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.

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).

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.

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.

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.

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.

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.

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).

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).

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.

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.

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."

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.

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.