Legal Hermeneutics: History, Theory, and Practice

By Gregory Leyh

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1992.

• Language: English
• Publisher: University of California Press
• Release date: Sep 1, 2023
• ISBN: 9780520329386

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Legal Hermeneutics

Legal Hermeneutics

HISTORY, THEORY, AND PRACTICE

EDITED BY

Gregory Leyh

UNIVERSITY OF CALIFORNIA PRESS

Berkeley Los Angeles Oxford

University of California Press

Berkeley and Los Angeles, California

University of California Press, Ltd.

Oxford, England

© 1992 by

The Regents of the University of California

Library of Congress Cataloging-in-Publication Data

Legal hermeneutics: history, theory, and practice / edited by Gregory Leyh. p. cm.

Roundtable discussion at the 1987 American Political Science

Association meeting in Chicago, Ill.

Includes bibliographical references and index.

ISBN 0-520-07283-9 (cloth: alk. paper). — ISBN 0-520-07284-7 (paper: alk. paper)

1. Law—Interpretation and construction. I. Leyh, Gregory.

II. American Political Science Association. K290.L44 1991 340—dc20 90-19397

CIP

Printed in the United States of America 987654321

The paper used in this publication meets the minimum requirements of American National Standard for Information Sciences—Permanence of Paper for Printed Library Material, ANSI Z39.48-1984. ®

For Jan

CONTENTS

CONTENTS

PREFACE

Introduction

PART ONE General Perspectives

Hermeneutics and the Rule of Law

Law and Language: A Hermeneutics of the Legal Text

PART TWO History

Ars Bablativa: Ramism, Rhetoric, and the Genealogy of English Jurisprudence

The Americanization of Hermeneutics: Francis Lieber’s Legal and Political Hermeneutics

Christian Praxis as Reflective Action

PART THREE Theory

Constitutional Interpretation and Conceptual Change

From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation

Intentions and the Law: Defending Hermeneutics

Intention, Identity, and the Constitution: A Response to David Hoy

Legal Indeterminacy and Legitimacy

PART FOUR Practice

How Trial Judges Talk: Speculations About Foundationalism and Pragmatism in Legal Culture

Why Constitutional Theory Matters to Constitutional Practice (And Vice Versa)

Legal Education and the Public Life

PART FIVE Commentary

Play of Surfaces: Theory and the Law

CONTRIBUTORS

INDEX

PREFACE

This volume was inspired by a roundtable discussion on law and hermeneutics at the 1987 American Political Science Association meeting in Chicago, Illinois. Participants in that roundtable included Terence Ball, Gerald L. Bruns, Fred Dallmayr, and Michael J. Perry. The participants, as well as members of the audience, are thanked for their initial enthusiasm for the subject.

Three of the essays in this volume have seen the light of day elsewhere. Permission to reprint these articles made it possible to include them alongside the original contributions of other authors. James Farr’s "The Americanization of Hermeneutics: Francis Lieber’s Legal and Political Hermeneutics" appeared in the Journal of Politics (52 [1990]: 1027-49). It is reprinted here with the permission of the University of Texas Press. Ken Kress’s Legal Indeterminacy and Legitimacy originally appeared in expanded form in the California Law Review (77 [1989]: 283-337). It is reprinted with the permission of the author. Michael J. Perry’s Why Constitutional Theory Matters to Constitutional Practice (And Vice Versa) was published originally in Constitutional Commentary (6 [Summer 1989]: 231-49) and is reprinted here with the permission of the author and Constitutional Commentary.

Publication of a volume of this kind requires a considerable amount of cooperation, persistence, and patience. I wish to express my gratitude to each of the contributors for exhibiting these virtues and especially for their sustained commitment to Legal Hermeneutics.

I have incurred a special debt to Terence Ball. Terry’s constant interest in the volume and his timely encouragement, advice, and prodding made the task of editing these papers a less lonely affair than it might have been. I thank Terry for his support, criticisms, and friendship.

Naomi Schneider, Betsey Scheiner, and Dan Gunter of the University of California Press were a pleasure to work with. I wish to thank each of them for helping to get this volume into print.

Finally, Janice Rector Leyh made a significant contribution to Legal Hermeneutics that deserves special acknowledgment. Since most of the editorial work on this volume was completed without the assistance of a secretarial staff, Jan helped me enormously by cheerfully performing a variety of administrative tasks that enabled me to conduct the necessary correspondence. Much more important, however, was Jan’s confidence and support during the inevitable highs and lows of a project of this kind. Her presence was a constant reminder to me that there are many things far more important than a book. It is to Jan that this volume is dedicated.

Introduction

Gregory Leyh

Legal hermeneutics is, then, in reality no special case but is, on the contrary, fitted to restore the full scope of the hermeneutical problem and so to retrieve the former unity of hermeneutics, in which jurist and theologian meet the student of the humanities.

HANS-GEORG GADAMER, TRUTH AND METHOD

The essays in this volume were commissioned to examine the intersections between contemporary legal theory and the foundations of interpretation. It is now commonplace to observe that the considerable social and intellectual ferment surrounding recent debates over the nature and methods of legal interpretation can be usefully understood as reflecting the presence of hermeneutical contests. There is increasing acknowledgment of this fact in the legal literature.¹ Nothwithstanding some of this fine scholarship, there is a wider legal literature displaying, at its best, less than a full understanding of the configuration of law and hermeneutics. Remarking on the many divergent responses to hermeneutics in law, Brad Sherman notes that these responses tend to be characterized by a lack of understanding of hermeneutics (that is, an unhermeneutical approach to hermeneutics).²

One purpose of Legal Hermeneutics is to situate contemporary debates on legal interpretation within the broader framework of interpretation in general. The attempt to contextualize legal theory in this way assumes that hermeneutics has something to teach jurisprudence.³ To see the problem of reading the law in terms of law’s history, the linguistic constitution of law, and the political implications of the way law is read and understood is to set legal interpretation squarely within the humanist tradition. Instead of treating law as a discipline separate from the humanities because of its specialized idiom and professional ethos, law is understood here as another voice in the larger community’s conversation about how to promote a more just and humane politics. This volume, then, points in the direction of a larger unity, a unity in which, as Hans- Georg Gadamer suggests, jurist and theologian meet the student of the humanities.⁴

It is also hoped that Legal Hermeneutics offers additional evidence, if any is still needed, that borrowing from Continental philosophy to clarify legal practices does not inevitably lead to nihilism. Quite the contrary. As several of the following essays reveal, hermeneutics plays a critical role in the justification of our practical choices. Here hermeneutics helps us to see the grounds of judgment. A critical examination of how we justify our interpretive choices is a way of widening the horizons of those— perhaps especially in the law—whose practical work is so centrally interpretive.⁵

Hermeneutics is a term open to several possible interpretations.⁶ Legal Hermeneutics does not presuppose any single or dogmatic conception of hermeneutics, though readers will find that the philosophical hermeneutics of Gadamer figures prominently in many of the following essays.⁷ As several of the contributions explain more fully, philosophical hermeneutics is an attempt to identify the irreducible conditions of human understanding. Gadamer has often emphasized that his purpose is not to develop a set of rules or procedures for the interpretation of texts. His objective is philosophic, to identify not what we do or what we ought to do (in interpretation), but what happens to us over and above our wanting and doing.⁸ Thus, philosophical hermeneutics sets for itself an ontological task, namely, that of accounting for the ineluctable relationships between text and reader, past and present, that allow for understanding to occur in the first place.⁹

There is also a demystifying dimension to legal hermeneutics. Law, after all, purports to be a rule-governed activity. It is sometimes said that formal rules and legal doctrine provide the certainty and stability necessary for civil society. Hermeneutics seeks to disrupt this formalistic view of law, although not totally. As the following essays demonstrate, the description of law as rule-governed is what brings hermeneutics into the fight. Hermeneutics, John Caputo argues, pits itself against the notion that human affairs can finally be formalized into explicit rules which can or should function as a decision-procedure.¹⁰ But the reader will soon discover that not only do the contributors to this volume question the merits of the view that law is rule-governed in some strong sense, asking instead what it means to talk about law as rules; they also interrogate legal hermeneutics itself, probing critically to locate the ground on which it purports to stand. This interrogation suggests that this volume marks the beginning of a conversation and not its end.

In the volume’s lead essay Fred Dallmayr explores the relationship between rule-governance and radical contingency from the perspective of philosophical hermeneutics. Dallmayr’s vehicle for this exploration is the concept of the rule of law. Does hermeneutics, with its rejection of objective reason, threaten the idea of the rule of law? After tracing several variations on the rule-of-law concept and providing a sketch of Ga- damer’s hermeneutics, Dallmayr probes the hermeneutical implications of the formalization of the rule of law. In Gadamerian fashion Dallmayr steers a course between formalism and anarchy by showing how hermeneutical mediation is predicated on, rather than liberated from, the traditions and conventions that enable us to understand in the first place.

What is a legal text? Gerald L. Bruns critically reviews two competing answers to this important question. According to the view associated with analytical jurisprudence and exemplified in the writings of Ronald Dworkin, a legal text is to be understood on the model of a logical proposition. On this view legal texts can be interpreted to yield right and wrong answers. Still another answer is offered by those, such as Peter Goodrich, who see the legal text as an example of historically embedded political discourse that ought to be understood in terms of its legitimation function. This critical approach to legal texts calls on us to situate the text so that the power relations it legitimates can be clearly viewed.

The real contribution of Bruns’s essay lies in his suggestion that to the degree both of these answers seek to go beyond hermeneutics, they fail. Drawing on the work of Heidegger, Bakhtin, and Goodrich, Bruns asks, what would a hermeneutics of the law do? A hermeneutics of law would not seek to resolve disputes and long-standing controversies but would begin more modestly by detaching the thing in question from its dogmatic contexts, the fixed or institutionalized ways of thinking it.

The next several essays provide some historical context for a hermeneutics of law. In the first of these essays Peter Goodrich offers readers a detailed genealogy of English jurisprudence that reveals how a sixteenth-century common law hermeneutics emerged as a result of a series of external social factors, including the advent of the printing press and the popular translation of the Bible.¹¹ In response to a series of discourses external to the law and in the hope of systematizing law and legal studies, Abraham Fraunce and others strived to produce a scientific method of interpretation. Goodrich notes that the rhetoric and logic of this methodological project has remained a feature of contemporary legal thought and education. Indeed, one implication of Goodrich’s essay concerns the ways in which our own legal past continues to influence us.

Francis Lieber published his Legal and Political Hermeneutics in 1837. James Farr’s essay on Lieber points out that this may well have been the first American work on hermeneutics. Not unlike those about whom Goodrich writes, Lieber sought to set forth in a scientific way the first principles of textual interpretation. Lieber’s efforts to make interpretation scientific were aimed at popularizing and politicizing hermeneutics, making it accessible for citizens, especially nonlawyers, at a time in American constitutional history ripe in hermeneutical controversy. Farr’s contribution is instructive as it shows how the discourse of hermeneutics was connected in American history with the discourse of a developing political science and with vigorous debates about constitutional meaning.

Jerry Stone’s essay, Christian Praxis as Reflective Action, emerges from a disciplinary perspective with its own venerable hermeneutical history with which legal hermeneutics has much in common: theology. Stone’s thesis grows out of his own curiosity about the extent to which praxis is the substance of all interpretation, whether in law, literature, or theology. By way of a comparative analysis of Gadamer, Bultmann, Barth, and Ricoeur, Stone identifies the centrality of praxis in these various hermeneutical theorists. Familiar questions regarding, for example, the historicality of reason and the nature of linguisticality are thoughtfully examined from the vantage point of Christian theology. Is it possible, Stone asks, to reconcile the transcendent hermeneutics of Bultmann and Barth with the historical hermeneutics so characteristic of postmodern thought?

Part 3 of Legal Hermeneutics takes a more explicit theoretical turn and begins with Terence Ball’s spirited critique of originalism. Taking originalism seriously, Ball maintains, requires that the framers’ intentions be situated in the language and worldview of their age. Two aspects of the framers’ linguistic and political conventions—what Ball labels their discourse—come under examination: the political discourse of republicanism and the scientific discourse of faculty psychology. Neither of these discourses occupies an important place—or, in the case of faculty psychology, any place at all—in the modern intellectual landscape. Originalism, Ball concludes, thus commits us to political and scientific presuppositions that are in deep conflict with contemporary knowledge.

Drucilla Cornell puts the act of legal interpretation in a distinctly new and clearer light. Cornell criticizes those, including some members of the Critical Legal Studies (CLS) movement, who push the indeterminacy thesis too far by concluding that law is ultimately without grounding in political and ethical principles. CLS scholars have called attention to what they perceive as fundamental contradictions in the liberal legal system and in its reigning legal ideology.¹² The irrationalists referred to by Cornell are those whose understanding of indeterminacy leads to ethical skepticism.¹³

Cornell also challenges those who regard legal interpretation as a recovery or appropriation of the past divorced from contemporary visions of justice. Cornell’s attention to the promise of redemption calls on legal interpreters to project visions of the Good that fuse the future with the past. The principle of redemption serves interpreters as a guiding light. … We can think of a principle as the light that comes from the lighthouse, a light that guides us and prevents us from going in the wrong direction. … If a principle cannot give us one right answer, it can help us define what answers are wrong in the sense of being incompatible with its realization.

Gadamer’s remarks on the relationship between understanding and application include the observation that interpretation is not an occasional additional act subsequent to understanding, but rather understanding is always an interpretation, and hence interpretation is the explicit form of understanding.… Thus we are forced to go, as it were, one stage beyond romantic hermeneutics, by regarding not only understanding and interpretation, but also application as compromising one unified process. This observation leads Gadamer to say that because understanding is always application, if a text is to be understood properly, ie according to the claim it makes, [it] must be understood at every moment, in every particular situation, in a new and different way.¹⁴

The essays by David Hoy and Steven Knapp and Walter Benn Michaels emerge from a debate regarding the value of Gadamer’s hermeneutics for law. Knapp and Michaels fired the opening salvo. In Against Theory 2: Hermeneutics and Deconstruction¹⁵ Knapp and Michaels attack Gadamer’s conception of understanding and attempt to rebut the view, often associated with philosophical hermeneutics, that textual meaning should be understood apart from authorial intention. Knapp and Michaels defend an intentionalist account of textual interpretation. The debate is continued in these pages.

David Hoy’s contribution to this volume is a defense of hermeneutics from the intentionalist critique of Knapp and Michaels and also serves to clarify what a hermeneutics of law might offer students of law and interpretation. Although hermeneutics does not deny a role for intentions in interpretation, neither does it privilege the original intentions of legal authors as textual meaning is determined. Hoy illustrates what he considers the superiority of the hermeneutical account of understanding by referring to the actual practice of judicial decision making (Gadamer employs a similar device). Hoy contends that the hermeneutical view that traditions always constrain our interpretations and that textual meaning is never separate from the intervening tradition of interpretation… does greater justice to concrete legal practice.

In their response to Hoy, Knapp and Michaels renew their intentionalist assault against hermeneutics. What does an interpreter of the word equal in the Fourteenth Amendment, they ask, really want to know? The most plausible answer, they respond, is that such an interpreter seeks to know the authors’ intended meaning. Following a defense of this response, Knapp and Michaels move on to consider its implications for constitutional interpretation. Here they part company with other inten- tionalists, notably those who served in the Reagan administration and supported the appointment of conservative judges committed to one version or another or originalism. Adopting something like Ronald Dworkin’s distinction between concepts and conceptions, Knapp and Michaels argue that fidelity to a general intention may be fully consistent with a judicial decision that is contrary to the beliefs of the authors of the legal principle applied. For these and other reasons Knapp and Michaels believe the methodological value of intentionalism is quite limited. Indeed, its chief advantage over Gadamerian hermeneutics is said to lie not in its usefulness but in the fact that it is true.

In the final essay in this section Ken Kress surveys the various versions of the indeterminacy thesis in law. Kress’s interest in indeterminacy is primarily in its effects on the problem of legitimacy. Hence, Kress’s essay throws fresh analytical light on an issue raised by both Dallmayr and Cornell. Kress begins with the argument advanced by some Critical Legal Studies scholars that law is illegitimate because it is indeterminate. Next he considers the cafeteria of options for grounding legitimacy that are associated with liberal political and legal theory. Kress concludes by cautiously wondering about the relevance of indeterminacy for legitimacy and by suggesting some reasons for the indeterminacy of our legal system.

The volume’s next three essays look, each in its own distinctive way, to the practical understandings and value of legal hermeneutics. Lief H. Carter spent one week in 1986 at a seminar with fourteen trial judges. This judicial retreat provided a unique opportunity for Carter to inquire whether academic theories of legal interpretation make sense to those who make law from the bench every day. Carter used his weeklong seminar as a way of testing the general correspondence between the daily work of judges and two competing conceptions of law: what Carter calls the foundationalist conception and the pragmatic conception. Carter’s necessarily tentative conclusions suggest that the practical experience of judging lends some support to the pragmatic—and one might add more hermeneutical—conception of law and interpretation.

Michael J. Perry’s essay, Why Constitutional Theory Matters to Constitutional Practice (And Vice Versa), invites readers to think about whether or not anything of real-world consequence is at stake in the many recent exchanges about constitutional interpretation. It perhaps will not come as a surprise to readers to learn that Perry, a constitutional theorist with a significant body of writing already under his belt, believes theory is of great importance to constitutional practice. Although the focus of the essay is on the differences between originalist and nonoriginal- ist jurisprudence and on the consequences of using one or the other of these theories as a guide to interpretation, Perry’s argument may be usefully understood as an argument for the practical significance of legal hermeneutics.

Perry’s protheory position sees constitutional theory as an effort to justify a particular approach to constitutional interpretation and practice. This justification is in turn only as good as the background judgments concerning the moral character of the polity and the nature of politics on which the justification depends. Like Cornell, who perceives legal interpretation as containing a transformative moment as it projects a vision of a just and humane future, Perry, too, sees constitutional theory as a species of political discourse about those human aspirations that the Constitution can be understood to promote.

In this section’s closing essay I argue that legal education would be improved by making greater use of hermeneutical materials and perspectives. The conception of the good lawyer that underlies the modern legal curriculum is impoverished and in need of rethinking. No longer a generalist or person of letters, today’s lawyer is a narrowly trained professional in a field that is growing increasingly pseudotechnical. Contrary to the prevailing view, the good lawyer might profitably be thought of as one familiar with the materials and ideas of the wider culture and able to apply these materials to the practice of law. In service of this revised conception of the good lawyer, legal education should be directed by a more humanistically grounded vision of law, a vision that connects law to other disciplines that are its natural allies in the university. The essay closes with some suggestions as to how hermeneutics might contribute to this deepening of legal learning.

The conversation about legal hermeneutics contained in these pages is marked by its interdisciplinarity. The guiding assumption is that more is likely to be learned about interpreting law if the subject is wrested from the exclusive control of either the lawyer or the philosopher of interpretation. It is in combination and in collaboration, especially in critical combinations and collaborations, that we are all most likely to see the richness of the subject and to come away with fresh insights into old problems.

Hermeneutical thinking does not produce pat answers or easy solutions to difficult legal problems. Hermeneutics neither supplies a method for correctly reading texts nor underwrites an authoritative interpretation of any given text, legal or otherwise. What, then, is legal hermeneutics? And what is the contribution of legal hermeneutics to our knowledge of law and interpretation? What work does legal hermeneutics do?

Even if I had answers to these questions, this would not be the place to test them out on readers. For these are the queries that the essayists engage in their own distinctive ways. It is worth noting, however, that the activity of questioning and of adopting a suspicious attitude toward authority is at the heart of hermeneutical discourse. Hermeneutics involves confronting the aporias that face us, and it attempts to undermine, at least in partial ways, the calm assurances transmitted by the received views and legal orthodoxies.

This spirit of critical questioning is manifested with a vengeance in Stanley Fish’s closing commentary, Play of Surfaces: Theory and the Law. Fish offers readers a commentary on the contents of the volume that is both critical and highly suggestive. Fish collects the essays around the recurring themes of determinacy versus indeterminacy, historical versus ahistorical interpretation, and originalism versus nonoriginalism. Not only are particular arguments and conclusions challenged, but the individual essays are usefully connected to a broader framework of interpretation in general. In light of Fish’s observations one might add the theme of protheory versus antitheory to his list of ideas that surface again and again in this volume. Resolution of the differences between and among contributors will require that readers enter the conversation that is only begun here, supplying their own questions and answers, however tentative they must necessarily be, to guide our thinking about law and interpretation in the future.

NOTES

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.

PART ONE

General Perspectives

Hermeneutics and the Rule of Law

Fred Dallmayr

That society has a rule-governed character is a standard sociological axiom; in fact, every continuous human enterprise or activity—whether individual or collective—is assumed to be rule-governed in some sense. Without this feature of rule-governance, the assumption goes, individual and social behavior is bound to lapse into randomness and radical contingency. Although plausible on a high level of generality, the assumption is beset with major difficulties that have been recognized increasingly in recent decades. Ever since Wittgenstein’s observations on rulefollowing it has been acknowledged that the application of rules cannot in turn be strictly rule-governed without conjuring up an infinite regress of stipulated rules (for their own application). More important, the range of rule-governance itself has been contested in philosophical and social-theoretical literature, especially through the introduction of a sharp contrast or dichotomy between regular and irregular or between normal and abnormal practices and contexts. Although the application of rules in normal settings is manageable though complicated, rulegovernance entirely breaks down in irregular conditions or in the hiatus between rule-governed discourses or paradigms. Thus, to mention only one example, Richard Rorty in Philosophy and the Mirror of Nature distinguishes sharply between normal and abnormal discourses—a distinction that in his presentation coincides with the opposition between epistemology and hermeneutics or between commensuration and conversation. Whereas normal discourse, in his view, is conducted within an agreed-upon set of conventions about what counts as relevant contribution, the abnormal variant is practiced by someone who is ignorant of these conventions or who sets them aside.¹

The problems surrounding rule-governance are not restricted to a narrowly academic level. Directly or indirectly they affect one of the most time-honored and revered ingredients of Western culture, traceable at least as far back as Plato’s Laws: the doctrine of the rule of law. According to a powerful tradition of Western political thought, good government or the ideal regime is defined by rule-governance, namely, as a government of laws and not of men. This doctrine is not simply an accidental political bias but is linked with central premises and hierarchical postulates endemic to Western civilization: particularly the rule of reason over arbitrary will, of universal principle over particular circumstances, and ultimately of idea over matter. Given this cultural-historical background, questions concerning the status of rule-governance are bound to have a deeply unsettling effect by touching the fiber of political and intellectual life: hence the unease and suspicion engendered by contemporary trends fomenting such questions—especially trends associated with hermeneutics and deconstruction. In Rorty’s distinction (noted above) hermeneutics stands as the antithesis to systematic and epistemic knowledge, although elsewhere he has differentiated more carefully between a normal or ordinary hermeneutics and a more radical or extraordinary type (bent on dislodging familiar rules or conventions). The latter nuance is basically discarded by Stanley Rosen in Hermeneutics as Politics. Taking the side of epistemic knowledge and rational rule-governance, Rosen views hermeneutics (in its predominant strands) as an invitation to arbitrariness and thus as pacemaker to intellectual and political disorder.² I intend to explore not so much the relation between hermeneutics and politics in general but the impact of the former on that dimension of political life traditionally thematized as the rule of law. In a first step I want to retrieve and recount the chief facets of this dimension as it has been articulated in the history of Western political thought. In a second step I turn to the recent ascendancy of hermeneutics, with a main focus on legal hermeneutics or the intimate connection between interpretation and jurisprudence. By way of conclusion I review the effect of hermeneutics on rule-governance, with an eye toward finding a path between normality and abnormality or between convention and invention.

Given its prominence in Western culture, the rule of law has occasioned a considerable amount of literature and commentary; for present purposes I can only highlight some main facets of its historical trajectory. One point that needs to be noted in this account is the unstable meaning of the phrase—the fact that, like the notion of reason, rule and law are themselves the targets of continuous interpretation and reinterpretation. Thus, in classical Greek thought legal rule-governance was ultimately tied to a higher rule governing the cosmos in which human reason was meant to participate—a far cry from the modern conception of law as an outgrowth of human rationality or an innate faculty of reason. In Plato’s political philosophy, public lawfulness was linked either with the philosopher’s special insight or else with settled institutional arrangements; but rule or law was never merely an abstract norm but a complex web of relationships attentive to concrete situations and diverse modes of proper conduct (or natural right). With some modifications this view was shared by Aristotle, whose notion of good government, as differentiated from bad regimes, was predicated on the prevalence of justice seen as an equitable and nonrepressive way of life transgressing selfishness. In the Roman republic lawfulness largely approximated this concrete form of equity; with the expansion of the Roman empire, however, law in the sense of rational rule-governance was increasingly elevated above local contingency and broadened into a universal maxim. In Stoic thought human law was designed to reflect ultimately the universal logos or flame of reason, a flame whose sparks were assumed to be more or less equally distributed among all human beings.³ The conception of a universal principle and its juxtaposition to local contingency were continued in the medieval distinction—familiar from Thomas Aquinas but more widely accepted—between universal natural law and local human law, a distinction that in turn was premised on the difference between reason and will and between universalism and particularism.

The theme of law, however, exceeds philosophical speculation. In medieval Europe rule-governance was most prominently anchored and institutionally secured in Magna Carta (1215), particularly in the section stating that no one (or no freeman) could be deprived of property except in accordance with the established law of the land. During subsequent centuries the clause developed into a bulwark against absolutism and into the pacesetter of a steadily expanding and solidified rule of law. Under the Stuarts and during the Civil War period the rule was championed by lawyers and parliamentarians against both royal and military claims to absolute power; speaking for a rising middle class anxious for peace and prosperity, James Harrington in his Oceana (1656) defined good government (and particularly British government) as an empire of laws and not of men. Although still contested in Harrington’s time, lawfulness or rule-governance was the motto of the postrevolutionary settlement and generally emerged as the mainstay of modern liberalism or liberal regimes. According to John Locke, lawfulness was characteristic both of humanity’s precivil condition in the state of nature and of organized civil society, with lawfulness being a synonym here for the dictates of natural or unaided human reason. In terms of the Second Treatise: The state of nature has a law of nature to govern it which obliges everyone; and reason which is this law teaches all mankind (who will but consult it) that, being all equal and independent, no one ought harm another in his life, health, liberty or possessions. Lawfulness and rule-governance were not set aside but rather supplemented and reinforced in civil society through the enactment of positive laws backed up by legal magistrates. Holding that the great end of men’s entering society was the secure enjoyment of life and property, Locke argued that the central instrument or means for reaching this goal was the laws established in that society. Accordingly, he proclaimed it as the central task and as the first and fundamental positive law of all commonwealths to institute or establish a legislature or legislative power, an institution that was to be not only the supreme power of the commonwealth but sacred and unalterable in the hands where the community have once placed it.⁴

Although insisting on the supremacy of lawmaking over all types of royal or executive prerogative, Locke was by no means ready to condone an unlimited or arbitrary exercise of legislative power. In the Second Treatise—which basically stipulated the parameters of liberal-parliamentary government—civil legislation was hedged in by several safeguards or restrictions. First, although installed as supreme authority in the commonwealth, the legislature’s power is not nor can possibly be absolutely arbitrary over the lives and fortunes of the people, the chief reason being that the rules of the state of nature prescribing equal liberty do not cease to exist in civil society but are only corroborated by positive enactments; hence, the law of nature stands as an eternal rule to all men, legislators as well as others. The second safeguard derived from the obligation of the legislature to enact only general or universally applicable laws and not rules tailored to particular circumstances or contingencies. Being the representative or mouthpiece of the collective good or of the combined interests of all members of society, the legislature, Locke argued, cannot assume to itself a power to rule by extemporary, arbitrary decrees, but is bound to dispense justice and decide the rights of the subject by promulgated standing laws and known authorized judges. The prohibition of arbitrariness and legal particularism was the central pillar of good governments as articulated in the Second Treatise: Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government. Summarizing his thoughts on lawmaking and lawfulness, Locke arrived at an eloquent formulation of the rule of law—a formulation echoing through the subsequent history of the doctrine. Legislators, he wrote, are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plow. The laws enacted by the legislature were designed ultimately for no other end than the common good of the people.⁵

The circumscribed or rule-governed character of legislative authority was enhanced in the eighteenth century through the doctrine of the division and tensional balance of governmental powers—a doctrine commonly attributed to Montesquieu’s Spirit of the Laws although rudiments of the idea antedated this work. In the French context lawfulness or rulegovernance was a main pillar of Enlightenment thought, a legacy that was fully preserved by Rousseau (despite his presumed proclivity for revolutionary turbulence). Like Ix>cke, it is true, Rousseau was no advocate of a separation or balanced division of powers but accorded supremacy to the lawmaking or legislative authority. Moreover, in the figure of the Legislator he made room for an extraordinary or extranormal dimension of creative political invention transgressing settled conventions. Nevertheless, once a commonwealth or republic was inaugurated, Rousseau insisted firmly on the need for lawfulness and the prevalence of general and established laws representing the collective interest of all citizens or the general will. As he wrote in The Social Contract, the general will cannot relate to any particular object or circumstance but only the body politic at large or the people as a whole. When a community in its entirety or viewed as a collective body makes rules for the people as a whole, it is dealing only with itself and not with an isolated part or fragment. Accordingly, he noted, the matter concerning which a rule is made is as general as the will which makes it. And this is the kind of act which I call a law. Underscoring the distinction between universalism and particularism or between rational rule-governance and arbitrariness, Rousseau added: When I say that the province of the law is always general, I mean that the law considers all subjects collectively and all actions in the abstract; it does not consider any individual man or any specific action. Continuing this train of thought, The Social Contract went so far as to equate state or polis with lawfulness or the rule of law: "Any state which is ruled by law I call a ‘republic,’ whatever the form of the constitution; for then, and then alone, does the public interest govern and then alone is the ‘public thing’ or res publica a reality."⁶

In large measure, French Enlightenment thought and British parliamentary liberalism set the pattern for American republicanism and constitutional government. Even prior to the establishment of the national government, various colonial or state charters reflected the combined impact of this legacy. Particularly noteworthy in this regard is the constitution of Massachusetts (1780). In addition to containing a lengthy list of individual rights or liberties, the document provided for the separation of the powers of government into legislative, executive, and judicial branches—and for a clearly stated purpose, namely, to the end it may be a government of laws and not of men.⁷ The federal Constitution inaugurated in 1787 reflected a similar inspiration. Suspicious of any arbitrary power, including the absolute supremacy of the legislature, the founders adopted the principle of separated powers, though hedged in by complicated checks and balances. Moreover, going beyond Locke’s vague safeguards, they proclaimed the Constitution itself the supreme law of the land, a law binding even on Congress. As Alexander Hamilton stated in the Federalist papers: No legislative act… contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than his principle, that the servant is above his master. By subordinating legislative acts to the Constitution as the supreme law of the land, Hamilton also shifted the accent from congressional supremacy to that branch of the government specifically entrusted with the maintenance and interpretation of the supreme law: the judicial branch. If it be said, he added, that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption. It was more reasonable or rational in Hamilton’s view to suppose that the courts were designed to be an intermediary body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.®

With this shift of accent to the courts Hamilton’s comments implicitly inaugurated or anticipated the principle of judicial review that was to become a mainstay of the rule of law in America. As the Federalist continued (in the cited section): A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. In normal circumstances the presumption was in favor of the congruence or concordance between foundation and specific enactment, between the general and the particular law. However, in case of an irreconcilable variance between the two, Hamilton insisted that the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Although foreshadowed in Hamilton’s statements, judicial review of congressional enactments was not actually exercised or implemented until some fifteen years later in John Marshall’s famous ruling in Marbury v. Madison (1803). In this decision—renowned for its subtlety and shrewdness—Marshall clearly subordinated legislative acts of any kind to the higher law of the Constitution. The question whether an act, repugnant to the constitution, can become the law of the land, he argued, is a question deeply interesting to the United States—but happily not of an intricacy proportioned to its interest. To decide the question it was only necessary, in his view, to recollect and recognize certain well established principles, particularly the principle that the government of the United States was one of separate and limited powers, with a written constitution explicitly designed to safeguard these limitations. Certainly, Marshall added, all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation; and consequently, the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void. More specifically, it was the duty of the judicial branch represented by the highest court to implement this theory and to invalidate unconstitutional acts. Invoking the language of Harrington and the Massachusetts charter, Marshall concluded that the government of the United States has been emphatically termed a government of laws and not of men.⁹

As inaugurated by such classical formulations of the Enlightenment period,