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.’1Georgia Warnke, Hermeneutics, Tradition and Reason (Polity Press, 1987) 7 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.2Gadamer worked for Heidegger as an unpaid assistant 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 timeless method of hermeneutics and was more intrigued by identifying the conditions of the interpretive style.
Gadamer stated that ‘understanding is, essentially, a historically effected event’.3Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 300 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’.4William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614
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.5William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614
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’.6Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 301 This relates to what Gadamer calls the history of effect.7Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 299–300 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’.8Paul 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 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.9Georgia Warnke, Hermeneutics, Tradition and Reason (Polity Press, 1987) 65 Probing and further penetration of the text challenges the interpreter’s own horizon.10Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 390 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’.11Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 393 Further, ‘an important part of this testing occurs in encountering the past and in understanding the tradition from which we come’.12Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 306 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.13Hans-Georg Gadamer, Truth and Method, (Joel Weinheimer and Donald G Marshall trs, 2nd edn, Continuum Publishing Group 2004) 362–369 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’.14William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series 623
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’.15William N Eskridge Jr. ‘Gadamer/ Statutory Interpretation’ (1990) 3832 Yale Law School Faculty Scholarship Series, 614 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 Topeka16347 U.S. 483 in which the US Supreme Court declared racially segregated schools as unconstitutional, overturned the state-sponsored segregation of the earlier case of Plessy v. Ferguson17163 U.S. 537 where both cases relied upon divergent interpretive readings of the 14th Amendment’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 interpretive18Rosemary Coombe ‘Same As It Ever Was: Rethinking the Politics of Legal Interpretation’ (1989) 34 McGill Law Journal 603 (rather than fictitiously a declarative enterprise) Gadamer’s utility in statutory interpretation has varied among scholars, some saying that it exemplified hermeneutical understanding,19Francis Joseph Mootz, ‘Hermeneutics and Law’ in Niall Keane and Chris Law (eds) The Blackwell Companion to Hermeneutics (Wiley & Sons, 2016) 595 some being more reticent,20Brad Sherman, ‘Hermeneutics in Law’ (1988) 51 Modern Law Review, 395 others stating it presented an honest account of statutory interpretation that avoids the limitations of other theories,21See 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 while some suggested that we’d yet to unlock its potential.22Francis Mootz, ‘Gadamer’s Rhetorical Conception of Hermeneutics as the Key to Developing a Critical Hermeneutics (2008) SSRN Electronic Journal, 1 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.