Conservatives, Liberals, Romantics: The Persistent Quest for Certainty in Constitutional Interpretation

From the time that Robert Bork issued his first attack on the Warren Court, originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions. Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars. Recently, a prominent constitutional theorist with unmistakably liberal credentials announced his conversion to originalism. Michael Perry, once a self-described non-originalist, now argues that originalism is the only legitimate method of interpreting the Constitution. Perry did not change his political commitments along with his methodological ones, however; his recent work is an extended argument against the conservative originalism advocated by Bork. Like John Ely, who sought to defend the activist decisions of the Warren Court against conservative attacks on their legitimacy, Perry seeks to blunt more recent conservative criticism of the Court by demonstrating that originalist interpretation need not foreclose broad readings of the individual rights protected by the Fourteenth Amendment. Despite their considerable ideological differences, both Bork\u27s conservative originalism and Perry\u27s less constrained progressive originalism divide the process of understanding into cognitive and normative aspects. The determination of the original meaning of the Constitution is methodologically separated from the question of how this predetermined meaning should be applied in a particular con- temporary case. This places both Bork and Perry squarely in the tradition of Romantic hermeneutics, which sought to overcome the uncertainty and imprecision of textual interpretation by developing a science of interpretation as epistemologically reliable as the methods of the natural sciences. The Romantic hermeneutic tradition influenced American law through the work of Francis Lieber, a German immigrant to the United States who published a treatise on legal interpretation in 1839.8 Like contemporary originalists, Lieber exhibited the characteristic Romantic anxiety over the uncertainty of interpretation, and sought to develop a method that would guarantee the correctness of interpretive meanings ascribed to legal texts by judges and lawyers In Truth and Method. German philosopher Hans-Georg Gadamer argued that the presuppositions of the Romantic quest for epistemological certainty in interpretation are inconsistent with how human beings understand texts.\u27 Though it is not frequently cited in American legal scholarship, Truth and Method has long been viewed by continental and postmodern philosophers as the most important work on textual interpretation published in this century. Thus, the more interesting question raised by Perry\u27s conversion to originalism is not whether he or Bork espouses the better version of the method, but whether either (or any) version of originalism is a useful way to investigate questions about the meaning of the Constitution in light of Gadamer\u27s argument

CSR Disclosure Practices in the Zambia Mining Industry

The main objective of this chapter is to examine the corporate social responsibility (CSR) disclosure practices and the related motivation for (or lack thereof) CSR disclosures in the Zambian mining industry. Key CSR disclosures are examined to identify the trends in disclosure. Semi-structured interviews were also conducted with the mining managers to explore the underlying motives for such disclosures (non-disclosures) and the prospects that exist for future development. We find that there is very limited CSR disclosure by mining companies in Zambia, while CSR reporting is directed mainly towards ‘public image building’ and motivated by project financing purposes for those companies with a ‘western’ parent company. We argue that the lack of demand for such reporting from the Zambian citizenry has partly contributed to the low disclosures. Some international voluntary reporting guidelines have been adopted by ‘western’ parent mining companies, while reputation risk management remains a key concern for these companies. The study contributes to understanding the underlying motives for CSR disclosures in a developing country context