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Hermeneutics concerns itself
with the philosophy of interpretation, initially oriented toward the
interpretation of texts. Indeed, though its origins lay in Greek antiquity,
‘advances in the formulation of methods of interpretation had to await the
Reformation and the attack on the Church’s authority to interpret the bible.’1 Thus, hermeneutics was a branch of theology that
dealt specifically with the interpretation of holy scriptures but has since
expanded beyond textual interpretation to encompass the interpretation of
verbal (speech) and non-verbal (conduct) expressions.
The use of Gadamerian
hermeneutics in legal interpretation is well documented. Indeed, Gadamer
regarded law as having ‘exemplary significance’ in developing his Post-Romantic
interpretation that moved beyond methodological variations of
attempting to determine authorial (specifically here, legislative) intent
(literal, mischief or golden rule).
Importantly, as the intellectual progeny of
Heidegger, Gadamer’s hermeneutics moved in a way similar to that of his mentor.2 Like Heidegger’s concept of phronesis for
example, that emphasises our practical being-in-the-world and
identified our concrete situation as the mode of knowledge, Gadamer similarly
employed this ‘thrownness’ (geworfenheit), by refuting the possibility
of an interpretive style that was able to transcend our necessary situatedness.
Additionally, his dialogic approach, explained later as the Fusion of
Horizons, is eminently Heideggerean. Gadamer thus resisted attempting to
articulate a timelessmethod of hermeneutics and was more
intrigued by identifying theconditions of the interpretive
style.
Gadamer stated that
‘understanding is, essentially, a historically effected event’.3 He therefore rejected objective, neutral or
value-free readings of legal texts, instead explaining what the conditions were
for intersubjective meaning or Verständigung. These can be
understood in three ways; that interpretation is ‘ontological, dialectical and
critical’.4
That interpretation is ontological derives
from Gadamer’s assertion that the truth is largely independent of any method
and that we are in fact interpretive beings. Here, he adopted Heidegger’s
historicity of our ‘being-in-the-world as the fore-structure of Dasein’:
We are thrown
into a world whose contexts moulds us and limits our imagination and, hence,
our options. Our very being is a process of interpreting our past, which is
projected onto us and to which we respond…not in what way being can be
understood but in what way understanding is being…interpretation is the common
ground of interaction between text and interpreter, by which each establishes
its being…interpreter and text are indissolubly linked as a matter of being.4
To put it crudely,
interpretation is not something one ‘does’, but rather something one ‘is’.
Hence to think of variable methods of interpretation, like the Romantics did,
missed the point. Unlike the tabula rasa of the Cartesian
spectator or Kant’s transcendental concepts for example, what
shaped one’s understanding of a text is one’s horizon which is
‘the range of vision that includes everything that can be seen from a
particular vantage point’.6 This relates to what Gadamer calls the history
of effect.7 As our existence is inherently contextual, we
project onto meaning the traditions of the world in which we are ‘thrown into’.
Thus
one possesses an ‘effective historical consciousness’ by stint of awareness of
this situatedness.Understanding is thus contingent on a temporality in
which ‘time is the productive possibility of custom and tradition aiding
understanding by illuminating what presents itself’.8 A ‘Gadamerian judge’ therefore would be defined
and shaped by an immanent effective history which it is
necessarily immersed in and thus constituted by.
That interpretation is dialectical refers
to the to-ing and fro-ing between the horizons of the interpreter and the
(legal) text. Meaning does not protrude from the text automatically (like
authorial intent claims) but requires participation.9 Probing and further penetration of the text
challenges the interpreter’s own horizon.10 Indeed, ‘the confrontation with the text and
openness is willingness to expose, challenge and criticise prejudices
highlighted by the text.
This openness is achieved dialectically with a
willingness to listen and also to admit error’.11 Further, ‘an important part of this testing
occurs in encountering the past and in understanding the tradition from which
we come’.12 The dialectical process with the text will
eventually result in a Fusion of Horizons in which the
interpreters’ prejudgments, generated by their effective history, are exposed
and challenged—as is the text’s, stimulating introspection into the effective
history of the interpreter and the presumptions of the text.
Through
conversation, a synthesis of sorts is accomplished. In its standard application
to statutory interpretation therefore, hermeneutics is a dialogic
process.13 Rather than trying to uncover some mystical,
psychological intent of the author of a legal text, the judge ‘instead
challenges and questions its assumptions to get at its truth-value. Similarly,
the interpreter places her own pre-judgments at risk, by opening them to
questions and challenges from the text’.14
That interpretation is critical; ‘the
interpreter questions the text, the presuppositions of which may be attenuated
or undermined over time. In turn, the interpreter uses the experience to
re-evaluate her own pre-understandings, to separate the enabling, truth-seeking
ones from the disabling, false ones’.4 Thus the meaning of legal texts are not static
but dynamic.
Hermeneutics confronts the embedded prejudices of the legal text
by colliding them with the similar prejudices of the judicial interpreter.
Gadamerian hermeneutics therefore, is able to provide a sounder account of so-called
‘departures from established precedent’. For example, the case of Brown
v. Board of Education of Topeka16 in which the US Supreme Court declared racially
segregated schools as unconstitutional, overturned the state-sponsored
segregation of the earlier case of Plessy v. Ferguson17where both cases relied upon divergent interpretive
readings of the 14thAmendment’s Equal Protection Clause. Indeed, in confronting
the prejudices of the legal text head on (both the amendment and the case law),
Justice Warren was documented as having convened a meeting of the Justices and
saying that maintaining the precedent of Plessy was to sustain
the belief in the inferiority of African-Americans.
Problematically for
Romantic Hermeneutics therefore, which was based on a misplaced claim of
transcendental meaning, such endeavours undermined the critical scope of
hermeneutics. Indeed, the author is only the first reader of the text.
Arguably, the decision in Brown for the Romantics could not be
considered as anything other than ‘judicial activism’.
Before Gadamer, hermeneutics
(attempting to emulate the natural sciences) sought to determine the truth of
texts with reference to a meaning that was the same at all places and at all
times.
However, Gadamer recognised that our necessary situatedness meant, not
just that such a transcendental meaning was beyond us, but it did not ask the
correct question—what were the conditions of interpretation? Specifically
for law, with the popularisation of the sentiment that adjudication is
interpretive18(rather than fictitiously a declarative enterprise)
Gadamer’s utility in statutory interpretation has varied among scholars, some
saying that it exemplified hermeneutical understanding,19 some being more reticent,20others stating it presented an honest account of
statutory interpretation that avoids the limitations of other theories,21 while some suggested that we’d yet to unlock its
potential.22
Most importantly however, to not recognise our
initial throwness in which our traditions shape our
understanding (our ‘effective historical consciousness) is to demonstrate what
Gadamer referred to as Enlightenment thinking’s ‘prejudice toward prejudice’.
Tanzil Chowdhury is
a Doctoral Researcher in the School of Law, University of Manchester.
- Georgia Warnke, Hermeneutics, Tradition and Reason (Polity Press, 1987) 7
- Gadamer worked for Heidegger as an unpaid assistant
- Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 300
- William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614
- William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614
- Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 301
- Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 299–300
- Paul Regan ‘Hans-Georg Gadamer’s Philosophical Hermeneutics: Concepts of Reading, Understanding and Interpretation’ (2012) 4, 2 Meta: Research in Hermeneutics, Phenomenology, and Practical Philosophy, 300
- Georgia Warnke, Hermeneutics, Tradition and Reason (Polity Press, 1987) 65
- Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 390
- Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 393
- Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 306
- Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 362–369
- William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series 623
- William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614
- 347 U.S. 483
- 163 U.S. 537
- Rosemary Coombe ‘Same As It Ever Was: Rethinking the Politics of Legal Interpretation’ (1989) 34 McGill Law Journal 603
- Francis Joseph Mootz, ‘Hermeneutics and Law’ in Niall Keane and Chris Law (eds) The Blackwell Companion to Hermeneutics (Wiley & Sons, 2016) 595
- Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 395
- See also Eskridge (n 325) 609–681; George Wright, ‘On a General Theory of Interpretation: The Betti-Gadamer Dispute in Legal Hermeneutics’ (1987) 32, 1 American Journal of Jurisprudence, 191
- Francis Mootz, ‘Gadamer’s Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics (2008) SSRN Electronic Journal, 1
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