Law, Hermeneutics and Rhetoric

Francis J. Mootz Iii

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317107491
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

Mootz offers an antidote to the fragmentation of contemporary legal theory with a collection of essays arguing that legal practice is a hermeneutical and rhetorical event that can best be understood and theorized in those terms. This is not a modern insight that wipes away centuries of dogmatic confusion; rather, Mootz draws on insights as old as the Western tradition itself. However, the essays are not antiquarian or merely descriptive, because hermeneutical and rhetorical philosophy have undergone important changes over the millennia. To "return" to hermeneutics and rhetoric as touchstones for law is to embrace dynamic traditions that provide the resources for theorists who seek to foster persuasion and understanding as an antidote to the emerging global order and the trend toward bureaucratization in accordance with expert administration, violent suppression, or both.

PART ONE
LEGAL HERMENEUTICS AND THEORY

Chapter 1
The New Legal Hermeneutics* (1994)

I. Introduction

Incorporating the Continental philosophical tradition of hermeneutics into legal scholarship appears to be a project relevant only to a few jurisprudes locked away in the uppermost reaches of the ivory tower. Many traditional scholars undoubtedly would argue that twentieth-century German hermeneutical philosophy is far removed from the troubling interpretive issues that arise in the American legal system, regardless of any interesting parallels or comparisons that might be drawn.1 From this perspective, the renewed attention to hermeneutical philosophy by legal scholars is viewed as just one of an increasing number of esoteric, intellectual cul-de-sacs that have diverged from the boulevard of traditional jurisprudence.

This not-so-hypothetical attitude toward hermeneutics is interesting for the very reason that it is erroneous. Those who argue that contemporary philosophical hermeneutics holds little practical significance for legal practice demonstrate that they are unmindful of the genealogy of the traditional principles of legal interpretation that they hold so dear. The publication in 1837 of Francis Lieber’s Legal and Political Hermeneutics was an important contribution to the effort to define principles of interpretation that could justify and guide the newly created American practice of written constitutionalism (Lieber 1880). Lieber, a native of Germany, related his knowledge of German hermeneutical philosophy to the political and legal questions facing the young republic.2 His attempt to describe a science of textual interpretation that would ensure rule-governed consistency in politics and adjudication helped to formulate the traditional views of interpretation espoused by judges and theorists during the past century.3 The nineteenth-century hermeneutical tradition in Continental philosophy has had an enduring effect on American legal theory and practice through Lieber’s scholarship. No sound reason exists to reject out of hand the lessons that contemporary hermeneutics might hold.

Contemporary hermeneutical thought is too important to allow legal scholars simply to cull its fancy jargon with the intent of adding some sparkle to familiar and ossified jurisprudential debates. The transformation of hermeneutics in this century has generated excitement among philosophers precisely because this transformation has the liberating potential of presenting traditional problems in a new light, whether they be problems of theology, history, literary criticism, or aesthetics. The growing number of legal scholars exploring the themes of contemporary hermeneutics do so with equal excitement; their aim is to rethink traditional jurisprudential debates and to reveal more faithfully the phenomenology of legal practice. Contemporary hermeneutics is especially relevant to the legal profession, whose practice reveals a commitment to the centrality of interpretation but also an awareness that interpretation cannot be cabined as a set of procedures or methods without obscuring the inherent connections of law, morals, politics, and history.

Gregory Leyh has edited a volume of essays commissioned “to examine the intersections between contemporary legal theory and the foundations of interpretation” as explored in contemporary hermeneutics (Leyh 1992, xi). The essays are diverse and multidisciplinary, but each sheds light on perplexing issues of legal interpretation that have exhausted commentators in recent years. The contributors share a broad agreement that we must reject the picture of law as an autonomous, insulated discourse and instead must regard legal discourse as one of many interrelated practices rooted in our character as interpretive beings.

Each contributor addresses the central concerns defined by the leading philosopher of hermeneutics, Hans-Georg Gadamer: what are “the irreducible conditions of human understanding” and what do these conditions tell us about the grounds of judgment? As Leyh relates in his Introduction, Gadamer explores how we reconstitute meaningful traditions as part of an ongoing interpretive relation. Gadamer views legal practice as an exemplary form of interpretive activity that reveals a great deal about how we acquire knowledge, but he also asserts that traditional jurisprudence misunderstands this activity (Gadamer 1989a, 324–41). Leyh notes that Gadamer defines our interpretive relation in a manner that acknowledges our experience of critique and change, even while emphasizing our inherence in tradition:

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. …. It is worth noting, however, that the activity of questioning and 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. (Leyh 1992, xvii–xviii)

Contemporary (that is, post-Gadamerian) hermeneutics suggests that it is possible to view law as politics without succumbing to nihilism, and that it is possible to accept deconstructive critique within legal practice without abandoning all notions of truth.

Leyh would have greatly assisted legal scholars if he had provided a more substantial Introduction identifying these themes. His omission is understandable considering the excellent essays that, taken together, develop many of the important connections between contemporary hermeneutics and legal practice. Nevertheless, the inevitability of the “hermeneutical circle” suggests that a more substantive Introduction would have been appropriate.4 Gadamer’s philosophical hermeneutics, and the debates that it has engendered, are only now being examined in American legal scholarship.5 Additionally, hermeneutic philosophers are removed from the intricacies and practical significance of contemporary issues in legal interpretation. Leyh’s interdisciplinary endeavor would have been better framed had he first provided a context for the “conversation about legal hermeneutics” that the essays embody (Leyh 1992, xvii).6

This minor criticism aside, the volume is an excellent addition to the literature. The essays uniformly provide rewarding reading for scholars, and many of the essays are suitable reading for a jurisprudence seminar. Although Gadamer’s view of interpretation as something other than a rule-governed, methodologically defined practice figures prominently in the volume, Leyh selected the essays to reveal the contested nature of many issues raised by Gadamer.7 The essays do not define a single strategy of legal interpretation so much as they delineate the issues of concern and suggest a more productive vocabulary for addressing these issues.

Leyh organizes the essays into five chapters. The volume begins with two essays designated as General Perspectives and concludes with a Commentary by Stanley Fish. As suggested by the title, the body of the volume is separated into three parts: History, Theory, and Practice. This organizational approach is ironic, given the important lesson of contemporary hermeneutics that it is illegitimate to regard theory, practice, and history as separate and unrelated modalities, but the organization permits readers unfamiliar with the literature to focus on major themes. This review follows Leyh’s general organization by incorporating the General Perspective essays and Fish’s Commentary into separate discussions of History, Theory, and Practice. I do not describe, much less critique, all of the subtle and diverse perspectives contained within the volume, nor do I attempt to disguise my bias in favor of Gadamer’s hermeneutical approach. By necessity I limit my review and critical appraisal to the broad themes shared by the contributors. By conviction I defend the general contours of the Gadamerian approach, primarily against the challenges issued by Professor Fish.

II. History

The relationship between hermeneutics and history is multifaceted. At the most obvious level, philosophical hermeneutics has its own defining intellectual history. Gadamer expressly describes his philosophy as an extension of Martin Heidegger’s efforts to rebut the Enlightenment conception of knowledge after German romanticism failed to accomplish this task (Gadamer 1989a, 173–218; 1989b, 21–23). The relationship between hermeneutics and history, however, runs much deeper. On the one hand, historical inquiry necessarily is interpretive inasmuch as the historian always is guided by her interests and prejudices and can never simply describe the “facts” of the past. On the other hand, all interpretive activities take place against the backdrop of historically defined, meaningful social practices. Although the ideal of law as a rational discourse distinct from political and social pressures is a powerful image, it is betrayed when we explore how our conceptions of legal dialogue have developed in response to multifaceted historical forces. One of Gadamer’s principal hermeneutical themes is the historicity of all understanding, including legal understanding. Attuned to the historical character of understanding, the legal scholar, in an effort to free up current legal dialogue, is in a position to trace, and to some extent unravel, the ideology embedded in traditional legal theory. Several contributors to the volume explore these various ways in which history and hermeneutical practice are intertwined.

Peter Goodrich traces orthodox conceptions of legal practice to the birth of modern legal method in seventeenth-century England (Goodrich 1992, 43). Goodrich does not pretend to objectify history from the privileged posture of the present. Instead, he employs Foucault’s practice of genealogical inquiry by tracing “the contingent descent, the chance affiliations, and the alien forms from which specific, singular objects of discourse are formed” (ibid, 73 n.16). As described by Goodrich, English common law was formalized in response to contingent social pressures rather than as a result of developments internal to legal practice. Under the influence of Scholasticism, the “disparate strands of the legal tradition” were rationalized in jurisprudential writings that emphasized law as a univocal discursive logic, “an empire of truth supported by a veridical language or orthodoxy that was peculiar to the law alone” (ibid, 44). With this development, legal practice came to rest on a binary justification similar to that supporting theology: the power of the unwritten word rooted in an ancient communal tradition of the common law coupled with the authority of esoteric methods of exegesis carried out by a professional elite. Continuing pressures to reduce the law to a clearly stated vernacular language embodied in accessible and stable texts were rebuffed by legal professionals who claimed that legal reasoning and argumentation were special skills enabling them to mediate the tension between the originary sacred word and the meaning of the written legal text.8 Goodrich illustrates a powerful theme with his historical inquiry into the foundation of legal hermeneutics. The ideal of a definitive legal discourse does not flow from the nature of “law”; it is the result of particular historical forces.

James Farr carries this story forward in the American venue, where the existence of a written constitution rendered particularly important the need to formalize legal reasoning as a method for stabilizing the contestable meaning of governing texts (Farr 1992, 83). Farr emphasizes the important impact of Lieber’s Legal and Political Hermeneutics, which was published at a time when the idea of a written constitution was still subject to debate and when political conceptions were in transition in response to positivist and utilitarian influences (ibid, 98; Carrington 1992, 362). Lieber proposed a scientific approach to interpretation, but he did not succeed in segregating legal decision-making from the powerful influences of social conflict. Farr exposes the contradictory impulses in Lieber’s supposed science of interpretation, exemplified by Lieber’s simultaneous commitment to the author’s intent as the one true meaning of a text and to the importance of incorporating commonsense, good faith, and the public welfare in every interpretation.9 Nevertheless, over time the American experience leveled the rich tension of English jurisprudence to a vision of legal dogmatics supplying the correct answers to questions about the meaning of the Constitution. The failure of this dogmatic project has resulted in our contemporary jurisprudential anxiety.

The essays by Goodrich and Farr chart our present predicament in a way that puts current jurisprudential trends into context. For example, Professor Thomas Grey’s long-standing effort to rehabilitate the legitimacy of an unwritten, fundamental constitutional law is an attempt to recapture the more diverse conceptions of law arising from the English common-law experience without surrendering the reasoned articulation of the written Constitution’s meaning (Grey 1988; Grey 1984; Grey 1978; Grey 1975).10 But any such strategy is insufficient once we recognize that our conceptions of law are not grounded on any bedrock tradition; the English experience, no less than American textualism, is the product of historical chance and social contingency. The jurisprudential dilemma posed by the collapse of traditional pictures of legal practice is now quite familiar. Either we invite legal nihilism by acknowledging that legal practice irretrievably is the product of an ungrounded social flux, or we cling to law’s rhetorical posturing as a distinct reasoned discourse despite the implausibility of such a position. The important contribution of historically attuned hermeneutical inquiry is to dissolve this dilemma.

Fred Dallmayr’s essay answers the criticism that hermeneutics is an invitation to nihilistic arbitrariness by exploring the historical development of the doctrine of the rule of law (Dallmayr 1992, 3). Dallmayr argues that the political struggle to implement rule-governance is not undermined by the hermeneutical thesis that all understanding is a historical project. Although the interpretive insularity of traditional legal dogmatics ignores our hermeneutical situation and must be discarded, we are not thereby consigned to surrender to arbitrary rule. Dallmayr recounts the history of the doctrine of the rule of law, but his theme is historical in a more important sense. He argues that the historical character of interpretation permits us to resuscitate rule-governance in the face of nihilistic challenges.

Dallmayr links current apprehensions about the possibility of the rule of law to an aporia first acknowledged in ancient Greece: the competing and apparently irreconcilable claims of universal natural law and positive human law. Modern legal theory rejects the idea of substantive natural law (“material law”) in favor of the positivist thesis that law is an autonomous and rational discourse that may be practiced independently of communal efforts to define the good life.11 However, the attempt to segregate law from the influence of ongoing substantive politics has invited the blistering post-Nietzschean deconstructive critique of the possibility for obtaining objective and uniform interpretations even of the most formal, stylized discourse.12 We have come to recognize that the “more normativity is formalized and elevated above contingencies, the more its content appears in need of interpretive retrieval and assessment” (ibid, 13). All attempts to define the rule of law in positive law terms divorced from substantive notions of the public good have failed; the might of state power always implicates the right of the law.

Dallmayr contends that Gadamer’s philosophical hermeneutics avoids this apparent impasse. Gadamer stresses that understanding is always a historical project of rearticulating the tradition in response to the practical demands of the present. We understand a legal rule only by means of practical exegesis: understanding and application are a unified act. By conjoining rule-knowledge and rule-application, Gadamer emphasizes that a rule is never something given in the past and then later applied to a problem in the future. Rather, a rule emerges in the resettling of tradition within our present context.13 Dallmayr argues from this perspective that rule-governance is possible once we recharacterize it as the prudent elaboration of a historically situated common reasonableness. Consequently, modern society must repair “deep ethnic, economic, or other fissures” and alleviate the “widespread sense of corruption, unfairness, and inequity” (ibid, 19) in order to sustain the common reasonableness essential to the rule of law.

Although legal interpretation inevitably is a political event under Dallmayr’s definition, it does not devolve into a radically free application of a traditional text by a subject rising above the shared boundaries of tradition. Every interpretive recovery of a posit...

Table of contents

• Cover Page
• Title Page
• Copyright
• Contents
• Series Preface
• Introduction
• PART ONE: LEGAL HERMENEUTICS AND THEORY
• PART TWO: LAW, HERMENEUTICS AND RHETORIC
• PART THREE: CRITICAL HERMENEUTICS ANDLEGAL RHETORIC
• Bibliography
• Index