Legitimate differences: interpretation in the abortion controversy and other public debates

Legitimate Differences challenges the usual portrayal of current debates over thorny social issues including abortion, pornography, affirmative action, and surrogate mothering as moral debates. How can it be said that our debates oppose principles of life to those of liberty, principles of liberty to those of equality, principles of equality to those of fairness, and principles of fairness to those of integrity, when we as Americans share all these principles?Debates over such issues are not, Georgia Warnke argues, moral debates over which principles we should adopt. Rather, they are interpretive debates over the meanings of principles we already possess. Warnke traces the structure of these debates with reference to the work of Jane Austen, Hans-Georg Gadamer, Jürgen Habermas, and Bernard Williams. In separate chapters on surrogate mothering, affirmative action, abortion, and pornography she articulates new understandings of the meanings of some of our principles and shows the equal legitimacy of some different interpretations of the meanings of others. Finally, she suggests that the orientation of American public policy ought to be directed less at finding single canonical interpretations of our principles than at accommodating different legitimate understandings of them. The perspective offered by Legitimate Differences should have a significantly beneficial effect on public discussions

Law, Hermeneutics, and Public Debate

For Hans-Georg Gadamer, the task of any historical hermeneutics is to consider the tension that exists between the identity of the common object and the changing situation in which it must be understood. With regard to legal hermeneutics this task issues from the circumstance that [a] law does not exist in order to be understood historically, but to be concretized in its legal validity by being interpreted .... [T]he text ... if it is to be understood properly - i.e., according to the claim it makes - must be understood at every moment, in every concrete situation, in a new and different way. Gadamer concludes that this combination of identity and change is the sense to be given to Aristotle\u27s conception of natural law. On the one hand, the idea of natural law indicates that despite all the variety of moral ideas in the most different times and peoples ... there is still something like the nature of the thing. On the other hand, the nature of the thing does not determine an unvarying content that is the same as a fire that burns everywhere in the same way, whether in Greece or in Persia. In this Essay, I want to consider this claim not by considering natural law directly but by looking at certain of our current debates over the meaning of universal principles we think are embedded in the U.S. Constitution. I shall begin by underlining what I take to be relevant aspects of Gadamer\u27s hermeneutics and then turn to disputes, such as those over abortion and affirmative action, that seem to divide Americans\u27 understanding of constitutional principles in increasingly bitter ways