Language and the Crisis of Legal Interpretation
A review essay by Thomas Streeter, University of Vermont, in Journal of Communication.
The Language Of Judges. By Lawrence M. Solan. Chicago: U. of Chicago Press, 1993. 218 pp.
Justice As Translation: An Essay In Cultural And Legal Criticism. By James Boyd White. Chicago: U. of Chicago Press, 1990. 313 pp.
Acts Of Hope: Creating Authority In Literature, Law, And Politics. By James Boyd White. Chicago: U. of Chicago Press, 1994. 322 pp.
Justice And Interpretation. By Georgia Warnke. Cambridge: MIT Press, 1993. 178 pp.
There's No Such Thing as Free Speech...and It's a Good Thing, Too. By Stanley Fish. New York: Oxford UP, 1993. 332 pp.
Law, Writing, Meaning: An Essay In Legal Hermeneutics. By Patrick Nerhot. Edinburgh: Edinburgh Press, 1993. 198 pp.
Politics, Postmodernity And Critical Legal Studies: The Legality Of The Contingent. Edited by Costas Douzinas, Peter Goodrich, & Yifat Hachamovitch. London: Routledge, 1994. 233 pp.
Most discussions of law in the field of communication tend to focus either on the relevance of particular legal decisions and procedures for media and other forms of communication, or on contributions communication research can make to legal process and decisionmaking, such as the effect of different messages on juries or television audiences. What is seldom noted is that, in other fields, the communicative has come to be seen as central to a much more fundamental question: what is the law in the first place? Once again, communication turns up near the center of a discussion that cuts across numerous disciplines; this discussion should not be ignored by the field of communication itself.
These books are part of an important strand of scholarship on the character of the law that has focused on the fact that, whatever else you can say about it, law is linguistic; it is made up of words, written and spoken. This might seem a trivial observation, except that we usually justify the undemocratic powers we delegate to judges and the legal system with the assumption that the law is neutral, dispassionate, and fixed. Conventional thinking assumes that a properly trained mind can find clarity and certainty in the law, a clarity assured by such devices as legal precedent, the Constitution, legislative intent, natural law, and -- a favorite of conservative intellectuals these days -- scientific economic principles. Yet, language often seems changing, slippery, fluid, unpredictable and contextual, particularly in light of late twentieth century scholarship about it. To put it colloquially, what if the law is merely words, "mere rhetoric?" This question is at stake in each of the books discussed here.
The basic problem is nicely laid out in Solan's The Language of Judges. Solan, both a lawyer and linguist by training, is clearly a rationalist and is no radical critic of our legal system. In fact, this careful, detailed study of the use of language in judicial decisionmaking is basically driven by the hope that law would be better if judges were more sensitive to scientific linguistic principles when they wrote their decisions. But, as Solan concludes from his numerous linguistically-informed dissections of legal cases, even the greatest judges (e.g., Cardozo) very often conceal the "unattractive truth" that "they are unable to make decisions easily and based on the legitimate factors on which they are supposed to rely" (p. 176).
Of course, judges often say that their decisions are based on precedents as interpreted through neutral rules and principles, such as the last antecedent rule, the "plain language" rule, and the like. But they do so inconsistently and not infrequently illogically, invoking the plain language rule when the language being interpreted is not all that plain or not invoking it when it is -- and Solan provides good evidence that judges often have some awareness that this is the case. Judges' references to rules, then, are often simply "linguistic sleight of hand" brought in to legitimate decisions made on other grounds. This phenomenon, furthermore, is not the fault only of bad or particularly dishonest judges but simply of the fact that rules for interpreting legal language in the end leave "interpretive gaps," areas of uncertainty, that cannot be filled with neutral principles.
Hence, in hard cases, Solan points out,
We are thus confronted with the intractable problem that . . . [a] judge who justifies his [or her] decisions by issuing opinions based on linguistic sleight of hand risks getting caught in a lie, thereby damaging the credibility of the system that he was attempting to protect. But the judge who is candid can, in hard cases, do nothing other than announce that the system, at least in the case being decided, has no answer, and that the fate of the parties is in the hands of the judge himself, who will simply do the best he [or she] can. The result is the same -- a reduction in confidence that a rule of law governs the exercise of power by government. (p. 178)
Solan takes no strong stand on this dilemma, though he expresses a wish that judges would more frequently adopt the second tactic of "judicial candor," presumably because it is honest.
The rest of the books in this collection in a sense begin where Solan leaves off, and take the dilemmas of legal interpretation to heart. Hermeneutic philosopher Georgia Warnke's Justice and Interpretation is a good place to start, particularly if one needs persuading of the basic validity of an interpretive approach to law. She lays out the significance for theories of law of interpretive and context-centered approaches such as hermeneutics in a clear and accessible way and discusses a variety of well-known social and political theorists, from Rawls to Habermas. An important point she makes is that the interpretive turn in philosophy and social thought in the humanities is not limited to explicitly interpretive theories such as hermeneutics or poststructuralism. Interpretation has been growing in importance in a host of epistemologically conventional works as well, on both sides of what political theorists call the libertarian/communitarian divide. Rawls, for example, originally took a strictly Kantian position which sought neutral, universally applicable principles of justice chosen from "behind a veil of ignorance" that would exclude considerations of individuals' and groups' place in history and society. More recently, however, in response to the impossibility of defining acceptable a priori universal, neutral rules, he has moved towards a context-based theory of interpretation, suggesting legal principles be grounded, not in some imagined sphere of universal abstract forms, but in "the settled convictions and deep self-understanding of a constitutional democracy," i.e. in historical context (p. 39).
As she carefully works her way through each major theorist of the law, however, Warnke finds limits to their approaches, typically because they try to reconcile the interpretive character of legal decisionmaking with one or another first principle or universalistic notion of the common good. Rawls' effort to ground neutral rules in "settled convictions," she points out, runs aground on the inevitability of competing interpretations of what those convictions mean; she shows that similar problems exist with Rawls' model of a "well-ordered society," "the original position," and so forth. Walzer's more explicitly interpretive theory nonetheless runs into similar problems when he expects American society to have a relatively unified conflict-free self-understanding to use as a basis for determining procedures and meanings of justice. Warnke also spends a chapter dissecting Ronald Dworkin; in his examples of "good" legal decisionmaking, she argues, at key moments Dworkin abandons his explicitly interpretive principles of "fit" and "best light" by arbitrarily resorting to "truths" which he takes to be self-evident but which on closer inspection are, by his own criteria, contestable. As a result, Warnke argues persuasively, Dworkin's system cannot adequately show why Plessy vs. Ferguson (which upheld Jim Crow laws) was a bad decision whereas Brown vs. Board of Education (which in effect overthrew them) was a good one.
Habermas, of course, has made similar arguments, and is adept with the hermeneutic arguments that are Warnke's specialty, so it is no surprise that she devotes considerable attention to him. Habermas, fearing that a purely hermeneutic, foundationless theory of justice could lead to anarchy or fascism, seeks to solve the problems Warnke identifies in others' thought by recourse to "discourse ethics." The basic human capacity for ordinary conversation, Habermas argues, contains within it implicit standards of equality that, once made explicit, can provide the truly universal principles of justice that elude other theorists, without recourse to either ethnocentric notions of tradition or imaginary abstract forms. Warnke's criticisms of Habermas are complex, but generally involve either arguing that actual disputes are too complex and embedded in values to be satisfactorily resolved by recourse to the model of the ideal speech act or, more interestingly, arguing that Habermas' model succumbs to a vicious circle: in reality, perfect ideal speech acts are rare or impossible, so for the model to work, there must be some consensus about what counts in a given circumstance as a sufficient approximation to an ideal speech act. But for such a consensus to be reached legitimately, the conditions of ideal speech must already have been achieved.
Warnke thus advocates a fully interpretive, foundationless model of justice. Finding the approaches of Charles Taylor and Alasdair MacIntyre too reliant on communitarian models of consensus (and thus closed to radical differences of value and opinion), she advocates a liberal, dialogic model of dealing with interpretive differences, or a model of "hermeneutic conversation," subject to constant revision and transformation. Hence, she takes from Habermas the concern for systematic disturbances in communication caused by social and economic conditions, and the goal of "a discussion in which all voices are given equal time, play and attention." But the aim of this discussion is not "solely a consensus over norms" (as in Habermas) or "an agreement over meaning" (as in Taylor) but rather "the kind of mutual education that goes on in the humanities and for which insight, enrichment and development, not canonical understandings, are the goal" (p. 157).
Warnke does not spend a great deal of energy elaborating on her approach of "hermeneutic conversation," but she does suggest that it bears some of the features of what Gadamer and Habermas characterize as aesthetic discussion and judgment. Her model, then, sounds in some ways remarkably compatible with the approach of James Boyd White, the liberal humanist legal scholar and advocate of literary approaches to law. For White, legal decisionmaking is an art, not a science. Flouting the received wisdom, White writes in Justice as Translation that, "Judicial excellence lies less in the choice of doctrine than in what the doctrine chosen is made to mean" (p. 214). This approach raises no problems of relativism, as far as White is concerned, for law is comfortably rooted in tradition and community, in respect for texts and social life. Law is a "culture of argument . . . a set of ways of thinking and talking [and thus] a set of ways of acting in the world (and with each other) . . . Its life is a life of art" (p. xiii). At its best, law and legal criticism should be "reciprocal or mutually recognizing [not] competitive and dominating," driven by "love" not a "desire to dissect, to dominate, to conquer" (p. 99). The question we should ask of legal texts (which are in his theory, parts of conversations, not fixed objects) is this: "Is this conversation one in which 'democracy begins?'" (p. 101). "The most profound obligation of each of us in using his or her language," White argues, "is to try to recognize what it leaves out, to point to the silence that surrounds it -- to acknowledge the terrible incompleteness of all speech, and thus to leave oneself open to hearing other truths, in other languages" (p. 81). The open, shifting, indeterminate character of law identified by Solan, then, is not so much a problem as a potential strength.
White's democratic values are appealing, and his arguments on behalf of a foundationless, interpretive understanding of law are persuasive, but his attempt to blend them with an optimistic stance towards the legal system is not. White's optimism is sustained only by limiting his willingness to follow his own admonition to leave himself "open to hearing other truths, in other languages." On the one hand, the readings that make up both Justice as Translation and the subsequent Acts of Hope: Creating Authority in Literature, Law, and Politics, are bounded by an implicit political vision. It so happens that he chooses cases that uphold civil rights, affirmative action, and the right to an abortion as good examples of legal discourse, whereas slavery and apartheid -- both of which relied heavily on law for their implementation -- are found to be aberrations, not true to the utopian impulses he imagines to be at the heart of law. For example, when the pre-Civil War Supreme Court upheld slavery by reference to "formalist" legal devices such as "plain meaning," it was engaging in bad legal decisionmaking, not illustrating the indifference of law to justice (p. 138). Yet when a recent conservative Supreme Court was reluctant to overturn Roe v. Wade in Plessy v. Casey on similarly technical grounds of respect for precedent, White finds this to be good decisionmaking.
On the other hand, there is a studied silence regarding poststructuralist literary theory, critical legal studies, critical race theory, and similar currents in White's work. When he does make brief mention of these movements, he tends to lump them together, absurdly, with a sociologically reductive legal realism, accusing them of forsaking engagement with the text for abstract theories and reducing law to an epiphenomenon of other forces (e.g., Justice as Translation, p. 98; or Acts of Hope, p. 81). Whereas what distinguishes both poststructuralism and critical legal studies from other critical schools is precisely a detailed, close focus on texts and textuality -- hence the common Marxist charge against both schools that they pay too much attention to texts and not enough to the "material" reality behind them. What White seems to be avoiding here is direct engagement with the fact that poststructuralist and similar reading practices are critical, not just of formalism and reductive "realisms," but of many of the taken-for-granted concepts that are central to White's optimism: the accepted literary canon of great works, for example, or the dichotomy between art and science, literature and theory. Most centrally, what White seems to be avoiding is the poststructuralist emphasis on the indeterminacy or instability of meaning.
The rest of the books discussed here, then, in various ways engage the recent developments in interpretive theory that White avoids, and confront the indeterminate character of law that those theories imply. Stanley Fish's There's No Such Thing as Free Speech serves as a useful introduction. This collection of essays covers a host of topics, ranging from multiculturalism to literary criticism to the absurdities of academic culture, but the several pieces about law and legal interpretation serve as a good summary of Fish's take on these matters. Fish is at his best when flippantly attacking the pieties of literate, liberal culture, as in the title essay, which attacks the current quasi-religious, formalist faith in the First Amendment on the grounds that speech is always embedded in systems of power, that any speech that matters has an impact and is thus arguably unprotected conduct, and that therefore appeals to free speech are always strategic efforts to support some political positions at the expense of others, whether we understand them that way or not. The entire rhetoric of free speech in the US, then, is basically a formalist ruse that hides straightforward political struggles behind an imaginary rule-governed neutrality. In other essays, Fish discusses, for example, Dworkin, Posner, and White, and finds them wanting on grounds similar to those already discussed.
The difficulties of a fully interpretive approach to law are nicely illustrated in what is, for these purposes, a central essay of the book: "The Law Wishes to Have a Formal Existence." Here, Fish argues on behalf of what he calls a "radical" or "critical" approach to the law, which he contrasts with both conventional formalism and humanism (e.g., White). Beginning with some readings of legal cases that nicely demonstrate a series of legal "sleights of hand" similar to those discussed by Solan, Fish then tackles the question of what we are to do with this knowledge. While he seems happy to use it to deflate some of the more grandiose claims for law characteristic of conservatives, he also criticizes the sense of pious outrage that accompanies such revelations in the work of radical left critics. The outrage is not justified, he says, because to assert that the law is rhetorical, is to state that it is an ordinary part of life; accusing law of a lack of logical consistency is simply criticizing it for failing to be something that it is not and can never be. Like White, Fish sees the fissures and contradictions of law as "strengths rather than weaknesses," (p. 169) but in contrast to White, he is content to assert the inevitability of this fact without trying to reconcile it with a democratic, normative vision. The law is simply "something we believe in because it answers to, even as it is the creation of, our desires" (p. 179).
Fish, though, leaves his readers hanging, stopping short of the next, obvious question: if the law is ultimately political (which Fish seems happy, at least at times, to assert), then what are the appropriate political strategies regarding law? Should racial inequalities and tensions, for example, be dealt with legalistically (with appeals to civil rights), or would other, more straightforwardly political or even revolutionary strategies (e.g., black power) be more effective? Should the enormous prestige and power granted the legal system in the US be scaled back, more to the level of, say, law in Japanese society, which resolves many disputes by nonlegal means? Are there contemporary legal trends that those interested in democracy should oppose (e.g., the extension of property rights to human genes) or support (e.g., the development of a right to communicate)? If what Fish says about the law is true, then these are entirely appropriate questions, arguably of some urgency, but Fish has almost nothing to say about these or any other questions like them.
The remaining two books in different ways try to take interpretive theories of law beyond the moment of iconoclasm that Fish seems to enjoy so much. Patrick Nerhot's Law, Meaning, Writing: An Essay in Legal Hermeneutics (translated from Italian) is a continental philosopher's effort to apply "historicist hermeneutics" to contemporary legal thought. This is a dense and difficult book that can not be adequately summarized in a paragraph or two, but for the purposes of this discussion it is important because it introduces a theme largely absent from the previously discussed works: a deeply interpretive sense of history. Nerhot sets out to elaborate an "immanent rationality" of law, that is, he wants neither to claim for law some abstract standard of logic, ид la formalism, nor to simply assert its "mere" rhetoricity, ид la Fish, but rather to elaborate the practices of interpretation, reading, and argument that generate that which the law perceives as rational.
On the one hand, Nerhot argues that "the anticipation of meaning that guides our understanding of a text is not an act of subjectivity," i.e., interpretation can not be reduced to a simple subjectivism. On the other, Nerhot also does not want to follow Gadamer and many other interpretive theorists and account for interpretation simply "on the basis of the community that links us with the tradition." (44) Instead, Nerhot brings in a complex sense of history, not only in the sense that a look at the past can give us a sense of how the law came to be the way it is, but more importantly, because the law itself relies on references to the past. Various forms of historical argumentation (reference to precedent, documents, and so forth) are part of how the law constructs itself as legitimate, and these practices can be understood as unfolding in history.
Nerhot criticizes the conventional, self-congratulatory argument that a modern sense of history replaced the irrational Medieval practice of "chronicles" during the Renaissance more or less contemporaneously with the supplanting of theocracy with a modern, rational and secular sense of a rule of law. "The error here," Nerhot argues, "is to approach these [historical] data from a point of arrival ('the rule of law') instead of from an initial issue (The role of legal thought in Western rational thought)" (p. 59). Using an interesting mix of historical and hermeneutic argument, Nerhot discovers considerable continuities between late medieval religious thought and the emergence of ideas of the rule of law, instead of the radical medieval/modern break that is typically imagined to be the case. And he identifies a "premodern Christian rationality" in which the jurist plays a key, unifying role; modern juridical notions of proof, evidence, testimony, etc. were drawn from and in some ways took the place of late Medieval theology. Though Nerhot does not take this step, it is tempting to conclude from his book that law has taken the place of religion in the contemporary Western world.
Politics, Postmodernity, and Critical Legal Studies: the Legality of the Contingent is the latest work to come from a British-based branch of the critical legal studies movement. The essays in this edited collection begin from an acceptance of the foundationless and contingent character of law, and like Nerhot seek to move beyond the iconoclastic moment into understandings that both are more substantive and might point in the direction of new senses of justice, a sense of "the legality of the contingent." Again, too complex and diverse to adequately summarize here, one theme of the book is important for the current discussion: most of the essays focus on the Anglo-American common law tradition. In contrast with American Constitutional law and European codes, in which the aspiration to logical coherence is central, the common law tradition is frequently acknowledged by even some of the most conventional of legal theorists to be a rather loose and not particularly logical system of interpretation and practice. This collection takes the unique step of embracing common law not as an old-fashioned remnant in the legal system but as a fully postmodern set of practices. This is an intriguing move, for it takes the least logical part of law, and instead of merely showing up its incoherence or asserting its rhetorical character, it systematically explores it for its radical potentials. Loosely situating the widespread sense of law's incoherence in the general postmodern condition, the essays draw on a variety of continental theoretical traditions, such as Lacanian psychoanalysis, phenomenology, and semiotics, often mixed with an impressive command of older scholarly traditions, particularly (and by no means coincidentally) rhetoric. While Politics, Postmodernity, and Critical Legal Studies is by no means the last word on the problems raised by fully interpretive approaches to law, it is an important contribution to the growing scholarship about law and interpretation, perhaps at the leading edge.
It is telling that, in spite of their mutual relevance, none of the authors
in this collection cite all of the others (though Fish and Douzinas et al. come
the closest to a comprehensive sense of the literature as a whole). And the move
towards interpretive, contextual approaches to understanding law continue to
crop up in diverse quarters: for example, the leading neoconservative legal
scholar Richard Posner, who once attacked Fish and White on the grounds that law
should not be confused with literature because the former is objective,
scientific, and public, has since retracted many of his earlier claims
about legal certainty and adopted a forthrightly foundationless legal pragmatism
very similar to Fish's. In the end, then, the interpretive turn in
thought about law is more than an academic movement, and seems rooted in the
current state of law itself, or perhaps in the "postmodern condition" more