The question of how best to determine the meaning of a given text (legal or otherwise) has always been the chief concern of the general field of inquiry known as hermeneutics. Legal hermeneutics is rooted in philosophical hermeneutics and takes as its subject matter the nature of legal meaning. Legal hermeneutics asks the following sorts of questions: How do we come to decide what a given law means? Who makes that decision? What are the criteria for making that decision? What should be the criteria? Are the criteria that we use for deciding what a given law means good criteria? Are they necessary criteria? Are they sufficient? In whose service do our interpretive criteria operate? How were these criteria chosen and by whom? Within what sociopolitical, sociocultural, and sociohistorical contexts were these criteria generated? Are the criteria we have used in the past to ascertain the meaning of a given law the criteria we should still use today? Why or why not? What personal or political goals do the meanings of laws serve? How can we come up with better meanings of laws? On what basis can one meaning of a given law be justifiably prioritized over another? Through an interrogation into these meta-interpretive questions, legal hermeneutics serves the critical role of helping the interpreter of laws reach a higher level of self-reflexivity about the interpretive process. From a legal hermeneutical point of view, it is primarily through this heightened transparency about the process of interpretation that better meaning assessments are generated.
Some distinctive features of legal hermeneutics are (1) it is rooted in philosophical hermeneutics; (2) within the schema of mainstream philosophies of law, it is most closely conceptually related to legal interpretivism; (3) it shares an antifoundationalist sensibility with many alternative theories of law; and (4) within jurisprudence proper (legal theory), its primary substantive focus is on the debate in constitutional theory between the interpretive methods of originalism and non-originalism.
Table of Contents
Roots: Philosophical Hermeneutics
Legal Hermeneutics and Mainstream Philosophy of Law
Legal Hermeneutics and Alternative Theories of Law
Legal Hermeneutics in Jurisprudence Proper
References and Further Reading
1. Roots: Philosophical Hermeneutics
The term hermeneutics can be traced back at least as far as Ancient Greece. David Hoy traces the origin of term to the Greek god Hermes, who was, among other things, the inventor of language and an interpreter between the gods and humanity. In addition, the Greek term ἑρμηνεύω, or hermeneutice, is central to Aristotle’s On Interpretation (Περὶ Ἑρμηνείαςas), which concerns the relationship between language and logic and meaning.
Hermeneutical approaches to meaning are thematized and utilized in many academic disciplines: archaeology, architecture, environmental studies, international relations, political theory, psychology, religion, and sociology. Specifically philosophical hermeneutics is unique in that rather than taking a particular approach to meaning, it is concerned with the nature of meaning, understanding, or interpretation.
Legal hermeneutics is rooted in philosophical hermeneutics, which asks not only the question of how best to interpret a given text, but also the deeper question of what it means to interpret a text at all. In other words, philosophical hermeneutics takes as its object of inquiry the interpretive process itself and seeks interpretive practices designed to respect that process (Dostal 2002; Malpas 2014; Wachterhauser 1994). Philosophical hermeneutics, then, can be alternately described as the philosophy of interpretation, the philosophy of understanding, or the philosophy of meaning. The central problem of philosophical hermeneutics is how to successfully ascertain anything on the order of an objective interpretation, understanding, or meaning in light of the apparent fact that all meaning is ascertained through the filter of at least one interpreter’s subjectivity (Bleicher 1980: 1). Philosophical hermeneutics seeks transparency in the interpretive process en route to better meaning determinations. On this view, better theories of interpretation (1) capture the key features of the interpretive process, (2) recognize each act of understanding as an interpretation, and (3) are able to distinguish between more and less legitimate or objective interpretations, understandings, or meanings.
Philosophical hermeneutics has its theoretical origins in the work of 19th century German philologist Friedrich Ast. Ast’s Basic Elements of Grammar, Hermeneutics, and Criticism (Grundlinien der Grammatik, Hermeneutik und Kritik) of 1808 contains an early articulation of the main components of what later became known as the hermeneutic circle. Ast wrote that the basic principle of all understanding was a cyclical process of coming to understand the parts through the whole and the whole through the parts. This basic principle derived, for Ast, from the “original unity of all being” (Ast 1808: Section 72) or what Ast called spirit or Geist. (Ast’s Geist is commonly understood to have been derived from Herder’s concept of Volkgeist.)
To understand a text, for Ast, was to determine its inner meaning or spirit, its own internal development, through a circularity of reason, a dialectical relation between the parts of a given work and the whole (Ast 1808: Section 76). What Ast called the hermeneutic of the spirit involved, in turn, the development of an understanding of the spirit of the writer and her era and an attempt to identify the one idea, or Grundidee, that unified a given text and that provided clarification regarding the relationship of the whole to the parts and the parts to the whole. In this process, for Ast, it was incumbent upon the interpreter to always remain cognizant of the historical period in which the text was situated.
Friedrich August Wolf was a contemporary of Ast’s and a fellow philologist. His Lecture on the Encyclopedia of Classical Studies (Vorlesung über die Enzyklopädie der Altertumswissenschaft) of 1831 defined hermeneutics as the science of the rules by which the meaning of signs is determined. These rules pointed, for Wolf, to a knowledge of human nature. Both historical and linguistic facts have a proper role in the interpretive process, according to Wolf, and help us to understand the organic whole that is the text. For Wolf, however, the primary task of hermeneutics was not the identification of the Grundidee or focal point of the text à la Ast, but the much more practical goal of the achievement of a high level of communication or dialogue between the interpreter of the text and the author, as well as between the interpreter and those to whom the text is to be explained.
Although aspects of the hermeneutics of both Ast and Wolf have survived into contemporary philosophical hermeneutics, the hermeneutics of both are generally understood to be concerned with what later became known as regional hermeneutics, or hermeneutics applicable to specific fields of study. Friedrich D. E. Schleiermacher, by contrast, was the first to define hermeneutics as the art of understanding itself, irrespective of field of study (Palmer 1969: 84). Underlying and grounding the specific rules of interpretation of the various fields of study, for Schleiermacher, was a unity grounded in the fact that all interpretation takes place in language (bid.). Schleirmacher thought that a general, rather than regional, hermeneutics was possible and that such a general hermeneutics would consist of the principles for the understanding of language (Ibid.). Specifically, for Schleiermacher, proper interpretation, or understanding, was not merely a function of grasping the thoughts of the author, but of coming to grips with the extent to which the language in which the thoughts took place affected, constrained, and informed those thoughts. Schleiermacher, then, is calling our philosophical attention to the fact that when we say we understand something, we are essentially just comparing it to something we already know, most basically a given language. Here, to understand is to place something within a pre-existing context of intelligibility. Understanding, for Schleiermacher, was therefore decidedly circular, but for him this did not amount to the conclusion that understanding was impossible. Instead, circularity is how understanding is defined. Understanding necessarily and structurally entails that the text and the interpreter share the same language and the same context of intelligibility.
Wilhelm Dilthey continued Schleiermacher’s pursuit of understanding qua understanding, but he sought to do so within the specific context of what he called the human sciences, or the Geisteswissenschaften (Dilthey 1883). The methods of scientific knowledge, for Dilthey, were too “reductionist and mechanistic” to capture the fullness of human-created phenomena (Palmer 1969, 100). The human sciences, or humanities, required instead two particular processes: (1) the development of an appreciation for the role of historical consciousness in our conceptions of meaning, and (2) a recognition that human-created phenomena are generated from “life itself” rather than through theory or concepts (Ibid.). In contemporary hermeneutic theory, the first process is often referred to as the historicality, or Geschichtlichkeit, of meaning and the second as life-philosophy, or Lebensphilosophie, the phenomenological view that meaning can be only be generated and understanding can only be had through lived experience (Erlebnis) and not through the examination of concepts, theories, or other purely idealistic or rational methods (Nenon 1995).
While Dilthey observed that the categorical methods of understanding useful in science were inappropriate for use in the human sciences, Martin Heidegger switched the entire hermeneutic enterprise from an epistemological focus to an ontological one. This switch is customarily referred to as the ontological turn in hermeneutics (Kisiel 1993; Tugendhat 1992). For Heidegger, in his classic, Being and Time (1962/2008), the question of the nature of understanding, or Verstehen, could only be answered by first answering the question of the nature of what it means to be. Accordingly, Heidegger set out in Being and Time to discover the nature of being qua being. To do so Heidegger went to the things themselves, or die Sachen selbst, in keeping with the phenomenological methodology he learned from his teacher, Edmund Husserl. Heidegger called his phenomenological inquiry into the nature of being qua being fundamental ontology. He also called it hermeneutic ontology, which highlights that, for Heidegger, being and interpretation are inextricably linked almost to the point of identity.
The idea that, for Heidegger, being and interpretation were virtually the same phenomenon is arguably best captured in two of Heidegger’s key concepts: Dasein and being-in-the-world. Dasein can be roughly translated as the human way of being, but its literal translation is “being there” or “being here.” With these concepts, Heidegger is attempting to stress that the human way of being is interactive both with one’s environment and with others in the world. To be human is to be active and involved in one’s world and with other people rather than to be in a particular static state. There are no isolated human subjects separate from the world, for Heidegger, and the human way of being is not adequately characterized by the traditional philosophical distinction between subject and object, or by the distinction between subject and other subjects (or minds and other minds, as this polarity is sometimes described) that originates, for Heidegger, in Descartes’s Meditations. Instead, being, for humans, is being-in-the-world, a term meant to highlight the lack of clear barriers between human beings and the contexts, or schemas of intelligibility, in which they find themselves (Dreyfus & Wrathall 2002). According to Heidegger, what this means for the phenomenon of understanding is that it is always a function of how a given human being is in the world, that is, a function of context. The relationship between being, or context, and understanding is reciprocal. Understanding, for Heidegger, discloses to us what it means to be, and who we are affects how we understand things. In other words, understanding, for Heidegger, is not a sort of apprehension of the way things really are, as the canonical, modern, philosophical tradition might think of it, but rather it is the process of appreciating the manner in which things are there for a particular person, or group of persons, in the world. Further, the manner in which things are there for us in the world is a function primarily of shared social and cultural practices. To understand something, then, is to be able to place it within a schema of intelligibility, which is generated by the shared social and cultural practices in which one finds oneself (Dreyfus & Wrathall 2005).
In his Truth and Method (1975), Hans-George Gadamer picks up on Heidegger’s concept of the hermeneutic circle of understanding that is at the core of what it means to be human in the world, but while it is true that Gadamer works within the Heideggerian paradigm to the extent that he fully accepts the ontological turn in hermeneutics, Gadamer’s own stated project in Truth and Method is to get at the question of understanding qua understanding. Specifically, Gadamer observes that the traditional paths to truth are wrong-headed and run antithetical to the reality that being and interpretive understanding are intertwined. In the traditional paths to truth, truth and method are at odds. The methods used in the Western tradition will not get us to truth. These methods are critical interpretation, or traditional hermeneutics, and the Enlightenment focus on reason as the path to truth. Both of these methods have what Gadamer calls a pre-judgment against pre-judgment. That is, they both fail to acknowledge the role of the interpreter in determining truth. Traditional critical interpretation is inadequate because it seeks original intent or original meaning, that is, it holds on to the fiction that the meaning of the text can be found in the original intent of the author or in the words of the text. The Enlightenment focus on reason is an equally inadequate path to truth because it retains the subject/object distinction and thinks the path to truth is through the scientific method, both of which are wrong-headed.
For Gadamer, the word pre-judgment, or Vorurteile means the same thing as Heidegger’s fore-structure of understanding. Gadamer claims that today’s negative connotation of pre-judgment only develops with the Enlightenment (Schmidt 2006: 100). The original meaning of pre-judgment, according to Gadamer, was neither positive nor negative, but simply a view we hold, either consciously or unconsciously. All understanding necessarily starts with pre-judgments. The pre-judgments of the interpreter, for Gadamer, rather than being a barrier to truth, actually facilitate its generation. The pre-judgments of the interpreter—held as a result of the interpreter’s personal facticity—not only contribute to the generation of the question being raised in the first instance, but, if taken into account on the path to truth, are capable of being critically evaluated and revised, with the result that the quality of the interpretation is improved. Additionally, pre-judgments are either legitimate or illegitimate. Legitimate pre-judgments lead to understanding. Illegitimate pre-judgments do not. One of the goals of Truth and Method is to provide a theoretically sound basis upon which to distinguish between legitimate and illegitimate pre-judgments (Schmidt 2006: 102). Understanding or meaning, for Gadamer, is a function of legitimate pre-judgments.
The model for how understanding actually operates, for Gadamer, is the conversation or dialogue. In an authentic dialogue, says Gadamer, understanding or meaning is something that occurs inside of a tradition, which is just a set of cultural assumptions and beliefs. A tradition is a worldview, or Weltanschauung, a system of intelligibility, a framework of ideas and beliefs through which a given culture experiences and interprets the world. A tradition, in this Gadamerian sense, is the theoretical grandchild of what Ast called a given text’s Grundidee, or one idea that unified it. For Gadamer, a legitimate pre-judgment is a pre-judgment that survives throughout time, eventually becoming a central part of a given culture, a part of its tradition. Understanding or meaning is an event, a happening, the substance of which is a fusion of this narrowly defined concept of tradition and the pre-judgments of the interpreter. In this sense, understanding is not willed by the participants. If it were, the dialogue would not be authentic and understanding or meaning could never be achieved. Instead, the conversation or dialogue wills the path to understanding. The thing itself reveals the truth.
In the course of the dialogue, and as a direct and organic result of the things being discussed by the particular participants of the conversation, a question arises. This question becomes the matter at hand, the topic of the conversation. As the conversation proceeds, the answer will show up as well, and it will be a function of the “fusion of horizons” between the perspectives or pre-judgments of the participants of the conversation (Gadamer 1975). This fusion is understanding/meaning. It is the answer to the question and the closest thing there is to truth. In this way, both the things themselves and the participants of the conversation together generate both the conversation topic (the question) and the answer. Together, the things and the participants of the conversation generate the truth of the matter. Moreover, all of this takes place within a tradition that gives legitimacy and weight to the meaning generated.
It is important, for Gadamer, that the path to truth is phenomenological, that is, we must go to the things themselves, and the path is also hermeneutic in that it appreciates that the pre-judgment against pre-judgment is unavoidable. Every interpreter arrives at a text with what Gadamer calls a given horizon, or conglomeration of pre-judgments, which is analogous to a Heideggerian world or fore-structure of understanding and which has been described as a given schema of intelligibility in which an interpreter finds himself or herself. A Gadamerian horizon is a shared system of social and cultural practices that provides the scope of what shows up as meaningful for an interpreter as well as for how things show up. Picking up on the hermeneutic circle, Gadamer holds that an act of understanding is always interpretive.
Another key element of Gadamerian philosophical hermeneutics is Gadamer’s insistence that interpretation, understanding, or meaning cannot take place outside of practical application. Interpretation is more than mere explication for Gadamer. It is more than mere exegesis. Beyond these things, interpretation of a given text—and it is important that everything is a text—always and necessarily takes place through the lens of present concerns and interests. The interpreter always and necessarily¸ in other words, comes to the table of the interpretive conversation or dialogue with a present concern that is grounded in a given epistemological or metaphysical horizon in which the interpreter dwells. In this way, for Gadamer, Aristotle got it right that understanding necessarily occurs through practical reasoning, or phronesis. For Gadamer, “[a]pplication does not mean first understanding a given universal in itself and then afterward applying it to a concrete case. It is the very understanding of the universal….itself” (Gadamer 1975). That phronesis is central to Gadamer’s hermeneutics is not disputed (Arthos 2014).
But, even more important than this, for Gadamer, the distance in time between the interpreter and the text is not a barrier to understanding but that which enables it. Temporal distance between text and interpretation is a “positive and productive condition enabling understanding” (Gadamer 1975). When we seek to interpret a text, we are trying to figure out not the author’s original intent but “what the text has to say to us” (Schmidt 2006: 104), and this is a function of the extent to which the author’s original intent and the meaning generated by the contemporary context and the contemporary interpreter agree, that is, the extent to which the horizons of the author and the instant interpreter fuse or blend. (Gadamer specifically discusses legal hermeneutics in Truth and Method. He writes that there are two commonly understood ways of determining meaning in the law. The first is when a judge decides a case. In such a scenario, the judge must necessarily factor the present facts into the decision. The second is the case of the legal historian. In this second scenario, although it may seem as if the task is to discover the meaning of the law by only considering the history of the law, the reality is that it is impossible for the legal historian to understand the law solely in terms of its historical origin to the exclusion of considerations of the continuing effect of the law. In other words, determinations of meaning in the law, as is the case of all determinations of meaning, necessarily and at all times involves practical application.)
Post-Gadamerian philosophical hermeneutics takes many forms but can arguably be said to begin with the work of Emilio Betti. Finding what he saw as an epistemological relativism in the philosophical hermeneutics of Gadamer, Betti returns to the general hermeneutics of Schleiermacher and Dilthey and resists the tide of the ontological turn (Pinton 1972, 1973). Betti was a legal theorist who tried to bring the hermeneutic project back to one of interpretation without reference to the human way of being. Betti believed in and sought objective understanding or objective interpretation, or Auslegung, while at the same time stressing that texts reflected human intentions. Accordingly, he thought it was possible to ascertain the meaning of the text through replicating the original creative process, the train of thought, so to speak, of the text’s author. Betti believed in the autonomy of the text (Bleicher 1980: 58). Objective interpretation was possible, for him, but this objectivity was based both in terms of a priori epistemological existence à la Plato’s forms and of historical and cultural coherence. (Bleicher 1980: 28-29).
Jürgen Habermas, like Emilio Betti, seeks objective understanding (Habermas 1971), but, unlike Betti and in agreement with Gadamer, Habermas believes that hermeneutics is not and cannot be merely a matter of trying to find the best method of interpretation. Instead, objectivity of interpretation is grounded in something Habermas called communicative action, a sort of Gadamerian dialogue modified by the recognition that power imbalances often distort what passes for collective understanding, and that real consensus—the closest thing available to truth and/or objective understanding—can only be had where that consensus has been generated impartially and in circumstances where agreement has been unconstrained. (Habermas’s communicative action concept is also known as communicative praxis or communicative rationality.) While Gadamer’s philosophical hermeneutics grounded a kind of quasi-objectivity in the authority of tradition, however, Habermas found this approach insufficiently able to guide social liberation and progress. The task of hermeneutics is not merely to deconstruct the process of understanding and/or to somehow ground that understanding in either method à la Betti or tradition à la Gadamer, but to determine rules of ascertaining universal validity in the social sciences en route to social change. In this way, Habermas’s hermeneutics claims that hermeneutics can and does permit the kind of value judgments of which some critics say hermeneutics is incapable.
Paul Ricoeur was a contemporary philosophical hermeneutist who is known for creating what is often described as a critical hermeneutics. For Ricoeur, meaning and understanding are to be obtained through culture and narrative, as these take place in time. Influenced by Freud, Ricoeur thought all ideology required a critique to uncover repressed and hidden meanings that exist behind surface meanings that pass for truth. In The Conflict of Interpretations (1974), Ricoeur argued that there were many and various paths to understanding and that each uniquely adds to meaning. Ricoeur’s work has been taken up recently by phenomenologists interested in questions of the nature of paradox (Geniusas 2015).
The work of Jacques Derrida (Derrida 1976, 1978) is more commonly associated with a 20th century movement in French philosophy known as deconstruction than with philosophical hermeneutics per se. However, there are important similarities between the two movements. First, deconstruction on its own terms, like hermeneutics, is not a method. Instead, deconstruction is a critique of authoritative systems of intelligibility or meaning that exposes the hierarchies of power within those systems. In understanding itself as outside of existing theoretical schemas, in other words, Derrida’s deconstruction is within the hermeneutic tradition. Second, deconstruction is based on Heidegger’s concept of Destruktion, a central concept in his hermeneutic ontology. But, while Heidegger’s Destrucktion, a project of critiquing authoritative systems of meaning that are based on structures of foundationalist metaphysics or epistemology, concludes that every act of understanding is an act of interpretation (Heidegger, 2008/1962), Derrida’s deconstruction involves identifying that language, or text, contains conceptual oppositions that involve the prioritizing of one side of a given conceptual opposition over the other, for example, writing over speech. Still, Derrida’s deconstruction is clearly in the hermeneutic tradition in that it is designed to highlight the elliptical and enigmatic nature of language and meaning. This is particularly evident in Derrida’s concept of différance, according to which every word in a given language implicates other words, which implicate other words, in a process of infinite reference and therefore what Derrida calls absence, meaning an absence of definitive meaning.
Susan-Judith Hoffman argues that Gadamerian hermeneutics furthers feminist objectives and can be understood as a form of feminist theorizing. Highlighting Gadamer’s account of the importance of difference, his notion of understanding as an inclusive dialogue, his account of pre-judgments as conditions for understanding that must always remain provisional, his account of tradition as that which is transformed by our reflection, and his account of language (Hoffman, 2003: 103), Hoffman argues that Gadamer’s philosophical hermeneutics is in line with feminist theorizing in that it “overthrows the false universalism of the natural sciences as the privileged model of human understanding” (Ibid.: 81). In the process, Gadamer’s hermeneutics amounts to feminist theorizing in two important ways. First, it contains a sensitivity to the historical and cultural situation of knowledge and knowledge seekers, and second, it contains the critical power to challenge reductive universalizing tendencies in traditional canons of thought (Ibid.: 82).
Linda Martín Alcoff also sees value for feminist theory in Gadamer’s hermeneutics. For Alcoff, Gadamer’s “openness to alterity,” his “move from knowledge to understanding,” and his “holism in justification and immanent realism” all align themselves with feminist theorizing (Alcoff 2003: 256). That Gadamer’s philosophical hermeneutics contained these elements was insisted upon by Gadamer himself, who saw his philosophical hermeneutics as a critique of the Enlightenment view that truth could be had through abstract reasoning, divorced from historical considerations, as well as a call for the acknowledgment that the path to truth was through the particular rather than through the universal (Gadamer 1975). Miranda Fricker has recently developed hermeneutical themes into what she calls hermeneutical injustice, according to which an injustice is done when the collective hermeneutical resources available to a given individual or group are inadequate for expressing one or more important areas of their experience (Fricker 2007).
The work of Donatella di Cesare, Günter Figal, and James Risser is at the forefront of contemporary hermeneutics. For Cesare, the ground of hermeneutics is in Heideggerian existentialism, but this does not mean that hermeneutics is a kind of nihilism. Instead, hermeneutics, or the philosophy of understanding, is aimed at consensus; it is a constructive enterprise (Cesare 2005). For Figal, hermeneutics is most fundamentally a critique of objectivity and a call to understand things previously understood as objective elements of human life (Figal 2010). Risser has been interpreted as attempting to advance beyond Gadamer’s philosophical hermeneutics by acknowledging the radical finitude at stake in the phenomenon of tradition (George 2014).
2. Legal Hermeneutics and Mainstream Philosophy of Law
Within mainstream philosophy of law, legal hermeneutics is most closely aligned with legal interpretivism. Legal interpretivism is conceptually positioned between the two main subfields of philosophy of law: legal positivism and natural law theory. While mainstream philosophy law has many faces, and includes, among other theories, legal realism, legal formalism, legal pragmatism, and legal process theory, legal positivism and natural law theory form the theoretical poles between which each of the mainstream theories can be understood to lie. Legal positivism is the view, in broad strokes, that there is no necessary connection between law and morality and that law owes neither its legitimacy nor its authority to moral considerations (Feinberg and Coleman 2008; Patterson 2003). The validity of law, for the legal positivist, is determined not by its moral content but by certain social facts (Hart 1958, 1961; Dickson 2001; Coleman 2001; Gardner 2001). Natural law theory is grounded in the work of two main thinkers: John Finnis and Lon Fuller. For Finnis, an unjust law has no authority (Finnis 1969; 1980; 1991), and for Fuller, an immoral law is no law at all (Fuller 1958). Natural law theory, generally speaking, then, is the view that there is a necessary connection between law and morality and that an immoral law is not a law (Raz 2009; Simmonds 2007; Murphy 2006).
Sometimes called a third, main theory of law, legal interpretivism, developed by Ronald Dworkin, is the view that the law is essentially interpretive in nature and that it gains is authority and legitimacy from legal principles. Dworkin understands these principles to be neither bare rules nor moral tenets, but a set of guidelines to interpretation that are generated from legal practice (Dworkin 2011, 1996, 1986, 1985, 1983). Some describe legal interpretivism as a hybrid between legal positivism and natural law theory for the reason that Dworkin’s principles seem to qualify both as rules and to have a kind of normative quality that is similar to moral tenets (Hiley et al. eds. 1991; Brink 2001; Burley 2004; Greenberg 2004). But, what distinguishes legal interpretivism from both legal positivism and natural law theory is its insistence that legal meaning is tempered by the legal tradition within which it operates (Greenberg 2004; Hershovitz 2006). For the legal interpretivist, in other words, the line between legal positivism and natural law theory is not clearly drawn. Instead, rules and normative guidelines together shape and form both what the law is and what it means. This approach to legal ontology and meaning is known as the interpretive turn in analytic jurisprudence (West 2000; Feldman 1991).
Arguably, however, what legal positivism, natural law theory, and legal interpretivism all have in common is epistemological and metaphysical foundationalism. While, for the legal positivist, the answer to both the question of what the law is and the question of what the law means can be found in rules (Hart 1958), for the natural law theorist, the answer to both questions can be found in morality (Fuller 1958). Similarly, for the legal interpretivist, the answer to both questions is found in legal principles. In other words, for the legal interpretivist, law gains its legitimacy and authority from principles emanating from legal practice. Although law is interpretive in nature, on this view, the interpretative process stops at the point at which a judgment call has to be made as to what the/a law means, preferably by someone well-versed in the relevant legal tradition. Once that judgment call is made, we have our answer. Meaning has been determined.
The legal hermeneutical approach is similar but different in the important respect that no meaning determination is ever understood to be fixed. As is the case for the legal interpretivist, for the legal hermeneutist, law is interpretive in nature, but at no point can any meaning determination rise to the level of definitive. Things like Dworkinian principles are acknowledged and considered, along with myriad other factors relevant to good interpretive practice, but the story of the meaning of the law, for the legal hermeneutist, most certainly cannot end at any point. There is no foundation to the law, for the legal hermeneutist, and there can be none. Instead, there can only be better or worse interpretations, measured comparatively and by the quality of the interpretive practices used to generate the various interpretations. More importantly, however, for the legal hermeneutist, objective interpretation simply is not and cannot be the project. Instead, the search for legal meaning is a critical project. The search for legal meaning involves critical engagement with previous interpretations and the current interpretation and includes critical analysis of the conditions for the possibility for both.
Legal hermeneutics, then, while similar to legal interpretivism in many respects, provides an alternative to the three main theories of law in that its approach to legal meaning can be understood to avoid engagement with the question of foundationalism that is characteristic of the traditional approaches. Rather than offering a new theory of law, legal hermeneutics “provides us with the necessary protocols for determining meaning” (Douzinas, Warrington, and McVeigh 1992: 30). Legal hermeneutics provides no specific theory of law and privileges no particular methodology or ideology. Instead, legal hermeneutics calls the interpreter of legal texts first and foremost to the fact that every act of understanding a law is an act of interpretation, and at the same time, highlights that better interpretation takes conscious and proactive account of what philosophical hermeneutics, as described above, reveals as the necessary structures and components of the interpretive process. Some might describe this feature of legal hermeneutics as taking the determinacy of meaning to be context-dependent and open-ended. While this account is on track, another key feature of legal hermeneutics is that it is a descriptive rather than a normative project. Legal hermeneutics, then, is more a way of clarifying the nature of how legal interpretation actually works than a theory of how legal interpretation ought to work. In this way, legal hermeneutics can be understood to provide the tools with which to investigate, clarify, and help solve what appear from other perspectives to be insoluble legal problems, particularly problems based in conflicts of interpretation.
3. Legal Hermeneutics and Alternative Theories of Law
Legal hermeneutics shares an antifoundationalist sensibility with many alternative theories of law, including the critical legal studies movement, Marxist legal theory, deconstructionist legal theory, postmodernist legal theory, outsider jurisprudence, and the law and literature movement. For each of these theories of law, the goal of locating law’s ultimate legitimacy, authority, or meaning anywhere at all is understood as an exercise in futility. Some characterize this feature of these theories as the failure of complete determinacy as a semantic thesis, rather than as a failure of ultimate justification as an epistemological thesis. However, for others, this distinction is not meaningful and fails to adequately account for the radical rejection of the entire project of justification inherent in alternative theories.
The critical legal studies movement was an intellectual movement in the late 1970s and early 1980s that stood for the proposition that there is radical indeterminacy in the law. Conceptually based in the critical theory of the Frankfurt School, critical legal studies stands for the proposition that legal doctrine is an empty shell. There is no such thing as the law, for the critical legal theorist, as the law is understood as an entity that exists out of context (Binder 1996/1999: 282). Instead, law is produced by power differentials that have their origins in differences in levels of property ownership. The liberal ideal of the rule of law devoid of influence from power differentials, contained in all analytic approaches to jurisprudence, is an illusion. For this reason, law is inherently self-contradictory and self-defeating and can never be a mere formality, as liberal theory and analytic jurisprudence would have us believe. This way of understanding the law is known as the indeterminacy thesis. For some, this does not necessarily mean that law is indeterminable. However, it means that determinability is context-dependent. Others do not find this distinction meaningful.
Marxist legal theory begins with the work of Evgeny Pashukanis and takes place in contemporary form in the work of Alan Hunt, among others. For Pashukanis, law was inextricably linked to capitalism and hopelessly bourgeois. Outside of capitalism, things like legal rights are unnecessary, since outside of capitalism there are no conflicting interests or rights to be meted out or over which it is necessary for persons to fight. In the socialist society that Pashukanis envisions on the other side of capitalism, what would take the place of law and all talk of individual rights would be a sort of quasi-utilitarianism that values collective satisfaction over the perceived need to protect the individual interests of individual legal subjects (Pashukanis 1924). What contemporary Marxist legal theory retains from Pashukanis is the view that law is inescapably political, merely one form of politics. In this way, law is always potentially coercive and expressive of prevailing economic relations, and the content of law always manifests the interests of the dominant class (Hunt 1996, 1999: 355). So described, the content of law, for Marxist legal theorists, has no theoretical or practical basis in anything epistemologically foundational or universal.
Deconstructionist legal theories can be considered post-structuralist like critical legal studies but are unique in that they center around conceptual oppositions or binary concepts, also known as binaries. According to the deconstructionist approach, within a given conceptual opposition, one term in the opposition has been traditionally privileged over the other in a particular context, or text. A text can be a written text, an argument, a historical tradition, or a social practice. Jacques Derrida, considered the forerunner of deconstruction as a philosophy of language and meaning, famously identified a conceptual opposition between writing and speech, for example, with writing being the privileged form (Derrida 1976). Privileged, in deconstruction, means truer, more valuable, more important, or more universal than the opposing term (Balkin, 1996, 1999: 368). According to deconstructionist theories of law, legal distinctions are often masked conceptual oppositions taht privilege one term over another. For example, individualism is privileged over altruism, and universalizability is privileged over the attention to the particular that is an inherent part of equitable distribution. These binary concepts and the privileging of one term in each binary lend an instability to the law, on deconstructionist terms, that is decidedly anti-foundationalist. J.M. Balkin, for example, argues that the true nature of the legal subject is ignored and obliterated by conventional legal theory (Balkin 2010; 1993). Balkin argues that when an attempt is made to understand a law, we bring our subjective experiences to bear on that attempted understanding (Ibid.). For Balkin, mainstream philosophy of law’s failure to acknowledge that this is the case is its very deep and abiding flaw.
Postmodernist legal theories are grounded in a 20th century movement in aesthetic and intellectual thought, which departed from interpretation based in universal truths, essences, and foundations. Postmodern legal theory departs from a belief in the rule of law, or any generalized or universalizable Grand Theory of Jurisprudence, in favor of using “local, small-scale problem-solving strategies to raise new questions about the relation of law, politics, and culture” (Minda 1995: 3). Other than this statement, it is difficult to describe postmodernist legal theory in any general way, since the entire point of postmodernist legal theory is that generalized theories are vacuous, even impossible. Instead, there are only individual theories, individual authors of theories, and individual texts/laws. It is fair to say, however, that postmodern legal theorists generally resist the sort of conceptual theorization routinely practiced by more mainstream legal academics and analytic philosophers for the reason that more mainstream approaches unduly emphasize abstract theory at the expense of pragmatic concerns (Ibid.). The postmodern rejection of ultimate theories can be construed as a form of antifoundationalism.
Outsider jurisprudence is an area of legal theorizing that is highly skeptical of the ability of mainstream legal theory to address the needs of members of historically marginalized groups. Although there has been a proliferation of kinds of outsider jurisprudence in the early 21st century, including LatCrit and QueerCrit (Mahmud 2014; Valdes 2003; Eskridge 1994), there are two main kinds of outsider jurisprudence: critical race theory and feminist jurisprudence (Parks 2008; Jones 2002; Delgado 2012; Levit and Verchick 2006). Critical race theorists are concerned with the particularized experiences of African Americans in American jurisprudence. They share with the postmodernists a rejection of the idea of the existence of one grand and universally applicable theory of law that applies equally to everyone: “There is a hidden category of persons to whom the laws do not equally and universally apply, for the critical race theorists, and that category of persons is African Americans” (Minda 1995: 167). Key themes in critical race theory are a call to contextualized theorizing about the law that acknowledges that the lives and experiences of African Americans in America have a juridical tenor very different from the lives and experiences of other Americans, a critique of political liberalism, which bases its apportionment of rights on the fiction that African Americans as a group have the same degree of access to rights, in American society, as other Americans, and a call for juridical acknowledgment of the persistence of racism in American society (Ladson-Billings 2011; Whyte 2005; Delgado 1995: xv).
Feminist jurisprudence “[goes] beyond rules and precedents to explore the deeper structures of the law” (Chamallas 2003: xix). It operates under the belief that gender is a significant factor in American life and explores the ways in which gender, and related power dynamics between men and women throughout American legal history, have affected how American law has developed (Ibid.). Feminist jurisprudence concerns itself with legal issues of particular significance to women, such as sexual harassment, domestic violence, and pay equity. It also approaches legal theory in a way that comports with many women’s lived experiences, that is, without pretending, as mainstream jurisprudence tends to do, that gender is irrelevant to the outcome of legal disputes (Ibid.). Of primary concern to feminist legal scholars is the systemic nature of women’s inequality and the pervasiveness of female subordination through law in America. The methodology of feminist jurisprudence is the excavation and examination of hidden legalized mechanisms of discrimination to uncover hierarchies in law that operate to the detriment of the ideal of equal rights for women (Ibid.). The feminist legal scholar’s identification of hidden power dynamics at work in American law can be construed as yet another antifoundationalist perspective on law.
A recent development in outsider jurisprudence is intersectionality theory, or the idea that oppression takes place across multiple, intersecting systems, or axes, of oppression (Cho, Crenshaw, and McCall 2013; MacKinnon 2013; Walby 2007). Intersectionality theory is grounded in the thought of Kimberlé Crenshaw (Crenshaw 1989, 1991) and reinforces the idea from critical race theory and feminist jurisprudence that law operates differently on the bodies of the oppressed. For Crenshaw, race and gender discrimination combine on the bodies of black women in a way that neither race discrimination nor gender discrimination alone capture or are able to capture or handle. Crenshaw’s point is that ignoring race when taking up gender reinforces the oppression of people of color, and anti-racist perspectives that ignore patriarchy reinforce the oppression of women (Crenshaw 1991, 1252). But, more specifically, taking up any form of oppression in a vacuum ignores the way that oppression actually works in the lives of the oppressed. For the law to help combat oppression, it must grapple with the complexities and nuances of lived experience.
Containing very similar themes to legal hermeneutics is what is known as the law and literature movement (Fish 1999; Rorty 2007, 2000, 1998, 1991, 1979; Bruns 1992; Fiss 1982). The law and literature movement, like certain forms of legal hermeneutics, is heavily influenced by the deconstructionist philosophy of Jacques Derrida (Derrida 1990, 1992). The literary legal theorist, in other words, has developed an appreciation for the costs of excluding certain types of questions from the process of ascertaining meaning in the law (Levinson and Mailloux 1988: xi). Moreover, there is an active attempt on the part of the literary legal theorist to dismantle or undo the conventional illusion that the structures that support claims to authentic, legitimate, or official meaning are built on solid ground. The role of the interpreter is also highlighted in these approaches, as is the inextricability of determinations of meaning from the power dynamics in which they take place (Thorsteinsson 2015; Surrette 1995).
4. Legal Hermeneutics in Jurisprudence Proper
Legal hermeneutics in jurisprudence proper, legal theory, can be traced back to the publication of Francis Lieber’s 19th century work, Legal and Political Hermeneutics (Lieber 2010/1880). There, Lieber tried to identify principles of legal interpretation that would bring consistency and objectivity to the interpretation of the U.S. Constitution, and at the same time exposed strict intentionalist interpretative methods—defined as those in which the so-called intent of the Framers had interpretive authority—as incoherent (Binder and Weisberg 2000: 48). More than 125 years after Lieber’s landmark text, contemporary legal hermeneutics is still trying to find that balance. Contemporary legal hermeneutics retains Lieber’s goal of objectivity of interpretation and his attention to the roles of history, temporality, politics, and socio-historical context in credible meaning assessments. The central question of legal hermeneutics in constitutional theory is: What sorts of interpretive methods should we use to come up with an interpretation of the constitution that approaches objectivity despite the fact that, owing to certain realities about how the interpretive process works, it is impossible for us to ascertain the intent of the Framers?
Another question at the core of legal hermeneutics, however, is: Even if we could ascertain the intent of the Framers, which all legal hermeneutists think is impossible, why would we want to do so, given the nature of what a constitution is—a living, breathing text designed to govern real people in real life contexts—and the fact that legal hermeneutical principles based in philosophical hermeneutics dictate that the particular time and place, that is, the context, of a given application of a given law significantly influences, and should influence, the content of the interpretation? This is an example of the hermeneutic circle at work in legal interpretation. That is, from the vantage point of legal hermeneutics: What the constitution means in a particular instance is importantly influenced by the context in which the interpretation is taking place, the application, and the context in which the interpretation is taking place, the application, is importantly influenced by what the constitution means in that same context.
The primary focus of contemporary legal hermeneutics is the debate in constitutional theory between the interpretive methods of originalism and non-originalism. Originalism is the view, generally, that the meaning of the constitution is to be found by determining the original intent of the Framers, understood to be most prudently found in the text of the constitution itself (Scalia and Garner 2012; Calabresi 2007; Monaghan 2004). By contrast, non-originalism is the view, generally, that the constitution is a living, breathing document meant more as a set of guidelines for future lawmakers than as a strict rulebook demanding literal compliance (Cross 2013; Balkin 2011; Goodwin 2010). For clarification purposes, it should be noted that the divide between originalism and non-originalism is akin to the divide between epistemological foundationalism and antifoundationalism.
Within the debate between originalists and non-originalists, clearly all legal hermeneutists are necessarily non-originalists, since by the basic tenets of legal hermeneutics, original intent cannot be ascertained. But, what separates the legal hermeneutist from the average non-originalist is a high degree of respect for the text of the constitution as an interpretive starting point, together with a call to heightened self-reflexivity regarding the degree to which one’s own pre-judgments, and the pre-judgments of previous interpreters, may be affecting the interpretive process. By the same token, just as the legal interpretivist is constrained by the principles of legal practice in the interpretive process, the legal hermeneutist is similarly constrained by the spirit of the text. Finally, while the goal of the average non-originalist is a definitive interpretation of the text, however at odds with the original intent of the Framers, the legal hermeneutist has the more modest goal of deconstructing the mosaic of considerations that went into previous interpretations in an effort to examine each tile of the mosaic, one by one, more in the service of understanding the text/law within a given context than in the service of producing anything on the order of a definitive interpretation for posterity.
Another way of thinking about legal hermeneutics, however, is to see it as neither originalist nor non-originalist, but orthogonal to the originalist/antioriginalist continuum. In other words, it is consistent with the themes of legal hermeneutics that it rejects the originalist/antioriginalist continuum itself as wrong-headed and unproductive. Indeed, legal hermeneutics rejects interpretive method altogether in favor of a call to an increased level of self-reflexivity on the part of the interpreter, a call that is meant to actively and consciously engage the interpreter in the interpretive process in a way that neither originalism nor non-originalism demands.
On the contemporary scene, George Taylor’s work in legal hermeneutics follows Ricoeur’s in philosophical hermeneutics. In his “Hermeneutics and Critique in Legal Practice,” Taylor argues that Ricoeur’s approach to hermeneutics gets it right when it attempts to mediate the difference between understanding and explanation (Taylor 2000: 1101 et seq.). Understanding, on this view, is obtained through hermeneutic methods, but explanation is obtained through science. Ricoeur, according to Taylor, sees the interpretive enterprise as containing both elements. The way Taylor sees it, Ricoeur’s emphasis on the narrative nature of meaning acknowledges the roles of both understanding and explanation in a successful interpretation (Taylor 2000: 1123). The usefulness of legal hermeneutics, for Taylor, is that it correctly identifies and brings to the forefront that there is explanation or fact in understanding or interpretation, and there is understanding or interpretation in explanation or fact, shedding a kind of glaring light on all understandings that might deny this reality. The goals of originalism, on this view, are simply impossible to reach.
Francis J. Mootz, III agrees with Taylor about the impossibility to ascertain the original meaning (Mootz 1994). Accordingly, instead of engaging in what he understands as the necessarily fruitless exercise of attempting to ascertain original meaning, Mootz argues, we should instead attempt to find the interpretation that “allows the text to be most fully realized in the present situation” (Mootz 1988: 605).
Georgia Warnke describes the interpretive turn in the study of justice as an abandonment of the attempt to discern universally valid principles of justice in favor of attempts to “articulate those principles of justice that are suitable for a particular culture and society” in light of that society’s culture and traditions, “the meanings of its social goods,” and its public values (Warnke 1993: 158). We would then appeal to hermeneutical standards of coherence to reject interpretations that fail to respect that culture or those traditions, or meanings (Ibid.). Such an approach, for Warnke, “[shifts] the emphasis from a conflict between two opposing rights…to a conflict between two interpretations of…actions and practices that are consonant with [a given culture’s] traditions and self-understandings” (Ibid.: 162).
For Gregory Leyh, legal hermeneutics reveals to us the political nature of every act of constitutional interpretation. This includes both originalist approaches to constitutional interpretation as well as non-originalist approaches. However, for Leyh, legal hermeneutics also provides us with some constructive lessons for improving the quality of our necessarily political acts of interpretation. Specifically, in “Toward a Constitutional Hermeneutics,” Leyh makes the case for a legal hermeneutics based in the philosophical hermeneutics of Hans-George Gadamer (Gadamer 1975) in which, as the self-understanding of the interpreters of legal texts is increased, the quality of the interpretation produced by those interpreters is increased (Leyh 1992). This self-understanding would include primarily an explicit acknowledgment of the role that history plays in the development of both understanding and meaning (Ibid.: 370), an explicit acknowledgment of the “irreducible conditions of all human knowing” (Ibid.: 371), and attentiveness to the kinds of issues characteristically associated with the interpretation of all texts, including legal texts (Ibid.). For Leyh, a call to the constitution’s original meaning, á la a standard originalist approach, for example, entails certain assumptions about historical understanding, for example, that it is fixed and identifiable by subsequent interpreters, which legal hermeneutics exposes as impossible. What constitutional theorists need, for Leyh, is not greater insight into the intent of the framers, for this is not obtainable, but deeper reflection on the issue of the conditions that make historical knowledge possible at all (Ibid.: 372). For Leyh, legal hermeneutics “sets for itself an ontological task, namely, that of identifying the ineluctable relationships between text and reader, past and present, that allow for understanding to occur in the first place” (Ibid.).
There are two key aspects to Leyh’s legal hermeneutics: (1) an appreciation for the role of language in understanding, which sharpens our awareness of the “historical structures constitutive of all knowledge,” and (2) a recognition of the “enabling character of our prejudgments and preconceptions as windows to the past” (Ibid.: 372). Taking these things into consideration, it is impossible, according to Leyh, for us to obtain an understanding of historical texts like the constitution without going through the language we use today and our present-day prejudgments and preconceptions, or what Hans-George Gadamer called our pre-judgments. For Leyh, all reason is historical, and there is a historicity to all inquiry (Ibid.: 375). “No text simply sits before us and announces its meaning,” Leyh writes (1988: 375).
Rather than understanding the historicity of all inquiry as an impediment between the contemporary interpreter and the text, however, Leyh suggests that this information should aid us in recognizing that reason “finds its expression only as it is applied concretely” (Ibid.). In other words, interpretation is always practical, it always occurs in a particular set of circumstances at a particular time and place, and it applies itself to a particular set of facts. An acknowledgement of this reality on the part of the interpreter, for Leyh, adds a level of awareness vis-à-vis the interpretive process that can only aid in making sound judgments of constitutional interpretation.
David Hoy’s take on legal hermeneutics involves a focused critique of the intentionalist position in constitutional theory, according to which the so-called intent of the framers is the ultimate authority on constitutional meaning (Hoy 1992). For Hoy, while the intentionalist believes that no interpretation is needed to locate the intent of the framers, the hermeneutist understands that the concept of intended meaning presupposes a prior understanding of meaning in a different sense of the word. The concept of an ambiguous sentence highlights this prior understanding of meaning. A given sentence can have two different meanings in this prior sense, Hoy explains, whether either or both of them were intended or not (Hoy 1992: 175). The hermeneutist acknowledges, in other words, according to Hoy, a difference between sentence meaning and speaker’s meaning. However, while the intentionalist incorrectly presumes that there are only two possible bases for a theory of meaning—intention and convention (Ibid.)—the hermeneutist understands that there can be no fact of the matter vis-à-vis sentence meaning. Hoy writes, “[Hermeneutics] acknowledges semantic complexity. It does not exclude questions about intention when these are relevant to interpretation, but it believes that since textual meaning is not reducible to intended meaning, there are many other kinds of questions that can be asked about texts” (Hoy 1992: 178).
At the same time, Hoy’s hermeneutics stands for the proposition that the traditional way law is practiced operates as a constraint on judicial discretion. It provides a schema of intelligibility in which a judge must necessarily decide a case. As Hoy indicates, using discretion to decide what the law means within the tradition of the practice of law is what judges do all the time. “Only when the judges know that the law entails one decision and they nevertheless decide something else could they be said to be rewriting,” writes Hoy (1992: 183), and the hermeneutic claim is that this is almost never the case. See also Hoy, David (1987) “Interpreting the Law: Hermeneutical and Poststructuralist Perspectives,” Southern California Law Review 58 (1985): 136-76 and “Dworkin’s Constructive Optimism v. Deconstructive Legal Nihilism,” Law and Philosophy 6 (1987): 321-56. If Hoy is right, then, as Leyh points out as well, there is no act of judicial interpretation that takes place without interpretation. Such a possibility is an illusion. Instead, all acts of understanding are acts of interpretation including originalist and/or intentionalist acts of understanding.
In the early 21st century, John T. Valauri argued that the new questions for legal hermeneutics are different from the ones of the late 1980s and early 1990s (Valauri 2010). For Valauri, the continuing significance of hermeneutics for legal theory is to help us sort through the varieties of originalism that compete for our allegiance in the aftermath of what he sees as a kind of unanimous consent to originalism’s legitimacy. In other words, for Valuari, the hermeneutical question is no longer whether originalism is valuable, but what kind of originalism is valuable (Ibid.). The remaining questions that need to be answered to help us sort through the varieties of originalism, for Valauri, are (1) whether the various forms of originalism share a common conception of understanding and interpretation, and (2) whether hermeneutics is a descriptive or normative practice. To address these questions, says Valauri, we need to “[recover]…the fundamental hermeneutical problem” (Gadamer 1975), which means focusing on three key hermeneutical paradigms: (1) the process of application, (2) Aristotle’s practical wisdom, and (3) a focus on the “Aristotelian face” of hermeneutics over the Heideggerian one (Valauri 2010). The significance of paradigms (1) and (2) are self-explanatory and common to all forms of hermeneutics, legal and otherwise. By paradigm (3), Valauri hopes to recover legal hermeneutics from its Heideggerian-based, full scale rejection of method that many mainstream legal theorists find so unpalatable.
Drawing themes and seeking overlap between the various contemporary legal hermeneutists, a legal hermeneutical approach to constitutional theory can be understood as a call to the interpreter of the constitution to take into conscious consideration the following factors when engaged in constitutional interpretation: (1) the identity of the interpreter, of previous interpreters, and the original author, (2) the sociohistorical context in which the text was written and in which the interpretation is taking place, (3) the political climate at the time the text was written and in which the interpretation is taking place, (4) the extent to which the meaning of words and concepts relevant to the interpretation have changed or have not changed over time, (5) the particularity of experience of those affected by a given law, (6) the extent to which that experience is acknowledged or unacknowledged by previous interpretations, (7) the relationship between who the interpreter is, who the interpreter takes herself to be, and the kinds of interpretive choices the interpreter makes, (8) the necessary truth that original meaning is an illusion and cannot be ascertained, and (9) the extent to which one’s own pre-judgments enter into one’s attempt at ascertaining meaning. This final aspect adds a level of self-reflexivity to the interpretive enterprise that is understood to significantly improve the quality of the interpretation. In other words, from the vantage point of legal hermeneutics, the more that assumptions customarily unacknowledged in mainstream legal theory are excavated and examined, the greater the degree of legitimacy of the interpretation.
Legal hermeneutics is an approach to legal texts that understands that the legal text is always historically embedded and contextually informed so that it is impossible to understand the law simply as a product of reason and argument. Instead, meaning in the law takes place according practical, material, and context-dependent factors such as power, social relations, and other contingent considerations. As Gerald Bruns has put it:
Legal hermeneutics is what occurs in the give-and-take—the dialogue—between meaning and history. The historicality of the law means that its meaning is always supplemented whenever the law is understood. This understanding is always situated, always an answer to some unique question that needs deciding, and so is different from the understanding of the law in its original meaning, say, the understanding a legal historian would have in figuring the law in terms of the situation in which it was originally handed down. The historicality of the law means that its meaning is always supplemented whenever it is understood or interpreted. Supplementation always takes the form of self-understanding; that is, it is generated by the way we understand ourselves—how we see and judge ourselves—in light of the law. But, this self-understanding throws its light on the law in turn, allowing us to grasp the original meaning of the law in a new way. The present gives the past its point. (Bruns 1992)
This seems to mean, at a minimum, that every Supreme Court decision is an interpretation, which directly undermines all originalist approaches to constitutional theory.
The claim that every Supreme Court decision is an act of interpretation, however, is not a claim about the indeterminacy of meaning itself but a more modest claim about the impossibility of ascertaining original meaning. The difference between these two positions is subtle but important. While for the non-originalist, the possibility of authoritative meaning is an illusion, for the legal hermeneutist more and less authoritative meanings are possible and are a function of the interpreter’s taking conscious account of several key factors that inform and shape the interpretive process. Taking conscious account of each of these factors when attempting to interpret a given legal text lends to the interpretative process a sort of legitimacy and authority, the possibility of which most non-originalist positions deny.
Legal hermeneutics, then, can be understood as an anti-method in constitutional theory. As Gregory Leyh has identified, “[H]ermeneutics neither supplies a method for correctly reading texts nor underwrites an authoritative interpretation of any given text, legal or otherwise” (Leyh 1992: xvii). Instead, “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: Ibid.). Arguably, any approach to legal hermeneutics that rejects its distinctively critical enterprise, then, misses the point of legal hermeneutics entirely. As an approach to legal interpretation, it is necessarily, following Heidegger and Gadamer, a complete rejection of the gods of both truth and method in favor of a call to the interpreter of laws to cast an incisive and self-reflexive gaze on all that is called mainstream legal orthodoxy.
6. References and Further Reading
Alcoff, Linda Martín (2003) “Gadamer’s Feminist Epistemology” in L. Code (ed.) Feminist Interpretations of Hans-Georg Gadamer, University Park: Penn State University Press.
Aquinas, Thomas (1998) On Law, Morality, and Politics. Ed. William P. Baumgarth and Richard J. Regan Indianapolis: Hackett Publishing Co.
Aristotle (350 B.C.E./ 2000) On Interpretation. Trans. E.M. Edghill. Adelaide: University of Adelaide Library.
Arthos, John (2014) “What is Phronesis? Seven Hermeneutic Differences in Gadamer and Ricoeur,” Philosophy Today, 58(1): 53-66.
Ast, F. (1808) Grundlinien der Grammatik, Hermeneutik und Kritik. Landshut, Ger.: Jos. Thomann.
Balkin, J.M. (2011) Living Originalism. Cambridge: Belknap Press of Harvard University Press.
Balkin, J.M. (2010) “Deconstruction” in A Companion to Philosophy of Law and Legal Theory (Second Edition), Dennis Patterson, ed., Malden: Wiley-Blackwell.
Balkin, J.M. (1999, 1996) “Deconstruction” in A Companion to Philosophy of Law and Legal Theory. Ed. Dennis Patterson, Malden: Blackwell Publishing, 367-374.
Balkin, J.M. (1993) “Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence,” 103 Yale Law Journal 105.
Binder, Guyora (1996/1999) “Critical Legal Studies,” in A Companion to Philosophy of Law and Legal Theory. Ed. Dennis Patterson, Malden: Blackwell Publishing, 280-290.
Bleicher, J. (1980) Contemporary Hermeneutics: Hermeneutics as Method, Philosophy and Critique. London, Boston: Routledge & Kegan Paul.
Brink, David (2001) “Legal Interpretation and Morality,” in B. Leiter (ed.), Objectivity in Law and Morals. Cambridge: Cambridge University Press.
Bruns, Gerald L. (1992) “Law and Language: A Hermeneutics of the Legal Text,” in Legal Hermeneutics: History, Theory, and Practice, ed. Gregory Leyh, Berkeley: University of California Press, 23-40.
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Calabresi, Steven (2007) Originalism: A Quarter-Century of Debate. Washington, D.C.: Regnery Pub.
(Di) Cesare, Donatella (2005) “Reinterpreting Hermeneutics,” Philosophy Today, 49(4): 325-332.
Chamallas, Martha (2003) Introduction to Feminist Legal Theory. 2nd Ed. New York: Aspen Publishers.
Cho, S., K.W. Crenshaw and L. McCall (2013) “Toward a Field of Intersectionality Studies: Theory, Applications, and Praxis,” Signs, 38(4): 785-810.
Coleman, Jules (2001) The Practice of Principle. Oxford: Clarendon Press.
Crenshaw, K.W. (1991) “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review, 43(6): 1241-99.
Crenshaw, K.W. (1989) “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” University of Chicago Legal Forum, 140: 139-67.
Cross, Frank B. (2013) The Failed Promise of Originalism. Stanford: Stanford Law Books, an imprint of Stanford University Press.
Delgado, Richard (ed.) (1995) Critical Race Theory: The Cutting Edge. Philadelphia: Temple University Press.
Derrida, Jacques (1976) Of Grammatology. Baltimore: Johns Hopkins University Press.
Derrida, Jacques (1978) Writing and Difference. Trans. A. Bass. London: Routledge & Kegan Paul.
Derrida, Jacques (1990) “Force of Law: ‘The Mystical Foundation of Authority.’” Cordozo Law Review, 97, 1, 276.
Derrida, Jacques (1992) “Before the Law” in Acts of Literature. Ed. Derek Attridge. New York and London: Routledge, 181-220.
Dickson, Julie (2001) Evaluation and Legal Theory. Oxford: Hart Publishing.
Dilthey, Wilhelm (1883) Introduction to the Human Sciences. In Makkreel, Rudolf A. and Frithjob Rodi, eds. 1989. Selected Works: Volume I: Introduction to the Human Sciences. Princeton: Princeton University Press.
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Douzinas, Costas, Ronnie Warrington and Shaun McVeigh (1991) Postmodern Jurisprudence: The Law of Text in the Texts of Law. London, New York: Routledge.
Dreyfus, H.L. and M.A. Wrathall (eds.) (2005) A Companion to Heidegger. Oxford: Blackwell.
Dreyfus, H.L. and M.A. Wrathall (eds.) (2002) Heidegger Reexamined (4 Volumes). London: Routledge.
Dworkin, Ronald (1983) “My Reply to Stanley Fish (and Walter Benn Michaels): Please Don’t Talk about Objectivity Any More,” in Mitchell, W.J.T., ed., The Politics of Interpretation. Chicago: University of Chicago Press, 287-313.
Dworkin, Ronald (1985) A Matter of Principle. Cambridge: Harvard University Press.
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Dworkin, Ronald (1996) “Objectivity and Truth: You’d Better Believe It,” Philosophy and Public Affairs, 25:88.
Dworkin, Ronald (2011) Justice for Hedgehogs. Cambridge: Harvard University Press.
Feldman, Stephen Matthew (1991) “The New Metaphysics: The Interpretive Turn in Jurisprudence,” Iowa Law Review, Vol. 76, 1991.
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b. Further Reading
Attridge, Derrick (ed.) (1992) Acts of Literature. Ed. Derek Attridge. New York, London: Routledge. 181-220.
Austin, John (1832) The Province of Jurisprudence Determined.
Austin, John (1987) “Deconstructive practice and legal theory.” Yale Law Journal, 96, 743.
Barnett, Randy E. (1995-1996) The Relevance of the Framers’ Intent. 19 Harv. J. L. & Pub. Pol’y 403.
Bentham, Jeremy (1970) Of Laws in General. Ed. H.L.A. Hart. London: University of London, Athlone Press.
Binder, Guyora, and Robert Weisberg. Literary Criticisms of Law. Princeton: Princeton University Press, 2000.
Bix, Brian (1999) Natural Law Theory. In A Companion to Philosophy of Law and Legal Theory. Ed. Dennis Patterson. Malden, Oxford: Blackwell Publishing.
Bobbit, Phillip (1996, 1999) “Constitutional Law and Interpretation.” In A Companion to Philosophy of Law and Legal Theory. Ed. Dennis Patterson, Malden: Blackwell Publishing.
Bobbit, Phillip (1982) “A Typology of Constitutional Arguments.” Constitutional Fate: Theory of the Constitution. Oxford: Oxford University Press.
Brennan, Jr. William (1986) “The Constitution of the United States: Contemporary Ratification,” The Great Debate: Interpreting Our Written Constitution. Washington, D.C.: The Federalist Society.
Brest, Paul (1980) “The Misconceived Quest for the Original Understanding,” 60 B.U. L. Rev. 204.
Campos, Paul (1992) “Against Constitutional Theory,” Yale Journal of Law and the Humanities 4.
Campos, Paul (1993) “That Obscure Object of Desire: Hermeneutics and the Autonomous Legal Text,” Minnesota Law Review 77.
Cicero, Marcus Tullius (1988) De Re Publica; (On the Commonwealth). trans. C.W. Keyes, Cambridge: Harvard University Press.
Cicero, Marcus Tullius (1988) De Legibus (On the Laws). trans. C.W. Keyes, Cambridge: Harvard University Press.
Delgado, Richard (2012) “Centennial Reflections on the California Law Review’s Scholarship on Race: The Structure of Civil Rights Thought,” 100 Calif. L. Rev. 431.
Derrida, Jacques (1986) “But beyond…(Open Letter to Anne McClintock and Rob Nixon)” Trans. Peggy Kamuf. Critical Inquiry 13 (Autumn). 167-168.
Derrida, Jacques (1973) “Différance.” Speech and Phenomena, and Other Essays on Husserl’s Theory of Signs. Evanston: Northwestern University Press.
Dilthey, Wilhelm (1958) Gesammelte Schriften. Vol. II. Stuttgart: B.G. Teubner.
Epictetus (1926-1928) The Discourses as reported by Arrian, the Manual, and Fragments. London, W. Heinemann; New York, G.P. Putnam’s Sons.
Epictetus (2008) Enchiridion. Auckland: Floating Press.
Eskridge, Jr., William N. (1994) “Gaylegal Narratives,” 46 Stan. L. Rev. 607, 633.
Eskridge, Jr., William N. (1990) “Gadamer/Statutory Interpretation,” 90 Colum. L. Rev. 609.
Feinberg, Joel and Jules Coleman (2008) Philosophy of Law. Belmont: Thomson Wadsworth.
Fish, Stanley (1984) “Fiss v. Fiss,” 36 Stanford Law Review.
Fiss, Owen (1982) “Objectivity and Interpretation,” 34 Stanford Law Review 739.
George, Theodore D (2014) “Remarks on James Risser’s ‘The Life of Understanding: A Contemporary Hermeneutics,’” Philosophy Today, 58(1): 107-116.
Grotius, Hugo (1625) De iure belli ac pacis libri tres. Paris: Buon
Heidegger, Martin (1999) Ontology: Hermeneutics of Facticity. John van Buren (trans.) Bloomington: Indiana University Press.
Hoy, David Couzens (1978) The Critical Circle: Literature, History, and Philosophical Hermeneutics. Berkeley, Los Angeles, Oxford: University of California Press.
Hutchinson, A. (ed.) (1989) Critical Legal Studies. Totowa: Rowman & Littlefield.
Jones, Bernie D. (2002) “Critical Race Theory: New Strategies for Civil Rights in the New Millennium?” 18 Harv. BlackLetter J. 1.
Ladson-Billings, Gloria, “Race…to the Top, Again: Comments on the Genealogy of Critical Race Theory,” 43 Conn. L. Rev. 1439.
Levinson, Sanford (1980) “Law as Literature,” 60 Texas Law Review 373-403.
Levit, Nancy and Robert R.M. Verchick, Feminist Legal Theory, New York, London: New York University Press.
Mahmud, Tayyab (2014) “Foreword: Looking Back, Moving Forward: Latin Roots of the Modern Global and Global Orientation of Latcrit,” 12 Seattle J. Soc. Just. 699.
Levit, Nancy and R.M. Verchick (eds.) (2006) Feminist Legal Theory: A Primer. New York, London: New York University Press:.
MacKinnon, C. (2013) “Intersectionality as a Method: A Note,” Signs, 38:4, Intersectionalty: Theorizing Power, Empowering Theory, 1019-30.
Marx, Karl (1967) Capital. A Critical Analysis of Capitalist Production, Vol. 1, New York: International.
Marx, Karl (1859/1994) Preface to A Contribution to the Critique of Political Economy, in Simon, supra, 209.
Parks, Gregory Scott (2008) “Note: Toward a Critical Race Realism,” 17 Cornell J.L. & Pub. Pol’y 683.
Patterson, Dennis (ed.) (2003) Philosophy of Law and Legal Theory. Malden: Blackwell Publishing.
Patterson, Dennis (1996/1999) “Postmodernism.” In A Companion to Philosophy of Law and Legal Theory. Ed. Dennis Patterson, Malden: Blackwell Publishing, 375-384.
Patterson, Dennis (1996) Law and Truth. Oxford, New York: Oxford University Press.
Poteat, W. H. (1985) Polanyian Meditations: in Search of a Post-Critical Logic. Durham: Duke University Press.
Raz, Joseph (2009) Between Authority and Interpretation: On the Theory of Law & Practical Reason, Oxford: Oxford University Press.
Rorty, R. (1988) The Linguistic turn: recent essays in philosophical method. Midway Reprint edition. Chicago: University of Chicago Press.
Rorty, R. (1979) Philosophy and the mirror of nature. Princeton: Princeton University Press.
Schmidt, Lawrence (ed.) (1995) The Specter of Relativism: Truth, Dialogue, and Phronesis in Philosophical Hermeneutics, Evanston: Northwestern University Press.
Simmonds, N.E. (2007) Law as a Moral Idea, Oxford: Oxford University Press.
Teo, Thomas (2011) “Empirical Race Psychology and the Hermeneutics of Espistemological Violence,” Human Studies, 34(3): 237-255.
Thorsteinsson, Björn (2015) “From ‘Différance’ to Justice: Derrida and Heidegger’s ‘Anaximander’s Saying,” Continental Philosophy Review, 48(2): 255-271.
Tushnet, Mark V. (1983) “Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles” 96 Harvard Law Review 781.
Valauri, John T. (1991) “Constitutional Hermeneutics” in The Interpretive Turn: Philosophy, Science, Culture, David R. Hiley, James F. Bohman, and Richard Shusterman, eds. Ithaca: Cornell University Press.
Valdes, Francisco (2003) “Outsider Jurisprudence, Critical Pedagogy and Social Justice Activism: Marking the Stirrings of Critical Legal Education,” Asian American Law Journal, 10(1): Article 7.
Vedder, Ben (2002) “Religion and Hermeneutic Philosophy,” International Journal for Philosophy and Religion, 51(1): 39-54.
Warner, Richard (1996, 1999) “Legal Pragmatism” In A Companion to Philosophy of Law and Legal Theory. ed. Dennis Patterson, Malden: Blackwell Publishing, 385-393.
West, Robin L. (2000) “Commentary: Are There Nothing but Texts in this Class? Interpreting the Interpretive turns in Legal Thought,” Chicago-Kent College of Law Chicago-Kent Law Review, 76 Chi.-Kent L. Rev. 1125, 19547.
Whyte, Megan K. “Going Back to Class? The Reemergence of Class in Critical Race Theory Symposium: Introduction: From Discourse to Struggle: A New Direction in Critical Race Theory,” 11 Mich. J. Race & L. 1.
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