Introduction - Toward a West Indian Hermeneutics: The Role of the Caribbean Court of Justice

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 1-54

INTRODUCTION

Toward a West Indian Hermeneutics: The Role of the

Caribbean Court of Justice

Law is an interpretive enterprise. That is to say, the interpretation of legal

texts is central to the practice of law – whether the interpreter is a judge, a

lawyer, or a legal historian. For this reason, law is very much a hermeneutical

enterprise; and legal theory should therefore concern itself with ‘the theory

or art of explication and interpretation of texts’.1 There is a natural and

intimate connection between hermeneutics and jurisprudence. As Gregory

Leyh has observed, ‘hermeneutics plays a critical role in the justification of

our practical choices. It helps us to see the grounds of judgment. A critical

examination of how we justify our interpretive choices is a way of widening

the horizons of those – perhaps especially in law – whose practical work is

centrally interpretive.’2

For the judge, in particular, this observation is of telling importance;

given that law, as a distinctive form of human institution with binding and

justificatory force, and in which the judge is a principal agent, does not

necessarily reveal on its face the basis of its justificatory power over human

life.3 Yet the law is invoked as a justification for the ordering of punitive

sanctions against individual citizens;4 and every judicial opinion uttered by

the judge in the name of the law carries implicitly a claim to moral truth. For

this reason, then, the jurist must advance justificatory reasons for the decision

he or she renders. The need for a moral justification of law and the decisions

uttered in its name derives from the very character of law itself.5

Professor Fred Dallmayr conceives of a slightly different approach to the

issue in terms of the doctrine of the ‘rule of law’: a powerful tradition of

Western political thought which speaks to the idea of good government or

the ideal regime as a form of rule – governance, namely, as ‘a government of

laws and not of men’.6 This doctrine, he suggests, ‘is not simply an accidental

political bias but is linked with central premises and hierarchical postulates

endemic to Western civilization: particularly the rule of reason over arbitrary

will, of universal principle over particular circumstances, and ultimately of

Reading Text and Polity

2

idea over matter.’7 Dallmayr suggests that the impact of hermeneutics on that

dimension of political life traditionally thematised as the rule of law: ‘conceived

broadly to include democratic procedures of legislation and a commitment

to constitutional protections against the tyranny of the majority and the

subjection of organs of state as fully as possible to legal constraints against

arbitrary exercises of power’, is most evidently borne out in the interpretation

of the constitution, which must be regarded by judges as a fundamental law.

It belongs to judges to ascertain the meaning of the constitution, as well as the

meaning of any particular act proceeding from the legislative body.8

Issues of interpretation cannot rigorously be exiled or segregated from

rule-governance. Thus, hermeneutics has a central role to play in legal and

constitutional theory. And legal hermeneutics, which is primarily concerned

with the theory or art of interpretation and explication of legal texts, shares

in the nature of general or philosophical hermeneutics proper, which sets for

itself the ontological task of identifying the irreducible conditions of human

understanding in accounting for the ineluctable relationships between text

and reader, the past and the present.9 For legal hermeneutics involves the

interpretation, understanding and application of the law to the case at hand;

a mediation of the tension between the sense of the legal text as it is written

and the sense arrived at in its application to the particular case at hand. A legal

text or statute is not merely there ‘to be historically known or understood but

to be concretized through interpretation in its current validity.’10 As Hans-

Georg Gadamer has conceived it, ‘understanding always involves something

like an application of the text to be understood to the present situation of the

interpreter. Application is as integral a part of the hermeneutical act as are

understanding and explication.’11

Gadamer has therefore given pride of place to legal hermeneutics in

his disquisition on his understanding of hermeneutics and its origins in

philology, theology, and jurisprudence. ‘The original close connection

linking philological with legal and theological hermeneutics, derived from

the recognition of application as an integral element of all understanding. In

both legal and theological hermeneutics there is the essential tension between

the established text (the law or the revealed proclamation), on the one hand,

and on the other, the sense arrived at by its application in the particular

moment of interpretation, either in a legal decision or in preaching.’12

Thus, in remarking on the ‘exemplary significance of legal hermeneutics’

for the humanities and the human sciences, and for a proper conception of

interpretation as such, Gadamer observes that ‘Legal hermeneutics is…fitted

to restore the full range of the hermeneutical problem and to retrieve the

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Introduction

former unity of hermeneutics, in which the jurist and theologian meet the

student of the humanities.’13 For, ‘to see the problem of reading the law in

terms of its history, its linguistic composition, and of the political implications

for the way law is read and understood is to set legal interpretation squarely

within the humanist tradition.’14 Therefore, instead of treating law as a

discipline separate and apart from the humanities because of its specialised

idiom and professional ethos, law should rather be understood ‘as another

voice in the larger community’s conversation about how to promote a more

just and humane [polity].’15 And the methods of the humanities, in the careful

attention to language, the reading and interpretation of texts, the telling and

hearing of stories, and the development of a capacity for empathising with the

experiences of others, offer instructive lessons for the way or ways law might

be read and understood.16

Professor James Boyd White, Professor of Law and Classics at the

University of Michigan, makes that intimate link between law and the

humanities in virtually all of his work. He asserts, and I believe correctly, that

law, at its best, is interpretive and compositional; it is therefore a radically

literary activity.17 Law, in essence, he suggests, can be seen as a way of reading,

composing, and criticising authoritative texts; and, in the process, it is a way

of constituting, through conversation, a community and a culture of a certain

kind.18 And this is especially the case in respect of constitutional law: in

constitution-making and in constitutional adjudication and interpretation.

Constitution-making is otherwise described as a ‘poetic’ and ‘metaphoric’

act where a people order their collective life, through the composition of their

fundamental political text, and in terms of some vision of themselves as to the

kind of people they aspire to be, and of the political world they should wish

for themselves and their posterity. The constitution of a nation is the central

political text by which a people purport to define themselves in a certain way

and ‘to carve out a zone of rationality against anarchy, and to facilitate the

form of life they envision for themselves and their posterity.’19 On this view,

constitution-making is a public hermeneutics by which a people affect to

organise their political order according to some written design that constitutes

the authoritative modelling of their polity in words, and which shapes their

collective understanding of themselves and contributes to the formation and

reformation of their collective identity.20 This ‘text’ would inevitably express

the people’s conception of themselves and of human nature, and would also

shape the public discourse by providing certain categories for thought, speech

and action.21