requirement that the president be at least thirty-five years old is such a provision.[46] (This is not to deny that we can imagine a different point in the life of the community when even this requirement has come to be understood by some members of the community in a way that is less determinate with respect to some situations that implicate the requirement, with the consequence that constitutional conflict and thus constitutional adjudication arise.[47]
If, however, the understanding of the provision is relatively indeterminate (or, more precisely, underdeterminate)[48] with respect to the situations that implicate the provision, constitutional conflict and adjudication are likely to arise. The commerce clause has been such a provision. With respect to such adjudication there can be and often is basic disagreement as to how "activist" or how "deferential" the Supreme Court should be in enforcing the provision—for example, in enforcing the commerce clause against Congress.[49] Should a justice of the Court vote to strike down congressional legislation as ultra vires under the commerce clause if she believes that Congress has exceeded its commerce power or only if she believes that no one could reasonably conclude that Congress has not exceeded its commerce power?
Such a debate about proper judicial role is not, however, the debate between originalism and nonoriginalism. The originalist/nonoriginalist contest is a different debate about proper judicial role—a debate about whether in constitutional adjudication judges should privilege the original understanding of a constitutional provision or the broader present, aspirational understanding. That contest is consequential in real-world terms only with respect to constitutional provisions whose original understanding is not practically equivalent to their present understanding.
Contemporary constitutional theory—as the centrality of the originalist/nonoriginalist debate illustrates—is principally concerned with interpretation of provisions whose original and present understandings are different. Two such provisions are the due process clause and the equal protection clause of the Fourteenth Amendment. A concrete illustration of how constitutional theory matters—in particular, how the contest between originalism and nonoriginalism matters—might be useful at
this point. I want to indicate how the originalist/nonoriginalist debate matters to interpretation of—and therefore to adjudication involving—the due process and equal protection clauses.
First, the equal protection clause. There's no dispute about what the equal protection clause says. In the words of section 1 of the Fourteenth Amendment, "[N]or [shall any state] deny to any person within its jurisdiction the equal protection of the laws." The dispute is about what the equal protection clause means.[50] The phrase "the equal protection of the laws," unlike (for example) the phrase "thirty-five years of age," has no consensual or canonical meaning in the American political-constitutional community.[51] Although it is difficult to say precisely how the equal protection clause was originally understood by those in the Congress who proposed it and those in the states who ratified it, it seems unlikely that the clause was understood to do more than forbid any state to discriminate on the basis of race (or, perhaps, of race or national ancestry).[52] The present, aspirational understanding of equal protection is broader. According to this broader understanding, no state may discriminate against any person within its jurisdiction on the basis of any "irrational prejudice."[53]
Discrimination (by a state) based on sex, for example, simply does not implicate, much less violate, the equal protection clause as originally understood. In effect, section 1 of the Fourteenth Amendment, as originally understood, provides, in relevant part: "[N]or shall any state discriminate against any person within its jurisdiction on the basis of race." Thus, contemporary constitutional doctrine regarding sex-based discrimination (for example) cannot be justified on the basis of the equal protection clause as originally understood. However, such discrimination does indeed implicate and sometimes may even violate the broader, aspirational understanding of equal protection.
Critics of the originalism/nonoriginalism distinction[54] implausibly minimize the difference between the originalist interpretive style—the originalist approach to interpretation of a provision such as the equal protection clause—and the nonoriginalist interpretive style/approach. They therefore minimize the difference between the products of the two approaches—between the original meaning of such a provision and the present, aspirational meaning. In terms of the two interpretive moments that constitutional interpretation comprises, critics of the originalism/ nonoriginalism distinction minimize the difference between the "preliminary" meaning, to an originalist, of a constitutional provision such as the equal protection clause and the "preliminary" meaning of the provision to a nonoriginalist.
The difference in interpretive style/approach and the attendant difference in product/meaning ought not to be minimized. They are
differences that matter—differences that make a difference. As I indicated earlier, in trying to get at the preliminary meaning of a constitutional provision—here, the equal protection clause—the originalist first asks how the clause was originally understood: what was its original meaning? In trying to get at the final meaning of the clause—final for purposes of the case at hand—she then inquires what the clause, as originally understood, means in the context of the case at hand. The nonoriginalist asks, with an eye on relevant precedent, not how the clause was originally understood but how the provision has come to be understood. She then inquires what the clause as now understood means in the context of the case at hand. Clearly, the question "How was X originally understood?" is not the same as the question "How has X come to be understood?" Nor is the answer to the first question necessarily the same as the answer to the second.
This difference in interpretive approaches can make a radical difference in constitutional doctrine. There is a real—consequential—difference between, for example, constitutional reasoning that takes as its basic point of departure the principle that government may not discriminate on the basis of race and constitutional reasoning that takes as its point of departure the broader principle that government may not discriminate on the basis of any "irrational prejudice." It is difficult to see how the former principle can ground a discursive challenge to discrimination based on sex. Isn't it almost certainly the case that if the Fourteenth Amendment did not say what the equal protection clause says but said instead that government may not discriminate on the basis of race, the Supreme Court would not have invalidated, in the name of that clause—the no-racial-discrimination clause—classifications based on sex?[55] (Notice, in that regard, that the "as is enjoyed by white citizens" language of sections 1981 and 1982 of title 42 of the United States Code—provisions that derive from the Civil Rights Act of 1866—has effectively tied those provisions to race discrimination alone.[56] Given the originalist approach to the Fourteenth Amendment, the equal protection clause is —is tantamount to—a no-racial-discrimination clause; it means no more than that government may not discriminate on the basis of race. With respect to the equal protection clause and several other important constitutional provisions regarding human rights, the distinction between originalism and nonoriginalism is consequential in real-world terms.[57]
Now, the due process clause.[58] Again, the dispute is not about what the clause says but about what it means. Section 1 of the Fourteenth Amendment says, in relevant part: "[N]or shall any state deprive any person of life, liberty, or property, without due process of law." The phrases "liberty" and "due process of law," like the phrase "the equal
protection of the laws" but unlike the phrase "thirty-five years of age," have no consensual or canonical meaning in the American political-constitutional community. Although it is difficult to say precisely how the due process clause was originally understood by those in the Congress who proposed it and those in the states who ratified it, the clause was certainly not understood nearly as broadly as it is today.[59] According to its present broad, aspirational meaning, the due process clause governs—limits—not merely adjudicative actions but legislative actions as well, not merely rule application but rule making. On this understanding "due process of law" involves not merely constitutionally adequate ("due") adjudicative procedures but constitutionally legitimate ("due") legislative process as well, in the sense of legislative process that does not violate, that is faithful to, that honors, certain basic principles regarding the sanctity, the dignity, the inviolability of persons.[60] It's safe to say that a statute criminalizing abortion, the use of contraceptives, or homosexual intimacy does not implicate, much less violate, the constitutional prohibition against deprivation of "life, liberty, or property, without due process of law" as originally understood. But such a statute does indeed implicate and may even violate the broader aspirational understanding of "liberty" and "due process."[61]
Here, then, are two important examples of how constitutional theory—of how the choice between an originalist approach and a nonoriginalist approach to interpretation of major constitutional provisions regarding human rights—matters to constitutional practice. Such examples call to mind the congressional hearings on Robert Bork's nomination to the Supreme Court. Before his nomination, Bork, first as a law professor and then as a federal judge, had expressed deep skepticism about the constitutional pedigree of doctrines such as the due-process doctrine regarding reproductive rights.[62] Of course, given his originalism such skepticism is easy to understand. But given his originalism the resistance Judge Bork encountered in the hearings—resistance to the point, ultimately, of rejection—is also easy to understand. As the politicians who voted to reject Bork's nomination understood—indeed, as the forces responsible for his nomination in the first place understood—constitutional theory matters.[63]
Finally, I want to relate my protheory position to the antitheory positions of Stanley Fish and Mark Tushnet, both of whom argue—but each for different reasons—that theory doesn't matter.
It bears emphasis that a constitutional theory is not a "theory" in Stanley Fish's strong sense of the term: "an abstract or algorithmic formulation that guides or governs practice from a position outside any conception of practice. A theory, in short, is something a practitioner
consults when he wishes to perform correctly, with the term 'correctly' here understood as meaning independently of his preconceptions, biases, or personal preferences."[64] Constitutional theories are not meant to be such theories or, therefore, to matter the way such theories would matter if they existed. (Do such theories exist? If they do, they are certainly not the sort of theories that should be taken seriously. Fish has picked an easy but inconsequential target.)[65]
As I've indicated, a constitutional "theory" is best understood as a justification for (or critique of) some contested style of constitutional practice (discourse). (As Fish acknowledges, "the word 'theory' is often used in other, looser ways.")[66] It's one thing to engage in the practice, another to engage in an effort to justify the practice. For a judge engaged in the process of deciding a constitutional case, what is the relation between, on the one hand, her present activity of engaging in a constitutional practice—engaging in a particular style of constitutional discourse—and, on the other, the separate activity—whether someone else's or her own at an earlier time—of trying to justify the practice? The relation is not the one Fish rejects: that the judge consults the theory "when she wishes to perform correctly, that is, independently of her preconceptions, biases, or personal preferences." The relation, rather, is that the effort to justify the practice may well have led the judge to choose or shape the practice—the style of constitutional discourse—in which she's now engaged.
Is it the case, then, that in that sense at least—the sense that an effort to justify a practice may lead one to choose one practice rather than another, or to shape a practice one way rather than another—constitutional theory dominates, that it is prior to, constitutional practice? The relation between constitutional theory and constitutional practice is more complex than that. The relation is more one of interdependence than of dominance or priority, as I shall now explain.
Mark Tushnet has recently commented on one prominent "reason for thinking that constitutional theory matters," namely, that constitutional theory "affects how judges will decide certain kinds of controversial cases. Thus, a judge who accepts Attorney General Edwin Meese's jurisprudence of original intent, for example, would be less likely to sympathize with claims for substantial protection of novel forms of expressive activity than would a judge who accepted a different theory of constitutional interpretation." Tushnet is skeptical: "The difficulty with this suggestion is that the most likely causal connection runs from prior political predisposition to preferred constitutional theory, rather than from theory to outcome."[67]
I'm enough of a realist to be sympathetic to Tushnet's point. Constitutional practice probably often dominates constitutional theory in the way Tushnet indicates: judges probably often gravitate to theories that
support what they want to do—that is, to theories that support the interpretive styles of discourse they want to engage in. (And, of course, they favor interpretive styles of discourse that support the decisions they want to make.) There's nothing strange about, or wrong with, that. After all, constitutional theories are justifications for particular interpretive styles that have been put in question and for the judicial roles the styles partly constitute.
To say that constitutional practice (probably often) dominates constitutional theory in the way Tushnet indicates, however, is not to deny that constitutional theory matters to constitutional practice: it is nonetheless true that, as I said earlier in this essay, an interpretive style of, approach to, constitutional discourse whose legitimacy is suspect—and the judicial role it partly constitutes—is harder to maintain and easier to oppose, politically as well as intellectually, if there is no plausible justification for it, and easier to maintain and harder to oppose if there is. Tushnet seems to recognize as much when he writes that "constitutional theory matters because it is one of the structures that defines the limits of our political discussions."[68] If a contested interpretive style of constitutional discourse cannot be justified, if it lacks an adequate supporting theory, then its appeal in the public square, its credibility, is diminished. If, however, it has an adequate theory, or to the extent it does, its credibility is enhanced.
In the title of this essay I indicate not only that constitutional theory matters to constitutional practice but also that constitutional practice matters to constitutional theory. Indeed, there is an even deeper sense than Tushnet's in which constitutional practice dominates constitutional theory. As I've explained elsewhere, a constitutional theory—an effort to justify a particular interpretive style or judicial role—must rely in significant part on both (1) claims about what sorts of judicial decisions have been and likely would be the consequence of the style/role at issue and (2) evaluative judgments about the political-moral "rightness" or "correctness" of those decisions.[69] A constitutional theory is incomplete to the point of useless if it doesn't include arguments about the good the judiciary has achieved, on balance—and the good it will likely achieve, on balance—in employing the style, in acting the role, at issue. In that sense a constitutional theory relies on the very constitutional practice—more precisely, on the actual and likely consequences of the very practice—it seeks to justify. But there's no troublesome circularity here: it's quite natural to rely in part on the (actual and likely) consequences of a practice in the course of trying to justify the practice. Sometimes the consequences of a practice or institution are a reason—not necessarily the only reason, but a reason—for approving the practice.
However, there is considerably more to a justification of a disputed interpretive style of constitutional discourse than such claims and
judgments about judicial decisions. As my own effort to justify nonoriginalist constitutional discourse illustrates, such a justification comprises arguments about a variety of other matters: for example, the moral character of our political tradition and community; the nature of politics; the tension between our commitment to "popular sovereignty" and our commitment to "liberty and justice for all"; and judicial self-restraint.[70]
Therefore, neither constitutional practice nor constitutional theory is either prior or posterior to the other; in a sense, each is both prior and posterior. The relation between constitutional theory and constitutional practice is one of interdependence: a constitutional theory is an effort to justify a constitutional practice—to justify, that is, a particular interpretive style/judicial role. And as I just indicated, we rely on constitutional practice—we rely, that is, on historical and predictive claims and moral judgments about the consequences of the style/role at issue—as a part of our constitutional-theoretical enterprise, our justificatory effort.
That's why constitutional theory matters to constitutional practice. And vice versa.
Legal Education and the Public Life
Gregory Leyh
At the time of John Locke's Some Thoughts Concerning Education, the meaning of "to educate" was synonymous with "to govern."[1] This tight linguistic association between education and governance has been broken not only in the practice of schooling but in our political and legal theories as well. One of the questions raised by this essay concerns the implications of this broken connection and the desirability of restoring a closer bond between the objectives of legal education and the possibility of a richer public life.
On a very general level, of course, few are opposed to promoting improved citizenship through legal education. Yet we are a long way from achieving a consensus on the priority of governance as an end of legal education. The point is that few would challenge an approach to legal education that included among its by-products a more reflective attitude toward public life by practicing lawyers. James O. Freedman's recent Roy R. Ray lecture is an example of this uncontroversial—and also uncritical—attitude toward the relationship between legal learning and the public life.[2]
Citizenship is one of those essentially contestable concepts central to a community's understanding of itself.[3] This essay begins by offering a short history of citizenship in both its liberal and communitarian forms. Next I shall attempt to connect citizenship to the nature of legal education by reviewing the history of legal education and examining the conception of the good lawyer implicit in this history. The purpose of establishing this connection is to lay the groundwork for addressing the desirability of a hermeneutical contribution to law and citizenship. If it is true, as Harry Wellington observes, that nowadays "law teachers talk differently from practicing lawyers," engaging in "heated conversations
about hermeneutics, externalities, and deconstruction,"[4] we might do well to ask about the value of this style of talk. Reports from the legal academy suggest that something has gone seriously wrong with the way that lawyers are presently educated.[5] What is to be done?
In answer to this question, I examine the implications of a more hermeneutical course of legal studies for the public education of future lawyers. I suggest that although knowledge of hermeneutics is far from a panacea for the ahistorical and instrumental character of modern legal education, introducing hermeneutical materials into the legal curriculum would make a modest contribution to the intellectual growth of law students. Thus, more talk of "hermeneutics, externalities, and deconstruction" might serve as a healthy educational antidote to the unduly formalistic and insufficiently humanistic course of study received by many law students today.
Rival Conceptions of Citizenship
Michael Walzer reminds us that "[a] citizen is, most simply, a member of a political community, entitled to whatever prerogatives and encumbered with whatever responsibilities are attached to membership."[6] The conceptual history of citizenship reveals competing and sometimes antithetical understandings of membership's primary prerogatives and responsibilities. The ancients regarded citizenship as a primary component of public life, as a shared activity that was the business of every member of the polity. Without sustained participation in community life an individual could not lead a fulfilled human life. This exalted view of politics is reflected in Aristotle's well-known dictum that "[t]he man who is isolated—who is unable to share in the benefits of political association, or has no need to share because he is already self-sufficient—is no part of the polis, and must therefore be either a beast or a god."[7]
As the ancient polity was transformed into the modern nation-state, the prerogatives and responsibilities of membership changed. Close association with others in a community and the ancient duty to perform executive functions were replaced by anonymity and dramatically diminished expectations concerning political participation. The modern citizen is, Walzer says, "more significantly someone protected by the law than someone who made and executed the law."[8] Modern citizenship is characteristically a passive undertaking, an entitlement that is at the periphery of life and that is often treated as something best left to others. Indeed, some modern commentators worry about the ill effects of too much participation: "Problems of governance in the United States today
stem from an 'excess of democracy.' … [T]he effective operation of a democratic political system usually requires some measure of apathy and non-involvement on the part of some individuals and groups."[9]
These two competing understandings of citizenship set the boundaries for contemporary debates about the duties attached to community membership. It would be a mistake to assume, for example, that because we live in a modern (or perhaps postmodern) age, there is no longer any need to consider the possibility that the ancient model of citizenship as sustained public activity should be made a more primary feature of political life. The American political tradition contains not only a wealth of evidence demonstrating a commitment to a passive or thin conception of citizenship but also reflects an episodic devotion to a more activist, participatory model of the prerogatives and responsibilities of membership. Moreover, legal thinkers and practitioners have been among those serving as inspirational models during these intermittent moments of political activism.
Consider the example of James Wilson. Lone among those at the Constitutional Convention in favor of directly electing senators and the president, Wilson's radical conception of citizenship demanded from every citizen "all the time which he can prudently spare, and all the means which he can prudently employ, in order to learn that part which it is incumbant on him to act."[10] Inspired by Rousseau's political philosophy, Wilson considered it the duty of citizens to study continuously the commonwealth's business: "The right and the duty of giving that vote, the right and the duty of taking that share, are necessarily attended with the duty of making that business the object of his study and inquiry."[11] Garry Wills reminds readers that Wilson's generation had overturned three governments and drafted four constitutions. "For him," Wills explains, "the concept of citizen participation was a matter of continually refashioning the very frame of government."[12]
Full and energetic participation of the sort imagined by Wilson presupposes a breadth of general learning. Possession of certain minimal intellectual and cultural materials was a prerequisite to making a critical and constructive contribution to public life. This conception of citizenship is why Wilson insisted on "the duty of making that business the object of his study and inquiry."[13]
In a masterful study of the configuration between law and letters in nineteenth-century America,[14] Robert Ferguson calls our attention to the fact that the early American lawyer was "professionally dependent upon a fusion of law and literature. In the absence of more technical guidelines, the early American lawyer found vocational definition in general knowledge and learned eloquence, in his acceptance of
the classical past as a touchstone, in his commitment to public service through the written word."[15] Decades before the birth of American law schools, early American legal practice involved a deliberate combination of legal knowledge with a liberal understanding of art, letters, and politics. According to Ferguson, the lawyer's "deliberate combination of intellectual breadth, artistic insight, and political commitment has been unique in American history—one reason why his definitions of country have been so decisive in shaping the American mind."[16]
The acquisition of these intellectual and cultural materials enabled early lawyers such as Wilson, John and Samuel Adams, Thomas Jefferson, and Daniel Webster to make significant contributions to political life. Glancing ahead to our later consideration of what contribution modern lawyers are in a position to make to the public's understanding of citizenship, the dramatic change in the objectives and methods of contemporary legal education is cause for some skepticism about the prospects on this front. As Ferguson suggests, the legacy of the early American lawyer contains a lesson. "To study this legacy is to retain the example for a modern culture in which the stark separation of intellect, art, and politics should give every citizen pause."[17] The "stark separation" is no less true of legal education than elsewhere in modern life.
The two conceptions of citizenship mentioned above are also reflected in recent philosophical debates between liberals and communitarians.[18] Following Locke, Mill, and more recently Rawls and Dworkin, liberal political theorists emphasize the autonomy of individual citizens in decisions about the ends of life. The state has no major role in defining the values to which citizens should subscribe, although it may have an active role in protecting the rights of individuals to freely choose their own way. Freedom to choose is the primary liberal value. In Michael Sandel's words, liberals "say the state should not impose a preferred way of life, but should leave its citizens as free as possible to choose their own values and ends, consistent with a similar liberty for others."[19]
The granting of priority to the freedom of discrete individuals to choose their own way lends itself to a weaker conception of citizenship than either the ancient or the modern communitarian is willing to accept. Because each individual becomes a citizen as the result of a social contract, the obligations of the state and its citizens are limited to the protection of those rights granted by the initial pact. What ties people together is the agreement to which each person is a party rather than a deeper bond arising from the natural "benefits of political association."[20] On this view citizenship need not be a continuous and vital part of one's life. Instead, citizenship is reducible to observing and monitoring from a distance the public's business in order to protect the terms of the
contract. Benjamin Barber describes liberal citizenship as "passive rather than active, and it implies potentiality (abstract legal status) rather than actuality (concrete political status). To be a citizen is to be a party to the social contract and thus to be a legal person."[21]
Communitarian participants in these debates trace their lineage to Aristotle. Communitarians consider the idea of discrete individuals drawing up a social contract to be both too abstract a formulation of our social origins and too forgetful of our natural bonds to others in the political association. Individuals are not independent or autonomous choosers of the ends of life. Rather, the choices individuals make are already conditioned and delimited by the attachments and convictions—what Sandel calls "encumbrances"—that flow from their concrete associations in the world. These "encumbrances" or "constitutive attachments" to our families, our neighbors, and our nations provide us with a sense of who we are and what we might become. "To imagine," Sandel argues, "a person incapable of constitutive attachments such as these is not to conceive an ideally free and rational agent, but to imagine a person wholly without character, without moral depth. For to have character is to know that I move in a history I neither summon nor command, which carries consequences none the less for my choices and conduct."[22]
Communitarian politics is committed to the collective deliberation about those things we have in common and those ends we collaboratively shape. Instead of regarding politics as a path one may pursue if private benefits are likely or if particular rights are threatened, the communitarian understands politics as a natural activity that constitutes both self and community. Following Aristotle, the aim is to restore the priority of the civic bonds in public life. Strong citizenship differs from its liberal counterparts by restoring the primacy of the public realm in the life of the individual. Citizenship becomes "the moral identity par excellence."[23]
This review of competing understandings of citizenship and politics offers direction for the remaining parts of the essay. Without attempting to resolve the seemingly intractable philosophical issues accompanying the history of citizenship, Wilson and other early American lawyers will serve as the model for what follows. Wilson exemplifies the way that a citizen might build a bridge between ancients and moderns. In 1990 no less than in 1787, the denial of opportunity, rights, and the necessities of life to many Americans requires a rethinking of "the very frame of government."[24] Walzer is quite right to insist that until such a rethinking is successful, citizenship must be "simultaneously active and passive, requiring the exercise of ancient virtues if only for the enjoyment of modern rights."[25] It is to the special role that law might play in this exercise of citizenship that we now turn.
A Short History of Legal Education
The close connections between law and the humanities characteristic of the early American lawyer did not survive the century. The "more technical guidelines" for the practice of law absent at the birth of the Republic began to supplied in a systematic way at the end of the nineteenth century. During the period from 1870 to 1890 it became more difficult to gain admission to many state bars.[26] The most significant event for the development of legal education during this time was the appointment of Christopher Columbus Langdell as dean of Harvard Law School in 1870.[27] Langdell's deanship would formally last until 1895, but its reverberations are still felt in law schools throughout the United States.
Robert Stevens's history of the American law school is a detailed examination of the schizophrenia at the heart of legal education. On the one hand, law schools aim to provide a professional and vocational plan of study to enable graduates to ply their trade successfully in the contemporary political economy. On the other hand, this professional mission has always coexisted with rhetoric about law as a liberal and liberating discipline of study. Legal education has simultaneously conceived of its mission in terms of arguably incompatible objectives: professional training and "liberal" education. Langdell is perhaps the exemplary figure propounding the professional approach to the study of law. "The heart of his theory," Thomas Grey writes, "was the view that law is a science."[28] This scientific conception of law precluded study of "outside" perspectives on the law, including "sociological, historical, or economic explanation[s] of legal phenomena."[29] Grey gives the name "Classical Orthodoxy" to Langdell's scientific approach to law, an approach that seeks to understand and teach law and legal systems from the "inside."
The tenets of Classical Orthodoxy include the view that the central materials of law are cases, that law is a science not a liberal art, and that underlying the voluminous body of cases are legal "essences, in which scholars could discover principles that in turn could dictate determinate legal judgments."[30] Grey writes with considerable insight about the lasting effects of this orthodoxy, an orthodoxy that has partially survived even in the face of decades of criticism and challenge. Neo-orthodox theories propounded by Posner and Dworkin, for example, anchor their respective recommendations for law in the language of rules and principles, and sometimes even right answers, talk that has more than a little in common with Classical Orthodoxy.
Shifting back from legal theory to educational practice, Langdellian teaching transformed legal curricula and pedagogy into a professional training ground by 1900.[31] When, for example, the University of
Chicago Law School was founded in 1900, a political scientist named Ernst Freund circulated a document suggested a broader, more liberal study of law. Freund's document floated the idea of teaching courses in Roman law, jurisprudence, legal history, and constitutional law. Chicago's new dean of law, Langdell protégé James Barr Ames, countered these suggestions with the following declaration: "We have no such subjects in our curriculum…. We are unanimously opposed to the teaching of anything but pure law in our department."[32] The spectre of Ferguson's "stark separation of intellect, art, and politics" was beginning to take hold in America's law schools.
Classical Orthodoxy came under assault by the Legal Realists, the next major impetus for change in legal education and legal theory. Stevens goes so far as to describe the major contribution of the Realist movement as "to kill the Langdellian notion of law as an exact science, based on the objectivity of black-letter rules."[33] Without speculating as to whether the current law school curriculum is evidence of life after (Langdellian) death, the important contribution of Legal Realism was in extending the boundaries of law beyond narrow scientific ones and promoting the inclusion of social scientific models of law.
Legal Realism has been the source of many efforts at reform both in educational practice and in jurisprudence. In the end, however, Legal Realism has not proved to be the source of genuine reform in either domain. In terms of institutional reforms, Stevens describes the record of curricular reform as "in so many ways, disheartening."[34] Though the modern legal curriculum contains the occasional course, for example, in law and psychiatry, law and social science, and legal history, these courses occupy a somewhat marginalized status and can hardly be touted as evidence of fundamental curricular change. In my own law school experience[35] there has been a lot of talk in the classroom about "policy" as the source of law. "Policy" is sometimes used as a battering ram against the essentialism of legal doctrine. This "casebook realism,"[36] however, rarely goes beyond casual asides about the real sources of law and almost never permits a systematic or serious analysis of "policy" to emerge. What is worse, when it is suggested that law ultimately derives from politics, a claim quite consistent with the centrality of "policy" in law, one invariably encounters resistance to what is perceived as a way of destroying the boundaries between law and other disciplines.[37] Stevens's assessment rings true: "Stress on the need to integrate law with the social sciences had not diminished, but, except for a few productive fields, little effective progress was made."[38]
A more important reason for the failure of Legal Realism to produce radical departures in legal thought and practice was its nonradical objective. The early Realists especially were in search of a less doctrinaire and
more useful way of helping lawyers to predict the outcomes of litigation. The impetus of the Realist critique of Classical Orthodoxy was to promote improved vocational practice. Jerome Frank, for example, was emphatic in his criticism of law teachers who had little or no practical experience with the law. Frank talked about repudiating "the false dogmas of Langdell" and of "learning law by work in the lawyer's office and attendance at the proceedings of justice."[39] These alternative ways of learning were not designed to awaken law students to the important configurations between, law, letters, art, and politics; rather, they were designed to shape better legal practitioners. Thomas Bergin puts it this way: "Thus, the early Realists became academics for vocational purposes. They were solid Hessian-trainers who used the new sciences of language, psychology and social process in order to produce better lawyers. If the process of law improved as a consequence, so much the better; but reform of the law was not their immediate goal."[40]
Perhaps the most striking thing about Legal Realism's critique of Classical Orthodoxy is that it was—and perhaps still is in some quarters—perceived as radical. That it was regarded as radical says more about the theoretical and educational context of law studies than it does about the content of Legal Realism. The genuinely important insight in Legal Realism is that judging involves discretion. The inevitable presence of discretion requires that legal interpreters enter into a dialogue with other disciplines in order to shape the meaning of the legal text. These are no longer controversial statements. But the irony is that while admitted in discussions about the nature of law (i.e., in a jurisprudence course), they have failed to be catalysts for curricular or educational innovation. The result is the paradox of acknowledging judicial discretion on the one hand and on the other hand sticking to a kind of orthodox and semiauthoritarian approach to the actual classroom practice of reading texts.[41] The point is made nicely by Peter Goodrich:
The demand for dialogue is not radical in itself but is radical in the context of the prevailing orthodoxy and legal educational practice…. While most members of the legal community have certainly experienced the contingency, the elements of irrationality, choice, and subjectivity, that enter into the application of law, the overwhelming response has been reactive, fearful and self-protective. Such are the elements of legal cynicism and of a thoroughgoing legal "resistance to theory" which reduces the real message of the legal curriculum to teaching that "a mixture of low level skills and high grade sophistic techniques of argumentative manipulation is all that there is—all there is and can be—to legal analysis and, by implication, to the many methods by which professional expertise influences the exercise of state power.[42]
Law school's "resistance to theory" is purchased at the cost of losing an opportunity to provide students with intellectual tools necessary to critique and perhaps fundamentally change public life. A more important cost may be seen by harkening back to Ferguson's image of the early American lawyer, the lawyer as civic humanist "steeped in law as the ordo ordinans, the ordering order that arranges values in meaningful patterns."[43] One wonders if the history of legal education has brought us to a point enabling the modern lawyer to bridge the many disciplines that both constitute the field of law and enable one to achieve excellence in practice. If not, it may be that lawyers lack the imagination required to participate in an ordering of "values in meaningful patterns," an intellectual and practical activity that is the sine qua non of the citizen .
Doctrine in a Vacuum
Legal institutions, including law schools, are devoted to the systematic inculcation of values, to the privileging of certain ways of living, and to authorizing particular texts and ways of reading as preferred.[44] To describe legal institutions in this way is to suggest that there is no defensible understanding of law school that is not predicated on a theory of the good society. Moreover, no theory of the good society is uncontested. My goal in this section is to attempt to describe the theory of good society—more particularly the conception of the good lawyer—that is embedded in the modern practice of legal learning.
Perhaps the central question embedded in the intellectual woodwork of the law school is, what should a good lawyer be? In searching out answers to this question, one is struck by the relative paucity of material seriously exploring competing positions.[45] Richard Wasserstrom notes that this "question is seldom seen as crucial, nor is it addressed in a direct, reflective, and comprehensive fashion as a matter of pervasive educational interest and concern."[46] One of the hazards of overlooking this question is that the general purposes of the law school may include imcompatible objectives, a kind of educational schizophrenia. As we saw in the previous section, there is some historical evidence to support a suggestion of this kind.
Still another danger of failing to face the good lawyer question more directly is "that programs and practices that happen to be in place will be taken to rest upon a more secure and defensible foundation than exists."[47] Despite the relative absence of a comprehensive discussion of what a good lawyer is, one conception or another of the good lawyer is inevitably presupposed by legal education. The practice of any legal education makes it impossible to operate without a conception of the good
lawyer; because of the importance of this issue in the life of the law, "those committed to legal education should take it on directly and reflectively rather than to allow it to get settled through custom, inattention, indifference, or ill-considered ideas and arguments."[48]
We have already seen that in nineteenth-century America the good lawyer was prepared "for the largest conceivable role in the intellectual life of American culture."[49] Far from being a specialized practitioner in this or that narrow field of law, the good lawyer was, Ferguson tells us, a "generalist, the man educated in all forms of learning, from classical literature to natural history."[50] The good lawyer's role as generalist required a particular kind of education, for "general writing and oratory communicated this knowledge to others and were the essential means of articulating and spreading a republican gospel based on universal law."[51] Therefore, the close connections and combinations between law and humanities were a necessary feature of preparing the good lawyer as generalist. Ferguson adds that "law and letters, pedagogy and patriotism, legal theory and literary practice were all one—common tools in the search for a common good expressed in a language common to all."[52]
Contemporary legal education has plainly departed a country mile from this older and more liberal educational standard. The social and economic interests served by today's legal education allegedly no longer require such close contact with a common language and with humanistic learning. As American society has grown more regulated and complex, lawyers have been expected to acquire specialized knowledge and expertise.
The necessary preparation for a career in law has kept pace with these social changes. Good lawyers are typically measured in terms of the technical proficiency with which they can work the law. Today's good lawyers are the ones who
understand how to engage in legal analysis and the construction and assessment of legal argument, who understand and employ adeptly and imaginatively legal doctrines and concepts, and who can and will bring skills and knowledge of this sort regularly and fully to bear upon any matter of concern to any client willing and able to employ them in order to further the client's interest, provided only that they, as lawyers, do not do what the law prohibits lawyers from doing for clients.[53]
Wasserstrom correctly observes that some "such conception of the good lawyer is rather consistently reflected in the content and design of the curriculum, in the way courses are taught, in the admission policies of law schools, in their own hiring and promotion policies, in their evaluation of students, and in many of the informal ways in which law school life is constituted and lived by those who make up the law school community."[54]
The first-year curriculum appears to embody the very same values Wasserstrom attributes to the law school's conception of the good lawyer. Consider, by way of illustration, the torts case of Buch v. Amory Mfg. Co.[55] The casebook editors explain that Buch "is a classic case propounding the traditional view" of duty.[56] An eight-year-old boy was injured while visiting his brother's place of employment. Although the boy had been instructed to leave the factory, it was known that he didn't understand English and thus couldn't have understood this admonition. Did the defendant fail to execute its duty to warn the boy about the perils of the factory? Did this failure to perform its duty to warn provide the boy with grounds for a negligence award?
The Buch opinion denying recovery to the boy rests on the court's distinction between legal and moral duty:
Actionable negligence is the neglect of a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty, which they neglected to perform. With purely moral obligations the law does not deal…. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law.[57]
The distinction between causing harm and failing to prevent harm, between misfeasance and nonfeasance, is used to buttress the court's "stark separation" of legal from moral duty. For emphasis, Buch adds that there would also be no legal liability for a stranger failing to rescue a two-year-old crawling on railroad tracks from an approaching car, even though the stranger may be justly called a "moral monster."[58]
Buch opens several possible avenues of criticism. One might argue, for example, that the distinction between misfeasance and nonfeasance is porous. Like its neighbor in criminal law, the distinction between acts and omissions, it shows only that any given act can be described as either misfeasance or nonfeasance according to the purposes of the person doing the describing. Hence, the distinction does not do any legal work. Rather, it reflects a conclusion resting on other grounds about those duties the law should require and those it should not.
A broader critique might suggest that the conventional wisdom regarding duty—indeed, the entire structure of negligence analysis—reveals the gender biases of a patriarchal society.[59] According to this feminist perspective, the "no duty to rescue" doctrine teaches students to ignore, as Leslie Bender phrases it, their natural "emotions, instincts, and ethics, and to view accidents and tragedies abstractly, removed from their social and particularized contexts, and to apply instead rationally-derived universal principles and a vision of human nature as atomistic, self-interested, and as free from constraint as possible."[60] Bender thinks,
needless to say, that such teaching rejects the values of caring and nurturing that are central to a feminist ethic.
Rather than develop either of these critical insights, I want instead to focus on Buch's facile and confused distinction between legal and moral duty. First, this stark distinction is evidence of the common law tendency to regard law as an autonomous discipline.[61] This unfortunate but all too common tendency undermines the student's ability to understand law as an act of intellectual integration. The upshot is that Buch leads us away from viewing duty as the product of a political judgment, as the outcome of principled but still indeterminate reasoning about what constitutes "the good life."
Second, the Buch opinion fails to acknowledge that its own view of duty is itself the product of a moral or political theory. As Richard A. Epstein points out, the strongest defense of the "no duty to rescue" rule must be stated in both ethical and economic terms.[62] Though one may quarrel with Epstein's particular political persuasion, he at least is candid enough to admit that our conclusions about duty are a function of our belief in one of two traditions in the history of Western ethics. Because Buch fails to acknowledge the moral presuppositions of its own theory of legal duty, the opinion fundamentally misdescribes the nature of both duty and law.
Third, the state's failure to require strangers to warn others in peril of impending disaster is not a morally neutral position. A rule that says a stranger by the side of the pool has no legal duty to rescue a drowning baby reflects a moral judgment on the value of the baby's life and on the general "responsibilities [that] are attached to [community] membership."[63] In such a situation, "[t]here is no neutrality. If the law does not encourage rescue, it is sure to discourage it."[64] The myth that the state can be noninterventionist or that it can take a morally neutral position exposes the way that legal categories ultimately depend on political judgment. To see the Buch distinction between legal and moral duty as resting on a prior (and unspoken) political judgment is to begin to break down the false boundaries that separate law from other areas of intellectual life. As this dismantling project is underway, legal categories such as duty, causation, consideration, and offer and acceptance can finally be seen for what they are: judgments about what sort of community we want to make for ourselves. In other words, they are political judgments. Most citizens intuitively grasp this truth as they, often unfairly, chastise lawyers for unnecessarily complicating the legal and justice system. Those of us in the law might do well to be more candid about the way that law is a kind of political judgment, not only because such candor is more faithful to our own profession but also because the interests of citizenship are served as well.
The lessons of Buch reflect a conception of the good lawyer as one who is technically proficient in making narrow arguments that will benefit her client. To the extent that this conception represents law school experience, it is evidence of an instrumentalist approach to legal learning that explicitly divorces law (torts in this case) from its natural combinations with other fields of learning. It reduces the nobility of law to that "mixture of low level skills and high grade sophistic techniques of argumentative manipulation."[65]
The upshot is that legal learning turns on "a spirit of restriction and a sense of boundary."[66] The good lawyer's "professional identity comes not through range and relation but through exclusivity and separation."[67] Moreover, adds Ferguson, "the formal training involved—the case method of study emphasized in the modern law school—is hermetically sealed and profoundly ahistorical in approach and aim. Most current practitioners know nothing of the rich historical background and growth of their own field much less of any other."[68]
Though expressed in varied and various ways, the idea that contemporary legal education fails to direct students to the linkages between law, the humanities, and politics is a common and oft-heard criticism. One version of this criticism calls for law schools to return to the teaching of philosophy and legal theory by integrating jurisprudence into the first-year curriculum.[69] Another version of the critique recommends that legal educators replace concern for doctrinal analysis with the study of moral philosophy and the particular moral issues a legal practitioner may frequently confront.[70] Still another commentator has focused broadly on the ways that a specialized professional education can trivialize both law and education. On this account the excessive study of highly edited appellate court opinions read largely out of historical context not only severs law from its cultural origins but undermines what should be the educator's goal of facilitating the most intellectual and humanistic education possible.[71] Finally, it has been suggested that legal education should become less hierarchical, less predatory and competitive, and should focus more on the concrete relationships between doctrine and practical skills.[72]
These and other criticisms of modern legal education suggest that a revised conception of the good lawyer is overdue. Consider the following preliminary ideas as a first cut toward such a revision. The good lawyer has acquired an understanding of law's past and of the constitutive connections between law and wider culture. She commands the materials of history, literature, art, philosophy, and politics and understands "the relevance of those models in thinking about the specific subjects of law and society."[73] By understanding "the humanistic vision behind laws " she has learned "to free intellectual elements of the law altogether from its
pseudo-technical context."[74] In the words of James Boyd White, the good lawyer understands not only legal doctrines and rules but, more important, the context of the doctrine. The aim of legal education thus becomes the systematic "contextualization of doctrine: internally, by recognizing it as a language that one must learn to use; and externally, by attention to analogous disciplines."[75]
The Aims of Legal Education
What I have described so far is a jurisprudential void in legal education. Too little reflection on the nature of law has informed the content and pedagogy of professional legal study. In this section I will attempt to suggest ways of filling the void. My attempt proceeds in two parts. First, I will briefly survey some additional suggestions for changing legal education circulated by those in the legal academy. Second, I will propose the inclusion of hermeneutical materials in the law curriculum as an exemplary way of contextualizing doctrine. The goal of both approaches is the same: to deepen the intellectual and humanistic content of legal education that lawyers might improve their capacity to perform as citizens and contributors to public life.
Anthony Beck offers the Socratic principle as an antidote to what he describes as "a narrowly-instrumental or mechanical approach to preparing a student for performing law jobs."[76] The Socratic principle aims at getting students to think for themselves. Beck understands this aim as different from teaching students to think in such a way that permits prediction about judicial decisions. Socratic teaching involves "liberating the mind at least temporarily from bondage to the unconscious preconceptions of normal social life" and demands the rejection of "the familiar comfortable notions that the basis of legal education is 'teaching students to think' or 'teaching students to think like a lawyer' tout court "[77] In addition, authentic Socraticism is plainly infused with a heavy dose of argument about the true and the good. Because Socratic education is liberal in aim, it is consistent with the critique of law school advanced here and also suggestive of some broad principles that might be applied in a redesign of legal study.
Thomas F. Bergin's proposals for educational change are less far-reaching and, to some degree, have already been heeded by American law schools. Bergin is especially concerned about the destructive impact of what he describes as "intellectual schizoprehenia." This schizophrenia has persuaded the modern law professor that "he can be, at one and the same time, an authentic academic and a trainer of Hessians."[78] Bergin's remedy for this split personality is to encourage legal academics to earn
Ph.D.'s in their field of academic interest. Presumably this would alleviate the stress on law teachers who now must stretch their intellectual resources beyond capacity. Bergin is clearly skeptical of the quality of academic learning among J. D.'s teaching in law school and recommends that schools substantially defray the costs of their faculty's Ph.D. education.[79] The result would enable law schools to offer students a "two track system" depending on whether students desired "Hessian-training" or an academic study of law.
White presents still another means of deepening the intellectual content of legal study as a way of producing humanely educated lawyers. White suggests starting a voluntary second track of legal education in the second or third year. With a different relationship established among teacher, student, and material, this track "could include a central core course, devoted to the comparison of legal and other disciplines; the teaching of doctrine through lecture and reading; the careful exploration of a small number of cases, viewed as the occasion for the discovery of the resources and limits of legal speech; all with the idea of developing a sense of autonomy, individuality, competence, responsibility, and a capacity to invent."[80] It is this last cluster of ideas that so sharply distinguishes White's proposal from what presently goes on in law school. White concedes that this track would most likely attract academically minded students but also argues that it would prove worthwhile for the more professionally minded as well. It would be especially so "if it drew [students'] attention to their present lives, away from their future ones … and if it seemed in some sense to be about the character that a just community, and a trustworthy lawyer, should have."[81]
Another approach altogether is to integrate hermeneutical materials into the legal curriculum. Hermeneutics is not a method or program or substantive doctrine. It is a philosophical activity the aim of which is understanding the way we understand. Hermeneutics sets for itself an ontological task, namely, identifying the ineluctable relationships between text and reader, past and present, that allow for understanding to take place at all. In what remains of this section I will suggest that the objectives of strong citizenship and humane learning in legal education would be served by a more deliberate focus on hermeneutical insights. More specifically, hermeneutics would contribute to what White labels the external "contextualization of doctrine."
As legal educators assign hermeneutical readings or address standard legal analysis from a self-consciously hermeneutical point of view, the likely result will be to enrich legal learning in a humanistic way. In addition, this approach will promote the development of the good lawyer described above. To see how this is so, let us consider the educational
consequences of three aspects of hermeneutics in the law curriculum: the role of contexts in understanding, the nature of language, and historical judgment.
The Role of Contexts in Understanding
One educational objective of the hermeneutical approach would be to undermine the tendency to view law as a discrete activity by situating legal issues in a broader intellectual and social context. The student who understands, for example, that traditional marriage law depriving a woman of the right to choose her own legal domicile is rooted not only in a history of patriarchy but also in a contestable conception of womanhood is in a position to apply the legal doctrine to a wider kind of cultural criticism. Such a student understands the historical origins and cultural force of law. For this student legal doctrine is removed from its all too common vacuum and placed in a context of meaning.
Hermeneutics teaches us that all understanding presupposes contemporary contexts of meaning. Hans-Georg Gadamer's belief that our historicity colors all interpretations suggests that validity in interpretation must be understood with reference to the context of the interpreter. In other words, the recovery of a legal doctrine's meaning is never a matter of neutrally or dispassionately exhuming claims from a text or intentions from an original author. Because all human understanding is historically and temporally conditioned, construing the meaning of legal doctrine involves a reconstruction of the legal text in light of contemporary practices, interests, and problems.[82] Gadamer identifies this as an ontological description of understanding, as a description not about "what we do or what we ought to do [in interpretation], but [about] what happens to us over and above our wanting and doing."[83] The hermeneutical claim, then, is that without contexts there can be no understanding at all.
The significance of this claim for legal education is twofold. First, to understand the background conditions (or contexts) against which any particular interpretation is measured is to greatly heighten one's awareness of the way that law is historically and interpretively constituted. An understanding of understanding enables one to see how legal doctrine is made. So the student with some knowledge of hermeneutics has a perspective from which to evaluate the nature of the idea of a legal doctrine, any legal doctrine. We might say that hermeneutics supplies a deep context for understanding legal doctrine.
Second, the hermeneutical claim that without contexts there can be no understanding has considerable practical import as well. At a minimum, a hermeneutical approach recommends that we be suspicious of those who describe interpretation as the recovery of a stable and invariant legal meaning. Mark Tushnet and many others have suggested that
this is one problem with originalist constitutional theory. Once originalism is recognized as a hermeneutical howler, we can examine the political and intellectual interests served by its perpetuation. The educational value of this exercise lies in fostering a critical attitude toward our own constitutive contexts. What interests are served by foisting a theoretically discredited account of legal interpretation on students and citizens? To answer this question is to gain wisdom about the contemporary contexts that condition our accounts of the past and compete for our allegiance. It is a question that legal education should consider in a systematic way.
The Nature and Role of Legal Language
Another goal in the education of the good lawyer is to teach students to write legal arguments clearly, concisely, and without resorting to legalese. But teaching law students to write effectively is not simply a matter of drilling them in the proper sentence structure or verb usage. The mechanics of putting words on paper is only one part of the large misuse of legal language. George D. Gopen suggests that poor legal writing is a function of the way "shallow intellectuality in the legal profession is tending to produce shallow thought, which is in turn manifested by (not merely productive of) poor writing."[84] In other words, the "writing process is not to be separated from the thinking process; it is a thinking process."[85] A better understanding of both the structure of law and the nature of language—indeed, an appreciation of the way that law is constituted by its concepts and categories—might well have salutary benefits for both legal thought and legal writing.
Not surprisingly, hermeneutics has something to offer on this front as well. Knowledge of hermeneutics does not, of course, translate directly into better or clearer writing. Indeed, hermeneutic philosophers sometimes have their own kind of linguistic veil that readers must pierce. But hermeneutics does educate us about what takes place in and through language. It offers an account of the way our legal and political worlds are linguistically constituted, and an awareness of this story about language is part of what is required to repair "the shallow intellectuality in the legal profession."[86]
Consider, for example, the value of Gadamer's remarks on translation as a model for legal decision making. In Gadamer's view, "language is the fundamental mode of operation of our being-in-the-world and the all-embracing form of the constitution of the world."[87] Words enable us to understand and experience the world in which we live. Yet language precedes us in the world. So although we can revise our concepts and categories, we can do so only within the limits of already existing linguistic constraints and conditions. "The hermeneutical problem," Gadamer says, "is not one of the correct mastery of language, but of the proper
understanding of that which takes place through the medium of language."[88]
What takes place through the medium of language when we seek to understand is properly regarded as a kind of translation. The aim of the translator is not simply to reproduce a meaning discovered in an alien or historically remote text. Rather, the translation must consider its audience by making the text meaningful to those for whom the translation in undertaken:
Here the translator must translate the meaning to be understood into the context in which the other speaker lives. This does not, of course, mean that he is at liberty to falsify the meaning of what the other person says. Rather, the meaning must be preserved, but since it must be understood within a new linguistic world, it must be expressed within a new way…. the translator must respect the character of his own language, into which he is translating, while still recognizing the value of the alien, even antagonistic character of the text and its expressions.[89]
The point of this tale is to suggest that the model of translation is an instructive tool for describing the activity and obligations of appellate judges. Legal interpretation—no less than any other kind of interpretation—aims at translating archaic concepts into socially meaningful terms. A hermeneutical jurisprudence will be aware of the conceptual discontinuities separating us from the founding generation. Such an approach to judging will attempt to eliminate these conceptual discontinuities in ways consistent with general legal and political norms. We can see, then, how a study of the linguistic foundations of human experience has important implications for the way language shapes law. Language is not an object for judges and lawyers to manipulate as they please; instead, it is a medium in which they participate often quite unaware of the linguistic presuppositions of their legal work. To learn more about these linguistic foundations of human experience is to learn more about the law.
Still more could be learned about the social and political functions of writing from an examination of its origins and purposes. Goodrich observes that "the history of systems of writing clearly evidences a constant link between the invention of writing—of pictograms (Mexico), hieroglyphs (Egypt), ideograms (China) as well as alphabetic script—and knowledge or control placed in the hands of elite groups or classes within the societies in question."[90] According to Goodrich, writing first emerged from the need to control others and to exercise authority. Writing was and is a source of power. Gopen sees a similar theme at work in the legal profession:
[T]here is a glory, it seems, in the mystery of a language that can be deciphered only by initiates of the secret society; there is a great sense of power
and an even greater actuality of power in controlling a language that in turn controls the most pressing affairs of individuals and communities; and there is a monopolistic safety in being able to manipulate a language which because it was part of the creation of legal problems must be part of their solutions as well.[91]
The highly technical and specialized character of legal language means that most of us will be unable to decipher its meaning without the aid of someone trained in the idioms of authority. We will be dependent on the class of legal specialists to translate law's meaning. This fact about the politics of writing is something I should think a good lawyer would want to know. To see legal language for what it is—both a means of communication and a source of immense political power—is to better understand the very profession the law student seeks to practice. To make this perspective on legal writing an element of law school curriculum is to educate students in the best and highest sense. For an appreciation of the many ways language conditions and empowers legal activity both suggests something deep in the linguistic character of human experience and also calls attention to the political relationships and obligations that must consciously inform the practice of any good lawyer.
Historical Judgment
The law student who grasps the linguistic constitution of human experience and the significance of contexts for human understanding will be in a position to rethink conventional views of judgment. The exercise of practical judgment is an activity central to the practice of law. But given the contingent and mutable character of our interpretive contexts, how is it possible to rationally justify decisions in law? How does hermeneutics describe the rational basis of legal judgment?
A hermeneutical study of legal judgment produces twin educational benefits. First, not only will law students learn how particular judgments come to be called truths; they will also be provided with an outstanding example of how to think about knowledge, any kind of knowledge. For hermeneutics avoids the entrenchment of essentialist and foundationalist conceptions of knowledge and opens students to the possibility of a historically situated view of human rationality. Hermeneutics suggests a rationally defensible way of exercising judgment that neither appeals to ahistorical, independent standards nor lapses into the kind of nihilism that threatens the legitimacy of the legal order.
Contemporary analytic philosophy, for example, has been changed by its encounter with a hermeneutic conception of knowledge and judgment. According to Thomas Kuhn, "the early models of the sort of history that has so influenced me and my historical colleagues is the product of a post-Kantian European tradition which I and my philosophical colleagues continue to find opaque."[92] Kuhn confesses that
"even the term 'hermeneutic'… was no part of my vocabulary as recently as five years ago."[93] Yet the potential contribution of hermeneutics to historians, philosophers, and lawyers is quite real: "I suspect that anyone who believes that history may have deep philosophical import will have to learn to bridge the longstanding divide between Continental and English-language philosophical traditions."[94]
Legal theory may be beginning a healthy reconstruction in light of its encounters with hermeneutics, pragmatism, and critical theory. What is at stake in these encounters is nothing less than our conceptions of truth, understanding, and judgment. A lawyer familiar with these controversies is not only more likely to be self-reflective when making her own legal choices; her liberal education in ways of knowing will also prepare her to justify whatever legal choices are warranted. She will be engaged at the level of justifying legal discourse, not simply describing or mastering it. Her understanding of the always provisional nature of knowledge will free her from thinking of legal judgments as references to black-letter rules or fixed codes. For she will have caught a glimpse of "the humanist vision behind the laws."[95]
The second benefit of hermeneutical study is more pragmatic. Legal education today is instrumental owing to a belief that lawyers must be trained to perform their practical roles in society. But a commitment to teaching law students to become effective practitioners does not require an atheoretical approach to education, for the practical situations a lawyer may confront demand an ability to think adaptively and creatively. Often there will be no rule or unambiguous policy to which one might appeal in the course of making a decision or giving a recommendation to a client. Legal decisions are typically the result of the kind of human judgment that goes well beyond the methodical application of legal rules.
"Judgment," Ronald Beiner says, "is a form of mental activity that is not bound to rules, is not subject to explicit specification of its mode of operation (unlike methodical rationality), and comes into play beyond the confines of rule-governed intelligence."[96] This type of mental activity is required by the lawyer or judge who must balance competing values presented in a case. Beiner continues: "[A]t the same time, judgment is not without rule or reason, but rather, must strive for general validity. If subjectivity could not be transcended, at least in principle, the rendering of judgments would be an entirely vain activity of asserting claims that could never be vindicated."[97] So the judge must not only weigh competing interests but must also provide a rational argument for the vindication of one party in a dispute. "For there to be the mere possibility of valid judgments," Beiner adds, "there must exist a way of breaking the twin stranglehold of methodical rules and arbitrary subjectivisim."[98]
The educational significance of this account of judgment is that it accurately describes the mental operation of judges and lawyers as they apply the law. It is not a coincidence that when Gadamer offers a phenomenological analysis of judgment, he uses the judge at law as his exemplar. Gadamer explains that a judge asked to decide a case cannot respond by subsuming the particular facts under some universal rule learned in law school. Legal judgment is not so methodical. The judge has a more practical task to perform. She must relate or adapt the law to the concrete character of the case. A judge's judgment always involves application:
It is the specific work of interpretation to make the law concrete in each specific case, ie it is a work of application. The creative supplementing of the law that is involved is a task that is reserved to the judge, but he is subject to the law in the same way as every other member of the community. It is part of the idea of a legal order that the judge's judgment does not proceed from an arbitrary and unpredictable decision, but from a just weighing up of the whole. The application of the law is not simply a matter of knowing the law…. For the idea of perfect legal dogmatics, which would make every judgment a mere act of subsumption, is untenable.[99]
This account of legal judgment illuminates a mental operation the attainment of which is one objective of a humanistically oriented education in law. One thing a student might acquire from studying the phenomenology of judging is that the making of sound judgments—in law as in life—is not a matter of appealing to universals, original meanings, or inflexible rules. It is rather a matter of "weighing up the whole" and of testing one's judgments against those of other judging persons. Sound human judgment moves back and forth between universals and particulars in a flexible and mutually informing way. The hermeneutic conception of legal judgment has much in common with what Aristotle called phronesis, or practical reasoning. Gadamer observes that "the great merit of Aristotle was that he anticipated the impasse of our scientific culture by his description of the structure of practical reason as distinct from theoretical knowledge and technical skill. By philosophical argumentation he refuted the claim of the professional lawmakers whose function at the time corresponded to the role of the expert in the modern scientific society."[100]
Conclusion
A hermeneutical approach to legal education may help to restore some of the humanistic content missing from the modern law school. The student familiar with the philosophical presuppositions of legal reasoning
becomes a person educated in the law rather than one trained merely to manipulate doctrine and cases in the way usually associated with "thinking like a lawyer." The idea served by this approach is that of offering an intellectual education in law in order to develop good lawyers and citizens.
If the critics of legal education are even partly correct when they describe law schools as suffering from a "jurisprudential void; the preoccupation … with craft training and law pertinent to business; [and] the monotony and redundancy of doctrinal courses,"[101] then an injection of humane learning into the curriculum is overdue. Hermeneutics is well suited to make a modest contribution to the reconstitution of legal education. Attention to subjects such as philosophical hermeneutics would not only change legal education in a positive way but also, perchance, change the contribution of lawyers to public life.
PART FIVE
COMMENTARY
Play of Surfaces: Theory and the Law
Stanley Fish
In writing this commentary I have chosen to take the low road. That is, I have not rehearsed the many virtues of the essays collected here but have concentrated instead on those points with which I would take issue. The reader who has already made his or her way through the volume will know how abundant are the riches I have slighted.
The essays in this volume circle around a set of distinctions that are more or less the content of legal theory today: originalism versus nonoriginalism (or originalism plus), determinacy versus indeterminacy, interpretivism versus noninterpretivism, historical versus ahistorical interpretation, etc. It is assumed by those who wield these terms (1) that the positions they name are conceptually discrete and (2) that there is a strong correlation between the stances one takes (as in "I am an originalist" or "I choose to interpret historically") and the shape of one's practice. Thus, for example, Michael Perry cites the recent (mis)fortunes of Robert Bork, who, he says, was "rejected as unfit for membership on the Supreme Court principally because of his position—originalist—on issues contested in constitutional theory." Perry's point is complex and involves three claims: (1) that Bork's originalism was regarded by his opponents as a reason for rejecting him; (2) that in their eyes the relationship between his originalism and his position on specific issues was strong and even inevitable; and (3) that the relationship was in fact strong and inevitable. ("Given his originalism," says Perry, Bork's "deep skepticism about … due-process doctrine regarding reproductive rights is easy to understand.") The first and second claims may or may not be true; what is certainly true is that originalism was something Bork avowed, and (not necessarily "therefore") he was rejected. The third
claim—that given Bork's originalism, his opposition to abortion rights was a matter of course—is false, and because it is false, Perry's conclusion that "constitutional theory matters" is false too, at least in the sense he intends it. (I too shall be arguing that constitutional theory matters, but in terms Perry would regard as weak.)
The third claim is false, first of all, for the reason Terence Ball gives: "a judicial strategy of original intent … can cut in quite unexpected directions." That is, it is perfectly possible to be in favor of abortion rights and also to label oneself an originalist, as someone who hews to the intentions of the framers. It would just be a matter of characterizing those intentions so that the right to abortion would seem obviously to follow from them. One might, for example, argue (as many have) that even though the Fourteenth Amendment nowhere mentions abortion rights, a correct understanding of its authors' more general intention requires that such rights be protected. (The point is made elegantly by Knapp and Michaels in this volume.) Conversely, it would be perfectly possible to be against abortion rights and think of oneself as a nonoriginalist, as someone who looks elsewhere than to the intentions of the framers for the point of constitutional law. (In a moment I will question the possibility of "looking elsewhere" than to intention, but for now I will stay with the formulations provided by the debate.) One might, for example, look to precedent and contend that whereas the right to privacy was firmly established, the right to an abortion should not be understood as falling under that rubric. In short, there is no necessary relationship between declaring oneself an originalist and coming out on one side or the other of a particular issue; "given [Bork's] originalism," one could not have inferred his "deep skepticism about … due process doctrine regarding reproductive rights," or anything else for that matter.
It is wrong, then, to say that Bork was rejected because he was an originalist. He was rejected because he held certain positions (on the right to privacy and other matters) the Senate found repugnant. Of course, it is true that his holding of those positions was associated in his mind and in the mind of the public with originalism, but that association is contingent not causal, and in the end the public (through its representatives in Congress) was quite able to disassociate the rhetoric of originalism—with its attendant claim of responsibility as opposed to the supposed unfettered creativity of nonoriginalists—from policies it disliked. I can easily imagine two votes being taken on the same day in the Senate: in one vote the senators would decide against Bork just as they did, and in a second vote in which the choice was between originalism and nonoriginalism as modes of constitutional interpretation, originalism would win by the same margin that Bork lost. Such a vote would not be contradictory: it would merely reflect the fact that people vote for outcomes not theories,
except in those special (and bizarre) circumstances when theories are on the ballot. This is not to deny that theoretical slogans might play a part in one's thinking about outcomes; it is just that those outcomes will not be determined by theory.
The assumption that theories determine outcomes is common to originalist and nonoriginalists alike, and indeed the rival parties are mirror visions of one another in that they both think that there is a choice between originalism and something else. Thus, David Hoy, speaking for the nonoriginalist side, grants that one of a text's meanings is the meaning its author(s) intended but insists that the text can yield other meanings to which we might turn for any number of reasons. Since "linguistic processing can be done without attention to intention," there is no need to restrict ourselves to the meanings an author may have intended: "hermeneutics takes the question about the intended meaning as a secondary one that presupposes a prior understanding of 'meaning' in some other sense." Both Hoy and Bork, then, agree in distinguishing between the meaning an author intended and the meaning one can find in a text without reference to intention; they disagree only in the style of interpretation each prefers, Bork saying, "Let's go for intentional meaning," Hoy saying, "Let's not."
What I want to say (along with Knapp and Michaels) is there is only one style of interpretation—the intentional style—and that one is engaging in it even when one is not self-consciously paying "attention to intention." Hoy's case for nonintentional interpretation rests in part on our capacity (acknowledged by Knapp and Michaels) to hear "what is really noise as an articulate utterance." Hoy concludes from this capacity (evidenced in relation to examples such as computer poems or wave poems or monkeys at typewriters producing Shakespeare) that we are able to construe meaning without taking intention into account. The reasoning is that since it is always possible "for arbitrarily produced sounds or marks to be read as a text," we can "hear something as making sense … independently of whether it was intended." But his example works against him, for in order to hear sense in arbitrarily produced sounds or marks we have to hear those sounds and marks within the assumption that they have been produced by some purposeful agent; that is, we have to hear them as not arbitrarily produced, even if to do so we must attribute purpose and intention to the waves or to the wind or to the great spirit that rolls through all things. Computer poems are read as poems (as opposed to random marks) only because we read them as issuing from intentional beings, only because we grant them—in the act of construing, not as an addition to it—a mind. Hoy (and others of his party) confuse the activity of self-consciously arguing about intention and the activity (if that is the word) of assuming intention, not a specific one but just the
unavoidable fact of one. The first activity may or may not play a part in interpreting; the second is interpreting.
I would not he misunderstood as returning to some notion of authorial control as exercised by a coherent self that knows its own projects unproblematically. The thesis that interpretation always and necessarily involves the specification of intention does not grant priority and authority to the author, who is in no more a privileged relation to his own intentions than is anyone else. Each of us has had the experience of walking away from a conversation and asking himself or herself, with respect to something just said, "Now what did I mean by that?" The question is shorthand for "With what kind of motives and in the context of what hopes, fears, anxieties, and desires did those words issue?" Depending on the answer, one will have fashioned an image of oneself that will constitute one's sense of the kind of person one is. Rather than being a stable center of authority and control, the intending self is the continual creation and re-creation of the interpretations it itself performs in relation to its own actions, including the action of intending. We know ourselves no less interpretively (and therefore revisably) than others know us; the fact that it is intentions that we know, or try to know, does not limit the range of interpretation but merely specifies what the object of interpretation will necessarily be. Intentionalism properly understood involves no methodology, no prescriptive direction. It does not, for example, bind us to the dead hand of the past (as some nonoriginalists fear) because the hand of the past can appear to us only in an interpreted form, in the form of a constructed intention that can always be constructed again in the light of whatever evidence from whatever source seems relevant; and therefore the past we will be bound to will acquire its shape within the horizons of the living and lived-in present.
What this means, among other things, is that there cannot be a distinction between interpreters who look to intention and interpreters who don't, only a distinction between the differing accounts of intention put forward by rival interpreters. If Bork and some other legal scholar disagree about what (if anything) the Constitution says about reproductive rights, the opposition is not between intentional interpretation and some other kind (even if that is the opposition both parties would stipulate to) but between two specifications of the intentional conditions of the Constitution's production. Bork's construal of the Constitution and its amendments assumes an agent (the framers) whose purpose is to confine future generations to the possibilities for action conceivable in 1787 or —; that is, he imagines the framers saying something like, "If we can't think of it now, we don't want anyone to think of it in the future." Other construers posit an agent whose purpose is to lay down general rules and standards (of equality, liberty, etc.) that are to be rendered particular
in the light of emerging information and changing circumstances; in this vision the framers are saying something like, "Equality and liberty are the standards we want to promote, but whether or not a particular action affirms these values is something future generations, faced as they will be by possibilities we cannot foresee, will have to decide for themselves." In either case the act of construing will begin by assuming an agent endowed with purposes, and then the words will be read as issuing from that agent; and in the (certain) event of a dispute between the construers, pointing to the words as a way of adjudicating the dispute will be futile because the words will mean differently in the light of the differently assumed intentions.
The relevance of this account of the matter to Perry's argument has already been asserted: "originalism" is not the name of a distinct style of interpretation but the name of interpretation as it is practiced by anyone; since meaning cannot be determined apart from (the prior and simultaneous) assigning of intention, everyone who is an interpreter is in the intention business, and there is no methodological cash value to declaring yourself (or even thinking yourself) to be an intentionalist because you couldn't be anything else.
Perry would reply, as he does in his essay, that there is certainly a distinction between original meaning and what he calls "aspirational meaning," the meaning the Constitution takes on when regarded "as a symbol of a fundamental aspiration of our political tradition." Although I would acknowledge the distinction as a possible one, I would redescribe it (in line with my discussion of the Bork example) as a distinction between two forms or versions of originalism, between two competing accounts of what the framers intended, either to bind future jurists to the conditions obtaining in 1787 or to set those same jurists the task of extending general principles to the particular circumstances thrown up by history. The "aspirational" interpreter who looks to "relevant precedent" is not looking away from the framers' intention but to the place where he thinks the best evidence of that intention is to be found. He thinks that since the framers intended that we search in present configurations for the course of action most faithful to their aspirations, the writings of those charged with the responsibility of carrying on that search is a good place to look. Others, of course, may think differently, which doesn't mean that they have forsaken intention but that they have a different notion as to where evidence of that intention is to be sought. They may think, for example, that the text provides the best evidence for the author's (or authors') intention (formalism and intentionalism are not necessarily opposed); or they may think to consult the author's biography; or they may research the received opinions of his (her, their, its) culture; or, if they have a certain view (bizarre to some but widely held in the culture)
of the influences that produce verbal and physical action, they may consult the author's horoscope. No matter where they look, what they'll be looking for is evidence of intention, and, moreover, since the question of what is evidence is a matter of dispute (depending on one's notions of agency, mental processes, linguistic structure, class consciousness—in short, of anything or everything), their common intentionalism will in no way be predictive of the conclusion any interpreter might come to.
To all of this someone committed to the distinction between intentionalist and nonintentionalist interpretation might reply (with Perry) that one can always find meanings in a text other than the ones intended by the author. This statement is undoubtedly true, but the question is, in what sense would that action be an instance of interpreting? Suppose, for example, my method of interpreting a text consists of taking every third word of it and seeing what patterns of significance then emerged. There are at least three understandings within which I might be proceeding: (1) I might believe that the author, in writing the text, employed a code that I have now discovered; (2) I might believe that the author (unbeknownst to him) was controlled (through brainwashing, injection, diabolic possession) by a superior force employing that same code (that force would then be the author); or (3) I might believe neither (1) nor (2) nor any version of them but simply want to see what I could make of the text by subjecting it to this procedure. Under the first and second understandings I am interpreting; under the third I am playing with the text, something I could be doing for any number of reasons, serious and unserious. I might be playing with the text in order to amuse myself and my friends; or I might be playing with the text because I was determined to bring it in line with a conclusion I had already reached. In either case the text is the object of my experiment and not of my interpretive attention. I am not trying to figure out what it means but trying to see what meanings it could be made to yield. I have no necessary quarrel with those who want to do that (although when the text is one I have produced or one produced by someone I regard as authoritative, a quarrel is likely to be provoked), but I do not think it should be called interpreting. Interpreting is the act of determining, or trying to determine, what is meant by an utterance or a gesture, that is, of what it is intended to be the expression. Of course, as has already been acknowledged, there is no uncontroversial road to that determination and no independent way of confirming that it has been correctly made (intentionalism is not a method); but there is a great difference between saying that the effort to specify what is meant by a text can yield multiple and competing results and saying that the competition must admit those who are not making the effort at all.
Once one sees (1) that aspirational and nonaspirational readings of a text are rival specifications of what its author intended and (2) that those
who find patterns in a text but do not claim they were intended are not interpreting, the conclusion I have already reached is inescapable: originalism is not an option for interpreters but the name of what they necessarily do. And the conclusion to be drawn from that conclusion is that originalism cannot be the issue it is for Perry and others. Arguments in favor of it are superfluous since it is what everyone does anyway; arguments against it (like Terence Ball's) are futile since one cannot avoid it and still be interpreting; the only arguments there can be are about which version of originalism, which specification of the meaning an author intended, is the correct one. Moreover, since looking for evidence of intention is what every interpreter does, knowing that one is doing it is no methodological advantage, and believing (incorrectly) as Hoy, Perry, and Ball do that one is not doing it is no methodological handicap. Nor will announcing that you are an originalist or declaring that you wouldn't be caught dead being one lead you to look in some particular direction since the direction you look in will depend on where you think the evidence is, and that will vary independently of whether or not you are a declared originalist. In short, if theoretical pronouncements are consequential insofar as they directly affect practice (Perry's explicit claim and the implicit claim of some others in this volume), then theory, at least in relation to the originalist question, doesn't matter.
The same argument will hold for the other issues examined in these essays, historical versus ahistorical interpretation and determinate versus indeterminate practice. The historical/ahistorical opposition is complicated because there are two versions of it. In one version, the ahistorical stands for the immutable laws or principles to which persons should be faithful no matter what their historical (i.e., local, partial, biased) circumstances; in the other, history stands for the authority of traditions and public codes as against the ahistorical preferences of isolated and self-regarding individuals. In the first version, an ahistorical purity is to be protected from the polluting touch of merely historical imperatives; in the second, the considered and settled doctrines produced by historical process are invoked as a stay against the willful actions of interpreters who consult only their own wishes.
The two versions get mixed up and merge into a third when cultural relativism—the notion that interpreters are limited in what they can see or discover by the horizons of their own historical moment—enters the picture. To those who are distressed by it, cultural relativism presents the same liability as does the thesis of interpretation on the basis of personal preference: true, the interpreter in a cultural-relativist world does not consult his own (single, unique, self-originating) preferences but rather the preferences made available to him by the norms and standards of his time; still, since he is confined to those norms and standards, he cannot
get a critical distance on them, and therefore practice, as the extension either of an individual agenda or of the agenda of a particular interpretive community, is without a check on its desires and becomes (in the words of Jerry Stone as he paraphrases Habermas) "subjectivized, impressionistic, and incapable of rigorous self-criticism." In the legal culture this debate is folded into the familiar (and durable) opposition between a government of men and a government of laws, which is itself a variant of the even more durable opposition between truth and politics. Shall we follow our own inclinations (either personal or communal), or shall we subject them to the scrutiny of a standard that reflects something larger than our desires or the desires of those who are associated with us? In the eyes of some the question is rendered meaningless by the cultural relativism thesis, which precludes the possibility of any check either on our desires or (it is the same thing) on our politics. As Fred Dallmayr puts it (he is rehearsing not endorsing the argument):
On radical-perspectivist premises an inescapably human and political factor seems to enter the law…. with the intrusion of politics the rule of law is in danger of collapsing into the very "government of men" that it was originally meant to forestall…. Does law … not become a captive or instrument of arbitrary caprice, of the whim of particular interpreters? Are we not witnessing here the triumph of power over law, of voluntas over ratio …?
There are in fact two questions here, and they should be disentangled. The first question concerns the (supposed) choice between interpretation from within some local structure (either of the self or of some currently in-place interpretive community) and interpretation that looks for guidance and (possible) correction to a structure beyond the present horizon. In the essays collected here the terms of this choice are most clearly formulated by E. D. Hirsch, Jr., as reported by Stone:
[T]he interpreter can choose someone else's, perhaps another culture's understanding as [a text's] best meaning—an allocratic ("other-governed") choice—then allow this delegated meaning to stand in critical judgment of the interpretation that seems most significant in the present moment. As a contrast to the "realists" who make allocratic choices, Hirsch describes the "cultural Kantians" as "idealists" who believe that the only authoritative interpretation is the autocratic one, that is, the self-governed one that emerges from within a person's own horizon.
The formulation is neat and apparently clean, but a single question undoes it: where is the interpreter when he makes this choice? The answer can only be that he is situated within some horizon of present understanding and that therefore his "other-governed" choice will in fact be governed by his horizon-conditioned sense of where to look for authoritative
guidance. It is not that the scenario Hirsch and Stone imagine is an impossible one; we often say to ourselves something like, "This (text, gesture, event) seems to me to have such and such a meaning, but perhaps I'd better check (by consulting a dictionary, or some historical archive, or some recognized expert, or a psychoanalyst) in order to make sure the meaning I see is the correct one." It is just that the check we perform will not be a check on our present horizons but will proceed from our present horizons (which may then possibly be altered by a mechanism internal to them). Nor does this mean that when we interpret we always do so in a self-rather-than-other manner, for the self that is interpreting will always be constituted in its possibilities by the ongoing traditions through which it must pass in order to have an interpretive direction, in order to be . The self, in short, is already formed by that which is other than it—in Derridean language, the self is always already other than itself—and therefore the judgments that issue from it cannot be contrasted to judgments that are "other-governed." It is all "other-governed," or if you prefer (and with the proper understanding), it is all "self-governed." What is not possible is a genuine (as opposed to a polemical) choice between them; the only choice will be between the various reservoirs of evidence that present themselves to interpreters for consulting, and that choice will have no direct relationship to an interpreter's declared autocratism or allocratism since both programs of action—being purely self-governed or purely other-governed—are impossible to put into practice.
Does this mean that we are trapped within our present horizon with no hope of a critical perspective on the judgments we feel inclined to make? This is the second question raised by the passages from Dallmayr's and Stone's essays, and the answer is no. The urgency of the question stems from the assumption that criticism must come from the outside in order to be criticism, and this assumption itself rests on the assumption that horizons of understanding are monolithic and will go their unconstrained way unless challenged by something external to them. But any horizon of understanding, any agenda, any political arrangement bears within it the dynamics of its own alteration; this is the case even for the "royal absolutism" that for Gadamer represents the arrangement least open to change because everything happens "only through absolute fiat" (as Dallmayr phrases it). Although royal absolutism may be a claim and the heart of a political theory (of the divine right of kings), it is never a fact because its exercise or apparent exercise depends on a populace that receives its acts within a set of assumptions (Gadamer's "shared meanings") that renders them legitimate. Of course, given enough military and economic power royalty can have its way even when those shared meanings are absent; but every time it does so it energizes and
authorizes resentments that will in time undo it, as Charles I of England proved to his cost. If we have learned anything from Foucault, it is that power is never concentrated in one place (or person) but is distributed everywhere throughout a system, so that its exercise is always reciprocal, a two- (or more) way traffic in relation to which the action of one person is effective only insofar as some other persons affirm its scope and thereby maintain a balance that can always be altered at almost any point. What this means is that there is never a situation in which there is "no room for hermeneutics" (Dallmayr, quoting Gadamer), that is, no room for the interpretive maneuvering that produces change; since the structure of any situation or of any system of ideas is one of layered dependencies and coordinations, there are innumerable nodal junctures at which a shift in emphasis and pressure can lead to a systemwide readjustment or even to a systemwide breakdown. As I have put it elsewhere (Doing What Comes Naturally ), a horizon of understanding is not a monolithic unity of which one asks, how can it change? Rather, it is itself an engine of change, a complex mechanism whose every exertion is simultaneously a self-alteration. If we understand criticism as the possibility of correction and reform (a word that should be read with a literal emphasis), then it is a possibility that can never be foreclosed.
The conclusion is the same one we reached vis-à-vis the supposed choice between originalism and nonoriginalism: (1) neither autocratism—the preferring of one's own point of view to the point of view of another—nor allocratism—the deliberate choosing of another's point of view in preference to one's own—is a possible option (although they are options one can profess, a point we shall return to); and (2) declaring oneself to be either autocratic or allocratic cannot have the consequence of turning one away from or toward history, or away from or toward individual desire, or away from or toward abiding and eternal truth, or away from or toward politics, and so on. In short, such a declaration cannot of itself turn you toward or away from anything, and therefore the entire issue, at least as it has been posed in the literature, is moot.
The choice between determinacy and indeterminacy is similarly moot, although the argument takes a somewhat different form. Indeterminacy has become an issue in legal theory because of the assertion by Critical Legal Studies members that the decisions judges render do not follow from the materials (laws, precedents, evidence, etc.) they invoke, materials that could be made to yield almost any decision one wishes to reach. According to the indeterminacy thesis, judges are not constrained by the rules and texts that supposedly ground the legal process, and this absence of constraint, as Ken Kress points out, "rais[es] the specter that judicial decision making is often or always undemocratic and illegitimate": undemocratic because the decisions follow from the desires of
particular judges rather than from the directions embedded in public texts, and illegitimate because the result is a government not of laws but of men.
Indeterminacy as a property of legal decisions can be urged in different ways. Some claim that indeterminacy is a product of the contradictions embedded in a liberal/bourgeois/capitalist legal system: since the system is full of gaps—its first principles do not cohere with one another—its "application" to a set of facts will yield any number of conclusions. In this version the indeterminacy thesis admits of a remedy: reground the system in coherent first principles and principled conclusions will follow. In another version the thesis is more radical and asserts indeterminacy as a general feature of all interpretation; no matter what constraints are supposedly in place, they will not check the interpretive will, which can always recharacterize them on the way to pursuing its own agenda. To those who are alarmed by it, this position (often buttressed by references to the polysemous nature of language) amounts to nihilism—the denial of meaning and authority—and various defenses are constructed against it. The more sophisticated of these defenses acknowledge that interpretation is not determinate down to the last detail but insist that at a basic level constraints are always in place, or can be if the drafters of laws and contracts are sufficiently careful. That basic level is sometimes identified with literal (as opposed to metaphorical or analogized) meaning, sometimes with a settled core as opposed to a penumbra of uncertainty (H. L. A. Hart's terms), sometimes with easy as opposed to hard cases. Whatever the label, the argument is that the existence of unproblematical instances of interpretation disproves the indeterminacy thesis in its strongest and most corrosive form.
The counterargument is that unproblematical instances are unproblematic only within interpretive conditions—specifications of what counts as evidence, arguments as to the weight and shape of precedent, etc.—which, while presently settled, can themselves become the object of dispute and so become problematical. I find this counterargument persuasive and therefore am persuaded of the indeterminacy thesis in its strong form; but it is precisely because I am persuaded by the indeterminacy thesis in its strong form that I agree with Kress when he says that the indeterminacy issue is a "red herring." It may be that at a general level interpretation and language are radically indeterminate because every interpretation (decision, specification of meaning) rests on a ground that is itself interpretive and therefore challengeable; but since life is lived not at the general level but in local contexts that are stabilized (if only temporarily) by assumptions already and invisibly in place, the inherent indeterminacy of interpretation is without the practical consequences both feared and hoped for it.
That is, although the logic of a decision can always be undone by a deconstructive analysis of it or by the elaboration of a more powerful logic, until that happens (and in some cases it may not happen for a very long time, long enough to feel like forever) the decision is as determinate as one would like and has all the consequences of a decision that was absolutely determinate. People will act on it, be influenced in their calculations by it, cite it invoke it, believe in it. What this means is that the distinction between determinate and indeterminate does not refer to possibilities anyone could actually experience; no state of interpretive affairs can be determinate in the sense that it is invulnerable to challenge, but no interpretive state of affairs is (within its own challengeable terms) characterized by the instability that subsequent events can retroactively confer. To put it another way, everything is always determinate and indeterminate at the same time: interpretation is always determinate in that within the context of its occurrence the meanings it yields will seem obvious and inescapable; and interpretation is always indeterminate because meanings thus yielded can always be dislodged by successfully recharacterizing the context in which they emerged.
Like originalism and nonoriginalism and historicism and ahistoricism, determinacy and indeterminacy do not name cognitive behaviors that could be actualized; and although they do name positions that one could affirm—as in "I believe in determinacy" or "I believe in indeterminacy"—those affirmations do not translate into interpretive options. One cannot be determinate simply by declaring an intention to be so because the determinations one makes can always be upset; and one cannot be indeterminate, in the sense of doing indeterminacy or practicing instability, because indeterminacy and instability are features of interpretation as viewed from the long range, and it is in the short range that interpretation is always experienced and practiced. In the short range a situation specific determinacy provides all the stability one needs. Determinacy and indeterminacy may be polemical identifications in the current epistemological wars, but those who identify with them are not thereby led to interpret in one direction rather than in another. In short, and to repeat myself, in terms of the claims made by Perry and others, theory doesn't matter.
In another sense, however, theory matters very much, for as Kress observes, "[L]egal indeterminacy is of great importance because many scholars think that significant indeterminacy results in illegitimacy." Posing the question "Why do we and should we care about indeterminacy?" Kress answers correctly, "Indeterminacy matters because legitimacy matters," because "many legal scholars hold that the legitimacy of judicial
decision making depends on judges applying the law and not creating their own." Of course, the options "applying the law" versus "making one's own" are no more realizable than are any of the other oppositions discussed here (and for the same reasons), but that is beside the point because the point is not theoretical but rhetorical and political. That is, although determinacy and indeterminacy, historicism and ahistoricism, and originalism and nonoriginalism do not name practices one can choose to instantiate, they do name positions (and accusations) one can invoke strategically in the course of engaging in the practice of what I have called "doing what comes naturally" (with "naturally" defined as whatever is felt to be appropriate and necessary given the assumed goals, accepted procedures, notions of evidence, etc., of a particular enterprise). Although one cannot be a nonoriginalist and cannot avoid being an originalist, the announcement that you are or are not one or the other may be crucial to the effectiveness of what you are trying to do. And if, as Kress observes, the assertion of a general indeterminacy would be understood both by jurists and the lay public as undermining the judicial process, then to assert it is to run the risk of undercutting your efforts (unless, of course, the rhetorical structure in which determinacy is thought necessary to legitimacy changes). And if it is important either to ground your position in eternal principles or to claim for it the virtue of being progressive and forward-looking, you will want to distance yourself from historicism and the suggestion that you are being dictated to by "the dead hand of tradition." In all of these cases, and any others that might be imagined, theoretical distinctions name moves that are possible within the practice; one can invoke them (on either side) with a fair (but by no means certain) confidence in their effectiveness not because they ground the practice in the sense of sitting above or below it but because in the current shape of the practice—a shape they do not generate but contribute to—they carry a calculable rhetorical weight.
There are two mistakes to make with respect to the distinctions we know as theory: one can think that they stand to the side of practice in an independent and authorizing relationship, so that the course of practice will follow from their invocation; or one can think that because they are not thus generatively authorizing they are empty and "merely" rhetorical. But if practice is through-and-through rhetorical, the components of its present rhetorical structure cannot be inconsequential, even if the consequences can never be as total or stable as hard-core theorists (the only real kind) desire. If the practice is so constituted that claims to originalism or nonoriginalism stand in an enabling or inhibiting relation to other claims (also components of the practice's rhetorical structure) one might want to make or disallow, then originalism is important to the
practice and one cannot afford to ignore it; but its importance is a function of a web of interrelations in which no one point is supervening because all points are mutually constitutive.
What this means is that there is nothing "deep" to know about the legal process, which is, as Gerald Bruns says, a "social rather than propositional discourse," a discourse "without ground": "[The law] is not a system working itself pure but a play of surfaces, a heterogeneous cultural practice that cannot be formally reduced but needs to be studied locally in terms of its position and effects within specific social and political situations." This is so good (and of a piece, I might add, with a very fine essay) that one is surprised to find Bruns then declaring, "The hard part is getting clear about the consequences entailed in such a view of legal study." That is, now that we know that the law is a play of surfaces, what does this knowledge direct us to do? Even to ask this question, however, is to retreat from the insight that the law is a play of surfaces by making that insight into something deep, into something that should generate a new practice. If "the very idea of law itself is in constant revision," then any idea of the very idea of law is part of that revisionary process rather than its compelling force. The notion that the law is social, not propositional, cannot itself be a new proposition from the vantage point of which the law can be reformed and corrected. Like any other proposition, it plays its role in the process by which the law builds and rebuilds its justificatory structure; but that role can never be theoretical in the strong sense; that is, it can never point you in a particular direction or exclude other directions in advance.
Bruns think otherwise and cites as the first methodological consequence of his insight that "one ought to unhook the law from such insupportable distinctions as the one between logic and rhetoric, not to mention the one between knowledge and power." But by Bruns's own logic ("the law is without ground") distinctions are neither supportable nor insupportable, but cashable or uncashable; either they serve to carry the discourse along, enabling and authorizing certain movements the argument seems to demand, or they don't and they are discarded. The distinctions that inhabit the space of law do not do so from the outside, where they preside over activities from which they are distinct; rather, they are constitutive of the law not in the sense of producing it but as components of its intelligibility. Take away the distinctions between logic and rhetoric and knowledge and power and you take away the entire basis of the law's current self-presentation. The law cannot be "unhooked" from the distinctions in relation to which its every action is now read and justified and still remain what it is. To be sure, many are dissatisfied with the way the law is and wish to change it; however, change will be achieved not by unhooking the law from distinctions but by replacing the distinctions
now in place with others that will be equally insupportable outside of the contexts they themselves help to create. And were the law to be unhooked from all distinctions—a suggestion that Bruns does not make, but one that lies in waiting in his thought—it will be nothing at all.
Another way to put this is to say that without these distinctions the law would be without principles; and this is indeed the conclusion reached by some members of the Critical Legal Studies movement, who go from the discovery that the law is without a deep ground and is a play of surfaces to the accusation that the law is a sham. It is this jump in reason that Drucilla Cornell attributes to the "irrationalists" in Critical Legal Studies, those who declare the "the absence of a fully cognizable good leaves us with the irrationality of all legal and ethical choice." The absence of a fully cognizable good is the consequence, as Cornell indicates, of the Derridean epistemology in which the signified (the ideal, the true, the Good) is never apprehended directly but appears to us always under the aegis of the signifier; and since signification is a human, social process, the values we meet and invoke are to a great extent (if not wholly) our own constructions. In short, we are not guided by anything we do not ourselves make, and as a result, the argument goes, "there can be no rational limiting principle by which to judge competing interpretations of legal doctrine."
As Cornell points out, by this move the irrationalists "replace the truth of reconciliation with the truth of castration"; that is, having lost faith in the immanence of the true and the good, they declare them to be forever unavailable and empty the world of meaning. To this thesis Cornell opposes the notion of "the appeal to the beyond": although the good "eludes our full knowledge," it "is a star that beckons us to follow." "The Good can never by fully enacted in space. That is why as a prescriptive command it points us toward the future." The principle underlying law may not be fully graspable in the sense that no enacted state of affairs will perfectly capture it, but it can serve as a "light that guides us and prevents us from going in the wrong direction," an "appeal to and enrichment of the 'universal' within a particular nomos ." In this vision the legal order is at every moment incomplete but leaning forward in the direction of that which it must finally join in order to be whole; it is the pull of the Good as it exists outside the system that prevents its operations from merely reflecting the status quo; it is the pull of the Good that assures forward movement.
Even as she unfolds this position, however, Cornell points (perhaps inadvertently) to another in which the inside/outside distinction need not be invoked because the mechanism of change is interior to the system. As she observes correctly, "no line of precedent can fully determine a particular outcome… because the rule itself is always in the process of
reinterpretation as it is applied." In other words, precisely because legal rules (or any other for that matter) are underdetermined in their content and scope, the very act of applying them—of using them to order a piece of the world—will result in their alteration. It is only if legal rules could achieve the status of "a self-sufficient mechanism"—of directions so complete that they did not require, indeed repelled, interpretation—that their application could preserve a status quo. "Interpretation," Cornell insists, "always takes us beyond a mere appeal to the status quo"—not (I would add) because of a regulative ideal that exerts a magnetic attraction and refuses to allow the system to remain complacent but because every operation of the system at once extends it and reforms it. There is no need for an appeal to something beyond the status quo because any appeal to the status quo—requiring, as it will, a recharacterization of the status quo in relation to the events that provoke the appeal—will always necessarily go beyond "it" (now in quotation marks because the status quo must be understood not as a static entity but as an ensemble of transformative possibilities). If, as Cornell argues, transformation is inevitable, and if, by virtue of the constitutive self-understanding of the enterprise, we can not "escape our responsibility … to elaborate principles of justice that can guide us," there is no need for anything outside the system to impel it forward, no need of a "guiding light" brighter than the light the enterprise is already shedding.
What I am suggesting is that one needn't choose between a view of the law as autonomous and self-executing and a view in which the legal process is always unfolding in relation to the pressures and needs of its environment; for autonomy should be understood not as a state of hermetic closure but as a state continually achieved and reachieved as the law takes unto itself and makes its own (and in so doing alters the "own" it is continually making) the materials that history and chance put in its way. The law (or any other enterprise) can display autonomy only in the course of stretching its shape in order to accommodate what seems external to it; autonomy and the status quo are conceivable and achievable only within movement; identity is asserted not in opposition to difference but in a perpetual recognition and overcoming of it. This process of forging identity and autonomy out of difference and relation is what Peter Goodrich describes as the achievement of English jurisprudence:
Far from being a technical and internal development the new jurisprudence responded to and was molded by a series of discourses external to law. jurisprudence was marked by external discourses and desires, and its subsequent reformulations still carry those marks even though the historians of law prefer to recycle the juridical fiction of a true discourse and its authoritative judgments.
My only quarrel with this statement concerns the divorce, Goodrich feels obliged to institute between the fact of the law's social construction and its claims of authority and autonomy. It is no doubt true that in forming itself, jurisprudence (English or any other kind) is "marked by external discourses and desires," but in the course of its (self) elaboration those discourses and desires are recharacterized and given a jurisprudential form; that is, they are brought into the discourse of the law and become components of its new (and ever renewing) unity. Insofar as this unified (but always developing) discourse is looked to by those who find themselves engaged in disputes, its judgments (at least insofar as they conform to what is, for the time being, considered legal form) will be authoritative. If the autonomy and authority of jurisprudential discourse is a "fiction," it is so only in respect to a discourse that is (1) self-generated and (2) authoritative irrespective of any political and social arrangement; but the only candidate for that discourse is the word of God, and as the history of biblical interpretation shows, even God's word must appear in some socially constructed and authorized form. Of course, within the social fabric jurisprudential discourse always presents itself, whether explicitly or implicitly, as either substantiating God's word or descending from it. That is why, as Goodrich points out, "law needed first to base itself on a conception of sacral origination… [and] needed second to elaborate a rigorously esoteric hermeneutic that would guard the legal missive from profane interpretations." Goodrich intends this as an indictment against an enterprise that must obscure its humble origins lest it be seen not as authoritative but as just one more competing conversation; but if it is the job of the enterprise to constitute its own authority in a neverending responsiveness to changes in the body politic, then it makes no sense to indict it unless one is comparing it unfavorably to an enterprise that wears its divinity on its face—that is, to an enterprise that Goodrich in all his writing declares unavailable. Goodrich's (implicit) complaint is that the law's authority is a political achievement, but the complaint is incoherent in the context of the antifoundationalist views he himself professes.
Indeed, it is precisely because the law's authority is a political achievement that it cannot be accused of holding itself aloof from the Other and of refusing to take into account what its internal mechanisms do not recognize. A politically earned authority (as opposed to an authority wielded by deity) can emerge only by taking into account the environment over which it then claims sway. A politically earned authority is always already in a relation to the Other it is accused of scorning, and the problem (as some see it) of opening the law's self-referential procedures to the pressures of the "real world" is no problem at all because that very self-referentiality (autonomy, unity, integrity, etc.) has been constructed (and reconstructed) in response to those pressures. Everything that is
supposedly to be conferred on the law by some guiding light external to it—social awareness, the capacity for chance, the historical sense—is already built into its mechanisms.
Moreover, if this is so, if the law is already socially and historically constituted, then the demand that it be socially and historically responsive is superfluous. Methodologically there is nothing to be gained from the thesis of the laws's social construction, no direction in which it points us, no direction it rules out. Gregory Leyh thinks otherwise. In his view the value of the interpretive insight—the insight that without contexts there can be no understanding at all—lies in its fostering of a critical attitude toward our own constitutive contexts. That is, now that we know that the urgencies we feel, the values we resonate to, and the facts we unhesitatingly affirm are contextual constructions, we can go about the demystifying business of critically examining those constructions so that we can be more responsibly aware of what we are doing. The problem is that the thesis of pervasive contextuality bars any such account of its own possible effects. If all understanding is contextual, then any "critical" understanding we achieve will be no less contextual; that is, it will depend for its critical force on a background of values, distinctions, desiderata, etc., that cannot itself be examined critically because its parameters will (for a time) determine what will count as criticism. The "critical attitude" can always be assumed, but its very shape will be a function of a context in relation to which it does not have and could not have any distance. Leyh's mistake (and he shares it with many) is to think that knowledge of contextuality relaxes its constraints, but in fact knowledge of contextuality is a general knowledge that is of no force whatsoever in the specific situations in which we find ourselves. You may know (in the sense that you have certain answers to some traditional philosophical questions) that the urgencies you feel, the values you resonate to, the facts you affirm, are contextually produced and therefore revisable, but that knowledge neither loosens the hold of those urgencies, values, and facts nor provides instructions (or even reasons) for their revision. If instructions and reasons do emerge, they will have been produced by the particular circumstances that give rise to the need for particular actions and not by some abstract conviction of circumstantiality in general. Gadamer tells us, "True historical thinking must take account of its own historicality" (quoted in Leyh), but once historical thinking presumes to do that it has ceased to be historical because it is offering itself as a vantage point from which the present historical moment can be surveyed and transcended.
I know that to many it will seem counterintuitive to deny consequentiality to the realization that the legal process is historical and pragmatic rather than foundational, but this opposition is just like the others we have examined between originalism and nonoriginalism, historical and
ahistorical interpretation, determinacy and indeterminacy. Indeed, it is the same opposition and is amenable to the same analysis. A foundational practice would be one that derived from absolutely clear and uncontroversial first principles; but whenever such principles are put forward, they turn out to be knowable only within a set of historical circumstances of the kind to which they are supposedly prior. A pragmatic (or radically historical) practice would he one that proceeded on the basis of no principles whatsoever, flying by the seat of its pants; but it is impossible even to conceive of a practice that was not the extension of some notion of what the world is and should be—in short, of some principle. It follows then that foundationalism and pragmatism (or historicism) cannot be the names of alternative modes of being in the world, and it follows further that identifying oneself as one or the other will not, in and of itself, determine one's practice. However, it may very well be that identifying oneself as one or the other is an important strategy given the conditions currently prevailing in one's practical world. That is to say (once again), that although theory does not and could not matter in the way both theorists and antitheorists assume it must, it can matter if the rhetorical structure of an enterprise is sensitive to its pronouncements.
The point is made dramatically by one of Lief Carter's judges, who says of his (her?) own practice, "Sure, you occasionally have results that just don't write, but most of the time you reach the result that's fair and then build your thinking around it." By "building your thinking around it" the jurist means preparing an opinion in which certain theoretical propositions may figure prominently. The mistake is to think that those propositions generate the decision they are brought in to justify. Of course, it would be equally a mistake to think that they had nothing to do with it since in the process of making a decision the judge will pass through and incorporate the forms of thought the culture makes available, and these will certainly include theoretical formulations. It is just that those formulations will be components of the decision-making process rather than its source. They are resources for the judge, whose sense of the enterprise does not derive from them but from the institutional experience in relation to which they have an honored but not a foundational place. Carter reports that he tried to get the judges to talk about the distinction between a government of laws and a government of men as it related to the understanding they had of their own authority, but he found that they understood their authority to flow from the role the society authorized them to play and not from any of the abstract concepts they might employ in the course of playing that role. No wonder that despite his urgings in the direction of theory, Carter found that "the conversation would quickly drift from the theoretical points [he] had introduced."
Where then does this leave us? just about in the position indicated by Francis Lieber's Legal and Political Hermeneutics of 1837, as discussed by James Farr. We have a generous supply of "rules of thumb"—"There can be no sound interpretation without good faith and common sense"; "The construction ought to harmonize with the substance and general spirit of the text"; "We ought not to build arguments of weighty importance on trifling grounds"—but these are not rules: one must still decide what common sense currently is and what does or does not harmonize with the spirit of the text, and, indeed, what is the spirit of the text, as well as what is important and trifling; and in making these decisions, commonplaces like those rehearsed by Lieber can inform us of certain public requirements of judicial decorum, but they cannot tell us how to meet those requirements in particular instances. In short, all the work remains to be done, and that perhaps is the one lesson to be taken away from a collection that would offer us lessons more programmatic and ambitious: the only thing to know about interpretation is that it has to be done every time.
Notes
INTRODUCTION
1. See, for example, David Couzens Hoy, "Interpreting the Law: Hermeneutical and Poststructuralist Perspectives," Southern California Law Review 58 (1985): 135; Hoy, "A Critique of the Originalism/Nonoriginalism Distinction," Northern Kentucky Law Review 15 (1988): 479; Gerald L. Bruns, "Law as Hermeneutics: A Response to Ronald Dworkin," in The Politics of Interpretation, ed. W. J. T. Mitchell (Chicago: University of Chicago Press, 1983); Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986); Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, Ill.: Northwestern University Press, 1988); Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham, N.C.: Duke University Press, 1989).
2. Brad Sherman, "Hermeneutics in Law," Modern Law Review 51 (1988): 395.
3. For a view of what jurisprudence has to teach hermeneutics, see Thomas M. Seebohm, "Facts, Words, and What Jurisprudence Can Teach Hermeneutics," Research in Phenomenology 16 (1986): 25.
4. Gadamer, Truth and Method (New York: Crossroads, 1982), 293.
5. Consider the observations of the Italian hermeneutician Emilio Betti: "Having sketched this summary outline of the general theory of hermeneutics, we may ask ourselves what reception the new science may look forward to among scholars of the various moral sciences. We should not be surprised if it gains a more favorable reception the wider the horizon and vision opened by the given discipline, the greater the freedom from narrow prejudice, the deeper its own practitioners' awareness of their own methods." Betti, "On a General Theory of Interpretation: The Raison d'Etre of Hermeneutics," trans. George Wright, American Journal of Jurisprudence 32 (1987): 250.
6. For an introduction to the history and competing meanings of hermeneutics, see Richard E. Palmer, Hermeneutics: Interpretation Theory in Schleiermacher, Dilthey, Heidegger, and Gadamer (Evanston, Ill.: Northwestern University Press, 1969).
7. Gadamer's philosophical hermeneutics plays an important role in the essays by Dallmayr, Bruns, Stone, Ball, Hoy, Perry, and Leyh. The essays by Knapp and Michaels and, to a lesser degree, Fish represent challenges to the picture of interpretation supplied by Gadamer. It is fair to say, then, that despite differences among the contributors in the degree to which Gadamer's ideas are embraced, all of the writers in this volume are nonetheless grappling with contemporary issues shaped by their treatment in the literature of philosophical hermeneutics.
8. Gadamer, Truth and Method, xvi.
9. For more on the relationship between Gadamerian hermeneutics and law, see Hoy, "Interpreting the Law" and "A Critique"; Sherman, "Hermeneutics in Law"; and Gregory Leyh, "Toward a Constitutional Hermeneutics," American Journal of Political Science 32 (1988): 369.
10. John Caputo, Radical Hermeneutics: Repetition, Deconstruction, and the Hermeneutical Project (Bloomington: Indiana University Press, 1987), 213.
11. Goodrich's essay, "Ars Bablativa: Ramism, Rhetoric, and the Genealogy of English Jurisprudence," explores the relationship between Ramism and early English law. The influence of Peter Ramus on the scholastic and humanistic traditions was especially visible in his contributions to rhetoric, dialectic, and logic. The influence of Ramism was not limited to England but was also felt in France, Spain, and Germany. Perhaps the central contribution of Ramism lies in the interest it generated in "method," a peculiarly modern subject. See, generally, Walter J. Ong, Ramus: Method, and the Decay of Dialogue; From the Art of Discourse to the Art of Reason (Cambridge: Harvard University Press, 1958).
12. CLS critiques extend also to the pseudo-Socratic and hierarchical character of law school teaching. See, in general, Mark Kelman, A Guide to Critical Legal Studies (Cambridge: Harvard University Press, 1987).
13. For more criticism of the CLS position on radical indeterminacy, see Ken Kress, "Legal Indeterminacy," California Law Review 77 (1989): 283.
14. Gadamer, Truth and Method, 274-75.
15. Steven Knapp and Walter Benn Michaels, "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49.
Hermeneutics and the Rule of Law
1. Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979), 315-16, 320. In social-theoretical literature the same dichotomy surfaces in the contrast between "structure" and "event" as articulated by structuralist and poststructuralist writers. On this contrast see the comments by Michel Foucault and several interviewers in The Foucault Reader, ed. Paul Rabinow (New York: Pantheon, 1984), 55-56, especially the following: "A whole generation was long trapped in an impasse, in that following the works of ethnologists, some of them great ethnologists, a dichotomy was established between structures (the thinkable) and the event considered as the site of the irrational, the unthinkable, that which does not and cannot enter into the mechanism and play of analysis at least in the form which this took in structuralism" (55).
2. Stanley Rosen, Hermeneutics as Politics (New York: Oxford University Press, 1987). For the distinction between ordinary and extraordinary hermeneutics see Rorty, Philosophy, 320-21, 360.
3. On classical Greek thought see Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953); see also Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981), esp. 121-45. Regarding the transition from Greek to Hellenistic and Stoic thought, compare Foucault's comments: "You can see, for instance, in the Stoics, how they move slowly from an idea of an aesthetics of existence to the idea that we have to do such and such things because we are rational beings—as members of the (universal) human community we have to do them"; Foucault Reader, 354. In lieu of an "aesthetics of existence" I would prefer talking of a move from a "virtue ethics" to a deontological ethics. The notion of rule-governance is thematized by Foucault under the label mode d'assujettissement.
4. John Locke, Second Treatise of Civil Government (South Bend, Ind.: Gateway, 1955), 5-6, 109 (chap. 2, sec. 6; chap. 11, sec. 134).
5. Ibid., 110-14, 119 (chap. 11, secs. 135-37, 142).
6. Jean-Jacques Rousseau, The Social Contract, trans. Maurice Cranston (Harmondsworth: Penguin, 1968), 81-82 (bk. 2, chap. 6).
7. See Alan P. Grimes, American Political Thought (New York: Henry Holt, 1955), 108.
8. The Federalist (New York: Tudor, 1937), no. 78.
9. Marbury v. Madison, 1 Cranch 137 (1803).
10. See Friedrich Julius Stahl, Die Philosophie des Rechts nach geschichtlicher Umsicht (Heidelberg: Mohr, 1830-37), and Rudolf von Gneist, Der Rechtsstaat (Berlin: Springer, 1872).
11. Gottfried Dietze, Two Concepts of the Rule of Law (Indianapolis: Liberty Fund, 1973), 10, 48.
12. Franz Neumann, The Rule of Law: Political Theory and the Legal System of Modernity (Dover, N.H.: Berg, 1986), 4. Compare also Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley and Los Angeles: University of California Press, 1967); and Carl Schmitt, The Concept of the Political, trans. Georg Schwab (New Brunswick, N.J.: Rutgers University Press, 1976), and Political Theology: Four Chapters on the Concept of Sovereignty, trans. Georg Schwab (Cambridge: MIT Press, 1985).
13. Neumann, Rule of Law, 45. Intermittently, the study made a feeble attempt to escape the sketched antinomy. Thus, opposing Schmitt's radical decisionism Neumann argued (26-27) that "the abnormal cannot be the unique and essential element in a definition" of law. He also invoked a formula coined by Hermann Heller: "The normless will of Schmitt fails equally to solve the problem as the will-less norm of Kelsen"; see Heller, Die Souveränität (Berlin and Leipzig: de Gruyter, 1927), 26.
14. Friedrich Nietzsche, Beyond Good and Evil, trans. Marianne Cowan (South Bend, Ind.: Gateway, 1955), 25 (art. 1. 22). The letter is quoted in Jean Granier, "Perspectivism and Interpretation," in The New Nietzsche: Contemporary Styles of Interpretation, ed. David B. Allison (Cambridge: MIT Press, 1985), 197.
15. Hans-Georg Gadamer, Truth and Method, rev. ed., trans. Joel Weinsheimer and Donald G. Marshall (New York: Crossroad, 1989), 307-8. In the above and subsequent citations I have altered the translation slightly for purposes of clarity.
16. Ibid., 308-10, 324.
17. Ibid., 325-27. The reference is to Emilio Betti, Teoria generale della interpretazione, 2 vols. (Milan: Giuffré, 1955).
18. Gadamer, Truth and Method, 269.
19. Rosen, Hermeneutics as Politics, 7, 9, 87, 193. The notion of edification is borrowed from Rorty.
20. Gadamer, Truth and Method, 329, 332.
21. Ibid., 329.
22. Emilio Betti, Teoria generale della interpretazione, par. 62; the above passages are translated from the German edition: Allgemeine Auslegungslehre als Methodik der Geisteswissenschaften (Tübingen: Mohr, 1967), 659-60, 664.
23. Hegel's Philosophy of Right, trans. T. M. Knox (London: Oxford University Press, 1967), 259 (par. 141, addition; translation slightly altered).
Law and Language: A Hermeneutics of the Legal Text
1. Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), hereafter cited in text as MP; and Law's Empire (Cambridge: Harvard University Press, 1986), hereafter cited in text as LE.
2. Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Techniques (London: Basil Blackwell, 1986), hereafter cited in text as RL.
3. See Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis (New York: St. Martin's, 1987), 177-78, hereafter cited in text as LD.
4. Owen Fiss, "Objectivity and Interpretation," Stanford Law Review 34 (1982): 739-63.
5. Robert Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), 17. One ought to take note of the difference between Goodrich and Unger on how the word "critical" is to be understood. It has some resemblance to the difference between deconstructive and Marxist critique. The one is skeptical and satirical, whereas the other is comic or romantic and utopian.
6. See Hans-Georg Gadamer, Truth and Method, ed. Garrett Barden and John Cumming (New York: Seabury, 1975), 264; see also 253-58 and esp. 289-305. Gadamer's interest in legal hermeneutics is, of course, not a technical one, and what he has to say on the subject is not meant as a theory or method of legal interpretation but is concerned with the place of self-understanding in any interpretive event, and on this point the law serves him as a particularly rich area of hermeneutical reflection. His idea is that the law is a written code whose original meaning is determinable but incomplete because the code is general in its language but historical in its mode of existence and singular in its application. Legal hermeneutics is what occurs in the give-and-take—the dialogue—between meaning and history. The historicality of the law means that its meaning is always supplemented whenever the law is understood. This understanding is always situated, always an answer to some unique question that needs deciding, and so is different from the understanding of the law in its original meaning, say, the understanding a legal historian would have in figuring the law in terms of the situation in which it was originally handed down. Supplementation always takes the form of self-understanding; that is, it is generated by the way we understand ourselves—how we see and judge ourselves—in light of the law. But this selfunderstanding throws its light on the law in turn, allowing us to grasp the original meaning of the law in a new way. The present gives the past its point. It is far from clear whether this way of thinking, with its heavy emphasis on historicality, is at all translatable into the terms of analytic jurisprudence, with its picture of the law as proposition and its narrow, subjectivist notions of legal interpretation as discretionary judgment.
7. See, for example, Gadamer's essays collected in Reason in the Age of Science, trans. Frederick G. Lawrence (Cambridge: MIT Press, 1981), esp. 69-138. Gadamer's thinking has been fruitfully developed by social theorists and political philosophers; one thinks of Fred Dallmayr and Richard Bernstein. See, for example, Ronald Beiner, Political judgment (Chicago: University of Chicago Press, 1983). By contrast, the idea of a nonepistemic, nontechnical rationality seems to have little meaning in legal theory, which is perhaps one reason it is so difficult for legal scholars to defend the legitimacy of legal decisions. See Steven Burton, An Introduction to Law and Legal Reasoning (Boston: Little, Brown, 1985), esp. 188-93. This is a serene and pretty standard discussion of the analogical and deductive forms of legal reasoning. But surely no one believes that legal practice bears the least resemblance to the picture Burton gives us or that legal practice could stand up under the critique of instrumentalist and managerial reasoning that is now commonplace in Continental and poststructuralist thinking. In our technological and bureaucratic culture the function of the law appears to be essentially administrative and regulatory. Its logic is the logic of social management. Possibly this is as it should be, but in practice this means that the best we can hope for from the law is greater operational efficiency. Due process, fairness, legitimacy: these things are becoming too much to ask for. See John D. Caputo, Radical Hermeneutics: Repetition, Deconstruction, and the Hermeneutic Project (Bloomington: Indiana University Press, 1987), 209-94, for an account of what a "Postmetaphysical Rationality" might look like. See esp. 212-13:
The real obstacle to understanding human affairs lies in the tendency to believe that what we do—whether in building scientific theories or in concrete ethical life—admits of formulation in hard and irrevocable rules. It is precisely this claim that human life is rule-governed which brings hermeneutics ... out of its corner and into the fight. Hermeneutics pits itself against the notion that human affairs can finally be formalized into explicit rules which can or should function as decision-procedure, whether in scientific theory buiding or in ethics. An important part of the hermeneutics of play is to deconstruct, to undo that myth.
A "hermeneutics of play" is very close to what Gadamer means by phronesis. Gadamer would say that like existence itself play is the sort of thing that requires phronesis. I had thought that phronesis could not be made intelligible within the conceptual outlook of analytical philosophy, but Martha Nussbaum makes a go of it in her attempt to recover Aristotle for analytic moral philosophy. See her account of "non-scientific deliberation" in The Fragility of Goodness (Cambridge: Cambridge University Press, 1985), esp. 300-306.
8. See Gerald L. Bruns, "What Is Tradition?" New Literary History (forth-coming).
9. See Gadamer, Truth and Method, 399-414, and also the appendix, "To What Extent Does Language Preform Thought?" 491-98. Gadamer starts out with Wilhelm von Humboldt's idea that language is a web in which every culture is woven so that there is nothing that is not linguistical; but Gadamer takes von Humboldt several steps back from Kant. For him the web is porous, loose, open-ended, intersecting contingently with other webs. It never adds up, or reduces, to a conceptual scheme whose metaphor is that of a tightly woven fabric or network of systematically interlaced elements. Gadamer's idea is that linguisticality needs to be emancipated from "the dogmatism of the grammarians" (401). In contrast to prison-house theorists, Gadamer insists on the unruly or anarchic nature of linguisticality. Perhaps (groping for metaphors) it would be better to say that linguisticality is structured more like the weather than like the total, overarching, linguistic, semiotic, or ideological system of the grammarians. We can make sense of the weather by studying its patterns, but only up to a point, since these patterns are more anarchic than lawlike. See John Gleick, Chaos: Making a New Science (New York: Viking, 1987).
10. See Stanley Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (New York: Oxford University Press, 1979), 168-90: "Excursus on Wittgenstein's Vision of Language." Here Cavell describes Wittgenstein's vision in terms close to what Gadamer would think of as Sprachlichkeit. Cavell's idea, or version of Wittgenstein's idea, is that language is not rule-governed or determined by universals, but neither is it irrational. Cavell speaks of "the fierce ambiguity of ordinary language" (180), but this ambiguity is not to be raised to the status of rule or deep structure either. What to say, then? Trying to explain the rationality of language is full of traps or double binds or bottomless pits. As Cavell says, "We begin to feel, ought to feel, terrified that maybe language (and understanding and knowledge) rests upon very shaky foundations—a thin net over an abyss.... Perhaps we feel the foundations of language to be shaky when we look for, and miss, foundations of a particular sort, and look upon our shared commitments and responses—as moral philosophers in our liberal tradition have come to do—as more like particular agreements than they are" (178).
11. Martin Heidegger, "On the Way to Language," in The Way to Language, trans. Peter Hertz (New York: Harper and Row, 1971), 134. See Gerald L. Bruns, Heidegger's Estrangements: Language, Truth, and Poetry in the Later Writings (New Haven: Yale University Press, 1989). For a somewhat similar view—I mean the idea that modern theories of language and meaning are "nonsense all the way down"—developed from inside analytic philosophy of language, see G. P. Baker and P. M. S. Hacker, Language, Sense, and Nonsense (London: Basil Blackwell, 1984).
12. See Roberto Unger's critique of "deep-structure" thinking in Social Theory: Its Situation and Its Task (Cambridge: Cambridge University Press, 1987), 87-119. See also his (ironic) distinction between super-theorists and ultra-theorists (165-70). The "ultra-theorist," Unger says, disbelieves in such things as foundations, frameworks, systems, schemes, paradigms, prison-houses, superstructures, "scripted histories," and other deep-logic theories of culture and society. The ultra-theorist denies the need for "any general theory of frameworks [and] wants, instead, to nurture an imagination of the particular that does not depend on the pretense of a comprehensive knowledge or of a privileged vantage point. He remembers, he anticipates, and he defies, but he does not claim to disclose secret and fundamental knowledge" (167-68). The ultra-theorist is animated by a historical sympathy for "repressed solutions, yesterday's missed opportunities, today's forgotten anomalies, and tomorrow's unsuspected possibilities. The ultra-theorist sees a connection between insight into social reality and sympathetic interest in losers" (167). Unger would probably dismiss hermeneutics as unstructured "ultra-theory," merely ad hoc reflection incapable of any vision of ideal social life. On this point he is correct. Hermeneutics is not engaged in the construction of social theories but is more interested in what sort of thinking goes into such construction in our current intellectual situation. What it is interested in is the way Unger, for example, has intervened in this situation with his critiques and visions. Possibly we have something to learn from Unger about the nature of phronesis, or practical wisdom, and the way it is informed and challenged (Gadamer would say "summoned") by theory. The pathos of theory is that it is always excessive with respect to practice. Visionaries always leave us gasping, "How on earth ...?" If we knew how to respond to visionaries we wouldn't need them. Unger regards himself as a "super-theorist," someone who also sees the emptiness of deep structure analysis but who wants to retain the idea of "a countervailing formative context" in which to develop alternative possibilities (visions) of social existence. Exactly what this entails is the subject of his multivolume Politics: A Work in Constructive Social Theory, currently being published by Cambridge University Press. Social Theory: Its Situation and Its Task is a "critical introduction" to this project.
13. See Heidegger, "Words," in On the Way to Language, esp. 144-48.
14. As a limit case, of course, the Wake has inspired critics and grammarians to double their deep-structuring efforts. See Umberto Eco, "The Semantics of Metaphor," trans. John Snyder, in Semiotics: An Introductory Anthology, ed. Robert E. Innis (Bloomington: Indiana University Press, 1985), 250-71. Eco takes the Wake as "a model of language in general," that is, as "a metaphor for the process of unlimited semiosis" (252). I'm not sure how this process works, but the upshot is that the Wake is as rule-governed as anything despite its crazy surface.
15. For a deep-structured view of the law, see Bernard S. Jackson, Legal Semiotics (London: Routledge and Kegan Paul, 1985).
16. The first thing that someone interested in hermeneutics notices about legal theory is its indifference to the questions of language that bedevil Continental thinking and poststructuralist theory. Most inquiries into the subject of law and language are precritical. See David Mellinkoff, The Language of the Law (Boston: Little, Brown 1963). This is basically an empirical study of the question, what is the language of the law? Legal theory is only now making its "linguistic turn." James Boyd White's writings, which derive from ordinary language philosophy and the later Wittgenstein rather than from hard-core analytical philosophy of language, are valuable for the way they loosen up our thinking about texts and meaning. See "Law as Language: Reading Law and Reading Literature," Texas Law Review 60 (1982): (415-45, esp. 434-35 on "checking the text," where "the lawyer is engaged in a continuous argument the terms of which are always changing, in an interaction between the particular document and its larger world" (435); and "Constituting a Culture of Argument: The Possibilities of American Law," in When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community (Chicago: University of Chicago Press, 1984), 231-74. Goodrich's Reading the Law may be the first attempt at a critical and theoretical inquiry into the law that addresses the difficulties that the question of language (still an open one) poses for legal theory. How we think of the law depends on how we think of language. The opposite has more often been true: how we think of language is frequently determined by our scientific notions of what a law is. It appears that we need to think of language as lawlike for the same reason that we need to think of the law as rational (or what we think of as rational: namely, rule-governed) all the way down. But it is not enough to think this way, even though any other way seems anarchic—as, for example, in books such as Jean-Jacques Lecercle's Philosophy Through the Looking-Glass: Language, Nonsense, Desire (La Salle, Ill.: Open Court, 1985), which explores "the dark side of language" (57). Granted, Lecercle says, that language is rule-governed, a total system or system of systems immanent in its effects; but the uncanny thing about language is the way it escapes totalization, transgresses its own laws, remains irreducible to a calculus. Language that escapes its own system is called, after Jacques Lacan, lalangue. Its discourse or parole is called délire. Langue is the conception of the logic of language. "Lalangue is the absence, in any given text, of coherent structure, or rather the proliferation of structures: those which the linguist analyses, but also those which he rejects (anagrams, homophonic relationships, tropes). It is the pattern of points where the system fails (this is why the term 'infelicity' is so apt)" (82). It is in the region of lalangue that the later Heidegger wanders. See also Jacques Derrida on the idea that, with respect to any theory of language, James Joyce must always be there with Edmund Husserl; Derrida, Edmund Husserl's Origin of Geometry: An Introduction, trans. John P. Leavey, Jr. (Stony Brook, N.Y.: Nicolas Hays, 1978). 100-105.
17. Gillian Rose, Dialectic of Nihilism: Post-Structuralism and Law (London: Basil Blackwell, 1984).
18. Rainer Schürmann, Heidegger on Being and Acting: From Principles to Anarchy, trans. Christine-Marie Gros and Rainer Schürmann (Bloomington: Indiana University Press, 1987). Schürmann might be an example of what Roberto Unger (Social Theory) calls an "ultra-theorist."
19. The locus classicus here might be Roland Barthes, "From Work to Text," in The Rustle of Language, trans. Richard Howard (New York: Hill and Wang, 1986),56-64, but esp. 59-61 on the "plurality" of text.
20. The most obvious or immediate example of this weakness is the pun, the most transgressive and illegal of all discursive forms. It is well known that puns are not the product of poiesis or intention; that is, they are not made the way sentences are made. They just happen—so many instances of the excessiveness of meaning. They are going on all the time in language, and linguistic competence consists in bringing them under control, preventing them from happening, so that we aren't always having to say, "No pun intended." Rational discourse consists in speaking strictly, holding fast to the propositional attitude. Puns are not consistent with this attitude; the pun is the basic figure of outlaw discourse (jouissance). Punning is an essentially satiric, anarchic, irrepressible event: one could not get further away from the legal utterance than by way of the pun. See Jacques Derrida, "Proverb: 'He that would pun ...," which appears as a kind of preface to John P. Leavey, Jr., GLASsary (Lincoln: University of Nebraska Press, 1987), 18: "In the name of what does one condemn these deviations [écarts] that are Witz, wordplay, spirit, pun? Why does one do it most often in the name of knowledge, in the academic institutions that feel themselves responsible for the seriousness of science and philosophy, but supposing that one has nothing to learn from a pun? Better still, or worse, by supposing that the pun must be morally condemned and as such proscribed, for the pun signals some malice [malignité], a perverse tendency to transgress the laws of society? The critics are also guardians of these laws, whether they declare it or not. As such, and in their traditional function, they must denounce those who take to the pun."
21. See Lecercle, Philosophy Through the Looking-Glass: "Délire ... is a form of discourse, which questions our most common conceptions of language (whether expressed by linguists or philosophers), where the old philosophical question of the emergence of sense out of nonsense receives a new formulation, where the material side of language, its origin in the human body and desire, are no longer eclipsed by its abstract aspect (as an instrument of communication or expression). Language, nonsense, desire: délire accounts for the relations between these three terms" (6). Délire marks the borderline of the law and the legal text; it is the region of what psychoanalysts call "borderline discourse." The question is whether the law is able to seal itself off from the transgressions of its boundaries, or whether these transgressions do not belong to the deepest chambers and inner sanctum of the thing itself.
22. See Jacques Derrida, "Comment ne pas parler: Dénégations" (1986), in Psyché: Inventions de l'autre (Paris: Gallimard, 1987), 535-95.
23. The main text for study here is Mikhail Bakhtin, "Discourse in the Novel," in The Dialogic Imagination: Four Essays, ed. Michael Holquist, trans. Caryl Emerson and Michael Holquist (Austin: University of Texas Press, 1981), 259-452. Hereafter cited in text as DI.
24. It turns out that this is also Derrida's line. See "The Retrait of Metaphor," trans. F. Gasdner et al., Enclitic 2 (1978): 5-33.
25. According to Harold Berman in Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983), unitary forces are winning: "The source and supremacy of law in the plurality of legal jurisdictions and legal systems within the same legal order is threatened in the twentieth century by the tendency within each country to swallow up all the diverse jurisdictions and systems in a single central program of legislation and administrative regulation.... Blackstone's concept of two centuries ago that we live under a considerable number of different legal systems has hardly any counterpart in contemporary legal thought" (38-39). Berman's attempt to make sense of the law historically rather than theoretically is very appealing from a hermeneutical standpoint because it is testimony to the multiple and heterogeneous reality of the law; but for Berman it is nevertheless true that this heterogeneity is only the surface of the law and that the "Western tradition" is rooted in a homogeneity of "postulates" that have survived intact until the present time. This is closer to Dworkin's way of thinking than, say, to Gadamer's. Berman's notion of tradition is more monumental and idealist than Gadamer's historicized conception. Berman's history of law is eschatological rather than genealogical. It looks forward to a time when the heterogeneity of legal systems will be embraced by a "common legal language for mankind" (45). Gadamer's idea would be that "common languages" can be worked out only in particular historical situations and in response to the contingencies of events. The idea of a common language in the sense of a totalist scheme is just historically implausible.
26. Catharine MacKinnon, "Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence," Signs: Journal of Women in Culture and Society 8 (1983): 644, hereafter cited in text.
27. See Frank Burton and Pat Carlen, Official Discourse (London: Routledge and Kegan Paul, 1979), 57-58, 69.
28. Stanley Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (New York: Oxford University Press, 1971), 241.
Ars Bablativa : Ramism, Rhetoric, and the Genealogy of English Jurisprudence
My thanks to Tim Murphy and Neil Duxbury for copious encouragement in relation to an earlier draft of this paper. The research on which this paper is based was undertaken with the aid of grants from the Nuffield Foundation, the British Academy, Newcastle University, and the Economic and Social Research Council.
1. Best known is Saint German, Doctor and Student (1528; reprint London: Selden Society, 1974); more polemical are his A Treatise Concerning the Division between the Spirituality and Temporality (London, 1534), Salem and Bizance (London, 1533), and The Addictions of Salem and Bizance (London, 1534). Sir Thomas More responded to those works in The Apology of Sir Thomas More (London, 1533) and in The Debellacyon of Salem and Bizance (London, 1533). Sir John Fortescue's earlier De Laudibus Legum Angliae (reprint London, 1737) also takes the form of an apologia; T. Starkey, A Dialogue Between Reginald Pole and Thomas Lupset (1535; reprint London: Chatto, 1945) and Bishop Aylmer, An Harborowe for Faithfull and Trewe Subjectes (Strasborowe, 1559) contain further polemical material.
2. The first curricular rhetorical manual was Leonard Cox, The Arte or Crafte of Rhetoryke (1530; reprint Chicago, 1899). More widely used in the Inns of Court was Thomas Wilson, The Arte of Rhetorique (1533; reprint London: Garland, 1982). Later relevant works include Richard Sherry, A Treatise of Schemes and Tropes (London, 1550); R. Rainolde, A Booke Called the Foundacion of Rhetorike (1563; reprint London: Scolar Press); Henry Peacham, The Garden of Eloquence (1577; reprint London, 1593); and Anthony Munday, A Defence of Contraries (1593; reprint Amsterdam: Theatrum Orbis Terrarum, 1969).
3. The literature on the ars dictandi is well covered in J. J. Murphy, ed., Renaissance Eloquence (Los Angeles and Berkeley: University of California Press, 1983), chap. 1; P O. Kristeller, Renaissance Thought and Its Sources (New York: Columbia University Press, 1979), 24-59, 312-27; G. A. Kennedy, Classical Rhetoric and Its Christian and Secular Tradition (London: Croom Helm, 1980), 173-94. The most substantial evidence of a specifically legal notarial tradition is William West, The first part of Symboleography, which may be termed the art, or description of instruments and presidents ... The Scrivener or Notary (1590; reprint London, 1603).
4. Most famously Sir Thomas Elyot, The Boke Named the Governor (1531; reprint London: Dent, 1907). See also D. S. Bland, "Rhetoric and the Law Student in Sixteenth Century England," Studies in Philology 54 (1957): 498.
5. Richard Mulcaster, The First Part of the Elementary (1582; reprint Menston, Eng.: Scolar, 1970); see also C. Grayson, "The Growth of Linguistic National Consciousness in England," in The Fairest Flower (Florence: Chiapelli, 1985). As will be discussed later, the vices of legal language were a significant theme of grammatical works and particularly of the polemical literature advocating the vernacular.
6. John Rastell, The Expocisions of the Terms of the Laws of England (1566; reprint London, 1567); Dr. John Cowell, The Interpreter; or Book Containing the Signification of Words (London, 16 10). See also H. J. Graham, "The Rastells and the Printed English Law Book of the Renaissance," Law Library Journal 47 (1954): 58.
7. The political literature, especially that concerned with constitutionalism, is well dealt with by Q. Skinner, The Foundations of Modern Political Thought (Cambridge: Cambridge University Press, 1979), 2:50-64, 123-35. It includes the work of the civilian Sir Thomas Smith, De Republica Anglorum (1583; reprint Cambridge: Cambridge University Press, 1906) as well as a lively literature of petitions and pamphlets, some of which are referenced in J. H. Baker, ed., The Reports of John Spelman (London: Selden Society, 1978), 2:23-30, and in W. R. Prest, The Rise of the Barrister: A Social History of the English Bar 1590-1640 (Oxford: Oxford University Press, 1986), 234-52, 287-92. The Harleian Miscellany (London, 1810) contains John Hare, "St. Edward's Ghost, or anti-Normanism" (1642, vol. 6); John Warr, "The Corruption and Deficiency of the Laws of England, Soberly Discussed" (1649, vol. 6); and Walter Carey, "The Present State of England" (1627, vol. 3). Thomas Wilson, "The State of England A.D. 1600," is in Camden Miscellany (London: Camden Society, 1936), vol. 16.
8. Most notably the work of a member of Middle Temple, George Puttenham, The Arte of English Poesie (London, 1589). See, for biographical details, R. J. Schoeck, "Lawyers and Rhetoric in Sixteenth-Century England," in Renaissance Eloquence, 274.
9. Regarding the English versions of their work, the principal translated editions of Ramus's Dialectique were P Ramus Matyr, The Logike, trans. McIlmaine (London, 1574), and Dudley Fenner, The Artes of Logike and Rhetorique, Plainly set forth in the English Tongue (Middleburg, 1584). The first translations of the rhetoric were Dudley Fenner, Artes, and Abraham Fraunce, The Arcadian Rhetorike (London, 1588), with extensive additional exemplifications and annotations. Earlier interpretative accounts are to be found in Gabriel Harvey, Ciceronianus (1577; reprint Lincoln: University of Nebraska Press, 1945). A huge secondary literature on Ramism can be referred to by way of W. S. Howell, Logic and Rhetoric in England, 1500-1700 (Princeton, Princeton University Press, 1956); Walter Ong, Ramus, Method, and the Decay of Dialogue (Cambridge: Harvard University Press, 1958); and B. Vickers, In Defence of Rhetoric (Oxford: Oxford University Press, 1988).
10. Dr. John Cowell, The Institutes of the Laws of England, Digested into the Method of the Civil or Imperial Institutions (1605; reprint London, 1651); and The Interpreter. Cowell was Regius Professor of Civil Law at Cambridge and provides interesting insights into the eclecticism of the developing jurisprudence as well as of a new concern, taken up directly by Sir Henry Spelman, The Original of the Four Law Terms of the Year (1614; reprint London, 1684), with scholarship and method.
11. Sir John Doderidge, The English Lawyer (London, 1631).
12. Sir John Ferne, The Blazon of Gentrie (London, 1586).
13. Henry Finch, Nomotechnia (1613; reprint London, 1636); also Law or a Discourse Thereof (London, 1627). See W. R. Prest, "The Dialectical Origins of Finch's Laws," Cambridge Law Journal 36 (1977): 326, for bibliographical details.
14. Abraham Fraunce, The Shepherd's Logic (1585; reprint Menston, Eng.: Scolar, 1969); and The Lawiers Logike, Exemplifying the Precepts of Logic by the Practice of the Common Law (London, 1588). Fraunce was also author of works of rhetoric, heraldry, and Latin verse and a translation of Thomas Wilson's Amyntas. See his Arcadian Rhetorike; Insignium Armorum, Emblematum, Hieroglyphicum et Symbolorum (1588; reprint London: Garland 1979); and The Countesse of Pembrokes Yuychurch (London,1591).
15. William Fulbecke, Directive or Preparative to the Study of the Law, wherein is showed what things ought to be observed and used of them that are addicted to the study of the law (1599; reprint London, 1829); A Parallele or Conference of the Civil Law, the Canon Law, and the Common Law of the Realm of England (1602; reprint London: 1618), 2 vols.; and The Pandects of the Law of Nations (London, 1602).
16. The concept of genealogy is here used in opposition to the classical philological conception of history. In endeavoring to abandon the metaphysical terms of history, in particular those of origin, objectivity, and legal proof of precedent facts, genealogy simply traces the contingent descent, the chance affiliations, and the alien forms from which specific, singular objects of discourse are formed. See Michel Foucault, "Nietzsche, Genealogy, History," in Language, Counter-Memory, Practice (Ithaca: Cornell University Press, 1977). A more complex discussion can he found in P Legendre, L'inestimable objet de la transmission (Paris: Fayard, 1983), esp. 197-205.
17. See Michel Foucault, The Order of Things (London: Tavistock, 1974), xi-xiii.
18. See P Legendre, L'amour du censeur (Paris: Editions du Seuil, 1974), 259-68; and Legendre, L'empire de la vérité (Paris: Fayard, 1983), pt. 2.
19. The title of this section derives from Ignoramus, or the English Lawyer (1621; reprint London, 1736), an anonymous dramatic comedy centered around the sophistical duplicity and greed of its eponymous leading character, who "speaks English, Dutch, French and Latin; yet speaks nor English, nor Dutch, nor French, nor Latin; which writes laws that may be misprisions, and which writes misprisions that they may be laws" (24-25); "if all men spoke such gibberish, twere a happiness to be deaf" (8). See also John Day, Law Tricks (1608: reprint Oxford: Malone Society, 1950).
20. Thomas More, The Apology, in Complete Works (New Haven: Yale University Press, 1979), vol. 9.
21. More, Debellcyon, fol. q.viii.a.-q.ix.a. It is worth recollecting that More did not simply condemn such critics but advocated that they "carry the fagotts"- in other words, that they be burned.
22. M. T Clanchy, From Memory to Written Record (London: E. Arnold, 1979), 231-36, 258-65; B. Stock, The Implications of Literacy (Princeton: Princeton University Press, 1983); R. Pattison, On Literacy (New York: Oxford University Press, 1982), chap. 4; H. J. Graff, The Legacies of Literacy (Bloomington: Indiana University Press, 1987), 108-20.
23. E. Eisenstein, The Printing Press as an Agent of Change (Cambridge: Cambridge University Press, 1980), 389-90. The major studies are S. H. Steinberg, Five Hundred Years of Printing (Bristol: 1961); L. Febvre and H. Martin, The Coming of the Book (1958; reprint London: New Left Books, 1976); N. Z. Davis, Society and Culture in Early Modern France (Stanford, Calif.: Stanford University Press, 1975); Graff, Legacies of Literacy, pt. 3; D. R. Kelley, The Beginning of Ideology (Cambridge: Cambridge University Press, 1981).
24. Eisenstein, Printing Press, 71-72, 362-63.
25. Ibid., 50-51, 472-73.
26. William Tyndale, An Answer unto Thomas Mores Dialogue, fol. iv.a.
27. Ibid., fol. xiii.a.
28. Ibid., fol. xiii.b.
29. Ibid., fol. lxxxiii.b-lxxxv.a.
30. Ibid., fol. lxxxv.b.
31. Ibid., fol. cv.b.
32. More, Apology (1533), fol. 19.b.
33. Ibid., fol. 26.b-27.b; cf. The Confutacyon of Tyndale's Answere by Sir Thomas More Knyght Lorde Chauncellor of England, in Complete Works (1973) 8:150-52, 155-56, 226-27, 255.
34. More, Confutacyon, 272. Cf. the following: "the allegory neither destroys nor hinders (letteth) the literal sense, but the literal sense stands whole beside.... Luther and Tyndale would have all allegories and all other senses taken away, saving the literal sense alone" (635).
35. Ibid., 78.
36. D. Wilkins, Consilia Magnae Britanniae et Hiberniae ab anno MCCCL ab annum MDLXLV, 4 vols. (London, 1737), 3:736.
37. More, Confutacyon, 636.
38. Ibid., 291.
39. More, Debellacyon, fol. M. vi. a.-M.vi.b.
40. 1401 2 Hen. 4. c. 15.
41. More, Debellacyon, fol. F.ii.b.-F.iii.a., G.ii.a., U.iii.b.-U.iv.a. It was no worse, he arqued, than arrest for suspicion of felony at common law.
42. Eisenstein, Printing, 83-84, 117-119, 358-60; Steinberg, Five Hundred Years, 120—26; Febvre and Martin, The Book,319-32
43. Saint German, Treatise Concerning Division, especially fol. 6.a-b, 16.a-17.b., 22.a.
44. Saint German, Salem and Bizance, fol. ix.b. Earlier criticisms of the spirituality in Latin, he complained, had elicited no response (fol. xiv.a.)
45. Eisenstein, Printing, 117-20, 191. Cf. Graff, Legacies of Literacy, 116-18.
46. R. Verstegan, A Restitution of Decayed Antiquities (London, 1605); J. Stow, The Annales or General Chronicle of England (London, 1615).
47. See Richard Sherry, A Treatise of Schemes and Tropes (London, 1550), fol. A.vi.b.-A.vii.a. "In speaking and writing nothing is more foolish than to affect or fondly labour to speak darkly ... since the proper use of speech is to utter the meaning in our mind with as plain words as may be." Even more striking is Puttenham, Arte of Poesie, 120-21: "ye shall take the ... usual speech of the
48. Elyot, Governor; Mulcaster, First Part of the Elementary, 73, 79, 101, 254, 450: "For is it not a marvellous bondage, to become servants to one tongue for learnings sake...whereas we may have the very same treasure in our own tongue...and our own tongue bearing the joyous title of our liberty and freedom, the Latin tongue reminding us of our tradition and bondage? I love Rome, but London better...." (254).
49. H. Bennett, English Books and Readers, 1475-1557 (Cambridge: Cambridge University Press, 1952), 76-85. The first such royal patent was granted in 1552, and by the last quarter of the sixteenth century virtually all law texts were printed cum privilegio regiae maiestatis. See also Eisenstein, Printing, 104-5, 120.
50. Starkey, Dialogue.
51. The classic text is F. W. Maitland, English Law and the Renaissance (Cambridge: Cambridge University Press, 1901), 7. The same view is to be found in A. Watson, Sources of Law, Legal Change and Ambiguity (Philadelphia: University of Pennsylvania Press, 1984). Cf. Baker, Spelman, 24-27.
52. Starkey, Dialogue, 173.
53. Ibid., 174.
54. Ibid., 189, 175, respectively.
55. Ibid., 86-87.
56. "The sophistical trifles of dunsmen" appeared first in Sir Thomas Challoner's translation of Erasmus, The Praise of Folly (1549; reprint Oxford: Oxford University Press, 1965), 82. See also Fraunce, Lawiers Logike, fol. 6.a-b.
57. Luther, cited in G. Strauss, Law, Resistance, and the State (Princeton: Princeton University Press, 1986), 223.
58. F. Hotman, Anti-Tribonian ou un discours d'un grand et renomme iurisconsulte sure Pestude des loix (1567; reprint Paris, 1603), 144.
59. Strauss, Resistance, 23.
60. For Germany, see Strauss, Resistance, 18. For France see Kelley, Ideology, 179; for England see Thomas Powell, The Attourney's Academy (London, 1630), fol. 0.o.4.a.
61. The term comes from Hotman, Anti-Tribonian, 105-7. It was a work that greatly influenced Fraunce and others of the English Ramist movement.
62. Technically the literature attacking lawyers dates back much earlier, with the first English legislation appearing in the Statute of Pleadings, 1364. For that reference and further details see my "Literacy and the Languages of the Early Common Law," Journal of Law and Society 14 (1987): 422. More generally, see C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth (Cambridge: Cambridge University Press, 1986), 132-50
63. Particularly the removal of causes by writ to Westminster and other delaying tactics; see Starkey, Dialogue, 171-72.
64. Powell, Attourney's Academy, fol. G.g.3.a., provides a striking example and makes "the humble request to those who have the power of Reformation, in this crying reigning evil amongst lawyers, touching the disappointment, and defeat of clients causes, for which they are retained and feed, and yet often fail to give attendance in the hour of tribulation, or to be near unto the client on the day of visitation."
65. Munday, Defence of Contraries, L.iii.a.
66. Fulbecke, Parallele, fol. B.2.a.-B.2.b. See also Wilson, "The State of England," 24-25, on the oppression that comes in the form of swarms of lawyers. For a fairly comprehensive list of complaints, see Warr, "Corruption and Deficiency," 557-61.
67. More, Utopia, in Complete Works (1963) 4:195.
68. Rastell, Expocisions, fol. A.ii.b.-A.iii.a: "If law is necessary to be had, and a virtuous and good thing, ergo to have knowledge thereof is a necessary and a virtuous and a good thing...it is necessary that the great multitude of the people have a knowledge of law, to which they be bound, ergo it follows the same law in every realm should be so published and declared and written, in such wise the people so bound to the same, may soon and shortly come to the knowledge thereof." Without that knowledge the law is a secret thing, a "trap and a net to vexation and trouble."
69. Hare, "St. Edward's Ghost," 91.
70. Ibid., 99; see also 103-4, 173-75.
71. Carey, "The Present State of England," 581.
72. Warr, "Corruption and Deficiency," 219-20, 221. "The laws of England are full of tricks, doubts and contrary to themselves; for they were invented by the Normans, which were of all nations the most quarrelsome, and most fallacious in contriving of controversies and suits" (215).
73. Saint German, Salem and Bizance, fol. lxxx.a.
74. Ibid., fol. lxxxix.a-b. More responded to this argument in the Debellacyon (fol. s.va.b.-s.vi.a.), simply asserting that authority had never been used in this way.
75. Coke, Reports, (London, 1777) vol. 2, pt. 3, fol. B.5.a.; vol. 4, pt. 8, fol. L.iii,a-b. For general commentary see J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987), 30-55.
76. The best study of civilian influence is H. Paulisch, Sir John Davies and the Conquest of Ireland (Cambridge: Cambridge University Press, 1985), 161-75. See also B. Levack, The Civil Lawyers in England, 1603-41 (Oxford: Oxford University Press, 1973), 145-50; R. Schoeck, "The Elizabethan Society of Antiquaries and Men of Law," Notes and Queries 1 (1954): 417; Schoeck, "The Libraries of Common Lawyers in Renaissance England," Manuscripta 6 (1962): 155; Prest, Rise of the Barrister, 184-208.
77. In terms of particular issues, see, for example, Fortescue, De Laudibus, 34-35 (procedure), 106-8 (language), 116-21 (integrity), 125 (delay); Saint German, Doctor and Student, 69-71 (certainty), 105-6 (procedures); Coke, Reports, vol. 1, pt. 2, fol. A.5.b. (certainty), vol. 2, pt. 3, fol. C.4.b.-C.5.b. (scholarship), C.7.b.-C.8.a (language); Davies, Le Primer Report (Dublin, 1615), fol. 3.b.-4.a. (language), 4.b.-5.a. (uncertainty), 5.b.-6.b. (uncertainty), 6.b.-7.b. (immorality).
78. Coke, Reports, vol. 1, pt. 1, A.5.a.-b: "the greatest questions arise not upon any of the rules of the common law, but sometimes upon conveyances and
79. For useful additional material on the symbolism of both word and book, see E.R. Curtius, European Literature and the Latin Middle Ages (1953; reprint London: Routledge and Kegan Paul, 1979), 302-48, 495-501; J. Gellrich, The Idea of the Book in the Middle Ages (Ithaca: Cornell University Press, 1985), 94-139.
80. Saint German, Doctor and Student, 27; see also 107-13, 129-33.
81. Fortescue, De Laudibus, 4-5.
82. Ibid., 89-91, 116.
83. Ibid., 121. See Sir George Buc, The Third Universitie of England (1612; reprint London, 1615).
84. Davies, Le Primer Report, fol. 2.a.
85. Ibid., fol. 2.b.
86. See particularly Sir Henry Spelman, The Original of the Four Law Terms of the Year, in English Works (1614; reprint London, 1723), 99-101, where Coke's views are summarily dismissed and English law is referred scrupulously to German, Saxon, French, canon, and civil law. Spelman makes the marvelous statement that the unwritten status of English law is to be explained by reference to the laws of Lycurgus of Sparta, introduced into England by the Saxons (102). See also W. Hakeworth in A Collection of Curious Discourses (Oxford, 1720), 2-3, for a refutation of Fortescue.
87. Fortescue, De Laudibus, 108-9.
88. Coke, Reports, vol. 1, pt. 2, fol. A.6.a.-b. See also Coke, Institutes Part I (London, 1629), fol. C.6.a.
89. Coke, Reports, vol. 2, pt. 3, fol. C.7.b., which roughly translates as "in reading, it is not the words but truth that is to be loved." Compare Davies, Le Primer Report, fol. 3.a.-4.a.
90. Fortescue, De Laudibus, 64.
91. Davies, Le Primer Report, fol. 2.b.
92. Erasmus, Opus Epistolarum (Oxford: Oxford University Press, 1922), 17.
93. Davies, Le Primer Report, fol. 9.b.
94. Coke, Reports, vol. 5, pt. 10, fol. A.a.i.b.
95. Davies, Le Primer Report, fol. 7.b.a.-b: "lex est mutus magistratus" or "lex est iustitia inanimata."
96. To the examples already cited may be added Spelman, Law Terms, who, having marveled at "my Lord Coke's" refusal to address the historical and linguistic evidence of foreign influence, remarks that "they beyond the seas are not only diligent but very curious in this kind; but we are all for profit and lucrando pane, taking what we find at market, without enquiring whence it came" (99). See also Bacon, Works (London, 1859), vol. 1, pt. 7, 359, and vol. 2, pt. 7, 314-19, 321-22; and Baker, Spelman, 29 and references thereto.
97. For an elaboration of this point in another context, see H. Coing, "Trois formes historiques d'interpretation du droit," Revue Histoire de Droit 48 (1970): 533.
98. On distribution, see Howell, Logic and Rhetoric, 64-107; on curricular aspects of legal training, see Ong, Ramus, 123-26, 131-39, and R. Schoeck, "Rhetoric and Law in Sixteenth-Century England," Studies in Philology 50 (1953): 120.
99. Elyot, Governor, 62-69; Ferne, Blazon of Gentrie, 45; Puttenham, Arte of Poesie, "I have come to the Lord Keeper Sir Nicholas Bacon, and found him ... alone with the works of Quintilian" (117); Coke, Reports, vol. 1, pt. 3, fol. C.4.b.: "for the young student, who most commonly comes from one of the universities"; Sir Thomas Smith, cited in Schoeck, "Rhetoric and Law," 117-18. See also Sir John Earle, Micro-Cosmographie (London, 1628), sec. 41; Buc, The Third Universitie, 974.
100. Cox, Arte or Crafte, sig. D.va. Elyot, Governor, refers to a "shadow of the ancient rhetoric" and to "the specious wit of logicians" (65, 66); see also Baker, Spelman, 29-30.
101. Puttenham, Arte of Poesie, 117-18; Wilson, Arte of Rhetorique, 22: "An orator must be able to speak fully of all those questions, which by law and man's obedience are enacted"; Rainolde, Foundacion, fol. i.a-b.
102. Wilson, Arte of Rhetorique, 203-4, under "ambiguity": "the lawyers lack no cases to fill this part full of examples ... in all this talk, I exempt always the good lawyer, and I may well spare them, for they are but a few."
103. Ibid., 199-200; Rainolde, Foundacion, fol. xii.a-b; Cox, Arte or Crafte, D.vi.a.-D.vi.b.
104. Puttenham, Arte of Poesie, 117-18, 128-29.
105. Wilson, Arte of Rhetorique, 325-30; Sherry, Treatise, fol. A.vii.b.-A.viii.a.
106. Puttenham, Arte of Poesie, 209-13; Wilson, Arte of Rhetorique, 339-41.
107. Wilson, Arte of Rhetorique, 40; Rainolde, Foundacion, fol. 1.a.-b. See also Earle, Micro-Cosmographie, secs. 33, 41, 54.
108. Hegesias was a Greek philosopher and rhetor of the third century B.C. whose nihilistic philosophy of life was so persuasively articulated that large numbers of his audience committed suicide. It is reported that Ptolemy II banished him from Egypt for that reason. See Puttenham, Arte of English Poesie, 118.
109. Cicero, De Inventione 1.2., pp. 88-89; for discussion of this theme, see E. Grassi, Rhetoric as Philosophy (London: Pennsylvania State University Press, 1980), 68-101.
110. Puttenham, Arte of Poesie, 2-4. A comparable view can be found in Sir Philip Sidney, A Defence of Poesy (1595; reprint Manchester, 1987), 103-7, well discussed in K. Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton: Princeton University Press, 1986).
111. Wilson, Arte of Rhetorique, 17-18.
112. Ibid., 316-17.
113. A point reiterated by Rainolde, Foundacion, i.a.-ii.a.; see also Puttenham, Arte of Poesie, 118-20.
114. In addition to references already provided—all of the rhetorics of the period included polemics in favor of the vernacular—see Wilson, Arte of Rhetorique, 25-26; Fenner, Artes, fol. A.2.a.-b.
115. See, for example, Sherry, Treatise, fol. D.vii.b.-E.viii.b. (figures of sentence and proof by means of signs); Puttenham, Arte of Poesie, 127-31 (sententious figures intrinsic to judicial genre); Wilson, Arte of Rhetorique, 184-205, 236-50 (amplification); Peacham, Garden, fol. C.c.iii.a.-C.c.iva. (sententia).
116. The clearest example is Wilson, Arte of Rhetorique, 64-65, 78-79, 236-40, at which places Wilson rehearses the places of logical argumentation as being appropriate to forensic rhetoric. In his Rule of Reason (London, 1553), fol. 1.a., 3.a., 31.b., 37.a., logic is defined as the art of probable argument and the "logician first and foremost professes to know words" (3.a.). In terms of the genealogy of the disciplines, logic thus comes after rhetoric and teaches through method the appropriate forms of a specific genre of argumentation.
117. Such a point, of course, holds true of all the pre-Cartesian disciplines. In terms of the role played by conceptions of method within contemporary jurisprudence, the premodern, systematizing impetus remains a dominant one.
118. See, for example, Fraunce, Lawiers Logike, xii.a.-xiii.b.: "A sophister of times past was a title of credit, and a word of commendation; now what more odious? Aristotle then the father of philosophy; now who less favoured?" More generally, see Ong, Ramus, 214-23; Howell, Logic and Rhetoric, 159-83; D. R. Kelley, "Horizons of Intellectual History," Journal of the History of Ideas 43 (1987): 143.
119. Cowell, Interpreter, sig. 3.a. See also, Cowell, Institutes, 1-2. The argument is taken up and supported in Spelman, Law Terms (reprint London, 1723), 99.
120. Fulbecke, Parallele, pt. 1, fol. 2.a., pt. 2, A.2.b. See also his Preparative, 13-14. Further evidence of a similar desire can be found in Sir Thomas Ridley, A View of the Civille and Ecclesiasticall Law (1607; reprint Oxford, 1676), 2-4, 117-45.
121. Fortescue, De Laudibus, 32-33, 89-91; Coke, Reports, vol. 2, pt. 4, C.v.b.; Davies, Le Primer Report, fol. 4.b.-5.a., civilian law being "gloss upon gloss, and book upon book, and every Doctor's opinion being a good authority fit to be cited."
122. Fraunce, Lawiers Logike, vol. xi.a-b. Doderidge, English Lawyer, 52-53, 61-62, attacks the civilian "feudary tenurist writers," and praised Hotman, Alciato, Budé, and Cujas.
123. The unpublished work was the Shepherd's Logic. Finch wrote extensively in theology and Doderidge on historical and political issues.
124. The introductory dialogue to Lawiers Logike cites legal scorn of university men who "can better make new-found verses of Amyntas death, and popular discourses of ensigns, armoury, emblems, hieroglyphics and Italian impresses, than apply their heads to the study of law which is hard, harsh, unpleasant, unsavoury, rude and barbarous." The references to Amyntas and to heraldry suggest that Fraunce himself had been so attacked and was somewhat isolated in the professional atmosphere of the Inns. His reported reluctance to publish the Lawiers Logike and its lack of success when he did would both seem to confirm such a conclusion.
125. Lawiers Logike, fol. 7.a.-b.
126. Ibid., fol. v.b.-vi.a.
127. Doderidge, English Lawyer, 22-29, 33-34, attacks the ignorance and lack of method of the profession (doctum quoddam genus indoctorum hominum); Fulbecke, Preparative, 51-52, attacks the bad rhetoric and lack of erudition.
128. Lawiers Logike, fol. vi.b.
129. Ibid., fol. 57.a.-b.
130. Ibid., fol. 61.a.-b. At fol. 62.a. the theme is expatiated: "instead of giving a true definition or explication of the nature and essence of any thing in our law, these singlesowld lawyers and golden asses ... put down a particular case."
131. Ibid., fol. 119.a.-b.
132. Ibid., fol. 119.b.-120.a. For similar prescriptions see Finch, Law, fol. A.3.a.-b. On the melancholic character of legal studies see Doderidge, English Lawyer, 29: "the study of law is multorum annos opus, the work of many years, the attaining whereof will waste the verdure and vigour of youth." See also Coke, Entries (London, 1627): "A learned man in the laws of this realm is a long time a-making; the student thereof, having sendentariam vitam, is not commonly longlived; the study abstruse and difficult, the occasion sudden, the practice dangerous" (preface). Hotman, Anti-Tribonian, 111, talks of weariness of heart; Fulbecke, Preparative, of addiction.
133. Rule of Reason, fol. 17.a.-34.b.
134. The Lawiers Logike pays attention to several other sources and at points dismisses Ramist classifications, as at fol. 51.a. Fulbecke, Preparative, is similarly critical; see 233-34. More generally, see Fenner, Artes, fol. A.3.b.; Harvey, Ciceronianus, 69-72, 75-79, 81-84.
135. Frances Yates, The Art of Memory (London: Routledge and Kegan Paul, 1966), 278; Eisenstein, Printing, 71-74; Ong, Ramus, 225-30.
136. Finch, Law, fol. A.3.a.
137. Ramus, Logike, 9 (Epistle).
138. Ibid., 18.
139. It should be noted that even those such as Fraunce, Arcadian Rhetorike, and Fenner, Artes, allow rhetoric to cover all the major figures of argumentation and to deal with apparently dialectical questions of interpretation in the "sentential" figures such as allegory and fallacies such as amphibole, sophism, petitio principi, and tautology.
140. Most influentially, Ong, Ramus, 101-4, 126-30, 288-92, who tends to treat the Ramist polemic at face value and so accedes to the view of rhetoric as a devalued discipline. He has his own thematic justification for such an approach, but he is misleading, at least in regard to English Ramism, in his suggestion that the separation of dialectic and rhetoric was predicated on the failure to appreciate the Aristotelian restriction of rhetoric and dialectic to merely probable arguments. The most competent general treatment of such issues is to be found in Paul de Man, Allegories of Reading (New Haven: Yale University Press, 1979), and Resistance to Theory (Minneapolis: University of Minnesota Press, 1986), 3-21.
141. See particularly Wilson, Rule of Reason, fol. 1.a., 37.a., 49.a.; cf. Fenner, Artes, fol. D.1.a.
142. See John Jewel, "Oratio Contra Rhetoricem," Quarterly Journal of Speech 14 (1928): 374-92; Harvey, Ciceronianus, 87-89.
143. Harvey, Ciceronianus, 83-85; 93-95: rhetoric was to be fused with dialectic and knowledge.
144. Fraunce, Lawiers Logike, fol. 3.a.-4.a. (ars imitari debet naturam); cf. Shepherd's Logic, fol. 5.a.
145. Shepherd's Logic, fol. 1.a., where logic is referred to as the universal ars artium et scientia scientiarum.
146. Ibid., fol. 4.b.
147. Ibid., fol. 112.b. The point is also made explicitly (fol. 19.a.), in relation to contingent axioms (premises), that the syllogism is nonetheless lawful. Cf. Shepherd's Logic, fol. 22.b.-23.a. The same position is given, citing Aristotle, in Doderidge, English Lawyer, 262-64.
148. Fraunce, Lawiers Logike, fol. 10.b.
149. Ibid., fol. 34.a.-36.b.; English Lawyer, Doderidge, 240-42.
150. Fraunce, Lawiers Logike, fol. 66.b.-67.a.
151. Doderidge, English Lawyer, 64 (the instruments of knowledge are the forms of discourse). Slightly later, logic is defined as dialectica est ars recta definiendi, dividendi, et argumentandi ars (65).
152. Fraunce, Lawiers Logike, fol. 72.a.-73.b.
153. Ibid., fol. 89.a.
154. Classifications differ. That given is from Fulbecke, Preparative. Finch, Law, distinguishes law of nature, law of reason, and positive law. The law of reason "deduces principles by the discourse of sound reason ... to which rules of positive law must either conform or yield" (fol. 5). The rules of reason are drawn from other learnings and include the precepts of divinity, grammar, logic, natural philosophy, politics, economics, and morals, "for the sparks of all the sciences in the world are raked up in the ashes of the law" (fol. 6).
155. Doderidge, English Lawyer, 258-59; see also 33-35, where the same argument is put forward in terms of the need for lawyers to study civil law and to be furnished with the knowledge "of all good literature of most of the sciences liberal." The view is repeated in relation to the division of topics (155-61).
156. The first book of Finch's Law takes the form of a rhetorical place logic in which canons, maxims, and rules (positive grounds) of the common law are explained and exemplified. The topics examined are drawn from all the disciplines of learning and the appropriate forms of logical argumentation are set out. Books 2-4 set out the divisions of substantive law according to Ramist principles.
157. Fulbecke, Preparative, 86-88. Earlier he cites Celsus to the effect that scire leges non est verba earum tenere, sed vim et proprietam.
158. Fraunce, Lawiers Logike, fol. 51.a., where etymology is also defined as originatio, quod originem verborum explicet. For an earlier discussion in terms of the originally agreed meaning of signs, see Wilson, Rule of Reason, fol. 48.a.
159. Fraunce, Lawiers Logike, fol. 56.b.-57.a. Such a view was of course already extensively available in a general sense in the compilations of legal terms, particularly in Rastell, Expocisions, and later in Cowell's Interpreter.
160. Fraunce, Lawiers Logike, fol. 65b.-66.a.: definitio nominis est qua vocis significatio explicatur ... sunt enim verba notae aut signa rerum. At fol. 73.b., Etymologia est resolutio vocis in verum et proprium effectum, et verbi veritatem notificat.
161. Doderidge, English Lawyer, 31-32.
162. Ibid., 51.
163. Ibid., 200-202: "matter de record import in eux (per presumption del ley, pur leur hautesse) credit." Thus 38.Ass.21, where the testimony of Justices Greene and Skipworth of the King's Bench as to a misprision of the clerks was insufficient to reverse the same. The common law on misprision and errors—often of no more than a letter—was a constant source of conflict between the common law and Parliament. Lengthy discussions can be found in Finch, Law, 226-32; Vaux's Case 4 Co. Rep. 39; Arthur Blackamore's Case 8 Co. Rep. 156; and Henry Pigot's Case 9 Co. Rep. 26.
164. Fulbecke, Preparative, 55-56.
165. Ibid., 77.
166. Reason lives everywhere but is not everywhere conspicuous. This fine understatement comes from Alberico Gentili and is cited by Fulbecke, Preparative, 84.
167. Ibid., 91.
168. Finch, Law, fol. 75.
169. See W. T. Murphy, "Memorising Politics of Ancient History," Modern Law Review 50 (1987): 384, for a remarkable discussion of tradition and of what it means for us to belong to it. For the argument that we cannot claim to have escaped tradition, see Jacques Derrida, Writing and Difference (London: Routledge and Kegan Paul, 1978), 284-92.
The Americanization of Hermeneutics: Francis Lieber's Legal and Political Hermeneutics
The bulk of this chapter was first published in The Journal of Politics 4 (1990) and is used by permission of the University of Texas Press.
1. Francis Lieber, Legal and Political Hermeneutics: Principles of Interpretation and Construction in Law and Politics, 3d. ed. (St. Louis: F. H. Thomas, 1880), iii; this edition hereafter cited in text as LPH. The passages I cite were relatively unaltered between the first (1837) and the third (1880) editions. The third edition added a new chapter on precedents and expanded the one on authorities, neither of which is discussed here.
2. Thomas Sargeant Perry, ed., The Life and Letters of Francis Lieber (Boston: Osgood, 1882), 75.
3. Perry, Life and Letters, 116.
4. Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Knopf, 1986), 90. See also Robert A. Ferguson, Law and letters in American Culture (Cambridge: Harvard University Press, 1984).
5. Kammen, Machine, 87-88, 88.
6. Alexander Hamilton, James Madison, and John Jay, The Federalist (New York:Heritage Press, 1945), no. 37.
7. Herbert J. Storing, ed., The Complete Antifederalist, (Chicago: University of Chicago Press, 1981), vol. 2, no. 7.3.
8. Richmond L. Hawkins, August Comte and the United States, 1816-1853 (Cambridge: Harvard University Press, 1936).
9. Alexis de Tocqueville, Democracy in America (Garden City, N.Y.: Doubleday, Anchor Books, 1969), 12.
10. Senate Documents, 314, 24th Congress, 1st Session, 1836, Serial set 282, p. 1.
11. Daniel P. Rodgers, Contested Truths: Keywords in American Politics Since Independence (New York: Basic Books, 1987), 188.
12. Francis Lieber, Manual of Political Ethics, 2 vols., 2d ed. (Philadelphia: Lippincott, 1911); this edition hereafter cited in text as PE.
13. Frederick D. E. Schleiermacher, Hermeneutics: The Handwritten Manuscripts (Missoula, Mont.: Scholars Press, 1977). On Schleiermacher, see Richard E. Palmer, Hermeneutics (Evanston, Ill.: Northwestern University Press, 1969), chap. 7; and Hans-Georg Gadamer, Truth and Method, rev. ed. (New York: Crossroad, 1989),173-97.
14. See Hans Frei, The Decline of Biblical Narrative: A Study in Eighteenth and Nineteenth Century Hermeneutics (New Haven: Yale University Press, 1974), 251-52.
15. These various works are collected in Miscellaneous Writings, 2 vols. (Philadelphia: Lippincott, 1881). This work hereafter cited in text as MW.
16. John Searle, Speech Acts (Cambridge: Cambridge University Press, 1969). See Lieber's speech-act analysis of "fetch some soupmeat" in LPH, 18-19.
17. James Boyd White, When Words Lose Their Meaning: Constitutions and Reconstitutions in Language, Character, and Community (Chicago: University of Chicago Press, 1984), chap. 9.
18. It is likely that lieber's personal experiences informed his judgment in this regard. As a student activist in Prussia, Lieber was briefly imprisoned after the assassination of August von Kotzebue by Lieber's friend Karl Sand. The Prussian police perused his diary, seizing on an entry that read, "all day murder lazy." According to Lieber's biographer, this phrase was student slang that the police completely misunderstood in their literal-mindedness, instead "torturing all possible meaning out of it." See Frank Freidel, Francis Lieber: Nineteenth Century Liberal (Baton Rouge: Louisiana State University Press, 1947), 25-26.
19. Perry, Life and Letters, 116.
20. See discussion in Gadamer, Truth and Method, 19-28.
21. Quoted in Freidel, Francis Lieber, 178.
22. The fifth principle creates the exception to this, but only when the "superior" directs it. Although generally uninterested in questions of methodological rules, Gadamer (in Truth and Method, 154) gives an example from theological hermeneutics: "The allegorical method ... is legitimate only where the allegorical intention is given in scripture itself," as for example with parables.
23. Bernard E. Brown, American Conservatives: The Political Thought of Francis Lieber and John W. Burgess (New York: Columbia University Press, 1951); and Rodgers, Contested Truths.
24. Quoted in Freidel, Francis Lieber, 175.
Christian Praxis as Reflective Action
1. See David Tracy, Plurality and Ambiguity (New York: Harper and Row, 1987), 10, for a discussion of praxis. Tracy provides a helpful introduction into modern hermeneutical issues and to the problem of sustaining traditional meaning in a pluralistic society.
2. James M. Robinson, "Hermeneutic Since Barth," in New Frontiers in Theology, ed. James M. Robinson and John B. Cobb, Jr., vol. 2, The New Hermeneutic (New York: Harper and Row, 1964), 1. Robinson also traces the development of theological hermeneutics, especially in Germany, from the Protestant Reformation through Karl Barth and Rudolph Bultmann to the later theologians Gerhard Ebeling and Ernst Fuchs.
3. See, for example, Michael J. Perry, "The Authority of Text, Tradition, and Reason: A Theory of Constitutional 'Interpretation,'" Southern California Law Review 58 (1985): 596. Writing in the field of legal hermeneutics, Perry observes that until we understand the relationship between tradition and practical reasoning—praxis—better than we do, we will not understand constitutional interpretation very well either.
4. P. J. Achtemeier, An Introduction to the New Hermeneutic (Philadelphia: Westminster Press, 1969), 13-14. See also Anthony C. Thiselton, The Two Horizons (Grand Rapids, Mich.: William B. Eerdmans, 1980), 10. This traditional distinction between the original meaning of the text and its significance for today, which Gadamer and others want to shade over if not erase, is by no means defunct. It continues to have the support of important literary critics such as E. D. Hirsch, Jr., as we shall see.
5. A discussion of the restriction of application to community "edification" is found in Thomas W. Gillespie, "Biblical Authority and Interpretation," in A Guide to Contemporary Hermeneutics, ed. Donald K. McKim (Grand Rapids, Mich.: William B. Eerdmans, 1986), see esp. 194.
6. Walter Wink, The Bible in Human Transformation: Towards a New Paradigm for Biblical Study (Philadelphia: Fortress Press, 1973), 2.
7. Karl Barth, The Epistle to the Romans, trans. Edwyn C. Hoskyns (London: Oxford University Press, 1953), 1. David L. Mueller notes that in his early schooling Barth's interests were drama and history and comments that this background is why Arnold Come speaks of a bent in the young Barth that helps explain his subsequent "emphasis upon the word of God as action, as event. He never became interested in pure research abstracted from life, even in the fields of exegesis and theology." See David L. Mueller, Karl Barth, Makers of the Modern Theological Mind (Waco, Tex.: Word Books, 1972), 15; and Arnold Come, An Introduction to Barth's Dogmatics for Preachers (Philadelphia: Westminster Press, 1963), 24.
8. Robinson, "Hermeneutic Since Barth," 28.
9. Gadamer first made this comment in a letter to the Italian historian of law Emilio Betti. For details see New Frontiers in Theology 2:76.
10. Hans-Georg Gadamer, Truth and Method (New York: Seabury, 1975). See especially "Play as the clue to ontological explanation," 91-99; See also Gadamer's subject index for the many references to play.
11. See Robert Fagles, "A Reading of The Oresteia: The Serpent and The Eagle," in Aeshylus, The Oresteia, trans. Robert Fagles (Harmondsworth, Eng.: Penguin, 1977), 34.
12. Brice R. Wachterhauser says "Gadamer's account of the self is not quite synonymous with Hume's theory of the self as a bundle of impressions, but the self according to Gadamer seems no more than a loose bundle of linguistically mediated, temporally extended experiences." See Wachterhauser, "Must We Be What We Say? Gadamer on Truth in The Human Sciences," in Hermeneutics and Modern Philosophy, ed. Brice R. Wachterhauser (Albany: State University of New York Press, 1986), 237.
13. Ibid., 221-22.
14. For Gadamer's extended discussion of phronesis as practical knowledge, see "The Hermeneutic Relevance of Aristotle," in Truth and Method, 278-89.
15. As Gadamer says, "We emphasized that the experience of meaning which takes place in understanding always includes application. Now we are to note that his whole process is linguistic." Truth and Method, 345.
16. Rudolph Bultmann, "The Problem of Hermeneutics," in New Testament and Mythology, ed. Schubert M. Ogden (Philadelphia: Fortress Press, 1984), 86.
17. Ibid., 87.
18. Bultmann, "New Testament and Mythology: The Problem of Demythologizing The New Testament Proclamation," in New Testament and Mythology, 16-17. In this brief but formative 1941 essay on demythology, Bultmann contends that the New Testament proclamations of the Christ event as objective history can be understood only within the eclectic mythological framework of the first century; that is, within the context of the Hellenistic religions in which a divine being dies and rises for all humanity and a Jewish apocalyptic that expected a messiah to appear as the culmination of a series of cataclysmic historical events. Bultmann insists that we must "demythologize" this worldview in order to understand its religious meaning.
19. Ibid., 1-2
20. Ibid, 39-40
21. Karl Barth, Church Dogmatics, vol. 1, pt. 2, ed. G. W. Bromley and T. F. Torrance, trans. G. T. Thomson and Harold Knight (Edinburgh: T. and T. Clark, 1963), 736.
22. Barth wrote this in an exchange of letters with Adolph von Harnack. See Ein Briefwechsel mit Adolph von Harnack, in Karl Barth, Theologische Fragen und Antworten: Gesammelte Vortrage, III (Zollikon: Evangelischer Verlag, 1957), 7-31. This reference and further comments are in Robinson's "Hermeneutic Since Barth," in New Frontiers in Theology, 2: 26-27.
23. Barth asks of Bultmann, "Are the New Testament's affirmations about God's saving act and about man's being in Christ primarily statements about man's subjective experience? Is not this reversing the New Testament?" See Barth, "Rudolph Bultmann: An Attempt to Understand Him," in Kerygma and Myth: A Theological Debate, ed. Hans-Werner Bartsch, trans. Reginald H. Fuller (London: S.P.C.K., 1962), 2: 92.
24. Barth, Church Dogmatics, 493.
25. Ibid., 465.
26. "A word is not a sign for which one reaches.... Rather, the ideality of the meaning lies in the word itself," Gadamer says; Truth and Method, 377. Beyond such specific assertions Gadamer's discussion of the relationship between the word as manifestation of meaning and the incarnation of Christ as manifestation rather than symbol of reality is one of the most fascinating sections of Truth and Method. See "Language and Verbum," 378-87. For a brief review of the ongoing debate regarding whether language manifests reality or simply conveys it, see Gillespic, "Biblical Authority and Interpretation," 203-10.
27. For the context of Miranda's exclamation, see Shakespeare The Tempest, ed. George Lyman Kittredge, revised by Irving Ribner (New York: Wiley, 1966), 86. For a discussion of Prospero's "white magic" and "holy knowledge," see the introduction, xv-xvi.
28. Gadamer discusses this presumption of human consciousness to formulate a life philosophy free from historical and linguistic constraints. Cartesianism and romanticism constitute two forms of this presumption. See Truth and Method, 210-14. For a discussion of romanticism as an imaginative Cartesianism in which nothing constrains or guides the text, see Roger Lundin, "Our Hermeneutical Inheritance," in The Responsibility of Hermeneutics, ed. Lundin, Anthony C. Thiselton, and Clarence Walhout (Grand Rapids, Mich.: William B. Eerdmans, 1985), 9-19. Lundin quotes (18) a striking example of rhetorical anarchy from Ralph Waldo Emerson: "If the single man plant himself indomitably upon his instincts, and there abide, the huge world will come round to him" and "To believe your own thought (to believe in effect your own interpretation of a text or event), to believe that what is true for you in your private heart, is true for all men,—that is genius. Speak your latent conviction, and it shall be the universal sense." For this quotation within the context of Emerson's essay, see Emerson, "Self-Reliance," in Ralph Waldo Emerson: Essays and Lectures (New York: Library of America, 1983), 259.
29. Gadamer, Truth and Method, 478.
30. Barth says, "Everyone has some sort of philosophy, i.e., a personal view of the fundamental nature and relationship of things.... without such systems of explanation, without such spectacles, we cannot read the bible at all"; Church Dogmatics, 728.
31. Thomas Provence, "The Sovereign Subject Matter: Hermeneutics in the Church Dogmatics," in Guide to Contemporary Hermeneutics, 254. For Barth's view of the freedom of the sovereign subject matter from the literal word, see Church Dogmatics, 470.
32. See E. D. Hirsch, Jr., "The Politics of Theories of Interpretation," Critical Inquiry 9 (1982): 240. Hirsch says that for the purposes of his essay he detours around the question of whether textual meaning is always located in authorial intention. He takes this detour in order to raise the political question of the locus of authority in choosing whose interpretation of meaning to follow. (The possible wrongheadedness of our choice is another matter, of course.) Hirsch contends that we are free to choose whatever interpretation we want, be it the original author's intention, the community intention in which the text originally appeared, or our own immediate community understanding of the text. He rejects the notion that we are bound, whether we know it or not, to a "cultural Kantianism" that forces us to choose within circumscribed cultural limits.
33. For Habermas's own assessment of Gadamer, see Jürgen Habermas, "A Review of Gadamer's Truth and Method," trans. Fred Dallmayr and Thomas McCarthy, and Gadamer, "The Scope and Function of Hermeneutical Reflection," both in Hermeneutics and Modern Philosophy, 243-76, 277-99.
34. Carroll Wise, Pastoral Counseling: Its Theory and Practice (New York: Harper and Brothers, 1951), 219.
35. Juan Luis Segundo, "Capitalism Versus Socialism: Crux Theologica," in Frontiers of Theology in Latin America, ed. Rosino Gibellini (Maryknoll, N.Y.: Orbis Books, 1979), 247.
36. Ibid., 256-57. Segundo realizes the dangers of reducing the definitive kingdom of God to a particular liberative event; therefore, he speaks of the "partial, fragile, and often distorted" causal relationship between kingdom and event. Still, for Segundo, just as Jesus understood his hearings as direct "signs from heaven," so should we see our Christian social ventures, our liberation praxis, as direct "signs from heaven" (253-56). Liberation theologians such as Jose Miguez Bonino are more cautious. For Bonino, if we equate liberation praxis with a particular sociopolitical order to the exclusion of divine revelation, then we deify history or humanity itself, which is not the purpose of liberation theology. See Bonino, "Historical Praxis and Christian Identity," in Frontiers of Theology, 272- 75. For an excellent discussion of the trend in some Latin American liberation theology to reduce Christian content to liberation praxis, see George Hunsinger, "Karl Barth and Liberation Theology," Journal of Religion 63 (1983): 247-63.
37. We have seen that praxis shapes interpretation for Bultmann too, but with this difference: although Bultmann rejects the notion of a supernatural disturbance of nature's conformity to natural law, he does affirm that the "hidden God" appears to the inner self through existential experience. And as Schubert Ogden says, "Since human life is a life in space and time, man's encounter with God must he an event that takes place concretely here and now." Thus it is possible to say that God appears in worldly events. See Schubert M. Ogden, Christ Without Myth (New York: Harper and Row, 1961), 91. Ogden's study is a comprehensive interpretation of Bultmann's position. On Bultmann's own understanding of the experience of God as "wonder," see Rudolph Bultmann, "The Question of Wonder," in Faith and Understanding (Philadelphia: Fortress Press, 1969), 247-61.
38. Alasdair MacIntyre, "Is Understanding Religion Compatible with Believing?" in Faith and the Philosophers, ed. John Hick (London: Macmillan, 1964), 115-33.
39. Richard Bernstein, "From Hermeneutics to Praxis," in Hermeneutics and Modern Philosophy, 101. See also Bernstein's discussion of the absence of community nomos in modern culture (100-101).
40. Gadamer, Truth and Method, 349. For a helpful discussion of the problematic elements in a possible dialogue between text and interpreter, see Bernstein, "From Hermeneutics to Praxis," 109 n. 43. See also Wolfhart Pannenberg, "Hermeneutics and Universal History," in Hermeneutics and Modern Philosophy, 130-34. For Pannenberg the silent text cannot speak for itself, which precludes a dialogue with it. Because of this silence, the modern interpreter who perceives a continuity in history does so through unilaterally bridging the gap between past and present. Historical continuity does not emerge through dialogue; rather, it is presumed by the interpreter. Thus, for Pannenberg, Gadamer does not realize the Hegelian implications of his own position, namely, that the "thinker has an insight into the ultimate direction or goal of 'universal history,' " as Brice Wachterhauser says in his editorial introduction to this volume (43).
41. Gregory Leyh, "Dworkin's Hermeneutics," Mercer Law Review 31 (1988):5.
42. Paul Ricoeur, "Toward a Hermeneutic of the Idea of Revelation," in Essays on Biblical Interpretation ed. Lewis S. Mudge (Philadelphia: Fortress Press, 1980), 99.
43. Ibid., 102.
44. Ibid.
45. Ibid.
46. Ibid., 93-94.
47. Paul Ricoeur, Interpretation Theory: Discourse and the Surplus of Meaning (Fort Worth: Texas Christian University Press, 1976), 68.
48. Ricoeur, "Toward a Hermeneutic," 115.
49. For this criticism of Ricoeur, see Gillespie, "Biblical Authority and Interpretation," 217-18.
50. MacIntyre, "Understanding Religion," 132.
51. Richard J. Bernstein, Beyond Objectivism and Retativisim: Science, Hermeneutics and Praxis (Philadelphia: University of Pennsylvania Press, 1983), 231.
Constitutional Interpretation and Conceptual Change
An earlier and rather different version of this essay was presented to the Roundtable on Legal Hermeneutics at the 1987 meeting of the American Political Science Association. I am grateful to the roundtable's organizer and chair, Gregory Leyh, to my fellow panelists Fred Dallmayr and Michael Perry, and to Lief Carter for commenting critically on that first version. The present version was further and very helpfully criticized by James Farr, Russell Hanson, and Gregory Leyh. I am also grateful to John R. Tunheim, chief deputy attorney general of Minnesota, for his help in explaining the intricacies of Perpich et al v. Department of Defense .
1. See my "Deadly Hermeneutics; or, Sinn and the Social Scientist," in Idioms of Inquiry, ed. Terence Ball (Albany: State University of New York Press, 1987), 95-112.
2. On the notion of "interpretive communities," see Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge: Harvard University Press, 1980), esp. chap. 15.
3. The U.S. Constitution's interpretive community, as Francis Lieber averred, includes not only the lawyers, judges, and courts but the entire citizenry, as James Farr points out in "The Americanization of Hermeneutics: Francis Lieber's Legal and Political Hermeneutics," in this volume.
4. Strictly speaking, originalism is not a single doctrine but a fairly close-knit family of doctrines sharing a common assumption: viz., that judges and other interpreters must return to and regard as authoritative the original source, whether that source be construed as author, authorial intent, text, or, more broadly, the moral, historical, legal, and political context in which the author worked and/or the text was composed. For present purposes I shall be dealing mainly with the "original intent" version of originalism. For a useful taxonomy of types of originalism, see Paul Brest, "The Misconceived Quest for Original Understanding," Boston University Law Review 60 (1980): 204-38. In defense of originalism, see, inter alia, Robert Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47 (1971): 1-35, and "Tradition and Morality in Constitutional Law," in Views from the Bench: The Judiciary and Constitutional Politics, ed. Mark Cannon and David O'Brien (New York: Chatham House, 1985); Raoul Berger, Government by Judiciary (Cambridge: Harvard University Press, 1977); Henry Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): 353-96. For criticisms of originalism from several perspectives, see, inter alia, Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985), chaps. 6 and 7; Dworkin, "The Bork Nomination," New York Review of Books, 13 August 1987, 3-10; Gregory Leyh, "Toward a Constitutional Hermeneutics," American Journal of Political Science 32 (1988): 369-87; Michael J. Perry, "The Authority of Text, Tradition, and Reason: A Theory of Constitutional 'Interpretation,'" Southern California Law Review 58 (1985): 552-602; and Perry, Morality, Politics, and Law (New York: Oxford University Press, 1989). Unlike many other critics, Perry believes originalism to be both coherent and plausible, but less so than nonoriginalist approaches to interpretation.
5. On the methods and justifications for constructing "conceptual histories," see Reinhart Koselleck, Futures Past: On the Semantics of Historical Time, trans. Keith Tribe (Cambridge: MIT Press, 1985). For the execution of particular conceptual histories, see the mammoth Geschichtliche Grundbegriffe: Historisches Lexikon zur Politisch-Sozialer Sprache in Deutschland, ed. Otto Brunner, Werner Conze, and Reinhart Koselleck (Stuttgart: Klett-Cotta, 1972-), 5 vols. to date; and Handbuch politisch-sozialer Grundbegriffe in Frankreich, 1680-1820, ed. Rolf Reichardt and Eberhard Schmitt (Munich: Oldenbourg Verlag, 1985-), 2 vols. to date. For more anglicized and americanized versions of conceptual history, compare The Languages of Political Theory in Early-Modern Europe, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1987); Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, and Russell Hanson (Cambridge: Cambridge University Press, 1989); Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University Press of Kansas, 1988); and Terence Ball, Transforming Political Discourse: Political Theory and Critical Conceptual History (Oxford: Basil Blackwell, 1988).
6. Isaiah Berlin, Concepts and Categories (Harmondsworth, Eng.: Penguin, 1981), 154.
7. See, e.g., E. M. W. Tillyard, The Elizabethan World Picture (New York: Random House, Vintage Books, n.d.). The point applies not only to law and literature but to the natural sciences as well. See E. A. Burtt, The Metaphysical Foundations of Modern Science, rev. ed. (New York: Humanities Press, 1952); Alexandre Koyré, From the Closed World to the Infinite Universe (Baltimore: Johns Hopkins University Press, 1957); and Stephen Toulmin, "The Construal of Reality: Criticism in Modern and Postmodern Science," in The Politics of Interpretation, ed. W. J. T. Mitchell (Chicago: University of Chicago Press, 1983), 99-117.
8. Here I think of the amusing and instructive tale of the "born-again" Christian outfielder, Pat Kelly, as told by Fish, Is There a Text, 269-72.
9. On various versions of the commensurability problem as it appears in the discourses of anthropology and other disciplines, see Richard J. Bernstein, Beyond Objectivism and Relativism (Philadelphia: University of Pennsylvania Press, 1983), esp. part 3.
10. See, e.g., Clifford Geertz, "From the Native's Point of View: On the Nature of Anthropological Understanding," in Interpretive Social Science, ed. Paul Rabinow and William M. Sullivan (Berkeley and Los Angeles: University of California Press, 1979), chap. 6; and Peter Winch, "Understanding a Primitive Society," in Rationality, ed. Brian R. Wilson (Oxford: Basil Blackwell, 1970).
11. Geertz, "Native's Point of View," 229.
12. Garry Wills, Explaining America: The Federalist (New York: Penguin, 1981), 280. Wills quite appropriately appends a glossary of terms for the Federalist Papers.
13. For an explication of the notion of discourses, see J. G. A. Pocock, "The Concept of a Language and the Métier d'Historien: Some Considerations on Practice," in Languages of Political Theory, chap. 1; James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: University of Chicago Press, 1990), esp. chap. 3; and my Transforming Political Discourse, chap. 1.
14. On the historicity of human existence and the inescapable necessity to start—though not to stay—with our present "prejudices," see Hans-Georg Gadamer, Truth and Method (New York: Seabury, 1975). Some of the legal and constitutional implications of Gadamer's hermeneutics are traced by Leyh, "Toward a Constitutional Hermeneutics."
15. The scholar who has done most to reconstruct the history of an identifiable "Atlantic Republic Tradition" is J. G. A. Pocock, particularly in The Machiavellian Moment: Florentine Political Thought and the Atlantic.Republican Tradition (Princeton: Princeton University Press, 1975).
16. See my Transforming Political Discourse, chap. 3, esp. 48-54.
17. Alasdair MacIntyre, After Virtue (Notre Dame: University of Notre Dame Press, 1981).
18. Thomas Mann, The Magic Mountain, trans. H. T. Lowe-Porter (New York: Knopf, 1966), 101.
19. Daniel Walker Howe, "The Language of Faculty Psychology in The Federalist Papers," in Conceptual Change and the Constitution, chap. 7.
20. Although I take a somewhat dimmer view of originalism than does Perry ("Authority of Text" and Morality, Politics, and Law), I agree with his conclusion that its primary defects are practical ones.
21. What follows is a much abbreviated and simplified version of the tale told by Donald Kelly in "Civil Science in the Renaissance: The Problem of Interpretation," in Languages of Political Theory, chap. 3. See also Ball and Pocock, introduction to Conceptual Change and the Constitution, esp. 9-11.
22. See above, n. 4.
23. Cf. The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1966); and The Founders' Constitution, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987).
24. Though not alone among the founders, Hamilton came to believe the Constitution a failure. "Perhaps no man in the United States," he wrote in 1802, "has sacrificed or done more for the present Constitution than myself; and contrary to all my anticipations of its fate ... I am still laboring to prop the frail and worthless fabric." Quoted in John C. Miller, Alexander Hamilton: Portrait in Paradox (New York: Harper and Brothers, 1959), 543. Others among the founders, including John Adams, arrived at almost equally critical if less gloomy conclusions. See John R. Howe, Jr., The Changing Political Thought of John Adams (Princeton: Princeton University Press, 1966). See further and more generally, Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Knopf, 1986).
25. Cf. 10 United States Codes 672 (f), Sec. 522.
26. Decision and eighty-one-page opinion in U.S. Court of Appeals for the Eighth Circuit, No. 87-5345 (6 Dec. 1988). In 1990, the Supreme Court ruled against Perpich et al.
27. See Records of the Federal Convention 2:129-37, 158-59, 323, 353, 380-83, 570, 595; and Founders' Constitution 1: 173-211.
28. In addition to the debates noted in n. 23 above, see Hamilton, Federalist 29.
29. For different variants of reception theory, see, inter alia, Fish, Is There a Text; The Reader in the Text: Essays on Audience and Interpretation, ed. Susan R. Suleiman and Inge Crosman (Princeton: Princeton University Press, 1980); Hans Robert Jauss, Toward an Aesthetic of Reception, trans. Timothy Bahti (Minneapolis: University of Minnesota Press, 1982); and, more generally, Robert C. Holub, Reception Theory: A Critical Introduction (London: Methuen, 1984).
30. This and all following quotations come from Madison, Federalist 37.
From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation
1. Maurice Blanchot, The Writing of Disaster, trans. Ann Smock (Lincoln: University of Nebraska Press, 1986), 144.
2. Franz Kafka, The Penal Colony: Stories and Short Pieces, trans. Willa and Edwin Muir (New York: Schocken, 1948), 191-227.
3. Robert Cover, "Violence and the Word," Yale Law Journal 95 (1986): 1601.
4. For an excellent discussion as to why Grundlosigkeit should not be identified with Unsinnlosigkeit, see Richard J. Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (Philadelphia: University of Pennsylvania Press, 1983).
5. Drucilla Cornell, "Institutionalization of Meaning, Recollective Imagination, and the Potential for Transformation in Legal Interpretation," Pennsylvania Law Review 136 (1988): 1135-1229.
6. Emmanuel Levinas, Totality and Infinity, trans. Alphonso Lingis (Pittsburgh: Duquesne University Press, 1969), 38.
7. Ibid., 21.
8. Ibid.
9. Ibid., 199.
10. Emmanuel Levinas, Otherwise than Being; or, Beyond Essence, trans. Alphonso Lingis (The Hague: Martinus Nijhoff, 1981), 139.
11. Ibid.
12. Blanchot, Writing of Disaster, 2.
13. Drucilla Cornell, "Post-Structuralism, the Ethical Relation, and the Law," Cardozo Law Review 9 (1988): 1587.
14. See G. Peller, "The Metaphysics of American Law," California Law Review 73 (1985): 1164-70.
15. Duncan Kennedy, "Form and Substance in Private Adjudication," Harvard Law Review 89 (1976): 1685.
16. H. L. A. Hart, The Concept of Law (New York: Clarendon, 1961).
17. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1978).
18. Levinas, Otherwise than Being, 198.
19. Ibid., 15.
20. Jacques Derrida, The Postcard, trans. Alan Bass (Chicago: University of Chicago Press, 1987), 446.
21. M. Minow, "Foreword to the Supreme Court 1986 Term: Justice Engendered," Harvard Law Review 101 (1987): 10.
22. Ibid., 90-96.
23. Robert Cover, "Foreword to the Supreme Court 1982 Term: Nomos and Narrative," Harvard Law Review 97 (1985): 16.
24. Ibid.
25. Levinas, Otherwise than Being, 158.
26. Ibid., 157.
27. Cover, "Foreword," 4-5.
28. Levinas, Otherwise than Being, 165.
29. M. Stallman, Was ist Sakularisieurung (Tuhngen: J. C. B. Mohr, 1960), 33.
30. Jacques Derrida, Of Grammatology, trans. Gyatri Spivak (Baltimore: Johns Hopkins University Press, 1976), 112.
31. Cover, "Foreword," 44.
32. Ibid., 9.
33. Jacques Derrida, "Des tours de Babel," in Difference in Translation, ed. Joseph F. Graham (Ithaca, N.Y.: Cornell University Press, 1985), 115.
34. Cover, "Violence and the Word," 1628.
35. Ibid., 1607.
36. Ibid., 1605.
37. Derrida, "Des tours de Babel," 135.
38. Cover, "Foreword," 34.
39. Jacques Derrida, "Memories for Paul de Man," in Acts, trans. Eduardo Cadava (New York: Columbia University Press, 1986).
Intentions and the Law: Defending Hermeneutics
1. Against Theory: Literary Studies and the New Pragmatism, ed. W. J. T Mitchell (Chicago: University of Chicago Press, 1985), 139 (citing Stanley Fish). An earlier version of this essay was published in the Protocol of the 52d Colloquy: Against Theory 2 by Steven Knapp and Walter Benn Michaels, copyright 1986 by the Center for Hermeneutical Studies, 2400 Ridge Road, Berkeley, CA 94709. The essay is a revised version of my response to a draft of "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49-68; the draft was originally delivered at a conference at the Center for Hermeneutical Studies in Berkeley, California, 8 Dec. 1985. Research for this paper was supported by a National Endowment for the Humanities Fellowship for College Teachers.
2. For a more detailed presentation of hermeneutics and its arguments against intentionalism, see D. C. Hoy, The Critical Circle: Literature, History, and Philosophical Hermeneutics (Berkeley and Los Angeles: University of California Press, 1978); "Must We Say What We Mean? The Grammatological Critique of Hermeneutics," in Hermeneutics and Modern Philosophy, ed. Brice R. Wachterhauser (Albany: State University of New York Press, 1986), 397-415; and "Hermeneutic Circularity, Indeterminacy, and Incommensurability," New Literary History 10 (1978): 161-73. In the present essay I am using the term nonintentionalism for hermeneutics to distinguish it from the anti-intentionalism of Wimsatt and Beardsley, who attack intentionalism on different premises from those used by hermeneutics.
3. In "Against Theory 2" Knapp and Michaels cite Donald Davidson in support of their anticonventionalism (footnote 19). I hasten to point out, though, that Davidson in the essay they cite is also at pains to show that a theory much like their own intentionalism is misconceived. Davidson writes in "Communication and Convention" (in Inquiries into Truth and Interpretation [New York: Oxford University Press, 1984], 271-72): "Of course the mere intention does not give the sentence that meaning.... Literal meaning and intended literal meaning must coincide if there is to be a literal meaning. But this fact, while true and important, is of no direct help in understanding the concept of literal meaning, since the crucial intention must be characterized by reference to the literal meaning." In other words, if Davidson is right, Knapp and Michaels have reversed the proper order of analysis.
4. See Davidson, "Communication and Convention," 271.
5. Monroe Beardsley argues that "it is a paradoxical consequence of the intentionalist definition of literature ... that though characteristically discourses that are poems will also be literary works of art, this is not logically necessary: there is no self-contradiction in saying that a poem (but not literature) has been produced automatically or accidentally or inadvertently or by mistake or by chance." "Aesthetic Intentions and Fictive Illocutions," in What Is Literature? ed. Paul Hernadi (Bloomington: Indiana University Press, 1978), 168.
6. For a more detailed account of hermeneutics and legal interpretation see D. C. Hoy, "Interpreting the Law: Hermeneutical and Poststructuralist Perspectives," Southern California Law Review 58 (1985): 136-76. See also "Dworkin's Constructive Optimism v. Deconstructive Legal Nihilism," Law and Philosophy 6 (1987): 321-56.
7. Southern California Law Review 58 (1985): 673-81.
8. See John Hart Ely on the Ninth Amendment in Democracy and Distrust: A Theory of Judicial Review (Cambridge: Harvard University Press, 1980), 34-41.
9. See Erie R. R. v. Tompkins (1938).
10. Against Theory, 24.
11. Ibid., 104.
12. Ibid., 96.
13. Hans-Georg Gadamer, Truth and Method (New York: Continuum, 1975), 271-74.
14. For a more detailed discussion of the legal position known as originalism, which can be distinguished from intentionalism (although it often is not), see D. C. Hoy, "A Hermeneutical Critique of the Originalism/Nonoriginalism Distinction," Northern Kentucky Law Review. 15 (1988): 479, 498.
15. Quoted in New York Times, Sunday, 13 Oct. 1985.
16. See the Supreme Court on Harper v. Virginia State Board of Elections (1966).
Intention, Identity, and the Constitution: A Response to David Hoy
1. See Steven Knapp and Walter Benn Michaels, "Against Theory," Critical Inquiry 8 (1982): 723-42; "A Reply to Our Critics," Critical Inquiry 9 (1983): 790-800; "A Reply to Richard Rorty: What Is Pragmatism?" Critical Inquiry 11 (1985): 466-73; "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49-68. The first three items are reprinted in Against Theory: Literary Studies and the New Pragmatism, ed. W. J. T Mitchell (Chicago: University of Chicago Press, 1985), 11-30, 95-105, and 139-46, respectively.
2. Hans-Georg Gadamer, Truth and Method, trans. and ed. Garrett Barden and John Cumming (New York: Continuum, 1975), 291; hereafter cited in text as TM.
3. Sanford Levinson, "Law as Literature," in Interpreting Law and Literature: A Hermeneutic Reader, ed. Sanford Levinson and Steven Mailloux (Evanston, Ill.: Northwestern University Press, 1988), 158-59.
4. Paul Ricoeur, Interpretation Theory: Discourse and the Surplus of Meaning (Fort Worth: Texas Christian University Press, 1976), 76.
5. Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), 53; hereafter cited in text as LE. Dworkin's account of interpretation has much in common with Gadamer's, as Dworkin himself notes; see 55, 62, 42On.
6. David Hoy, "Intentions and the Law: Defending Hermeneutics," in this volume; all further references to Hoy will be to this essay.
7. Or if that seems too extreme, perhaps Hoy would want to say that no set of marks produced by chance can be a text until it is mistaken for a text.
8. At one point Hoy offers the case of ambiguity as a counterexample to our account of meaning: "An ambiguous sentence," he writes, "could be described as one having two different 'meanings,' whether both of them were intended or not." Adopting for hermeneutics the distinction, familiar in speech-act theory, between sentence meaning and speaker's meaning, he asserts, "Explaining ambiguity requires making a distinction between the two sentence meanings before raising the question about which of these was intended, or whether both were." But sentence meaning—the meaning assigned to a set of marks by the semantic and syntactic rules of some particular language—is not an alternative to intended meaning; it is just the meaning that would be produced by someone who intended to produce a meaningful text or utterance by following the rules of the language in question. Hence the choice between two sentence meanings (or between a sentence meaning and some other meaning) is simply a choice between two possible intended meanings.
9. We present this example in hypothetical terms not because we are unaware of or indifferent to the complex history of the Fourteenth Amendment and of its interpretation but because the details of that history are beside the point of the present discussion.
10. Ronald Dworkin, "The Bork Nomination," New York Review of Books, 13 Aug. 1987, 8.
11. Ibid., 6.
12. In the same passage Hoy raises the issue of "ulterior purposes" and urges us to say something about "the difference between linguistic intentions ... and nonlinguistic intentions." It is sometimes proposed as an objection to intentionalism that legislators can, for ulterior purposes such as getting reelected, enact a law in which they do not themselves believe. But such purposes are not part of the meaning of the law; they are motives for enacting a law with that meaning. The ordinary case of lying is an obvious parallel; the fact that one can produce an utterance with an intention to deceive does not alter the meaning of the utterance itself. There are simply two intentions, one to produce an utterance with a certain meaning and one to use that utterance to deceive. Hoy himself appears to be confused about this distinction when he conflates the intention to mean something with the intention to make that meaning "valid or sound." The intention to say something true is no more a part of the meaning of what one says than is the intention to say something false.
13. Dworkin cites H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review 98 (1985): 885-948, as providing "persuasive historical evidence that the framers intended that their own interpretations of the abstract language they wrote should not be regarded as decisive in court" ("Bork Nomination," 3). For Dworkin this evidence suggests that intentionalism is "self-defeating," but if all Powell shows is that the framers thought the public or "plain" meanings of their words were better evidence of their intentions than were the records of their private debates, then what he has provided is not an argument against intentionalism but an account of where the framers thought the best evidence of their intentions could be found. If, however, the claim is that the framers meant that their intentions themselves should be disregarded, then it's hard to see how the framers could be understood to have intended that interpretations of the Constitution be interpretations of the text they wrote, since the only thing the Constitution and the text they wrote would have in common would be the marks on the page.
14. Hoy is consequently right to say that in a text the meaning of a sentence "is constrained by its inherence in a context formed by the other sentences." But this is true only to the extent that those other sentences count as evidence of what the author intended in the sentence in question.
15. Recovering authorial intentions may, however, be difficult. And the general difficulty of recovering the intentions of authors who wrote, for example, in the distant past seems to many to be exacerbated in the case of a document such as the Constitution, which is the product of collective authorship. For if meaning is determined by intention, how does one interpret a text whose various authors may have had different intentions? Here the difficulty goes beyond the problem of figuring out what the authors intended; indeed, it emerges only when, having figured out what the authors intended, one discovers that by the same marks they intended different things. Of course, it frequently happens that two authors produce the same marks with different intentions, but there is no difficulty here; the two identical sets of marks simply constitute two different texts. The difficulty arises when two or more authors intend to produce a single text with a single agreed-upon meaning but fail to do so because, as it turns out, they each meant something different by the marks they collectively produced. It would be a mistake, in our view, to imagine that they have thus produced a single text with more than one intention since, as we have shown, the identity of a text depends on an identity of intention (identity of marks is not enough). Instead, they are in the position of two different authors meaning different things by the same set of marks except that they intended to produce a single text but failed. Their intention to produce a single text is not, however, part of the meaning of any of the texts they have in fact produced, nor does its failure in any way stop the meanings of those texts from being determined by their intentions. A judge who discovered that the framers of the Fourteenth Amendment meant different things by "equal" would not be in a position of deciding whether to disregard authorial intention (no interpreter can ever do that while continuing to interpret). But she would have to decide which of the texts produced by the framers counted as the Fourteenth Amendment.
Legal Indeterminacy and Legitimacy
1. Roberto Unger, "The Critical Legal Studies Movement," Harvard, Law Review 96 (1983): 561, 571.
2. Duncan Kennedy, "Form and Substance in Private Law Adjudication," Harvard Law Review 89 (1976): 1685.
3. Another strategy suggested by the connection between theories of legal reasoning and indeterminacy is first to determine the correct theory of legal reasoning and then to investigate the consequent concept of indeterminacy. That undertaking is beyond the scope of this effort.
4. Three places where radical indeterminacy might create difficulties are with respect to utilitarian grounds of obligation, with the duty to uphold just institutions, and with fraternity.
5. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969): 39.
6. Kress, "Legal Indeterminacy." California Law Review 77 (1989): 283.
7. See, e.g., Owen Fiss, "Objectivity and Interpretation," Stanford Law Review 34 (1982): 739, 749; Erwin N. Griswold, "The Judicial Process," Federal Bar Journal 31 (1972): 309, 314.
8. See Joseph Raz, The Morality of Freedom (New York: Oxford University Press, 1986), 100-101; A. John Simmons, Moral Principles and Political Obligations (Princeton: Princeton University Press, 1979), 6-7, 12, 195-96.
9. Alan Hyde, "The Concept of Legitimation in the Sociology of Law," Wisconsin Law Review 1983: 379.
10. Mark Tushnet, "Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles," Harvard Law Review 96 (1983): 781-82.
11. In this article, I consider for the most part the consequences of metaphysical or ontological indeterminacy for legitimacy concerns. I make some initial comments about epistemological indeterminacy in Kress, "A Preface to Epistemological Indeterminacy," Northwestern University Law Review 85 (1990): 134. See also infra notes, 38, 40.
12. "Liberal" is used throughout this article to refer to the tradition of political philosophy based on the moral authority of the individual, a tradition exemplified by Locke, Hume, Kant, Bentham, Mill, and Rawls. In this usage, Reagan, Bush, Bork, and Posner, as well as Dworkin, Dukakis, Carter, and the Kennedys, are liberals.
13. Actually, there are two separate questions here. First, why would conventional, liberal legal theorists care if the indeterminacy thesis were true? Second, what do critical legal scholars claim that the indeterminacy thesis shows to be wrong with conventional legal theory? My suggestion is that both conventional legal theorists and some influential critical legal scholars accept the view that significant indeterminacy undercuts the legitimacy of courts, although the attribution of that view to liberal legal theorists is more certain than the attribution to critical legal scholars.
14. Joseph William Singer, "The Player and The Cards: Nihilism and Legal Theory," Yale Law Journal 94 (1984): 1, 12-13.
15. Ibid., 12.
16. Ibid., 11.
17. Ibid., 14.
18. Andrew Altman, "Legal Realism, Critical Legal Studies, and Dworkin," Philosophy and Public Affairs 15 (1986): 205, 227-35.
19. Duncan Kennedy, "Legal Formality," Journal of Legal Studies 2 (1973): 351-54.
20. The requisite consent could be to the entire constitutional framework. Alternatively, it might be thought that voting for legislative representatives is a form of tacit consent.
21. Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 102-5, 113-15; see also Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917), Holmes, J., dissenting: "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions."
22. H. L. A. Hart, "Positivism and the Separation of Morals," Harvard Law Review 71 (1958): 593, 606-7.
23. Steven J. Burton, An Introduction to Law and Legal Reasoning (Boston and Toronto: Little, Brown, 1985), 176-84, 199-214 (suggesting contextual grounds for legitimacy in place of criteria requiring rigid formalist construction).
24. See, e.g., Kennedy, "Legal Formality," 35-54.
Even if some critical scholars would not locate the significance of the indeterminacy thesis in its consequences for political legitimacy, there is certainly a significant strain within critical legal scholarship that would. It will therefore repay our patience if we examine the connection between these critical legal scholars' claims of indeterminacy and legitimacy by brief consideration of the texts of Singer, Altman, and Kennedy.
It should be acknowledged that there are other perspectives in critical legal scholarship regarding the significance of the indeterminacy thesis in addition to its consequences for legitimacy. Some emphasize its instrumental value in unfreezing legal consciousness and effectuating critical scholars' political agenda. Additionally, if law is indeterminate, then judges are political actors wielding great power. Law is politics. Indeterminacy thus raises issues concerning the proper and best exercise of that power by judges and concerning which institutional frameworks are most conducive to the wise exercise of that power. But these inquiries raise, albeit indirectly, much the same questions as would be raised by inquiring directly about the legitimacy of adjudication under conditions of indeterminacy. This is especially so if the conditions for wise exercise of judicial power and the legitimacy of adjudication are, as this article suggests, largely dependent on the substantive virtues of the decisions judges make. I discuss instrumental uses of the indeterminacy thesis in "Legal Indeterminacy," 284, 336.
25. For an analogous reconstruction of the formalists' argument that adjudication is illegitimate because judges do not always apply law, see Burton, Introduction, 183-84.
26. Simmons, Moral Principles and Political Obligations, 191.
27. See Leslie Green, The Authority of the State (Oxford: Clarendon: New York: Oxford University Press, 1988); Joseph Raz, The Authority of Law (Oxford: Clarendon: New York: Oxford University Press, 1979); Simmons, Moral Principles and Political Obligations, 191-95; Steven J. Burton, "Law, Obligation, and a Good Faith Claim of Justice," California Law Review 73 (1985): 1956, 1980-82.
28. This may appear incoherent because where law is indeterminate, there is no action that must be performed or avoided, no norm that must be obeyed. But the point is that citizens are obligated to obey official acts that specify or concretize the law, thus making it determinate where it was formerly indeterminate.
29. The claim that most or all citizens have consented to the law is considered a fantasy by most contemporary political theorists. See, e.g., Ronald Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986), 194; David Lyons, Ethics and the Rule of Law (Cambridge and New York: Cambridge University Press, 1984), 211; M. B. E. Smith, "Is There a Prima Facie Obligation to Obey the Law?" Yale Law Journal 82 (1973): 950, 960-64.
30. Jean Jacques Rousseau, The Social Contract, trans. Maurice Cranston (Harmondsworth, Eng.: Penguin, 1968).
31. See David Hume, "On the Original Contract," in Essays: Moral, Political, and Literary, ed. Eugene F. Miller (Indianapolis: Liberty Fund, 1985); John Plamenatz, Consent, Freedom, and Political Obligation (London and New York: Oxford University Press, 1968), 7.
32. Hume, "On the Original Contract," 475; see Dworkin, Law's Empire, 192-93.
33. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 342-50; Simmons, Moral Principles and Political Obligations, 101-8; H. L. A. Hart, "Are There Any Natural Rights?" Philosophical Review 64 (1955): 175, 185; John Rawls, "Legal Obligation and the Duty of Fair Play," in Law and Philosophy, ed. Sidney Hook (New York: New York University Press, 1964), 3, 9-10.
34. For discussion of the duty to uphold unjust institutions, see Rawls, Theory of Justice, 333-42; Simmons, Moral Principles and Political Obligations, 143-56; see also Rawls, "The Justification of Civil Disobedience," in Civil Disobedience: Theory and Practice, ed. Hugo Bedau (New York: Pegasus, 1969), 240-41.
35. See Perry, Morality, Politics, and Law, 39-43.
36. These practical distinctions still do not "capture the intimacy of the special duty"; ibid.
37. Raz, Morality of Freedom, 53.
38. Dworkin, Laws Empire, 195-216. The notion of indeterminacy employed here is epistemological, not metaphysical. Because Dworkin would reject the metaphysical issue as meaningless, an epistemic concept fits more naturally with his interpretive attitude.
39. Ibid., 88-89, 136-39. See also Kress, "The Interpretive Turn," Ethics 97 (1987): 834, 836: "Law, Dworkin contends, requires disagreement at the appropriate golden mean to flourish. Too little and law stagnates; too much and law founders."
40. Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon: New York: Oxford University Press, 1986), 160-62, 168-82; see generally 147-90. Here, also, an epistemological conception of indeterminacy fits more naturally than an ontological one.
41. This is an appropriate place to note an oversimplification in the analysis. I have at various points moved freely between the legitimacy of government, or the institution of adjudication, and citizens' obligations to obey. In fact, there are other legitimacy concerns besides the obligation to obey the law, including rule of law and democratic values. While a more extensive examination would need to consider them, the conclusion of the analysis would remain unchanged.
Another complication worth noting but insufficient to affect the argument concerns the relationship between governmental legitimacy and citizens' obligations to obey. Although these two notions are usually coextensive, they are analytically separable and on occasion will come apart. See Jeremy Waldron, "Theoretical Foundations of Liberalism," Philosophical Quarterly 37 (1987): 127, 136-39 (arguing that consent, especially hypothetical consent, arguments for legitimacy are sometimes more powerful than consent arguments for obligation). For example, under the Benthamite "settled expectations rationale" for government legitimacy, sufficient indeterminacy that fails to promote utilitarian values exceeding that of the expectations it unsettles will block legitimacy. But given de facto adjudicatory institutions, it may nonetheless promote utility to obey their decisions, to avoid interminable disputes, and to promote coordination of behavior. Thus, a legal system that is illegitimate on Benthamite grounds because significantly more deterministic legal systems are available may nonetheless generate an obligation that citizens obey its commands. Similarly, a particular judicial order that is illegitimate and should not have been given because it fails to maximize utility may nonetheless, once given, generate an obligation to obey deriving from the disutilities arising from disobedience.
42. But see A. D. M. Walker, "Political Obligation and the Argument from Gratitude," Philosophy and Public Affairs 17 (1988): 191 (defending the argument from gratitude).
43. Fuller, Morality of Law.
44. H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 129.
How Trial Judges Talk: Speculations About Foundationalism and Pragmatism in Legal Culture
I am indebted to Steven Burton and Jeremy Waldron for helpful comments.
This article is reprinted with the permission of Ken Kress. A longer version appeared in 77 Calfornia Law Review 283 (March 1989).
1. John Gilliom and I have analyzed these distinctions at length in "From Foundation to Discourse," in Judging the Constitution, Michael McCann and Gerald Houseman (Chicago: Scott, Foresman/Little, Brown, 1989). The work of Michel Foucault, modern neo-Marxism, and much of the feminist literature offer nonpragmatic but discursive alternatives to foundationalism. These alternatives are less sanguine than is the new pragmatism about the role language and narrative play in preserving asymmetrical allocations of wealth and power.
2. See primarily Richard Rorty's Philosophy and the Mirror of Nature (Princeton. Princeton University Press, 1979). In my Contemporary Constitutional Lawmaking (Elmsford, N.Y.: Pergamon, 1985) I present the case that two hundred years of constitutional legal history provides a strong descriptive confirmation of Rorty's position.
3. Rorty, Philosophy, 6.
4. Hayward R. Alker, Jr., has recently advocated replacing the search for laws of political science with the analysis of contextualized political argumentation itself in "The Dialectical Logic of Thucydides' Melian Dialogue," American Political Science Review 82, (1988) 805-20.
5. White's essays are collected in When Words Lose Their Meaning (Chicago: University of Chicago Press, 1984) and Heracles' Bow (Madison: University of Wisconsin Press, 1985). See particularly "The Judicial Opinion and the Poem: Ways of Meaning, Ways of Life," in Heracles' Bow, 107-38.
6. See my Contemporary Constitutional Lawmaking.
7. See James Eisenstein and Herbert Jacob, Felony Justice (Boston: Little, Brown, 1977), and Peter J. Van Koppen and Jan Ten Kate, "Individual Differences in Judicial Behavior: Personal Characteristics and Private Law Decision-Making," Law and Society Review 18 (1984): 225.
8. Sanford Levinson, "On Interpretation: The Adultery Clause of the Ten Commandments," Southern California Law Review 58 (1985): 719.
9. Cf. Van Koppen and Ten Kate, "Individual Differences in Judicial Behavior."
Why Constitutional Theory Matters to Constitutional Practice (and Vice Versa)
This essay was originally published in Constitutional Commentary 6 (1989): 231. It is reprinted here with the permission of the author and Constitutional Commentary .
Prepared for presentation to the Prescott Bloom Memorial Symposium on "Interpretation and Rights," sponsored by the Williams College Center for the Humanities and Social Sciences, held at Williams College, 3–4 November 1988.
I am grateful to the C. C. Linthicum Fund of the Northwestern University School of Law for financial support during the summer of 1988, when this essay was written.
1. Is any activity unconstrained? Any human activity? Any intentional human activity?
2. See W. Mitchell, ed., The Politics of Interpretation (Chicago: University of Chicago Press, 1983); D. Tracy, Plurality and Ambiguity (New York: Harper and Row, 1987).
3. See W. Mitchell, ed., Against Theory: Literary Studies and the New Pragmatism (Chicago: University of Chicago Press, 1985); Steven Knapp and Walter Benn Michaels, "Against Theory 2: Hermeneutics and Deconstruction," Critical Inquiry 14 (1987): 49.
4. See M. Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982); M. Perry, Morality, Politics, and Law (New York: Oxford University Press, 1988), chap. 6. I want to say something about what might seem to be an excessive and unseemly self-reference in this essay: I wrote this essay against the background of my other constitutional-theoretical work; indeed, I wrote it as something of an appendix to that other work, and so I have thought it useful, even important, to refer to relevant passages in that work at several points in this essay.
5. Does anyone really doubt that constitutional discourse—which. is a species of political-moral discourse (see Perry, Morality, Politics, and Law, 151-60)—sometimes influences some judges to decide constitutional cases one way rather than another? More generally, does anyone really doubt that moral discourse sometimes influences some persons to decide moral cases one way rather than another? On the nature, possibilities, and limits of moral discourse, see ibid., chap. 2.
6. "Text" is defined in The Oxford English Dictionary as, inter alia, "The wording of anything written or printed; the structure formed by the words in their order; the very words, phrases, and sentences as written."
7. I mean "familiar" in the sense, say, of "intelligible," not "comfortable." In becoming familiar to me, a thing might become deeply disturbing. For example, the coded message I finally succeed in deciphering—and in that sense making familiar—may be a deeply disturbing one. My colleague Carol Rose has suggested that "'placing in context'—and even more, 'locating in a different context'—is what Gadamer has in mind in saying that the quintessence of interpretation is translation. From the Latin translatio: 'to move something from one place to another.'" (From Carol's comments on an early draft of this essay.)
David Hoy has recently emphasized that interpretation can consist of the attempt not only to make the strange familiar but also to make the familiar strange; see Hoy, "A Hermeneutical Critique of the Originalism/Nonoriginalism Distinction," Northern Kentucky Law Review 15 (1988): 479.
8. See N. Abbagnano, "Positivism," in Encyclopedia of philosophy, ed. P Edwards (1967), 6:414: "The characteristic theses of positivism are that science is the only valid knowledge and facts the only possible objects of knowledge.... Positivism... denies the existence or intelligibility of forces or substances that go beyond facts and the laws ascertained by science. It opposes any kind of metaphysics and, in general, any procedure of investigation that is not reducible to scientific method." See also E. McMullin, "The Shaping of Scientific Rationality: Construction and Constraint," in Construction and Constraint: The Shaping of Scientific Rationality, ed. E. McMullin (Notre Dame: University of Notre Dame Press, 1988), 1:1: "The field we call 'philosophy of science' has changed dramatically since I first started working in it more than thirty years ago. At that time the main preoccupations appeared to be logical ones. Philosophers saw natural science as a highly specific mode of knowing and of explaining; many said the ideal mode of knowing and of explaining."
Positivist pretensions have now been largely abandoned in the philosophy of science. See generally essays by Ernan McMullin, Richard Rorty, Thomas McCarthy, Mary Hesse, Richard Foley, Gary Gutting, and Richard Bernstein in Contruction and Constraint.
9. Tracy, Plurality and Ambiguity, 9.
10. See J. L. Mackie, Ethics: Inventing Right and Wrong (Harmondsworth, Eng.: Penguin, 1977), 203-26.
11. See R. Taylor, "Determinism," in Encyclopedia of Philosophy 2:359.
12. See J. Nickel, "Uneasiness About Easy Cases," Southern California Law Review 58 (1985): 477.
13. See D. Kelsey, The Uses of Scripture in Recent Theology (Philadelphia: Fortress Press, 1975), 151:
[A] theologian's remark "Scripture is authority for theology," said in reference to biblical texts taken as scripture, is like a boy's exclamation "Come on, let's play ball," said in reference to a ball not evidently designed for use in any one ball-game in particular. It no more makes a claim about the texts than the boy's exclamation does about his ball; rather, it self-involvingly invokes an activity. In saying "Scripture is authority for theology," the theologian commits himself to participate in one or another of a family of activities called "doing Christian theology." Moreover, he thereby acknowledges and commits himself to observing a rule governing the practice of theology (on certain understanding of "theology"): In defending theological proposals, scripture shall be used in such a way that helps authorize the proposals.
14. See Perry, Morality, Politics, and Law, chap. 6.
15. See. L. Tribe, "Contrasting Constitutional Visions: Of Real and Unreal Differences," Harvard Civil Rights—Civil Liberties Law Review 22 (1987): 95: "[F]or all the ballyhoo, overall approaches differ far less than might appear. Both Judge Robert Bork and I, for example,... start with the recognition that any 'legitimate theory of constitutional adjudication begins from the premise that the Constitution is law,' and that it must therefore provide genuine constraints on choice" (quoting Bork, "Original Intent and the Constitution," Humanities, February 1986, 22.) Cf. R. Dworkin, "The Bork Nomination," New York Review, 13 Aug. 1987, 10: "[Judge Bork's] writings show no developed political philosophy ... beyond frequent appeals to the truism that elected legislators, not judges, ought to make law when the Constitution is silent. No one disputes that, of course; people disagree only about when the Constitution is silent."
16. Tom Grey has written that "[c]onvention specifies that judges are bound always and only to interpret existing law in the decision of cases"; "Advice for 'Judge and Company,'" New York Review, 12 Mar. 1987, 33. However, that convention or axiom coexists with deep disagreement as to what it means to "interpret" existing law—that is, as to what interpretive moves judges should make. Grey's article (a review of Ronald Dworkin's Law's Empire [Cambridge: Harvard University Press, 1986]) comments on, and my recent book (Morality, Politics, and Law, chap. 6) participates in, that disagreement. Indeed, one might reasonably conclude that the convention is indeterminate to the point of vacuity, since such different interpretive moves or strategies are consistent with it.
17. Cf. Allen Verhey, "The Use of Scripture in Ethics," in The Use of Scripture in Moral Theology, ed. C. Curran and R. McCormick (Mahwah, N.J.: Paulist Press, 1984), 213:
To say scripture is an authority is not yet to say what moves are authorized in an argument "from the Bible to the modern world."... The question of whether (and, within believing communities, the agreement that) scripture is a source and canon for moral discernment and judgment must be distinguished from the question what this source provides or how this canon functions as a norm. In spite of agreement that scripture is an authority, there are wide disagreements about the authorization for moving from scripture to moral claims.
18. There are different originalist theories. I'm referring to the strongest originalist theory I can imagine. See Perry, Morality, Politics, and Law, 122, 122 n. 9.
19. See Perry, Morality, Politics, and Law, chap. 6. The inquiries why the constitutional text is authoritative and whether it should be are interesting but not pressing. To say that in American political-legal culture the constitutional text is axiomatically authoritative in constitutional adjudication is to say that in American political-legal culture the proposition "the constitutional text is authoritative in constitutional adjudication" is not in question. It bears mention that there is no reason to think that the "why" and "whether" questions have single answers. As the discussion in the text makes clear, the constitutional text—"the Constitution"—does not mean the same thing to everyone; in that sense, the constitutional text is not the same thing for everyone. To explain why the Constitution, understood one way, is authoritative for some people is not to explain why the Constitution, understood another way, is authoritative for other people. To argue that the Constitution, understood one way, should be authoritative is not to argue than the Constitution, understood another way, should be authoritative.
20. See Perry, Morality, Politics, and Law, 124-25.
21. That is, can a text mean more than one thing to a person at one point in time? Of course a text can mean more than one thing to a person at different points in time. The point in the text can be made in terms of "understanding" as well as "meaning": "A text can be understood in multiple ways. (Indeed, one understanding of a text can contradict another understanding of the text.) Understanding is always understanding by someone, and the way in which a text is understood by one person is not necessarily the way in which it is understood by another. But is it the case that a text can be understood in more than one way by a person?" And so on.
22. For an instructive study of "constitutional aspiration," see G. Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration (Totowa, N.J.: Rowman and Littlefield, 1986). For an important discussion of the Constitution in aspirational terms, see S. Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984).
23. "[T]he interpretation of a work is invariably conditioned by the prior history of the effects of that work. Any prior interpretation will count as part of that history." D. Hoy, "Interpreting the Law: Hermencutical and Poststructuralist Perspectives," Southern California Law Review 58 (1985): 147. See also Hoy, "The Interpretation of Sacred Texts: Methodological Issues," Proceedings of the General Education Seminar (Columbia University) 9 (1980-8l): 28: "[Hermeneutics insists that] the reception of a text in a tradition is also constitutive of its meaning and, therefore, of its interpretation. The claim is that this history of the text's effects (Wirkungsgeschichte) itself conditions, or qualifies, the interpretation and so must be taken into account in the interpretation."
24. Whether a particular constitutional provision is aspirational can be controversial, of course. To say—whether from the perspective of a participant observer in the political-legal culture, which is the judge's perspective, or from the perspective of the outsider, like de Tocqueville—that a particular provision does not signify a fundamental aspiration of the American political tradition is to say either or both of two things: (1) that the provision does not signify an aspiration or (2) that the aspiration the provision signifies is not now, if it ever was, a fundamental aspiration of the tradition.
Nonoriginalism does not hold that every worthwhile aspiration is necessarily a fundamental aspiration of the tradition, much less signified by some provision of the constitutional text. Nor does it hold that every fundamental aspiration of the tradition is necessarily signified by some provision of the text. It does not even hold that every aspiration of the tradition signified by some textual provision is necessarily worthwhile. Why should a judge bring to bear, in constitutional cases, only those aspirations signified by the text? Why not all fundamental aspirations, even those not signified by the text? Indeed, why not all worthwhile aspirations, even those not fundamental aspirations of the American political tradition? If someone wants to claim that a judge should bring to bear all fundamental aspirations, or even all worthwhile aspirations, I want to hear the argument. (Inter alia, I'm curious to hear what fundamental aspirations are not signified by the text and also what worthwhile aspirations are not fundamental aspirations of the tradition.) My argument is merely that a judge should bring to bear, in constitutional cases, only aspirations signified by the text.
Why should a judge bring those aspirations to bear? By oath a judge has sworn to support the Constitution. (Article 6 of the Constitution provides in relevant part that, "all ... judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.") It is difficult to see what might be meant by "the Constitution" other than either (1) original beliefs or (2) the aspirations or ideals or principles signified by the Constitution. Given her oath, then, in adjudicating a case arising under a given textual provision, a judge's choice is either to pursue an originalist approach or, instead, to bring to bear the aspiration signified by the provision. (I'm not claiming that a judge ought never to violate her oath, any more than I'd claim that a person ought never to break a promise. See Perry, "Some Notes on Absolutism, Consequentialism, and Incommensurability," Northwestern University Law Review 80 [1985]: 967. I do suppose, however, that a judge has a strong presumptive obligation not to violate her oath. Cf. Dworkin, Law's Empire, 218-19.) My argument is that with respect to some provisions—those signifying fundamental aspirations of the American political tradition—she should forgo the originalist approach in favor of bringing the aspirations to bear.
However, although I'm arguing that a judge should bring to bear only aspirations signified by the Constitution (as distinct from all fundamental aspirations or all worthwhile aspirations), I'm not arguing that she should bring to bear every aspiration signified by the Constitution. As I remarked a moment ago, nonoriginalism does not presuppose that every aspiration signified by the Constitution is necessarily worthwhile. If a judge believes that an aspiration signified by some provision of the constitutional text is not worthwhile, then she has no reason to bring that aspiration to bear. She may, consistent with her oath, pursue the originalist approach to adjudication under the provision in question.
25. I've further elaborated nonoriginalist constitutional interpretation by analogizing it to the interpretation of sacred texts. See Perry, Morality, Politics, and Law, 136-45.
26. Hoy, "A Hermeneutical Critique," 493.
27. Section 1 of the Fourteenth Amendment of the Constitution provides in relevant part: "[N]or [shall any state] deny to any person within its jurisdiction the equal protection of the laws."
28. See Brown v. Board of Education, 347 U.S. 483 (1954).
29. See Loving v. Virginia, 388 U.S. 1 (1967).
30. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).
31. See Perry, Morality, Politics, and Law, 150-51.
32. Cf. Dworkin, Law's Empire, 358:
Justices who are called liberal and those who are called conservative agree about which words make up the Constitution as a matter of preinterpretive text. They disagree about what the Constitution is as a matter of postinterpretive law, about what standards it deploys for testing official acts. Each kind of justice tries to enforce the Constitution as law, according to his interpretive judgment of what it is, and each kind thinks the other is subverting the true Constitution. So it is useless as well as unfair to classify justices according to the degree of their fidelity to their oath.
33. See Stanley Fish, "Dennis Martinez and the Uses of Theory," Yale Law Journal 96 (1987): 1779.
34. See McMullin, "Shaping of Scientific Rationality," 12. As with originalism and nonoriginalism, there are different versions of realism and conventionalism. The differences, however, are unimportant for present purposes.
35. See Perry, Morality, Politics, and Law, 39-43.
36. Consider the apparently "conventionalist" statement of the theoretical physicist/cosmologist Stephen Hawking in A Brief History of Time: From the Big Bang to Black Holes (New York: Bantam, 1988), 9:
[A] scientific theory is ... just a model of the universe, or a restricted part of it, and a set of rules that relate quantities in the model to observations that we make. It exists only in our minds and does not have any other reality (whatever that might mean). A theory is a good theory if it satisfies two requirements: It must accurately describe a large class of observations on the basis of a model that contains only a few arbitrary elements, and it must make definite predictions about the results of future observations.
37. CL. Fish, "Martinez and Theory," 1781-85: adjudicative practice underdetermines the choice between Michael Moore's moral-realist position and a moral-conventionalist position.
38. Cf. Mark Tushnet, "Does Constitutional Theory Matter? A Comment," Texas Law Review 65 (1987): 777: "My primary argument is that constitutional theory matters in the way that a fairly high fever matters—though it has no independent significance, it is a symptom of an underlying disorder in the body politic."
39. Thus, even those apostles of originalism or judicial self-restraint or both who rail against constitutional theory, like Lino Graglia (see Graglia, "'Constitutional Theory': The Attempted Justification for the Supreme Court's Liberal Political Program," Texas Law Review 65 [1987]:789), are constitutional theorists, whether or not they acknowledge it. See D. Laycock, "Constitutional Theory Matters," Texas Law Review 65 (1987): 767.
40. I've discussed the originalist and nonoriginalist arguments about proper interpretive style/judicial role at length elsewhere. See Perry, Morality, Politics, and Law, chap. 6.
41. "[N]either shall any person be eligible to that office [of President] who shall not have attained to the age of thirty-five years...." U.S. Constitution, art. 2, sec. 1, par. 5.
42. "The Congress shall have power ... to regulate commerce ... among the several states.... U.S. Constitution, art. 1, sec. 8, par. 3.
43. See e.g., R. Stern, "That Commerce Which Concerns More States Than One," Harvard Law Review 47 (1934): 1335.
44. I don't mean to suggest that the position on the original understanding of the commerce clause defended by Stern, "That Commerce," and others is not controversial. For a different view, see R. Epstein, "The Proper Scope of the Commerce Power," Virginia Law Review 73 (1987): 1887. See also W. Van Alstyne, "Federalism, Congress, the States, and the Tenth Amendment: Adrift in the Cellophane Sea," Duke Law Journal 1987:769. Cf. M. Redish and K. Drizin, "Constituional Federalism and Judicial Review: The Role of Textual Analysis," New York University Law Review 62 (1987): 1.
45. See Perry, Morality, Politics, and Law, 125-26.
46. For an argument that "the political Constitution"—"those provisions of the Constitution that establish the structure of the government of the United States"—doesn't give rise to problems of interpretation nearly as severe as some other parts of the Constitution, in particular provisions regarding individual rights, see Stephen L. Carter, "The Right Questions in the Creation of Constitutional Meaning," Boston University Law Review 66 (1986): 73. The reason, in Carter's view, is that at least some parts of "the political Constitution" are relatively "concrete" or "specific." Ibid., 73. See also Carter, "Constitutional Adjudication and the Indeterminate Text: A Preliminary Defense of an Imperfect Muddle," Yale Law Journal 94 (1985): 858-59.
47. See Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Cambridge: Harvard University Press, 1988), 63-64.
48. See L. Solum, "On the Indeterminacy Crisis: Critiquing Critical Dogma," University of Chicago Law Review 54 (1987): 462.
49. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985) [105 S. Ct. 1005]; H. Wechsier, "The Political Safeguards of Federalism," in Principles, Politics, and Fundamental Law (Cambridge: Harvard University Press, 1961), 49; J. Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1982), chap. 4; Redish and Drizin, "Constitutional Federalism."
50. To ask about a constitutional provision—or about any text—"What does it say?" is not the same as asking "What does it mean?" Yet if what the provision says is sufficiently familiar in the relevant community—if what it says is not alien or strange—then we shouldn't be surprised if the question "What does it mean?" elicits the impatient reply "It means what it says!" Imagine a law setting a speed limit of fifty-five miles per hour. What seems strange is not what the law says but, given the familiarity of what the law says, the question "What does it mean?" It means what it says. Of course, this is not to deny that to say of the speed-limit law "It means what it says!" is to interpret the law/text, just to emphasize that the question "What does it mean?" is a real and explicit one when what the text says is at least a little alien or strange in the relevant community. To say of the equal protection clause that it means what it says is not very helpful, because in the American political-constitutional community the equal protection clause has no consensual or canonical meaning. What the clause says is more than a little alien or strange. Thus, the need to interpret the clause, to render it more familiar and hence usable, is obvious (in a way that the need to interpret the speed-limit law is not obvious).
51. Let me say, lest I be misunderstood, that it is a contingent fact, not a necessary one, that the phrase "thirty-five years of age" has a consensual meaning in the American political-constitutional community. It could be otherwise, and we can imagine a time when it might be.
52. Ronald Dworkin has written ("Bork Nomination," 6):
History alone might be able to show that some particular concrete opinion, like the opinion that school segregation was not unconstitutional, was widely shared within the group of legislators and others mainly responsible for a constitutional amendment. But it can never determine precisely which general principle or value it would be right to attribute to them. This is so not because we might fail to gather enough evidence, but for the more fundamental reason that people's convictions do not divide themselves neatly into general principles and concrete applications. Rather they take the form of a more complex structure of layers of generality, so that people regard most of their convictions as applications of further principles or values more general still. That means that a judge will have a choice among more or less abstract descriptions of the principle that he regards the framers as having entrusted to his safekeeping, and the actual decisions he makes, in the exercise of that responsibility, will critically depend on which description he chooses.
Notice how Dworkin implicitly gives the place of privilege in the justificatory hierarchy not to the particular but to the general, that is, to "principles or values more general still." For a critical comment on this tendency of "liberal" political philosophy to privilege the general, see Perry, Morality, Politics, and Law, 33-36.
More specifically, how can an originalist judge, like former Judge Robert Bork, choose "among more or less abstract descriptions of the principle" in a way that is faithful to the premises of his originalism? The answer, it seems to me, is this: The originalist, on the basis of available historical materials, must engage in a hypothetical conversation with "the framers"—"the group of legislators and others mainly responsible for" the relevant constitutional provision—in an effort to discern which principle they most likely would have chosen had they been confronted by the various possibilities; that is, which of the various candidate principles, from relatively narrow/concrete to relatively broad/abstract, is the one that best captures the purpose or point or meaning of what they did? That counterfactual project, though difficult, is hardly impossible. Granted, the project leaves the judge a lot of room for self-serving conclusions, but thoughtful originalists, like Bork, understand as much: "[E]nforcing the Framers' intentions is not a mechanical process and ... even a judge purporting to be an ... [originalist] can manipulate the levels of generality at which he states the Framers' principles." Bork, foreword to The Constitution and Contemporary Constitutional Theory, by G. McDowell (Cumberland, Va.: Center for Judicial Studies, 1985), xi. Nonoriginalism, says Bork, "is an explicit warrant for constitution-making but even under ... [originalism] there are no safeguards against that except the intellectual honesty of the judge and the scrutiny of an informed profession that accepts the premises of [originalism]."
Dworkin's suggestion that the framers of the equal protection clause of the Fourteenth Amendment should be understood to have constitutionalized "the principle that government should not act out of prejudice against any group of citizens"—a principle, Dworkin emphasizes, that applies to everyone, women and homosexuals included, and not just to racial minorities ("Bork Nomination," 8)—seems to me less sensitive to available historical materials and more likely an instance of wishful thinking than Bork's suggestion that the framers of the equal protection clause should be understood to have constitutionalized a principle against discrimination or prejudice on the basis of race. The reductio ad absurdum of Dworkin's way of (man)handling history is the suggestion that the framers of the equal protection clause—and of the First Amendment and indeed of all constitutional provisions pertaining to human rights—should be understood to have constitutionalized the principle that "government should not act unjustly." For a concise but powerful criticism of this aspect of Dworkin's theory of interpretation, see L. Alexander, "Striking Back at the Empire: A Brief Survey of Problems in Dworkin's Theory of Law," Law and Philosophy 6 (1987): 419. For an elegant statement of what motivates judges and commentators to engage in what Henry Monaghan has called "excessive generalization" of the original understanding (Monaghan, "The Constitution Goes to Harvard," Harvard Civil Rights-Civil Liberties Law Review 13 [1978]: 127), see Sandalow, "Constitutional Interpretation," Michigan Law Review 79 (1981): 1033.
So, a sophisticated originalism, sensitive to the insights of hermeneutics, readily acknowledges that the judge can never retrieve the actual "original understanding" any more than one person can come to see the world through another person's eyes (even if the other person is a contemporary). Accepting Gadamer's observation that "we understand in a different way if we understand at all" (Hans-Georg Gadamer, Truth and Method [New York: Crossroad, 1975], 264), the sophisticated originalist is fully aware that the best the judge can do is construct an imagined "original understanding" by means of a counterfactual speculative act—the hypothetical conversation—that is sensitive to available historical materials. But for the originalist the best the judge can do is quite good enough. Cf Monaghan, "Our Perfect Constitution," New York University Law Review 56 (1981): 377:
Although the difficulties of establishing original intent are formidable, they are by no means intractable. Significant difficulty in historical reconstruction is not present with respect to some constitutional provisions, and with respect to others it is at least partially ameliorated by the extensive body of precedent accumulated over the years by courts nearer in time to the origins of the relevant provision. Most importantly, the language of the constitution itself remains. Whatever the difficulties, the language itself constitutes the best evidence of original intention. In any event, the core question remains: do the basic postulates of the constitutional order require that the court undertake the task of ascertaining original intent, as best it can?
Trying to arrive at the original understanding, in the sense and way just indicated, is a far cry from, and far more legitimate—the originalist will want to insist—than pursuing an interpretive path that rejects the "in principle" authoritativeness of the original understanding, which is what nonoriginalists do. ("[E]ven if 'original intention' is not the ideal verbal touchstone, surely it is an extreme view of the Constitution that invites a judge to disregard the original meaning of the text as written." R. Epstein, "Bork-bashing: Easy, Unedifying and Irresponsible," Chicago Tribune, 31 Aug. 1987, sec. 1, p. 9.)
53. See e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 450 (1985).
54. See, e.g., Hoy, "Hermeneutical Critique," 491-98.
55. Isn't it clear, too, that a court would not have invalidated, in the name of that no-racial-discrimination clause, a classification based on sexual orientation? For an example of a decision in which a court has invalidated, in the name of the equal protection clause, such a classification, see Watkins v. United States Army, No. 85-4006 (Ninth Cir. 1988) (Army's discharge of Sergeant Watkins on basis of his homosexuality violated equal protection).
56. Section 1982 provides that "All citizens of the United States shall have the same right, in every State and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." (My thanks to Gene Nichol for this point.)
57. See Laycock, "Constitutional Theory Matters," 767: "Constitutional theory matters in a very practical sense: Different constitutional theories produceradically different results in real cases that effect real people in the world outside universities."
58. Although I focus here on the due process clause of the Fourteenth Amendment, in modern constitutional doctrine regarding due process there is no significant difference between the due process clause of the Fifth Amendment, which limits the federal government, and the due process clause of the Fourteenth Amendment, which limits the governments of the states. Moreover, although the equal protection clause of the Fourteenth Amendment limits only state governments and although there is no equal protection clause elsewhere in the Constitution that limits the federal government, the Supreme Court has interpreted the Fifth Amendment due process clause in such a way that it imposes the same limits on the federal government that the equal protection clause imposes on state governments. See, e.g., Boiling v. Sharpe, 347 U.S. 497 (1954).
59. For one view of the original understanding, see R. Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977), 193-200. For another, see E. Corwin, Liberty Against Government (Baton Rouge: Louisiana State University Press, 1948), 58-115. Cf. J. Reid, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 120:
Liberty in the age of the American Revolution was not the sum of enumerated rights, the rights to speech, press, security, property, or isonomy. It was rather government by the rule of law, government by the customary British constitution. If put in terms of freedom, liberty would not be defined as freedom of speech, freedom of the press, or any other such freedom now familiar in contemporary constitutional law, but as freedom from arbitrary power, from government by will and pleasure, from government by a sovereign, unchecked monarch or from government by a sovereign, unchecked Parliament.
60. See G. Stone, L. Seidman, C. Sunstein, and M. Tushnet, eds., Constitutional Law (Boston: Little, Brown, 1986), 840 ff.
61. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); Bowers v. Hardwick, 478 U.S. 1039 (1986).For an argument, in the context of a discussion of central aspects of contemporary substantive due process doctrine, that constitutional theory matters to constitutional practice, see R. Saphire, "Gay Rights and the Constitution: An Essay on Constitutional Theory, Practice, and Dronenburg v. Zech," University of Dayton Law Reidew 10 (1985): 767.
62. See, e.g., Robert Bork, "Neutral Principles and Some First Amendment Problems," Indiana Law Journal 47 (197 I): 1; and Bork, Tradition and Morality in Constitutional Law (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1984).
63. In helpful correspondence, Rogers Smith has suggested "giv[ing] some concrete examples of what we would do differently in reaching a decision if we adopted one constitutional theory rather than another—what sorts of things we could and should look at, what sorts of principles and arguments we could and should use.... For example: if in adjudicating [the constitutionality of school segregation under the equal protection clause] I thought the intentions of the clause's authors mattered most, I would look at historical evidence of what they said and did on the subject. If I thought the ratifiers' intent mattered, I would look at different historical documents. If I thought the textual language as it would ordinarily have been understood at that time mattered, I would look at contemporary dictionaries and examples of uses of the term. If I thought evolving social mores should give meaning to the clause, I would try to identify, measure, or predict them. If I thought, as I do, that the equal protection clause requires us to judge if public institutions are reinforcing relative inequalities to such an extent that some persons do not have meaningful capacities to pursue or exercise fundamental liberties, then I would not only have to indicate what I take to be fundamental liberties and why, I would also have to look at empirical evidence on current conditions to determine if such extensive relative disparities do in fact exist. I think people will see that constitutional theories matter much more readily if [one] spell[s] out the quite different inquiries they call for in reaching a decision." Letter to author from Smith, 13 May 1988.
64. Fish, "Martinez and Theory," 1779; see also 1777-79. Nor are epistemological theories in the philosophy of science "theories" in Fish's strong sense, as they do not dominate scientific practice. (This point is discussed at length above.)
It bears emphasis, too, that a constitutional theory is not necessarily the sort of "grand" or "foundationalist" theory Daniel Farber has recently criticized; see Farber, "Legal Pragmatism and the Constitution," Minnesota Law Review 72 (1988): 1331. It seems to me that my constitutional theory has much more in common with Farber's "pragmatist" approach to constitutional adjudication than with "grand theory." Compare Farber with Perry, Morality, Politics, and Law, chap. 6.
65. See P. Schlag, "Fish v. Zapp: The Case of the Relatively Autonomous Self," Georgetown Law Journal 76 (1987): 37; Schlag, "Theory and the Uses of Dennis Martinez," Georgetown Law Journal (1987): 53.
66. Fish, "Martinez and Theory," 1779.
67. Tushnet, "Does Constitutional Theory Matter?" 778-79.
68. Ibid., 787.
69. See Perry, Morality, Politics, and Law, 166-69.
70. See Perry, Morality, Politics, and Law, chap. 6.
Legal Education and the Public Life
1. Amy Gutman, "Undemocratic Education," unpublished essay.
2. James O. Freedman, "Liberal Education and the Legal Profession," Southwestern Law Journal 39 (1985): 741. Freedman states the obvious as he remarks that lawyers have often participated in government and have a responsibility to contribute to policy making. Yet he fails to step back from accepted ways of thinking about government and policy making to offer legal educators an alternative vision of their profession.
3. W. B. Gallie, Philosophy and the Historical Understanding (New York: Schocken, 1968), chap. 8.
4. Harry H. Wellington, "Challenges to Legal Education: The 'Two Cultures' Phenomenon," Journal of Legal Education 37 (1987): 327.
5. James Boyd White, "Doctrine in a Vacuum: Reflections on What a Law School Ought (And Ought Not) to Be," Journal of Legal Education 35 (1986): 155. Roger C. Cramton, "The Ordinary Religion of the Law School Classroom," Journal of Legal Education 29 (1978): 247; Robert A. Ferguson, "Connection or Combination: Law and the Humanities," Focus on Law Studies 2 (1986): 1; Richard Wasserstrom, "Legal Education and the Good Lawyer," Journal of Legal Education 34 (1984): 155; John J. Bonsignore, "Law School Involvement in Undergraduate Legal Studies," Journal of Legal Education 32 (1982): 53; Thomas P Huff, "A Heresy in the Ordinary Religion: Jurisprudence in the First Year Curriculum," Journal of Legal Education 35 (1986): 108; Mark Tushnet, "Legal Scholarship in the United States: An Overview," Modern Law Review 50 (1987): 804; Sanford Levinson, Constitutional Faith (Princeton: Princeton University Press, 1988); Duncan Kennedy, Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (Cambridge: Afar, 1983); Kennedy, "How the Law School Fails: A Polemic," Yale Review of Law and Social Action 1 (1970): 71; Thomas F. Bergin, "The Law Teacher: A Man Divided Against Himself," Virginia Law Review 54 (1968): 637; Stephen C. Halpern "On the Politics and Pathology of Legal Education; or, Whatever Happened to That Blindfolded Lady with the Scales?" Journal of LegalEducation 32 (1982): 383; Note, "Legal Theory and Legal Education," Yale Law Journal 79 (1970): 1153; Karl Klare, "The Law-School Curriculum in the 1980's: What's Left?" Journal of Legal Education 32 (1982): 336; Jay Feinman and Marc Feldman, "Pedagogy and Politics," Georgetown Law Journal 73 (1985): 875; and Thomas L. Pangle, "Justice and Legal Education," Journal of Legal Education 39 (1981): 157.
6. Michael Walzer, "Citizenship," in Political Innovation and Conceptual Change, ed. Terence Ball, James Farr, and Russell L. Hanson (Cambridge: Cambridge University Press, 1989), 211.
7. Aristotle, The Politics, ed. and trans. Ernest Barker (London: Oxford University Press, 1971), 6. Aristotle adds, "[M]an is thus intended by nature to be a part of a political whole, and there is therefore an immanent impulse in all men towards an association of this order" (6-7).
8. Walzer, "Citizenship," 215.
9. Samuel Huntington, "The Democratic Distemper," Public Interest 41 (1975): 36-37.
10. James Wilson, Law Lectures, ed. Robert Green McCloskey (Cambridge: Harvard University Press, 1967), quoted in Garry Wills, "James Wilson's New Meaning for Sovereignty," in Conceptual Change and the Constitution, ed. Terence Ball and J. G. A. Pocock (Lawrence: University of Kansas Press, 1988), 103.
11. Ibid.
12. Ibid., 104.
13. Ibid., 103.
14. Robert A. Ferguson, Law and Letters in American Culture (Cambridge: Harvard University Press, 1984).
15. Ibid., 6.
16. Ibid., 9-10.
17. Ibid., 10
18. See generally Michael Sandel, ed., Liberalism and Its Critics (New York: New York University Press, 1984).
19. Ibid., 1.
20. Aristotle, Politics, 6.
21. Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley and Los Angeles: University of California Press, 1984), 218.
22. Sandel, Liberalism, 172.
23. Barber, Strong Democracy, 224.
24. Wills, "Wilson's New Meaning," 104.
25. Walzer, "Citizenship," 218.
26. Robert B. Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983).
27. Ibid., 36. Thomas Grey observes that 1870 was also the year of the first major essay by Oliver Wendell Holmes, Jr., in which Holmes wrote, "It is the merit of the common law that it decides the case first, and determines the principle afterwards." Holmes's essay was called "Codes, and the Arrangement of Law," 5 American Law Review 1; reprint, Harvard Law Review 44 (1931): 725. Grey discusses the impact of Langdell generally in "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1.
28. Grey, "Langdell's Orthodoxy," 5-6.
29. Ibid.
30. Ibid., 49.
31. Stevens, Law School, 39.
32. Ibid., 40.
33. Ibid., 156. Grey's more balanced view may be closer to the truth. He remarks that Realists focused their intellectual energy on a critique of the "essentialist approach to legal argument." Still, "modern legal theorists have not supplanted the classical ordering but have left it to half-survive in the back of lawyers' minds and the front of the law school curriculum, where it can shape our thinking through its unspoken judgments—Langdell's secret triumph." Grey, "Langdell's Orthodoxy," 49—50.
34. Stevens, Law School, 210.
35. As this is written, I am in my second year of legal studies at Indiana University School of Law, Bloomington.
36. The term casebook realism comes from one of my instructors. It implies an awareness of the policy aspects of legal doctrine at the same time one follows the conventional casebook approach to the teaching of law.
37. Perhaps one reason for the reluctance to concede the point that law is a form of politics is that this description of law is often understood to be a way of embracing Critical Legal Studies, something many in the legal academy are not quite ready to do. But the claim that law is politics need not originate in so radical a political project. John Rawls, for example, makes a similar point about law when he writes that the primary subject of justice is "the basic structure of society." His suggestion is that before we can settle on particular legal institutions, we must work out our conception of justice: "These principles [of justice], then, regulate the choice of a political constitution and the main elements of the economic and social system." Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), 7.
38. Stevens, Law School, 211.
39. Ibid., 157.
40. Bergin, "Law Teacher," 640.
41. Law teachers describe their teaching method as "Socratic," though what happens in most law classrooms has almost nothing in common with either the method or substance of Socratic teaching.
42. Peter Goodrich, Reading the Law: A Critical Introduction to legal Method and Techniques (Oxford and New York: Basil Blackwell, 1986), 216.
43. Ferguson, Law and Letters, 10.
44. The title of this section is borrowed from White, "Doctrine in a Vacuum."
45. A modest but useful exception to this generalization is David Luban, ed., The Good Lawyer: Lawyer's Roles and Lawyer's Ethics (Totowa, NJ.: Rowman and Allenheld, 1984).
46. Wasserstrom, "Legal Education," 156. Wasserstrom's statement overlooks the contributions of the Critical Legal Studies movement. See Kennedy, Legal Education and "How the Law School Fails."
47. Wasserstrom, "Legal Education."
48. Ibid.
49. Ferguson, "Connection or Combination," 5.
50. Ibid.
51. Ibid.
52. Ibid.
53. Wasserstrom, "Legal Education," 156-57.
54. Ibid.
55. Buch v. Amory Mfg. Co., 69 N.H. 257, 44 A. 809 (1897). The case was discussed in my first-year torts class.
56. Marc A. Franklin and Robert L. Rabin, eds., Cases and Materials on Tort Law and Alternatives (Mineola, N.Y.: Foundation Press, 1987), 118.
57. Buch v. Amory.
58. Ibid.
59. Leslie Bender, "A Lawyer's Primer on Feminist Theory and Tort," Journal of Legal Education 38 (1988): 3.
60. Ibid., 33.
61. Donald H. Gjerdingen, "The Future of Legal Scholarship and the Search for a Modern Theory of Law," Buffalo Law Review 35 (1986): 381.
62. Richard A. Epstein, "A Theory of Strict Liability," Journal of Legal Studies 2 (1973): 151.
63. Walzer, "Citizenship," 211.
64. Antony M. Honoré, "Law, Morals and Rescue," in The Good Samaritan and the Law, ed. J. Ratcliffe (Garden City, N.Y.: Doubleday, Anchor Books, 1966), 232. After mentioning Buch, Honoré implies that lawyers have something to learn from citizens on this point. He adds: "Two thousand years ago a Jewish lawyer demanded a definition of the term 'neighbor.' This makes him, I suppose, an analytical jurist. Whether the tale of the Samaritan answered his perplexities we cannot say. But he would surely have been astonished had he been informed that there were two answers to his question, one if he was asking as a lawyer, another if he was asking as a layman. To him, neighbor was neighbor and duty, duty. Perhaps this ancient lawyer's tale has a moral for law and lawyers today" (242).
65. Goodrich, Reading the Law, 261, quoting Roberto Unger, "Critical Legal Studies," Harvard Law Review 96 (1983) 669.
66. Ferguson, "Connection or Combination," 5.
67. Ibid.
68. Ibid.
69. Huff, "Heresy in the Ordinary Religion," 108.
70. Wasserstrom, "Legal Education," 155.
71. White, "Doctrine in a Vacuum," 155.
72. Kennedy, "Legal Education."
73. Ferguson, "Connection or Combination," 6.
74. Ibid.
75. White, "Doctrine in a Vacuum," 166.
76. Anthony Beck, "Legal Education and Reflection," Law Teacher (1985): 197.
77. Ibid.
78. Bergin, "Law Teacher," 638.
79. Bergin thinks that to "teach a course or seminar on law and psychiatry effectively, one must have doctoral competence in human psychology. To teach a course on language and the law, one must have read and understood not merely Wittgenstein's Tractatus Logico-Philosophicus but also his Philosophical Investigations. And so on and on." Ibid., 647.
80. White, "Doctrine in a Vacuum," 166.
81. Ibid.
82. "True historical thinking must take account of its own historicality. Only then will it not chase the phantom of an historical object which is the object of progressive research, but learn to see in the object the counterpart of itself and hence understand both." Hans-George Gadamer, Truth and Method (New York: Crossroad, 1982), 267.
83. Ibid., xvi.
84. George D. Gopen, "The State of Legal Writing: Res Ipsa Loquitur," Michigan Law Review 86 (1987): 353.
85. Ibid., 343.
86. Ibid., 353.
87. Hans-Georg Gadamer, "The Universality of the Hermeneutical Problem," in Philosophical Hermeneutics, trans. and ed. David Linge (Berkeley and Los Angeles: University of California Press, 1976).
88. Gadamer, Truth and Method, 346-47.
89. Ibid., 346, 349.
90. Goodrich, Reading the Law, 21-22.
91. Gopen, "State of Legal Writing," 334.
92. Thomas Kuhn, The Essential Tension (Chicago: University of Chicago Press, 1977), xv.
93. Ibid.
94. Ibid.
95. Ferguson, "Connection or Combination," 6.
96. Ronald Beiner, Political Judgment (Chicago: University of Chicago Press, 1983), 2.
97. Ibid.
98. Ibid.
99. Gadamer, Truth and Method, 294.
100. Quoted in Richard J. Bernstein, Beyond Objectivism and Relativism: Science, Hermeneutics, and Praxis (Philadelphia: University of Pennsylvania Press, 1983), 39.
101. Bonsignore, "Law School Involvement," 54.
CONTRIBUTORS
Terence Ball is Professor of Political Science at the University of Minnesota. He is the author of Transforming Political Discourse: Political Theory and Critical Conceptual History and editor of Political Theory and Praxis and Idioms of Inquiry . Professor Ball is coeditor of After Marx (with James Farr) and Conceptual Change and the Constitution (with J. G. A. Pocock). His essays in political philosophy and the history of political theory appear frequently in professional journals.
Gerald L. Bruns is William and Hazel White Professor of English at the University of Notre Dame. His books include Heidegger's Estrangements: Language, Truth and Poetry in the Later Heidegger and Inventions: Writing, Textuality, and Understanding in Literary History . Professor Bruns is the author of numerous articles on interpretation, philosophy, and literary theory.
Lief H. Carter is Professor of Political Science at the University of Georgia. He has published Reason in Law; Contemporary Constitutional Lawmaking: The Supreme Court and the Art of Politics; and Administrative Law and Politics: Cases and Commentaries . Professor Carter's recent articles have appeared in Polity, the Georgia Law Review, and the Yale Journal of Law and the Humanities .
Drucilla Cornell is Professor of Law at the Benjamin N. Cardozo School of Law. She is coeditor of Feminism as Critique: Essays on the Politics of Gender in Late Capitalist Societies . Professor Cornell's essays have appeared in the Cardozo Law Review, Yale Journal of Law and the Humanities, Cornell Law Review, Tennessee Law Review, and the University of Pennsylvania Law Review .
Fred Dallmayr is Packey Dee Professor of Government at the University of Notre Dame. His many books include Critical Encounters: Between Philosophy and Politics; Polis and Praxis: Exercises in Contemporary Political Theory; Language and Politics: Why Does Language Matter to Political Philosophy?; Margins of Political Discourse; Twilight of Subjectivity: Contributions to a Post-Individualist Theory of Politics; and Beyond Dogma and Despair: Toward A Critical Phenomenology of Politics . His essays in political theory appear regularly in professional journals.
James Farr is Professor of Political Science at the University of Minnesota. Professor Farr is coeditor of After Marx (with Terence Ball) and Political Innovation and Conceptual Change (with Terence Ball and Russell L. Hanson). His essays in political theory have appeared in Political Theory, Historical Journal, Philosophy of the Social Sciences, American Journal of Political Science, and American Political Science Review .
Stanley Fish is Arts and Sciences Distinguished Professor of English and Law at Duke University. His books include Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies and Is There A Text in This Class? The Authority of Interpretive Communities . Professor Fish's recent essays in legal theory appear in Duke Law Journal, Law and Philosophy, Yale Law Journal, Cardozo Law Review, and Stanford Law Review .
Peter Goodrich is Professor and Director of Graduate. Studies in the Department of Law at Lancaster University. He is the author of Reading the Law: A Critical Introduction to Legal Method and Techniques; Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis, and Languages of Law: From Logics of Memory to Nomadic Masks . Professor Goodrich is a frequent contributor to professional journals.
David Couzens Hoy is Professor of Philosophy at the University of California, Santa Cruz. His books include The Critical Circle: Literature, History, and Philosophical Hermeneutics . Professor Hoy is the editor of Foucault: A Critical Reader . His essays on law and hermeneutics have appeared in the Southern California Law Review, Northern Kentucky Law Review, and Law and Philosophy .
Steven Knapp is Professor of English at the University of California, Berkeley. He has published Personification and the Sublime: Milton to Coleridge . Professor Knapp and Walter Benn Michaels have coauthored many articles on interpretation, including essays in Critical Inquiry and the Cardozo Studies in Law and Literature .
Ken Kress is Professor of Law at the University of Iowa School of Law. Professor Kress's essays on law and philosophy have been published in Ethics, California Law Review, and the American Journal of Comparative Law .
Gregory Leyh was formerly Assistant Professor of Political Science at Illinois Wesleyan University. Professor Leyh completed his J.D. at the Indiana University School of Law and is currently law clerk to Judge Richard F. Suhrheinrich of the United States Court of Appeals, Sixth Circuit. His essays have appeared in the American Journal of Political Science, Constitutional Commentary, Mercer Law Review, and the Oxford Companion to the Supreme Court of the United States .
Walter Benn Michaels is Professor of English at Johns Hopkins University. His books include The Gold Standard and the Logic of Naturalism . Professor Michaels' essays on interpretation have appeared in the Cardozo Studies in Law and Literature, Southern California Law Review, and the Texas Law Review .
Michael J. Perry is Howard J. Trienens Chair in Law at the Northwestern University School of Law. He is the author of The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary and Morality, Politics, and Law: A Bicentennial Essay . Professor Perry's essays have appeared in Southern California Law Review, Northwestern University Law Review, William and Mary Law Review, Georgia Law Review, Hamline Law Review, and Brigham Young Law Review .
Jerry Stone is McFee Professor of Religion at Illinois Wesleyan University. Professor Stone's writings have appeared in Soundings and Christian Century .
INDEX
A
Altman, Andrew, 204
Ames, James Barr, 275
application: Gadamer's understanding of, 106
as inseparable from understanding in interpretation, xv , 13 -15, 174
in theological hermeneutics, 111
Aquinas, Saint Thomas, 5
Aristotle, 5 , 289
and politics, 270
on praxis, 103
as source of modern cormmunitarian revival, 273
Aspirational meaning: of Constitution, 246 -47, 253 -55, 261 n.24
B
Bakhtin, Mikhail, 25
theory of language, 30
Ball, Terence, 298 , 303
Barber, Benjamin, 273
Barth, Karl: conception of scriptural interpretation, 110 -11
and Protestantism, 114
relevance to postmodernism, 118
on separation between exegesis and interpretation, 105
Bartolists: as interpreters of common law, 136 -37
relevance to contemporary hermeneutical debates, 137
Beck, Anthony, 282
Beiner, Ronald, 288
Bender, Leslie, 279 -80
Bentham, Jeremy, 210
Bergin, Thomas F., 282 -83
Berlin, Isaiah, 130 -31
Bernstein, Richard: on modern absence of shared traditions, 117 -18
on practical tasks ahead, 121
Betti, Emilio: Gadamer on, 14
relevance of Aristotle to, 18 -19
Blanchot, Maurice: on Law as disaster, 155
on three realms of Kafka's trial, 147
Bork, Robert: as foundationalist, 220
and nomination to U.S. Supreme Court, 251 , 255 , 297 -99
Brennan, Justice William J., 184
Brown v. Board of Education,188 -95
Bruns, Gerald L.: criticism of, 310 -11
on law, 310
Buch v. Amory Mfg. Co ., 279 -81
Bultmann, Rudolph: evaluation of, 109
relevance to postmodernism, 118
view of biblical interpretation, 107 -9
Burton, Steven, 35 n.7
C
Calhoun, John C., 87
Caputo, John, xii , 35 n.7
Cardozo, Benjamin, 202
Carter, Lief H., 315
Cavell, Stanley, 27 , 34 , 36 n.10
Charles I (king of England), 306
Citizenship: communitarian conception of, 270 -71, 273
liberal conception of, 270 -73
Consent: and legitimacy in liberal political theory, 205 -8
Cornell, Drucilia, 311 -12
Cover, Robert: and challenge of interpretation, 164 -65
on dangers of appeals to universality, 168 -69
on jurisgenerative power of law, 160
on jurispathic aspects of law, 159 -60
on law and violence, 150
on normative aspects of law, 167 -68
Critical Legal Studies (CLS): criticism of, 150 , 156 , 205 -6, 211
ethical skepticism of, xiv
and indeterminacy, 200 , 203 -5, 213 n.24
influence of Derrida on, 156
irrationalists in, 156 -59.
See also Indeterminacy thesis
D
Dalimayr, Fred: on hermeneutics and indeterminacy, 202 -3, 304
Deconstruction: compared to legal positivism, 148
and Good, 149
as misidentified with nihilism, 170
on ungrounded nature of ethical systems, 164
Derrida, Jacques: compared to Cover, 164
contrasted with ethical skeptic, 158 -59
as helpful to understanding Good and Law, 166 -67
and Levinas, 163 -66
on the self, 305
Dietze, Gottfried, 10
Duty: role in tort analysis, 279 -81, 293 n.64
Dworkin, Ronald, xiii ,
criticism of, 195
critique of Hart, 157
as foundationalist, 220
on legitimacy, 204 , 209 -10
on meaning of equal protection clause, 194
on statutory interpretation, 188
theory of law, 23 -24, 31
E
Epstein, Richard A., 280
Ernesti, Johann August, 88
F
Faculty psychology: meaning of, 135
relevance to originalism, 135
role in founders' thought, 135
Farr, James, 316
Feminist legal theory: critical observations on, 160 -61
exposition of, 159
and tort analysis, 279 -80
Ferguson, Robert, 271 -72, 278 , 281
Fish, Stanley, 255 -56,
Fiss, Owen, 25 , 26
Fortescue, Sir John, 52 -54
Foucault, Michel, 306
Foundationalism: critique of, 235 -36
empirical implications of, 221 -22, 225 -26, 315
meaning of, 219 -29
postmodern rejection of, 148
Fourteenth Amendment: as aspirational text, 246 -47, 252 -55
as due process clause of, 187 , 254 -55
equal protection clause of, 187 -97, 253 -54
intentionalist understanding of, 298
revealing practical importance of constitutional theory, 252 -55
Frank, Jerome, 276
Fraunce, Abraham, xiii ,
background, 60
criticism of Inns of Court, 60
criticism of legal profession and method, 60
method of interpreting words, 67 -68
reformist goals, 61
and Scholasticism, 44
theory of legal argument, 64 -68
Freedman, James O., 269
Freund, Ernst, 275
Fuller, Lon, 202 , 211
G
Gadamer, Hans-Georg, xi -xiii
on intentionalism, 187 -88
on judgment, 289
on language, 27 -28, 36 n.9, 285 -86
on law, 35 n.6
on origins of hermeneutics, 13 -14
on praxis, 105 -7
on rule-governance, 13
on tradition, 26 -27
on truth, 107
Geertz, Clifford, 131
Goodrich, Peter, xiii
criticism of, 34 , 312 -13
on hermeneutics, 26
on legal education, 276
on political function of writing, 286
theory of law, 24 -26, 33
Gopen, George D., 285 , 286 -87
Grey, Thomas, 274
H
Habermas, Jürgen, 114 -15
Hamilton, Alexander, 8 , 139
Hart, H. L. A.: Dworkin's criticism of, 157
and moderate indeterminacy, 202
as representative of legal positivism, 157
Hegel, G. W. F., 19 -20
account of Good and legal systems, 151
criticism of deontology, 148
criticism of Kant's categorical imperative, 151
on Good, 150
on justification of legal rules, 155
as representative of ontological tradition in philosophy, 153 -55
Heidegger, Martin, 27 -28, 34
Hermeneutics. See Theological hermeneutics.
Hirsch, E. D.: on allocratic and autocratic interpretive choices, 304 -6
intentionalist critique of, 181
on theories of textual meaning, 113 -14, 124 n.32
Holmes, Oliver Wendell, 202
Hoy, David: on application, 248 -49
criticism of, 195 -97, 303
on texts, 190
on textual meaning, 299
Humboldt, William von, 88 , 93
Hume, David, 106 -7
I
Indeterminacy thesis: alternative understandings of, 200 -202, 307
compatibility with rule of law, 202 -3, 211
in legal doctrine, 25
and legitimacy, 202 -11
and Good, 162
meaning of, 157 , 306
as misunderstood by members of CLS movement, 157 -59
practical implications of, 308 -9.
See also CLS
Inns of Court: purposes of, 54
Ramist critique of, 60
study of rhetoric in, 56 -58
Intentionalism: compared to Gadamerian hermeneutics, xv -xvi, 180 , 187 -89
criticism of, 173 -186
and epistemology, 181 , 183
and historical evidence, 195 -96
Lieber's understanding of, 93 -95
methodological implications of, 195 -97, 299 -300
and possibility of authorial mistakes regarding intentions, 193 -94
practical implications of, 180 -83.
See also Originalism
J
Judgment: Gadamer on, 289
and hermeneutics, xii , 287 -89
meaning of, 288 -89
Judicial Review: as revealing heuristic value of hermeneutics, 176 , 179 -80
and rule of law, 8 -9
Judicial Role: relationship to interpretive theory, 250 -52
Jurisprudence: analytical, xii , 23 -24
end of, 33 -34
relationship to hermeneutics, xi , 15 -16, 19 , 25 -26
K
Kantian morality, 155
Kelsen, Hans, 10 -11
Kennedy, Duncan, 204
Kerygma, 107 -9
Knapp, Steven, and Walter Benn Michaels: on intention and meaning, 175 -83, 185 n.3
intentionalist theory of, 173 -74, 299
nonintentionalist critique of, 173 -86.
See also Intentionalism
Kress, Ken, 306 -9
L
Langdell, Christopher Columbus: and legal theory, 274
influence on legal education, 274 -75
as dean of Harvard Law School, 274
Language: and law, 27 -31, 38 n.16
Barth's understanding of, 112
in Bultmann's hermeneutics, 111 -12
in Gadamer's hermeneutics, 111 , 285 -86
Lieber's conception of, 88 -91
as source of popular criticism of legal profession, 54
Lawyers: in nineteenth-century America, 271 -73, 278
popular criticism of, in England, 50
professional identity of, 278 , 280 -81
Legal argumentation: in sixteenth-century England, 63 -66.
See also Rhetoric
Legal education: critiques of, 281 -83, 290
and hermeneutics, 283 -89
history of, 274 -77
Legal positivism: definition of, 157
fallacy of, 170
postmodernism's rejection of, 148
Legal principle: and indeterminacy thesis, 162
limits of, 162
meaning of, 161 -62
postmodern elaboration of, 162
Legal realism: critique of, 276
role in legal education, 275 -76
Legitimacy: and indeterminacy, 202 -11
meaning of, 203
Levinas, Emmanuel: and Derrida on secularization, 163 -65
on the ethic of responsibility, 155 -56
on the necessity of a legal system, 161
on Western metaphysics, 152 -55
Levinson Sanford, 188 , 226 -27
Leyh, Gregory: criticism of, 314
on postmodern reason, 118
Liberal political theory: and legitimacy, 203 -10
Liberation theology, 115 -16, 125 n.36
Lieber, Francis: commitment to republicanism, 90 -91, 97 -98
contrasted with modern interpreters, 316
principles of interpretation, 91 -97
purpose of Hermeneutics,83 -84
Locke, John, 5 -7, 269
M
MacIntyre, Alisdair, 116 -17, 120 -21
Mackie, John, 244
Mackinnon, Catharine, 32 -33
Madison, James, 85 -86
as critic of originalism, 141 -43
Marbury v. Madison,8 -9
Marshall, John, 8 -9
Meese, Edwin, III: as foundationalist, 220 , 235
as intentionalist, 183 -84, 256
Michaels, Walter Benn, and Steven Knapp. See Knapp, Steven, and Walter Benn Michaels
Montesquieu, 7
More, Thomas: scriptural interpretation, 47 -48
view of print technology, 46
N
New Critics, 196
Nietzsche, Friedrich, 12 -13
Neumann, Franz, 11 -12
Nonoriginalism: as justificatory theory, 250
meaning of, 246 -49
political implications of, 298
O
Originalism: as aspirational meaning, 301 -3
critique of, 131 -33, 136 , 137 -38
doctrine of, 129 , 245 -49
and Fourteenth Amendment, 253 -54, 298
intellectual and historical presuppositions of, 130 -33
Madison's criticisms of, 141 -43
political implications of, 298
P
Perpich et al. v. Department of Defense,139 -41
Perry, Michael J., 297 -303
Plato: and language, 28 -29
rule of law, 4 -5
Pole, Cardinal: criticism of legal profession, 50 -51
on nature of common law, 49 -50
Postmodernism, 147
Pragmatism: empirical implications of, 221 -22, 225 -26, 315
meaning of, 219 -20
as predominant in American legal culture, 225 -36
Praxis: Aristotle on, 103
centrality to interpretation, xiv
Gadamer's understanding of, 105 -7
in theological hermeneutics, 103 -121
Print technology: and English common law, 49
popularization of religious books, 46 -48
Prochow v. Prochow,229 -30
R
Ramism: contribution to development of national hermeneutic, 67
overview of, 63
as polemic, 67
sources of, 62
theory of rhetoric, 64
Ramus, Peter, xix n.11
and Scholasticism, 43 -45
Raz, Joseph, 209
Redemption: as demanding more than appeals to convention, 166
meaning of, 149
Repouille v. US ., 233
Republicanism, classical, 134
Rhetoric: elements of, 58 -59
as formal element of English legal education, 56 -58
Ricoeur, Paul: on authorial intention, 188
conception of biblical interpretation, 118 -21
Robinson, James: on definition of hermeneutics, 103
on reception of Barth's Romans,105
Rorty, Richard: and critique of foundationalism, 219 -20
on epistemology and hermeneutics, 3 -4
Rose, Gillian, 28
Rosen, Stanley: critique of, 17 -18
on hermeneutics, 4 , 16 -17
Rousseau, Jean-Jacques, 7
Rule of law, xii -xiii
formal definition of, 12
and Gadamerian hermeneutics, 13 -15
historical background of, 4 -12
S
Saint German, Christopher: debate with More, 48 -49
on scriptural doctrine, 51 -52
Sandel, Michael: on communitarianism, 273
on liberalism, 272
Schiciermacher, Friedrich D. E., 88 , 93
Schmitt, Carl, 11
Scholasticism: emergence of, 43 -45
and legal method, 59 -69
Schürmann, Rainer, 28
Science of politics: Lieber's interest in, 85 -87
Madison on, 86
Scientific interpretation: and Abraham Fraunce, xiii ,
Lieber's conception of, 83 -102
Scholasticism, 44 -45
Searle, John, 27
Sex-based discrimination, 253 -54
Sherman, Brad, xi
Singer, Joseph, 203 -4
Social science, and judicial research, 235 -36
Stahl, Friedrich Julius, 9 -10
Stone, Jerry, 304 -5
Story, Joseph: opinion of Lieber's Hermeneutics,98
relationship to Lieber, 85
T
Talon, Omar, 43 -44
Text: Constitution as, 245
meaning of, 178 -79, 188 -92, 242 -45
Thematization: meaning of, 162
as normative element in law, 163
Theological hermeneutics: compared to legal hermeneutics, 104
historical practice of, 104 -5
Theory, of interpretation: debate over descriptions of, 173 -74, 180 , 182 , 184 -85
importance of, 241 , 255 -58
meaning of, 249 -50, 255 -56
relationship to interpretive practice, 241 , 249 -58, 297 -316
role in legal education, 276 -77
Tracy, David, 103 -4
Trial judges: and academic theories of law, 222 , 225 -26, 234 -36
and communication of judicial opinions, 231 -32
and politics, 232 -34
as pragmatists, 231 , 234 -36
Tushnet, Mark: and originalism, 284 -85
on role of theory in interpretation, 255 -57
Tyndale, William, 47 -48
U
Unger, Roberto, 25 , 37 n.12
V
Verbal meaning theory, 189 -92
W
Wachterhauser, Brice, 107
Walzer, Michael, 270 , 273
Wasserstrom, Richard, 277 -78
Wellington, Harry, 269 -70
White, James Boyd: on the good lawyer, 282
on law as narrative, 220 -21
on reforming legal education, 283
Wills, Garry, 132 , 271
Wilson, James, 271 , 273
Wink, Walter, 105
Wittgenstein, Ludwig, 3
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Preferred Citation: Leyh, Gregory, editor. Legal Hermeneutics: History, Theory, and Practice. Berkeley: University of California Press, c1992 1992. http://ark.cdlib.org/ark:/13030/ft4779n9h2/