Faithful Hermeneutics

This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on Scriptural and Constitutional Hermeneutics. The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review. My article compares legal and religious hermeneutics by exploring the dual nature of what I term faithful hermeneutics. The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious interpretation by comparing hermeneutical activities undertaken by faithful adherents to these two different textual traditions. In this first sense, it is to compare how these practices are the hermeneutics of the faithful. On the other hand, the phrase suggests an analysis of how interpreters in these two traditions remain faithful to the nature of their practice. In this second sense, it is to compare how hermeneutics can be faithfully accomplished. My thesis is that these two senses of faithful hermeneutics are connected. The fact that it is faithful adherents who engage in the interpretive practice in large part defines how they can, and should, remain faithful to the interpretive enterprise. I anchor my argument in Hans-Georg Gadamer\u27s critique of historicism, in which he references the practices of legal and religious hermeneutics. Gadamer\u27s philosophical hermeneutics explains how faith is a prerequisite of understanding, even as understanding revitalizes and reshapes the faith one brings to a textual tradition. I then unfold the critical dimensions of faithful hermeneutics by comparing the work of Cardinal Joseph Ratzinger (later Pope Benedict XVI) and Gianni Vattimo on the Catholic tradition. I argue that these two thinkers display both the broad range and the non-methodological character of the critical insights of faithful hermeneutics. I conclude by suggesting that the parallels between religious and legal hermeneutics are instructive, but that we remember that it would be a mistake to conflate these two instances of faithful hermeneutics in our secular age

Legal Classics: After Deconstructing the Legal Canon

The debate over the canon has gripped the University in recent years. Defenders of the canon argue that canonical texts embody timeless and universal themes, but critics argue that the process of canonization subordinates certain people and viewpoints within society in order to assert the existence of a univocal tradition. Originating primarily in the field of literary criticism, the canon debate recently has emerged in legal theory. Professor Francis J. Mootz argues that the issues raised by the canon debate are relevant to legal scholarship, teaching and practice. After reviewing the extensive commentary on the literary canon, Professor Mootz criticizes the polemical structure of the debate and asserts that an appreciation of classical, as opposed to canonical, texts opens the way for a productive inquiry. He defines a classical text as one that both shapes contemporary concerns and also serves as a point of reference for revising these concerns. Classical texts enable critical perspectives rather than submitting to them, he continues, because they provide the arena for debates about issues of public concern. Using Hadley v. Baxendale as an example of a legal classic, Professor Mootz contends that the power of such a classical text is its ability to shape hotly contested legal debates. Our time . . . seems unpropitious for thinking about the question of the classic, for . . . it seems to be a simple either/or that requires merely a choosing of sides: for or against? back to the classics or away from them? Our time calls not for thinking but a vote. And it may well be too late for thinking about the classic in any case, for the vote is already in, and the nays have it

Law as Language (Reviewing Peter M. Tiersma, Legal Language (1999))

The jacket of Professor Peter Tiersma’s book Legal Language illustrates the problem inherent in a linguistic study of legal language. The jacket features a legal document in fine print, with an overlay of a magnifying glass that brings some of the indecipherable words into focus. The problem, of course, is that a scholar conducting a linguistic study of language does not have access to a distinct magnifying glass that can posit language as an object; he can study language only with language. Tiersma attempts to avoid the most difficult problems of self-reference that follow from the interpretive turn in social studies by pursuing a carefully delimited project. He argues that legal language has diverged from ordinary language, and therefore can be assessed by comparing it to ordinary language. His thesis is that legal language can and should be much less arcane and ponderous, and much more understandable, than it now is. In other words, he argues that legal discourse should employ ordinary language to a much greater extent if law is to serve its social purposes. On its own terms, the book is a success. Some legal documents (standard form contracts, statutes, formulaic wills and trusts, etc.) are easily lampooned for their verbosity, redundancy, complexity and archaisms. Tiersma’s book provides an accessible and helpful reminder of this fact by identifying some of the worst examples of legal language and providing general explanations of how these examples are sustained in modern legal practice. But this theme is old news. I can’t imagine that there is a lawyer, judge or law professor today who would advocate using cumbersome and archaic language instead of so-called plain English, even if their practice involves all too frequent relapses. Legal language is like an ornate pastry: we know that often it is impressive in appearance but disappointingly lacking in substance, yet we can’t help reaching for it again and again. Tiersma’s effort to avoid certain topics in the interest of simplicity and focus is not entirely successful. In his Acknowledgments, he admits that his linguistic approach necessarily leaves out the important insights of literary theory, rhetoric and semiotics, and he concedes that he gives only brief attention to the important linguistic topic of the pragmatics of meaning. At the risk of appearing to be a spoil sport by reviewing the book that he expressly chose not to write, I want to identify how his uncontroversial plea for a renewed commitment to using plain English in legal discourse uncovers more difficult and subtle problems

Ugly American Hermeneutics

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud

Ugly American Hermeneutics

This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the ugly American hermeneutics exemplified in Justice Scalia\u27s opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia\u27s hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud