Legal Hermeneutics: A Philosophical Critique

• Author: Simeon C.R. McIntosh
• Profession: Professor Emeritus of Law at Howard University, Washington, DC
• Pages: 55-126

Legal Hermeneutics: A

Philosophical Critique

Introduction

It is my contention that legal interpretation is a species of general

hermeneutics. Hermeneutics is a discipline that takes as its task the

understanding and explanation of texts in a way that goes beyond the practical

grammatical and lexical exegesis of their verbal components.1 This chapter

will discuss the problem of meaning in written legal texts to examine what is

entailed in saying that a legal text means so-and-so. I will discuss the problem

of meaning in law from the perspective of literary theory, for I believe that

literary and legal interpretation share some common hermeneutic concerns.2

What is more, the literary theorist has made far greater advancements in

analysing the nature of interpretation than has the legal theorist. No work on

legal interpretation compares with E.D. Hirsch’s treatise on literary theory,

Validity in Interpretation.3 This is surprising when one considers how directly

substantive legal doctrine is influenced by the act of interpretation and how

much the practice of law involves the interpretation of some text – be it the

Constitution, a statute, a contract, or a will. It is often stated that a court’s

duty is to apply the law. Yet what a court applies is actually that which it

understands the law to mean based on its interpretation of it. The lawyer and

the jurist, too, are ever engaged in the act of interpretation.

Simply stated, law is an interpretative process. Despite attempts on the

part of some legal scholars to study legal interpretation, the discipline remains

essentially preoccupied with the application of rules called ‘canons of legal

interpretation.’4 These canons are of little cognitive value for they deal with

technical issues, as if the theoretical problems had been solved. In short, they

are not conducive to critical interpretation. They do not help us understand

the ‘human spirit’ that found expression through the words of a legal text.

They offer little critical reflection on our behaviour as lawyers.

As a cognitive discipline, interpretation aims at knowledge – knowledge

of meaning.5 Legal interpretation, as a species of hermeneutics proper, must

Reading Text and Polity

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aim at some special kind of knowledge – the understanding of rights and

obligations created and confirmed through legal texts. This knowledge,

however, will hardly be achieved through a methodology that too heavily

structures the reader’s way of seeing, allowing him to approach and control

the text through canons of interpretation, as though the text consisted of

natural objects obedient to laws which could be formulated and understood.

In place of this methodology, a dialectical theory of interpretation is needed,

one that allows the reader to question and, at once, be questioned by the

‘subject matter.’6

Stated generally, interpretation is a cognitive process whose proper object

is our neighbour’s mind, or, at least, a sign or expression whereby some mind

manifests its existence and its processes.7 Interpretation differs from other

mental processes and kinds of knowledge in the objects to which it is properly

applied, in the relation in which it stands to these objects, and in the end it

serves.8 These objects of interpretation are not accessible to us through any

mode of direct intuition. Our neighbour’s mind is no mere datum to our

senses at any time.9 Yet we strive to understand the mind of that other. Such

understanding is the minimal condition for a communion of the human

spirit dwelling in all of us. This understanding is made possible through our

possession of language, but it is important for us to understand that language

is not a mere tool for communication. Rather, it is ‘the fundamental mode

of operation of our living-in-the-world and the all-embracing form of our

constitution of the world.’10 For:

It is in the nature of the tool that we master its use, which is to say we

take it in hand and lay it aside when it has done its service. That is not the

same as when we take the words of a language, lying ready in the mouth,

and with their use let them sink back into the general store of words over

which we dispose. Such an analogy is false because we never find ourselves

as consciousness over against the world and, as it were, grasp after a tool

of understanding in a wordless condition. Rather, in all our knowledge

of ourselves and in all knowledge of the world, we are always already

encompassed by the language that is our own.11

It suffices, then, to say that all understanding (which also means all

interpretation) is essentially linguistic. ‘Our possession of language, or better,

our possession by language, is the ontological condition for our understanding

of the texts that address us.’12 Our acts of interpretation therefore presuppose

our immersion in a tradition, a form of life, largely conditioned and

constituted by our language.

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Legal Hermeneutics: A Philosophical Critique

The Hermeneutics of Legal Texts

In this section, among others, the works of E.D. Hirsch and Hans-Georg

Gadamer, two of the most eminent of contemporary hermeneuticists, will

be discussed. Hirsch is a literary theorist; Gadamer is a philosopher. This

discussion will also be used to articulate this writer’s views on interpretation

generally, and legal interpretation in particular.

In his seminal work, Validity in Interpretation,13 Hirsch asks whether

statutory and literary interpretation require autonomous and distinct

methods of interpretation. He shows that ‘a lawyer usually interprets the law

better than a literary critic not because he applies special canons of statutory

construction but because he possesses a wide range of immediately relevant

knowledge.’ For:

classification of texts, as Croce rightly argues, corresponds to no distinct

essences or Aristotelian entelechies. They refer instead to vague family

groupings which overlap one another within the vast continuum of

recorded speech. No matter how narrow the class becomes (law, civil

law, criminal law; or poetry, epic poetry, lyric poetry) the borderlines

between the groupings remain fuzzy. Consequently, no interpretive

method can be consistently appropriate to any narrow class of texts,

and it follows a fortiori that the application of broad legal, literary, or

biblical canons to texts classed under those names is a splendid example

of misplaced confidence and premature generalization. The proper

sphere of generalization is the domain of principles, not methods, and

the determination of general principles is properly the concern of general

hermeneutic theory.14

If this is correct, then the epistemological questions involved in the

interpretation of literary texts must in large measure apply to legal texts as

well. One of the most significant questions of interpretation raised by Hirsch

is whether the text belongs to a distinct ontological realm where any word

sequence can, under the conventions of language, legitimately represent more

than one complex of meaning.A word means nothing in particular until

somebody either means something by it or understands something from

it. There is no magic-land of meanings outside of human consciousness.

Whenever meaning is connected to words, a person is making the connection,

and the particular meanings he lends to them are never the only legitimate

ones under the norms and conventions of his language.15

Simply, Hirsch purports to make authorial intention the only practical

norm for a cognitive discipline of interpretation. So central to the problem

of the ontological status of texts is the question of the relevance of authorial

intent in the task of interpretation.