Vol. 2 No. 8 (August, 1992) pp. 112-115

LEGAL HERMENEUTICS: HISTORY, THEORY, AND PRACTICE by Gregory Leyh (Editor). Berkeley: University of California Press, 1992.

Reviewed by Austin Sarat, Department of Political Science and Program in Law, Jurisprudence & Social Thought, Amherst College.

Twenty years ago, when I was in graduate school, neither I nor anyone with whom I was associated would have been caught dead reviewing a book called LEGAL HERMENEUTICS. In those days to have one's name associated, even as a reader, with such a book would have been a dangerous thing to do. It would have constituted a breach of faith with the evolving enterprise (back then I thought of it as a mission, but evolving enterprise seems more accurate in hindsight) of making law a respectable and respected part of the scientific study of politics. LEGAL HERMENEUTICS was the kind of book that had to be left to the doctrinalists, traditionalists, or theorists; no self-respecting, young "public law" scholar would have gotten within miles of it. The early 1970s were, of course, the virulent and assertive heyday of behavioralism in what was then called public law. As a graduate student I was told that if law were to gain respectability in political science, those of us who studied it had to show that law "behaved" in ways that made it susceptible to operationalization, measurement and hypothesis testing. We had to keep a safe distance from books like LEGAL HERMENEUTICS. If we were to make legal study a full and welcome partner in the discipline, we would have to rescue it from the doctrinalists, for whom it was part the project of reproducing legal professionals, the traditionalists, for whom the careful description of legal institutions was but one part of the project of understanding the dynamics of American citizenship, and, most of all, the theorists, for whom arguments about law were invariably normative and prescriptive.

But that was then, and now is different from then. LEGAL HERMENEUTICS sounds like the stuff with which one might safely engage to keep up with the times. Indeed, LEGAL HERMENEUTICS is a very 90s kind of book; like the 90s themselves, it is much more reasonable and much less trendy than one might assume from its title. It is (to borrow and twist a phrase from Barry Goldwater) extreme in its moderation, and, as a result, seemingly quite safe even for the fallen children of behavioralism like me. Yet it is, I fear, less safe than it appears, more likely to take the wind out of some of its opponents than others, more powerful in demystifying law's critics than disempowering the real, though powerful, enemies of law.

But before saying more about the illusory safety and the lurking danger of LEGAL HERMENEUTICS, first a bow to behavioralism which, it turns out, has in these times entered, if not become, the mainstream in public law. Nevertheless, the prediction of my teachers has not been realized; the triumph of behavioralism has left the desire of public law scholars for respect still very much intact. This, it turns out, has freed many of us, now somewhat older, to march under other flags. Respectability among political scientists studying law is up-for-grabs, and more openly available to scholars representing various perspectives. The interpretive turn has freed empirical studies of law to examine meaning as an alternative, or addition, to behavior. Law schools have become somewhat more receptive to social science and other interdisciplinary collaborations. Civic republicanism has put a new gloss on citizenship, and work in jurisprudence provides one basis for the "new institutionalism." Boundaries between and among those perspectives are breaking down or, at least, re-forming. As a result, at least a few of us dare to dream (with the passage of time dreams take the place of missions) of an integrated field of legal study in which students read everyone from Jim Gibson to Roberto Unger.

Such a field would be energized by the recent revival and renaissance of jurisprudence and legal theory. At the heart of that rebirth is an interest in language and the problematic of

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interpretation which has been sparked, at least in part, by the rise of, as well as reactions to, Critical Legal Studies (CLS). (CLS, it turns out, is an important antagonist for LEGAL HERMENEUTICS.) CLS and its critics have called attention to questions concerning the meaning of law and its place in American politics with the happy result that the constitutional interpretation business seems to be flourishing as never before.

It is against this background that LEGAL HERMENEUTICS can be read. However, those looking for a point of entry into theoretical and jurisprudential debates about interpretation and meaning, or those who are eager just to find out what hermeneutics means and what it has to do with law, should be warned that this book is not the place to begin. It assumes too much to be introductory; it is too preoccupied with the work of a single theorist, Hans-Georg Gadamer, and is, as a result, less a review of positions, or a synthesis of existing work, than it is a contribution to a particular debate in jurisprudence and legal theory, namely the debate about what the enterprise of interpreting legal texts entails.

LEGAL HERMENEUTICS is not a dogmatic or single-minded collection of essays. It is, to the contrary, quite pluralistic. Yet in some ways the spirit of pluralism in, and the organization of, the collection is quite curious. The first curiosity is that the book contains its own first review. This fact, in and of itself, is rather intriguing and inviting. But the review, mislabelled a "commentary," by Stanley Fish suggests that many of the essays contained in LEGAL HERMENEUTICS are based on a series of positions and false oppositions -- between originalism and non- originalism, determinacy and indeterminacy, interpretivism and noninterpretivism -- which Fish suggests cannot be defended or maintained.

Fish's concluding, rather ironic if not mocking, sentence suggests that "...THE ONLY THING TO KNOW about interpretation is that it has to be done every time." (p. 316) While such a suggestion begs for engagement, none is provided. I want to hear what Gregory Leyh, has to say in response to Fish's ironic conclusion; I want a less respectful, less deferential silence. And if nothing can be said in response, why not put Fish's essay up front as a warning or a deterrent, and save unwary readers some time.

As if that were not enough, there is a second curiosity in this collection again having something to do with the aesthetics of engagement. While LEGAL HERMENEUTICS does accommodate an exchange between David Couzens Hoy and Steven Knapp and Walter Been Michaels about the status of intentionalism in constitutional interpretation (Hoy is against it; Knapp and Michaels are its advocates), the exchange seems odd since it is one episode in an ongoing dialogue whose origins and first scenes are not contained in the book and whose continuation here seems somewhat superfluous. At the same time, where debate or exchange seems warranted, none is provided. The book does not engage contrasting positions even where clear differences emerge between and among the writers whose work is represented in the collection. An important opportunity is missed. Thus, for example, though Peter Goodrich is a named enemy, a radical "nihilist," in the essays by Gerald Burns and Stanley Fish, Goodrich's contribution to LEGAL HERMENEUTICS (a fascinating account of the hermeneutic and rhetorical origins of the English common) has little to do with the issues raised by his critics.

A third and final curiosity is that one lone example of empirical work, by Lief Carter, sits awkwardly amidst analytic articles on historical figures (James Farr's description of the early work on hermeneutics by Francis Lieber) and prescriptive arguments for particular types of hermeneutic practice (for example, Jerry Stone's "Christian Praxis as Reflective Action"). Carter's piece is a kind of embarrassed intrusion into a conversation that is otherwise content to spin out its own versions of how legal interpretation works without including those who do such interpretative work. This is odd because Carter's essay directly

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addresses one of the central themes of the collection, namely the relevance of theory to practice. Juxtaposed to strong claims, made in the essays by Michael Perry and Gregory Leyh, that theories of interpretatiof qlay, or can play, an important role in the world which lawyers and judges inhabit, Carter finds that judges are quite oblivious to and uninterested in the kind of arguments presented in collections like LEGAL HERMENEUTICS. More could and should have been done with this provocative loose end.

But I promised some thoughts about whether this book represents a healthy development in legal theory. LEGAL HERME§ UTICS, it turns out, is not just an eclectic accumulation of pieces. As a whole, the collection tells a dramatic if stylistically familiar story of extreme oppositions set against a pragmatic and humane middle. In this drama, hermeneutics is set out as THE humane and humanistic alternative to the twin of evils of what is variously named formalism, originalism, and intentionalism, (each of which is associated with extreme conservatism), and deconstruction, irrationalism and CLS (each of which is associated with the left). The former are rule-oriented, rigid, and deeply suspicious of the interpretive enterprise. The latter see no limit to interpretive possibility, substitute caprice and whimsy for argument, and are ultimately nihilistic.

Hermeneutics is, not surprisingly, the hero of the piece. But, like all heros in the drama of extremes set against a reasonable middle, it turns out to hold something for almost everyone and to be uneven in its rhetorical prowess. Hermeneutics is, according to Gregory Leyh, "An attempt to identify the irreducible conditions of human understanding.... (It)... 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." (p. xii)

As appropriated from Gadamer and represented by Leyh, it is associated with three claims. First, "hermeneutics teaches us that all understanding presupposes contemporary contexts of meaning." (p. 284) This means that all understanding is culturally contingent. Second, hermeneutics highlights the way "our legal and political worlds are linguistically constructed." (P. 285) We can have no unmediated relationship to the world of phenomena. Third, "hermeneutics avoids the entrenchment of essentialist and foundationalist conceptions of knowledge and opens.. the possibility of a historically situated view of human rationality." (p.287) Hermeneutics, according to Leyh, "suggests a rationally defensible way of exercising judgment that neither appeals to ahistorical, independent standards nor lapses into the kind of nihilism that threatens the legitimacy of the legal order." (p. 287) It is, for conservatives, radical in that it rejects an essentialist logic in law, and, for radicals, conservative because of its respect for history and tradition.

Reading some of the essays in LEGAL HERMENEUTICS reminded me the words of the Souter, Kennedy, O'Connor joint opinion in PLANNED PARENTHOOD v. CASEY; "The inescapable fact," the Justices claimed, "is that adjudication of substantive due process claims may call upon the Court in interpreting the Constitution to exercise that same capacity which by tradition courts have always exercised: Reasoned judgment. Its boundaries are not susceptible of expression as a simple rule. That does not mean we are free to invalidate state policy choices with which we disagree." (p. 12) Like the joint opinion, the enterprise, mission, or dream of hermeneutics as represented in this book is a full engagement of the possibility of reasoned judgment in a world constrained by histories and cultures made by humans for humans. Law cannot rescue us from the dilemmas of living in that world; it cannot substitute for judgment. Instead, it provides a critical site for expressing our intense engagement in the arts of judgment, for recognizing the constraining push of both history and culture, and for encouraging the creativity and imagination that exist within those constraints.

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Turning first toward one of its extremist opponents, formalism, originalism, and intentionalism are rejected (in the essays by Burns, Ball and Perry) as undesirable, if not impossibly wishful, flights from the challenges, responsibilities and humanly enriching possibilities of interpretation, and reasoned judgment. But, rejection, in this instance, does not amount to defeat for, as Fish has persuasively argued elsewhere (Fish, 1991), law is inescapably formalist. The resilience and power of formalism are seen, despite the recent triumph of Souter, Kennedy, and O'Connor, in the emergence of Justices Scalia and Thomas, who, I fear, are setting the tone and temper of the Supreme Court. (For a different view see Dworkin, 1992.)

Against its left, extremist opponent, hermeneutics turns out, to move from an ontology to advance an ethics. It deftly tames deconstruction, irrationalism, and CLS, which are must less resilient than formalism in their hold on law and legal theory. This is most vividly and provocatively exemplified in Drucilla Cornell's, "From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation." Cornell argues that deconstruction has been misread and misapplied by the "irrationalist" wing of CLS which uses it to refute both the determinacy of legal doctrine and the claims of justice against law. Read that way deconstruction becomes an unwitting handmaiden of legal positivism and leaves us silent when we find ourselves in Kafka's "Penal Colony." Cornell reads deconstruction through Hegel and Levinas (pretty heady stuff for us fallen behavioralists) as holding out a vision of justice separated from, though not outside law. "Deconstruction," Cornell argues, "reminds us that the meaning of the `ethical' is necessarily displaced into the future because the Good is not fully present to the mind.... Interpretation is transformation, and as we interpret, we are responsible for the direction of that transformation." (p. 170)

LEGAL HERMENEUTICS thus tries to pull off quite a trick. Through a thoughtful collection of essays, hermeneutics is rescued from the trendiness of its contemporary associations (meaning it is saved from CLS) and allegedly turned into a resource against the mythologies of judicial restraint. But, as Fish puts it, the ultimate test of theory is in the strategic, "rhetorical weight" that it affords in particular conditions. Unfortunately, the hermeneutics named by LEGAL HERMENEUTICS may succeed in taking the playfulness and fun out of CLS while doing little to derail the prevailing orthodoxy of judicial restraint (Souter, Kennedy and O'Connor's surprising opinion notwithstanding). If this is true, then, just as it is now safe for public law scholars of every stripe to read books like LEGAL HERMENEUTICS, it is all the more important to resist its soothing, reassuring, but I fear, ultimately dangerous message.

REFERENCES

Dworkin, Ronald, "The Center Holds!", NEW YORK REVIEW OF BOOKS, XXXIX (August 13, 1992), 29.

Fish, Stanley (1991), "Law wishes to Have A Formal Existence," in THE FATE OF LAW, Austin Sarat and Thomas R. Kearns, eds. Ann Arbor: University of Michigan Press.


Copyright 1992