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