“Same As It Ever Was”:
Rethinking the Politics of Legal Interpretation
Rosemary J. Coombe*
This article, which places the development of
the “law-and-interpretation” or “legal her-
meneutics” school of legal scholarship in his-
torical and political context, is meant
primarily to serve as an accessible introduc-
tion to the literature on legal hermeneutics.
The author situates the law-and-
interpretation debate in the context of intel-
lectual developments in the humanities and
social sciences, and points out some of its
empirical and theoretical limitations.
While a great deal of the literature on legal
hermeneutics either ignores the politics of
interpretation or deals with” it superficially,
claiming it to be outside of the scope of in-
quiry of those interested in this field of legal
study, the author argues that politics is in fact
constitutive of the very act of interpretation.
Cet article situe le d6veloppement de l’cole
d’o herm6neutique juridique >> aussi appel6e
< droit et interpr6tation >> dans un contexte
historique et politique. I1 se veut une intro-
duction au domaine de l’herm6neutique
juridique.
L’auteure situe le d6bat de l’herm6neutique
juridique dans le contexte du d6veloppement
des id6es A l’int6rieur des sciences humaines
et sociales, tout en en soulignant quelques
unes des limites empiriques et th6oriques
d’un tel d6bat.
Trop souvent en herm6neutique juridique
on ignore les aspects politiques de l’interpr6-
tation des textes, ou on ne les aborde que
superficiellement, sous pr6texte qu’ils ne sau-
raient int6resser ceux qui s’int6ressent a ce
champ d’6tude du droit. Uauteure quant A
elle soutient que dans les faits, le politique
est inh6rent A toute d6marche d’interpr6-
tation.
*Assistant Professor of Law, University of Toronto. I would like to thank Tom Grey at
Stanford Law School for his comments on this paper. I would also like to extend my thanks
to Renato Rosaldo and to fellow graduate students in the Department of Anthropology at
Stanford University. Derede Arthur, Ethan Goldings, Don Moore, Merwin Pond, Lisa Rofel,
and Joel Streiker encouraged me to think critically about meaning and to address the political
meaning of critique in our ongoing discussions of culture and power. Ernesto Laclau helped
me to reconceive politics in his seminar on Postmodernism and Politics at the New School
foi Social Research. The usual disclaimers apply.
McGill Law Journal 1989
Revue de droit de McGill
McGILL LAW JOURNAL
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Synopsis
I.
Intellectual History
A. Paradigms for Understanding Social Life
B. Models for Understanding Language
II. Legal Interpretation
A. Defining the Field
B. Defining the Problem
C. Constructing Solutions: The Constraints of Convention
D. Denying the Problem: The Constraints of Context and Tradition
III. The Politics of Interpretation
The development of a “law as interpretation” or “law and literature”
school of legal scholarship in the 1980s must be understood in historical
and political context. It reflects both the dawning cognizance by legal scho-
lars of major trends in twentieth century social theory, and a renewed con-
cern with judicial review in contentious political climates. In the United
States the interest in a hermeneutic understanding of legal decision-making
also resonates with a desire to preserve constitutional interpretations es-
tablished by the liberal reform efforts of the Warren court (in light of the
Supreme Court’s retreat from these in the Reagan era) in particular, and
with a felt necessity to question the legitimacy ofjudicial review in general.
In Canada, the American interpretive turn has been imitated and adapted
by constitutional legal scholars. Both those at the centre and those on the
left who are concerned with judicial interpretation of the Charter of Rights
have found in the arsenal of hermeneutic and linguistic theory (as this has
been refracted in American legal scholarship) potent weapons for either
supporting judicial review or for questioning its political legitimacy.
This article is designed to accomplish three things. It is meant to serve
first and foremost as an accessible introduction to the law-and-interpretation
literature for newcomers to this dialogue. Secondly, it attempts to situate
this debate in the context of wider intellectual developments in the hu-
manities and social sciences, with which many legal scholars are unfamiliar.
Finally, it is intended to stimulate new discussion and research by pointing
1989]
LEGAL INTERPRETATION
to some of the empirical and theoretical limitations of this scholarship,
particularly with respect to the abbreviated concept of politics that seems
prevalent in this discourse. I do not purport to represent all contributions
to the law-and-interpretation literature, but to engage what I take to be
representative positions within this dialogue. Many of these positions were
established very quickly and find their most articulate and lucid expression
in some of the earliest contributions to the literature. I have made no attempt
to trace these ideas throughout this entire body of scholarship, nor to focus
on their most recent manifestations. I am convinced that, to a large degree,
most contributors to the dialogue are simply elaborating and adding further
examples to illustrate propositions that were theoretically cogent in the first
“conversations” of the early 1980s.1
I will argue that a great deal of the law-and-interpretation literature
either ignores the politics of interpretation, deals with it superficially as a
matter of the personal predilections of judges, or claims politics to be in-
evitable, but as somehow outside the scope of inquiry of those interested
in the issue of interpretation. None of these positions seems justified or
sufficient, however, and I will suggest that we consider the political, not as
standing outside of or as a background context to practices of interpretation,
but as constitutive of that activity itself. This suggestion will be made by
way of a commentary on central texts in the literature.
I.
Intellectual History
The “interpretive turn” in legal scholarship may be understood in terms
of the acknowledgment by legal academics that modem developments in
the social sciences and humanities have profound implications for the study
of law and legal systems. In particular, the rejection of scientism and pos-
itivist explanation in the social sciences and the assault on conventional
understandings of language in linguistics and literary criticism, were rec-
ognized as challenging some of the fundamental assumptions on which
traditional legal scholarship was premised. 2
‘Three published collections are representative: see (1982) 60 Tex. L. Rev. 373-586; W.J.T.
Mitchell, ed., The Politics of Interpretation (Chicago: University of Chicago Press, 1983) and
(1985) 58 S. Cal. R. Rev. [Interpretation Symposium].
2There is an alternative perspective that sees the “turn to interpretation” in legal scholarship
as a liberal reaction to the Critical Legal Studies claim of legal indeterminacy. See B. Langille,
“Revolution without Foundation: The Grammar of Scepticism and Law” (1988) 33 McGill L.J.
451 and J. Bakan, “Retreat to the Elite”( A paper delivered at a workshop on ‘Feminism,
Critical Theory, and the Canadian Legal System”, June 4-7, 1988)[unpublished] for statements
to this effect. Perhaps there is evidence here of revisionist intellectual history. It would seem
that mainstream legal scholars were contending with some of the implications of linguistic
philosophy and literary criticism before they recognized the relevance of this work to the
emerging Critical Legal Studies scholarship on legal indeterminacy. For quite some time
(roughly 1979-1985, to judge by publishing dates) these simultaneous initiatives developed
autonomously and without explicit reference to each other.
606
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A. Paradigms for Understanding Social Life
The rejection of scientism was a reaction to a paradigm which had long
dominated American social science. During the post-war period the attempt
to formulate general social or political philosophies had been abandoned in
favour of a “scientific” model of investigation which privileged the pur-
portedly value-neutral task of constructing empirical theories of social be-
haviours and development. A positivist account of what constituted an
explanation dominated the philosophy of science -to explain a set of facts
was a matter of showing that their occurrence could be deduced and there-
fore predicted from a known law. Social scientists became ever more con-
vinced that the deduction and prediction of social phenomena involved a
similar search for regularities and relationships among social facts, and that
human behaviours could be viewed and explained in the same manner as
natural events. Consequently, piecemeal, empirical research in the social
sciences was privileged as the only kind of inquiry that could be described
as “scientific” (a normative term in that era) and by the early 1960s this
kind of research dominated the field. 3 The social sciences were dominated
by the view that the objectives and the logic of social science were the same
as those of natural science. Proponents of this approach conceived of the
aims of the social sciences in relation to a particular model of natural science,
that of logical empiricism. The concept of natural science to which the
aspirations of social science were tied, however, fell into disrepute in the
philosophy of science long before it was abandoned in sociology.4 By the
early 1970s, philosophers of science, notably Thomas Kuhn 5 and Paul
Feyerabend 6, had challenged the belief that scientific models were objective
descriptions and demonstrated that scientific models were themselves par-
tial interpretations, dependent upon the perspectives and disciplinary con-
ventions of scientific observers.
The reaction against positivism and empiricism in the social sciences
gained momentum throughout the 1970s, developing on many fronts and
in many distinct and often divergent intellectual endeavours. These diverse
reactions, however, shared at least some general characteristics and were
united by a
3This account is derived from Q. Skinner, “Introduction, The Return of Grand Theory”, in
The Return of Grand Theory in the Human Sciences, Q. Skinner, ed., (Cambridge, Cambridge
University Press, 1985) 1, which is typical of narratives delineating twentieth century intel-
lectual developments in the social sciences.
4A. Giddens, “The Social Sciences and Philosophy” in A. Giddens, ed., Social Theory and
Modern Sociology (Stanford: Stanford University Press, 1987)52 at 54.
5The Structure of Scientific Revolutions,2d ed.(Chicago: University of Chicago Press, 1970).
6Against Method: Outline of an Anarchistic Theory of Knowledge (London: Verso, 1978).
1989]
LEGAL INTERPRETATION
reaction against the assumption that the natural sciences offer an adequate or
even a relevant model for the practice of the social disciplines. The clearest
reflection of this growing doubt has been the revival of the suggestion that the
explanation of human behaviour and the explanation of natural events are
logically distinct undertakings, and thus that the positivist contention that all
successful explanations must conform to the same deductive model must be
fundamentally misconceived.7
In 1984, Anthony Giddens, a leading British sociologist, asserted that
in the English-speaking world, the social sciences had changed dramatically
since 1970, and that the orthodox consensus that had defined mainstream
social science had disintegrated into a “bewildering variety of schools of
social theory”, most of which shared a rejection of scientific premises about
social behaviour8 . Perhaps central to the rejection of positivism is the rec-
ognition that social phenomena have meaning for social agents who are
constantly interpreting the situations in which they find themselves. (The
scientific model,on the other hand, presupposes a subject whose activities
can be generalized and understood as context-free operations. 9) This has
resulted in the revival of a cry for a hermeneutic approach to human action,
the demand that social scieiice acknowledge the claim that explanation of
human behaviours must attempt to recover and interpret the meanings of
social actions from the point of view of those performing them. Philosophers
who had made such claims earlier in this century, like Dilthey, Collingwood,
Heidegger, and especially Wittgenstein, were again sources of influence, for
they had asserted that the human sciences were interpretive endeavours –
an understanding of social phenomena should be concerned with explicating
the historical and cultural context or “form of life” in which such phenom-
ena have meaning. As Giddens asserts, “the recovery of the hermeneutic
tradition is one of the most significant occurrences in recent trends of
development.”‘ 10
Changes in the field of anthropology both reflected this shift in the
human sciences and, to a large degree, helped to shape it.1I Clifford Geertz
has been extremely influential in elaborating and re-defining the anthro-
pological concept of culture and making it central to the discipline. Geertz
rejected the traditional view of anthropological analysis as manipulation of
discovered facts or logical reconstructions of empirical realities and pro-
7Skinner, supra, note 3 at 6.
8Giddens, supra, note 4 at 56.
9p. Rabinow & W.M. Sullivan, “The Interpretive Turn: Emergence of an Approach”, in
Interpretive Social Science, a Reader (Berkeley: University of California Press, 1979) 1.
‘ 0Giddens, supra, note 4 at 56.
“See G. Stocking, Race, Culture, and Evolution: Essays in the History of Anthropology
(Chicago: University of Chicago Press, 1982) at 303-07 for a discussion of how the anthro-
pological concept of culture became part of common social science discourse in.the post-WWII
period.
McGILL LAW JOURNAL
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posed instead an interpretive theory of culture, 12 which he later referred to
as “cultural hermeneutics’ in the tradition of Wittgenstein’s philosophy. 13
The concept of culture I espouse … is essentially a semiotic one. Believing,
with Max Weber, that man is an animal suspended in webs of significance he
himself has spun, I take culture to be those webs, and the analysis of it to be
therefore not an experimental science in search of law but an interpretive one
in search of meaning.’ 4
Analysis of social life involves sorting out structures of signification
and understanding human behaviour as symbolic action, the import of
which lies in what it signifies. Culture, then, was socially established struc-
tures of meaning or
interworked systems of construable signs …
[it] is not power, something to
which social events, behaviors, institutions, or processes can be causally at-
tributed; it is a context, something within which they can be intelligibly – that
is thickly – described. 5
Anthropologists, then, must attempt to understand other cultures “from
the native’s point of view”; descriptions of other cultures must be cast in
terms of the constructions that people in those cultures place upon their
experiences, the interpretive meanings they ascribe to their lives, because
it is those lives and those experiences that anthropologists profess to
describe.
Geertz saw his first collection of essays on “thick description”’16 as
witness to an increased interest, not only in anthropology but in social
studies generally, in the, role of symbolic forms in human life. “Meaning,
that elusive and ill-defined pseudoentity we were once more than content
to leave philosophers and literary critics to fumble with, has now come back
into our discipline. Even Marxists are quoting Cassirer; even positivists,
Kenneth Burke.” 17
In 1983, Geertz looked back and commented that:
Ten years ago, the proposal that cultural phenomena should be treated as
significant systems posing expositive questions was a much more alarming one
for social scientists – allergic as they tend to be, to anything literary or inexact
– than it is now. In part, it is a result of the growing recognition that the
established approach to treating such phenonena, laws-and-causes social phys-
pology (New York: Basic Books, 1983) 3 at 5.
Cultures: Selected Essays (New York: Basic Books, 1973) at 3.
‘2″Thick Description: Toward an Interpretive Theory of Culture” in The Interpretation of
13See “Introduction” in C. Geertz, Local Knowledge: Further Essays in Interpretive Anthro-
14Geertz, supra, note 12 at 5.
’51bid. at 14.
16lbid.
171bid. at 29.
1989]
LEGAL INTERPRETATION
ics, was not producing the triumphs of prediction, control, and testability that
had for so long been promised in its name.’ 8
With its contextualist, antiformalist, relativizing tendencies, and its at-
tention to the ways in which the world is talked about, depicted, and rep-
resented, rather than the way it ‘really’ is, cultural anthropology became a
model discipline when these same tendencies emerged in other social science
disciplines. Anthropologists’ hermeneutic attempts to understand the un-
derstandings of others, to explain things “by placing them in local frames
of awareness”‘ 19, became increasingly influential. 20
If we accept the notion that human activity can be understood only in
terms of the contexts that inform and limit the human agent’s understand-
ings of the social world in which she lives and her own activities in that
world, we must also accept the premise that we can only understand these
understandings in terms of the contexts which inform and limit our own
practices of interpretation. In other words, both the observer and those she
observes are situated in historical and cultural contexts. Both the object of
investigation and the tools with which investigation is carried out share
inescapably the same pervasive context that is the human world.21 As Geertz
put it with respect to anthropology,”[our] writings are themselves interpre-
tations, and second and third order ones to boot.” 22
One of the most comprehensive expositions of the interpretive position
in the human sciences was offered by Charles Taylor in his article Interpre-
tation and the Sciences of Man, first published in 1971. As Taylor describes
it, the baseline realities for both observer and observed in the human sci-
ences are social practices that are intersubjective, forming the most general
level of shared meanings which are the basis of community, argument, and
discourse. 23 To understand something is to understand its meaning, and
meaning is for a subject, in a situation, about something, and exists as part
of a field of meanings. For the social scientist this entails that our capacity
to understand is rooted in the cultural world in which we live:
‘8Supra, note 13 at 3. See also “Blurred Genres: The Refiguration of Social Thought”, ibid.
at 19.
19Ibid. at 6.
201n the discipline of history, for example, social history has surpassed political history as
the most important area of research, and there has been a major shift in emphasis towards
the study of culture. Anthropological models predominate in historians’ approaches to cultural
phenomena and the interpretive strategies propounded by Geertz have been the subject of
intense discussion. See L. Hunt, “Introduction: History, Culture and Text” in L. Hunt, ed. The
Nev Cultural History (Berkeley: University of California Press, 1989).
21See Rabinow & Sullivan, supra, note 9 at 5.
z2Supra, note 12 at 15.
23C. Taylor, “Interpretation and the Sciences of Man” in Rabinow & Sullivan, supra,note 9,
25 at 48-51.
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There is no outside, detached standpoint from which to gather and present
brute data. When we try to understand the cultural world, we are dealing with
interpretations and interpretations of interpretations.
Culture, the shared meanings, practices and symbols that constitute the
human world, does not present itself neutrally or with one voice. It is always
multivocal and overdetermined, and both the observer and the observed are
always enmeshed in it; that is our situation. There is no privileged position,
no absolute perspective, no final recounting.24
The German philosopher Hans-George Gadamer has been influential
in calling our attention to the limitations of our own horizons and the
prejudices and preconceptions that necessarily shape our understandings of
others, thereby casting doubt on whether we can ever hope to grasp alien
behaviours, customs, or ‘texts’ objectively on their own terms. 25 We may,
therefore, have to recognize that if social science is to be interpretive in
nature, it may be impossible to think of it as a method for attaining ‘truth’
as we commonly tend to understand it.
If all human access to reality is inevitably conditioned by specific beliefs
about what counts as knowledge, then the claim of science (or any realm
of intellectual endeavour) to be finding out more and more about the world
as it really is, looks suspicious. As Skinner states, “[e]pistemology, conceived
in Kantian terms as the study of what can be known with certainty, begins
to seem an impossibility; instead we appear to be threatened with the spectre
of epistemological relativism.
’26
B. Models for Understanding Language
As Skinners statement indicates, epistemology and metaphysics have
increasingly become suspect in the field of philosophy. The concept of cul-
ture has also played a major role in helping philosophers come to terms
with the nature of certainty in a world devoid of absolutes. Here, however,
we see how the concept of culture is integrally tied to new understandings
of language. The “interpretive turn” in legal scholarship is also motivated
by legal scholars’ assimilation of these shifts in understanding.
As Gerald Graff suggests, legal scholars like to cling to what is left of
the ‘commonsense’ view of language, according to which words are essen-
tially names of things and the meanings of words are securely fastened …
onto the things the words denote.”’27 Legal theory would seem fairly con-
24Rabinow & Sullivan, supra, note 9 at 6.
25H.-G. Gadamer, “The Problem of Historical Consciousness” in Interpretive Social Science,
26Skinner, supra, note 3 at II.
27G. Graff, ” ‘Keep off the Grass’ ‘Drop Dead’ and Other Indeterminacies: A Response to
supra, note 9 at 103.
Sanford Levinson” (1982) 60 Tex. L. Rev. 405 at 405.
1989]
LEGAL INTERPRETATION
sistent in its appeals to the image of legal discourse as a neutral medium
which merely reflects social events.28 This is only possible given a conven-
tional understanding of language as a transparent vessel for expressing mean-
ing. Words must be treated as invisible transporters of intended meaning,
but not themselves constructive of meaning.29 Furthermore, although we
recognize that meaning can only be communicated through linguistic con-
ventions, the traditional view is that linguistic categories immediately reflect
a direct correlation with the objects or thoughts to which they refer.30 The
idea that representational terms –
“signifiers” – have a direct correlation
with the concepts represented, their “signified” meaning, depends upon an
assumption of positive content –
a natural tie between the word and the
thing.31
Increasingly, however, legal theorists are being compelled to acknowl-
edge that the idea that meanings reside “in” language is fundamentally
misguided. Linguists, anthropologists, literary theorists, and semioticians
have launched a sweeping assault upon such notions of language, demon-
strating that words themselves are only arbitrary and conventional symbols
or sounds that bear no necessary relation to the “real world” of things, and
that, in fact, the language we use to describe this world constructs it, rather
than reflects it, by dividing it up in a culturally distinct manner.
Developments in linguistics indicated that observers construe facts
(even in their first perception of them) according to pre-existing social ca-
tegories. These structuring filters, through which different peoples construct
the realities they recognize, are radically contingent and rooted in language.
The American linguists Edward Sapir and Benjamin Wharf were influential
in demonstrating that our most basic perceptual categories including colour,
time, and space, were not universal, but culturally filtered through the con-
tingent categories of language. The distinct languages of different societies
constitute unique worlds for those who live within them. These are distinct
worlds, not merely the same world with differing names for the same
phenomena. 32
Sapir and Whorf’s work was not widely known in North America until
the late 1950s and became influential in the 1960s along with the structural
linguistics of Ferdinand de Saussure. He approached language as a unified,
28See G. Peller, “The Metaphysics of American Law” (1985) 73 Calif. L. Rev. 1151 at 1159.
29Ibid. at 1161.
30Ibid. at 1163.
31Ibid.
32See D. G. Mandelbaum, ed., Selected Writings of Edward Sapir in Language, Culture, and
Personality (Berkeley: University of California Press, 1949).
McGILL LAW JOURNAL
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synchronic system, 33 in which the relationship between a word and its re-
ferent (signifier and signified) was arbitrary,34 and the sign’s meaning arose
not from its relationship to an external world, but from its relationship to
other signs within that system. 35
Structuralist linguistics (and its elaboration and extension in structur-
alist anthropology) was particularly important in its rejection of subjectivist,
phenomenological understandings of language which viewed language as an
instrument in the hands of conscious subjects. Instead it favoured an ob-
jectivist understanding of language as preceding and defining the charac-
teristics of consciousness itself.
The argument of the structuralists that won so much favor was that language
was not a tool at the disposal of the authorial subject, but instead, the mediation
of language contained constraints so powerful that the relationship of meaning
and subject was actually reversed. In short, language, to the structuralists,
situated meaning and the subject, not the reverse. Whatever the strengths of
the structuralist position, the crucial point was made – meaning was no longer
the creation of the author or subject, but was an effect of the complex set of
relationships known as the structure. 36
In philosophy, linguistic theory proved influential in the development
of a new epistemological framework to replace discredited metaphysical
claims. This framework was explicated in terms of a social inter-subjectivity
constituted by and through language. 37 The revival of Wittgenstein’s con-
textual hermeneutics aided philosophers in this endeavour. He argued that
arbitrary symbols, governed by arbitrary rules, serve to create meanings that
appear clear, self-evident, and certain, but only to those who accept the
conventions of the language game in which those systems and rules oper-
ate.38 Wittgenstein thus saw language not as a hermetic system in which
meanings were generated, but as integral to and constitutive of regular ways
of behaving, fixed forms of life, or what anthropologists call culture. Con-
33E de Saussure, Course in General Linguistics, C. Bally & A. Sechehaye, eds, trans. W.
Baskin (New York: Mcgraw Hill, 1966) at 101.
341bid. at 65.
3-5 bid. at 120.
36M. Poster, “Interpreting Texts: Some New Directions” (1985) 58 S. Cal. L. Rev. 15 at 16.For
a discussion of the critical implications of this claim for liberal legal discourse, see T. Heller,
“Structuralism and Critique” (1984) 36 Stan. L. Rev. 127. Heller also discusses some of the
major criticisms of structural linguistics and anthropology, both of which have greatly declined
in influence since the peak of their popularity in the late 1960s.
37See for example R. Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton
University Press, 1979); J. Habermas, The Theory of Communicative Action: Reason and the
Rationalization of Society (Boston: Beacon Press, 1984).
38L. Wittgenstein, Philosophical Investigations, trans. G.E.M. Anscombe (Oxford: B. Black-
well, 1953).
19891
LEGAL INTERPRETATION
tingencies were, therefore, experienced as certainties by virtue of shared
forms of life.
Legal thought has only slowly assimilated these twentieth century de-
velopments in the theory of language and culture, although they have long
been acknowledged to hold the potential of undermining the notion of any
neutral interpretive function for legal decision-making. Legal realists were
arguably the first to counter the formalist claim that the legal system could
produce neutral decisions because the judiciary were involved in an apol-
itical exercise –
the interpretation of the plain meaning of the words of
the law. Realists recognized that there were no real or plain meanings of
words, and that language was contextual and purposive, a view of language
which accorded with their insistence on purposive interpretation. “It was
by insisting that one always needed to look to purpose in order to interpret
even the plain meaning of words that the realists unfroze rules, shattering
their brittle reified form and dissolving them back into their constituent
policy goals.”‘ 39 The judge who purported to apply the plain meaning of a
word could be seen to be “committing the fallacy of reification –
abstracting
a meaning from its context and purpose and treating it as though it were
an external thing, capable of value-free investigation. ‘ 40 The movement
from the interpretation of the plain meaning of words to the interpretation
of purpose and intention, however, has given way to the realization that
purposes and intentions are equally reified and that one cannot look to
purposes and intentions without delving into the political struggles which
produced the law in question.
Given conventional understandings of language, the attribution of
meaning may be seen to be determinate and free from the mediation of
interpretation. Once we recognize signs as arbitrary and conventional, and
that there exists no natural tie between representational terms and the con-
cepts they signify, we still have to deal with the tendency to assume that
however arbitrary the signifier, it ultimately has reference to a ‘real’ signified,
to something actually out there, independent of our construction of it. But
again, all that we can apprehend of this reality is that which is distinguished
by the linguistic categories available to us. As Peller asserts, this “suggests
that meaning is created socially through the economy of difference within
representational contexts. Thus, there is no re-presentation, only
interpretation” 41 and there is nothing beyond interpretation to be
interpreted.
39J. Boyle, “The Politics of Reason: Critical Legal Theory and Local Social Thought” (1985)
133 U. Pa. L. Rev. 685 at 711.
4Ibid. at 712.
41Peller, supra, note 28 at 1167.
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[Vol. 34
II. Legal Interpretation
A. Defining the Field
The rejection of positivism in the social sciences and humanities has
slowly filtered into legal scholarship, making it inevitable that legal aca-
demics rethink the nature of legal interpretation. Curiously, however, most
of the debate about the nature of legal interpretation within legal academic
fora has focused exclusively on the activities of judges interpreting author-
itative texts like the American Constitution, the Canadian Charter of Rights,
statutes, and common law precedent, to decide hard cases.
So, for example, in an early article in this genre, Owen Fiss recognizes
that adjudication is interpretation, but defines this as a process in which a
judge comes to understand and express the meaning of a legal text.42 He
recognizes that interpretation has emerged in recent decades as an attractive
method for studying all social activity and that the idea of a written text
has been expanded to embrace social action and situations which are some-
times referred to as text-analogues. 43 Further, he acknowledges the growing
importance of interpretation in the disciplines of social study and suggests
that a view of adjudication as a form of interpretation promises to build
bridges between legal studies and this developing humanistic strand in the
social sciences. Promptly, however, he retreats from exploring the impli-
cations of these connections by claiming that appreciation for the distinctive
social function of adjudication requires care in identifying the kinds of texts
to be construed; judges, he insists, are “to read the legal text, not morality
or public opinion, not, if you will, the moral or social texts. ‘ 44
It immediately seems apparent that whole areas of legal interpretation
have been excluded from the inquiry. Judges, after all, interpret not only
cases and statutes, but evidence of various kinds, the oral arguments of
counsel, the testimony and demeanour of witnesses, the attitudes and pro-
clivities ofjuries, rules of civil procedure, community morals and standards
(in obscenity and slander cases for example) –
to name only a few of the
myriad ‘texts’ interpreted in an adjudication context.
Legal scholars limit the nature of the insights we might glean from this
consideration of legal interpretation by starting their inquiries at the end of
the adjudication process. By conflating legal interpretation with judicial
activity, whole realms of legal interpretation are precluded as subjects of
investigation. The process through which people with disputes become lit-
420.M. Fiss, “Objectivity and Interpretation” (1982) 34 Stan. L. Rev. 739 at 739.
431bid.
44Ibid. at 740.
1989]
LEGAL INTERPRETATION
igants is one permeated with legal interpretations; how else do people decide
something is a legal matter, lawyers translate social realities into legal ar-
gument, counsel interpet each other’s activities in pre-trial negotiations,
litigants perceive their attorney’s behaviours, juries translate instructions,
witnesses their roles, court officers their duties?
The determination of facts in the adjudication context, for example, is
clearly an interpretive exercise. Kim Lane Scheppele illustrates just how
interpretive fact-finding can be in her discussion of rape trials. 45 The state-
ment of “what happened” is an interpretive act and one which may be
understood differently by the man and the woman involved.
In one of the cases … the defendant claimed that he engaged in heavy caressing.
The victim experienced light choking … [I]t may have been that one or the
other was lying. But … it may also have been that both descriptions were true
because men and women have different perceptions of force. What was heavy
caressing to the man may have been the very same action that counted as light
choking to the woman. … But the different descriptions have different legal
consequences …. 46
Judges and juries have to choose between different perceptions of the
facts: not between truth and falsehood but between alternative truths. In
the context of ascertaining the facts about sexual relations between men and
women, there will often be conflicting true versions of the same event. 47
Furthermore, if we were to take our investigation of legal interpretation
outside of the adjudication context, and into corporate boardrooms, prisons,
factories, and classrooms, we might come up with some insights into legal
interpretation that would yield fruitful contributions to the increasingly
hermeneutic study of social life and possibly also add something to our
understanding of the reproduction and transformation of dominant ideo-
logies in the social world.
45K.L. Scheppele, “The Re-Vision of Rape Law” (1987) 54 U. Chi. L. Rev. 1095. Scheppele’s
discussion (a review of Susan Estrich’s Real Rape: How the Legal System Victimizes Women
(Cambridge: Harvard University Press, 1987) is an application of a theoretical argument about
legal fact-finding authored by anthropologist Clifford Geertz. See the essay “Local Knowledge”
in Local Knowledge, supra, note 13 at 167.
46Ibid. at 1105.
47To anticipate the argument I will later make with regard to the interpretation of legal texts,
ascertaining facts has political ramifications. Deciding between the divergent perceptions of
men and women is a decision with political consequences. Scheppele demonstrates that the
law delegitimates the perceptions and experiences of women in this context, and that women
themselves, when they sit as judges and on juries, have a tendency to consider their own
perspectives inappropriate in a legal setting, thereby participating in their own silencing and
in shaping the legal system’s signal to women that their experiences are not real and their
perceptions are not to be taken seriously.
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B. Defining the Problem
Although the literature on legal interpretation is unduly restricted in
the scope of its inquiry, it has provoked scholars to formulate some central
dilemmas and to offer competing resolutions to these. Again, however, it
would seem that these preoccupations are narrowly conceived. Basically,
the central dilemma revolves around the social and political ramifications
of the proposition that words have no ‘plain meanings’ or objective referents,
and that meaning is therefore indeterminate. The predominant concern is
that the abandonment or rejection of positivism or objectivism raises the
spectre of “nihilism” and subjectivism, thereby threatening the legitimacy
of adjudication and ultimately the rule of law itself. Much of the scholarship
in this area, however, seems directed towards demonstrating that such a
concern is unfounded.
Levinson, in one of the earliest and most provocative accounts of the
dilemmas raised for legal theorists by developments in literary theory, sees
the problem in rather black and white terms. 48 Traditionally law was seen
as the science of extracting meaning from words, which enabled one to
believe in law as a process of submission to the commands of authoritative
texts (the rule of law) rather than as the creation of wilful interpreters (which
would produce the rule of men). “The ordinary language of all developed
legal systems includes constant recourse to texts that authorize specific con-
duct.”‘ 49 For example, the authority of the written, stable Constitution, which
controls and transcends political activity because of the fixed nature of its
language, is a prominent and pervasive feature of American political
thought.
Developments in literary criticism dispute such commonsense notions,
and suggest the radical instability and indeterminacy of the meaning of texts
at all times. The suggestion has been that language and image are unavoid-
ably ambiguous, and the ascription of meaning is the product of an inter-
change between object and viewer rather than an attribute of the object
itself.50 Despite a general rejection of originalist constitutional interpreta-
tion, legal scholars have been loath to abandon the belief that there is some-
thing in the text (be that the Constitution or judicial decisions considering
it) that can be extracted if only we can determine the best method to mine
its meaning. Such quests for the essential meanings of texts have been aban-
doned by literary critics who increasingly view interpretation as a construc-
tive art in which the reader plays an active role in creating a ‘meaning’
which the text simply does not have prior to or independent of its inter-
48S. Levinson, “Law as Literature” (1982) 60 Tex. L. Rev. 373.
491bid. at 374.
5O1bid. at 377.
1989]
LEGAL INTERPRETATION
pretation. Such theorists reject the idea that meaning is discovered, and see
the search for truth as fundamentally in error if it presumes a privileged
foundation for measuring the attainment of truth. There is no finality of
interpretation, and there can be no determinate meanings.
This has serious implications, Levinson claims, especially for legal the-
ories of constitutional interpretation, because it suggests that interpretation
is merely an exercise of power and that legal texts can be read to serve
political purposes. This is particularly alarming given that “the principal
social reality of law is its coercive force vis-a-vis those who prefer to behave
other than as the law ‘requires’ “.51 If we abandon the claim that certain
judges “got the essence right” in their interpretations of the Constitution,
don’t we have to recognize instead “the extent to which we have been
subdued by their political visions” 52? Because there are competing visions,
there are different Constitutions, and arguably as many plausible readings
of the U.S. Constitution as there are interpretations of Hamlet. Ultimately,
we can only launch attacks on constitutional interpretations in political
terms.
Reactions to Levinson’s characterization of the dilemma emerged on
many fronts and spawned their own bodies of criticism. Foremost amongst
those generating criticism was the reaction of Owen Fiss, who asserts that
conceptualizations of legal interpretation like Levinson’s raise the spectre
of nihilism and cast doubt on the legitimacy of adjudication:
This new nihilism might acknowledge the characterization of adjudication as
interpretation, but then would insist that the characterization is a sham. The
nihilist would argue that for any text –
particularly such a comprehensive
text as the Constitution –
there are any number of possible meanings, that
interpretation consists of choosing one of those meanings, and that in this
selection process the judge will inevitably express his own values. All law is
masked power.
The law aspires to objectivity, so the nihilist observes, but he concludes that
the nature of the constitutional text makes this impossible. The text is capable
of any number of possible meanings, and thus it is impossible to speak of one
interpretation as true and the other false. It is impossible to speak of law with
the objectivity required by the idea of justice.53
As Stanley Fish correctly observes, the dilemma has been (unfortu-
nately) cast as involving a choice between positivism, or the idea that mean-
ing is embedded in texts and can be read without interpretive effort, and
subjectivism, the idea that because texts have many meanings (or none) the
5 Ibid. at 386.
52Ibid. at 389.
53Fiss, supra, note 42 at 740-42.
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[Vol. 34
reader or judge is free to impose or invent whatever meaning serves her
partisan purposes. 54
C. Constructing Solutions: The Constraints of Convention
Fiss’ own resolution to the dilemma he poses is to find a source for
and constraint on the determination of meaning in the “disciplinary rules”
which intervene between the text and the reader and derive from the in-
stitutional setting of interpretive activity. These rules, suggest Fiss, provide
the standards which permit judicial interpretation to achieve the measure
of objectivity required by the idea of law, because they constitute a set of
norms that transcend the particular vantage point of the person offering the
interpretation. 55 Secondly, he finds an additional source of constraint in the
idea of an “interpretive community” which recognizes these rules as au-
thoritative, and confers authority on them. This, he acknowledges, implies
that the objective quality of interpretation is bounded, limited, or relative,
but, he asserts, bounded objectivity is the only kind of objectivity to which
we can or do aspire.
Fiss’ notions of disciplinary rules and interpretive communities are
representative of a whole series of attempts by legal scholars to find a source
of constraint on legal interpretation that will render it less politically prob-
lematic. 56 Although a number of acute and specific criticisms have been
launched, against both Fiss’ characterization of the interpretive dilemma,
and his resolution of it (which I will discuss in more detail when I address
the alternatives offered by their authors), his resolution shares some fun-
damental inadequacies with many others which seek institutional sources
of constraint on the interpretive process.
As a source of constraint, the idea of an interpretive community clearly
does not provide a politically neutral referent. Paul Brest, for example,
argues that the ‘objectivity’ of the interpretive process is an illusion, and
that we must examine the implications of the fact that our ‘interpretive
54S. Fish, “Fish v. Fiss” (1984) 36 Stan. L. Rev. 1325 at 1325.
55Fiss, supra, note 42 at 744.
56Paul Chevigny also endeavours to define the institutional constraints which are “native to
legal interpretation” and to explain the fact that although numerous possible interpretations
are available, even given the broad constraints of culture and tradition, in practice legal in-
terpreters will consider only a small number of these. He defines three sources of constraint
that are enterprise specific: a decision must be reached, a thread of value-intent must be found
in the law, and an interpretation must be taken from a point of view independent of that of
the parties. These practical constraints on judicial behaviour imply that numerous alternative
constructions of meaning will be discounted, because by failing to meet our conventional
understandings of these constraints, they simply do not come within the realm of legal inter-
pretation. See
.G.Chevigny, “Why the Continental Disputes are Important: A Comment on
Hoy and Garet” (1985) 58 S. Cal. L. Rev. 199.
1989]
LEGAL INTERPRETATION
community’ is predominantly white, male, and relatively wealthy, and sup-
posedly articulates ‘our’ public values. We “must confront the question of
the relationship, if any, between the composition of the dominant legal
interpretive community and the outcomes of its interpretations. ’57 Society’s
values are viewed through one’s own spectacles and try as we will, we cannot
escape the perspectives that come with our particular backgrounds and ex-
periences. Not only particular interpretations, but understandings of in-
terpretive conventions themselves reflect the backgrounds and experiences
of those privileged to constitute the legal interpretive community, and isolate
interpretive judgments from public scrutiny. In the Canadian context, Joel
Bakan argues that the “law as interpretation” school, by accepting that law
is indeterminate but that adjudication is nonetheless constrained and ra-
tional because of judicial internalization of discliplinary rules, attitudes of
impartiality, and other decision-making conventions, merely celebrates and
validates the authority of the legal elite because the conventions of legal
culture reflect their perspectives, which are invariably those of dominant
social groups with an interest in maintaining the status quo. 58
Moreover, I would add, legal interpretive communities do not exist ‘a
priori’ but are constituted and continually reconstituted in a process of
ongoing struggle. The definition of the interpretive community is itself in-
terpreted and politically negotiated. 59 Furthermore, such communities are
themselves divided, and dissensus rather than consensus over interpretive
strategies may well be the norm. 60 Fiss finds the possibility of disputes within
the community unproblematic because there are procedures for resolving
these. This, however, merely begs the question. Such procedures are them-
selves interpreted and may well be interpreted differently by social actors
differentially situated, whose interpretations will be accorded varying de-
grees of authority as a consequence of political struggles in which not all of
57p Brest, “Interpretation and Interest” (1982) 34 Stan. L. Rev. 765 at 771.
58Bakan, supra, note 2. The relationship between judges’ backgrounds and the constitution
of legal conventions is probably more complex than one of mere reflection. See P. Bourdieu,
“The Force of Law: Toward a Sociology of the Juridical Field” (1987) 38 Hastings L.J. 805 for
an interesting if limited perspective on this point.
59For example, Patricia Monture, a Queen’s University law student, is currently engaged in
a political struggle with the Law Society of Upper Canada for the right to practice law without
the necessity of swearing allegiance to the Queen. As a native Canadian and a member of a
sovereign people, Ms. Monture cannot and should not be expected to swear allegiance to a
foreign sovereign. That it was never historically anticipated that native peoples would endea-
vour to join the legal profession and thus obtain the minimum credentials necessary to be
considered for inclusion in the “interpretive community” only underscores the political con-
stitution of these communities.
6See M.J. Perry, “The Authority of Text, Tradition, and Reason: A Theory of Constitutional
Interpretation” (1985) 58 S. Cal. L. Rev. 551 for the same point. Perry, however, does not find
that dissensus threatens the importance of the notion of community.
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[Vol. 34
the participants have equal material resources or equivalent degrees of sym-
bolic capital. 6 1 To accept the standards for the evaluation of interpretations
that are found within the disciplinary rules authorized by (and authorizing)
the interpretive community, is to wilfully ignore the fact that these embody
moral and political principles which are hegemonic; to cast aside as non-
legal (and implicitly therefore, as non-legitimate), criticisms which derive
from standards emerging outside that community,62 is to effectively assign
legitimacy to the victors by virtue of their victory.
D. Denying the Problem: The Constraints of Context and Tradition
In the accounts of interpretation thus far offered, institutional conven-
tions have been offered as sources of constraint which prevent interpretation
from having unacceptable political implications. The ‘politics’ of legal inter-
pretation is seen to be a problem ofjudicial values, normative commitments,
interpretive assumptions, class backgrounds, and personal experiences. In
some senses, this represents a movement beyond Levinson’s conclusion that
judges deliberately interpret in ways which serve their political visions to-
wards a more sophisticated understanding of the social factors which influ-
ence judicial behaviours. Although the political danger of legal interpretation
is still recognized to be a matter of the judicial imposition of political values,
there is an increasing sense that such an imposition is not completely a
matter of volition or free choice. 63 The politics of legal interpretation, how-
ever, is still a problem seen to be rooted in the attributes of individual
interpreters. More refined accounts of the contextual constraints which de-
fine legal interpretation, however, may generate more comprehensive un-
derstandings of the inherently political nature of legal interpretation.
Gerald Graff, for example, offers a contextual argument against the
proposition that texts are radically indeterminate in the practice of legal
interpretation. Although he acknowledges the need to abandon the common
61The concepts of cultural and symbolic capital are drawn from Pierre Bourdieu: see Outline
of a Theory of Practice, trans. R. Nice (Cambridge: Cambridge University Press,
1977)[hereinafter Outline]; Distinction: A Social Critique of the Judgment of Taste, trans. R.
Nice (Cambridge, Harvard University Press, 1984); “The Forms of Capital” in J. G. Richardson
ed., Handbook of Theory and Research for the Sociology ofEducation (Westport, Conn.: Green-
wood Press, 1986).
62See Fiss, supra, note 42 at 749 for Fiss’ distinction between internal and external perspec-
tives on legal interpretations. See also, L. Simon, “The Authority of the Constitution and Its
Meaning: A Preface to a Theory of Constitutional Interpretation” (1985) 58 S. Cal. L. Rev.
603 and Fish, supra, note 54 for critiques of this distinction.
63The Canadian commentators do not, however, seem to have grasped this, with the exception
of Langille, supra, note 2, who, after recognizing that politics is not a matter of a judge’s
imposition of personal values, seems to assume that politics therefore ceases to be an issue.
See discussion of Langille, infra.
1989]
LEGAL INTERPRETATION
sense view of language, he doesn’t feel that the exposure of such fallacies
impairs our practical ability to make sense of texts. 64 The fact that meaning
is not to be found through the realization of some presumed inner essence
that reposes in the text does not entail the conclusion that texts are radically
indeterminate and that there are no constraints on their interpretation. Graff
feels that such constraints are inherent in the context in which texts are
interpreted. Meaning, he argues, is not a function of words or sentences,
but of the practical sense to which they are put; we have conventional,
recognized uses for such symbols which provide the context in which we
apprehend them. Although many symbols have wide ranges of meaning,
certain meanings are likely discerned as the clear meaning of a symbol
because of the particular context in which we find ourselves. It’s the same
as it ever was. “In short, the practical concerns of law occasion the impo-
sition of a number of artificial restrictions on interpretive procedure … .1,65
The assertion that the determination of meaning is a contextual enter-
prise is impossible to refute, and must certainly be central to our under-
standing of legal interpretation. Graff’s discussion of the nature of this
context is a relatively simple one, however, and others have presented more
complex and elaborate explications of the context in which legal interpre-
tation, defined by the paradigm ofjudicial interpretation, takes place. These
shall be explored in some detail, before considering the inadequacies of
reference to context as a source of interpretive constraint.
Drawing inspiration from the German philosopher Hans-George Gad-
amer, others have found sources of constraint (and enablement) in the re-
lationship between legal interpretation and tradition. Basically, they have
explored the hermeneutic rejection of the positivist proposition that there
is a sharp distinction between understanding the text on its own terms, and
reading the interpreter’s concerns into it. David Couzens Hoy has perhaps
been most influential in bringing Gadamer’s ideas to bear in legal circles,
and in so doing, has introduced a new level of sophistication to the dis-
cussion of the way in which context constrains interpretation.
Gadamer argues that older traditions which separate interpretation into
the distinct operations of cognitive understanding, normative interpretation
of a text’s significance, and the application of the sense thereby gleaned to
a specific situation or enterprise, fail to grasp the role that context plays in
shaping the parameters within which meaning is appropriated from a text.
It is impossible to read meaning ‘out of’ a text by bracketing the modern
assumptions and prejudices of the interpreter, because these pre-
64Graff, supra, note 27 at 406.
6SIbid. at 411.
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understandings are what enable interpretation as well as constrain it.66 In
other words, no sharp distinction can be drawn between understanding the
text on its own terms and reading the interpreter’s concerns into it, because
the context in which a reader approaches a text will condition the reader’s
grasp of it.67 This context is historically and culturally contingent, and does
not depend upon subjectivist or voluntaristic factors; it would seem to in-
clude historical and social factors as well as normative considerations. More-
over, the context within which interpretation of a text takes place
incorporates an awareness of the historical growth and transmission of that
text, and hence its influence and effectivity.68 Interpretation then, is tradi-
tion-bound. “Central to hermeneutic theory, but most susceptible to the
charge of historical relativism is the thesis that the interpretation of a work
is invariably conditioned by the prior history of the effects of that work.
Any prior interpretation will count as part of that history but other effects
will also be influencing factors.”‘ 69 Judges are never free to read what they
want into or out of a legal text; current context, present needs, and the
history of legal interpretation condition and delimit their interpretations. 70
For Gadamer, the idea that constitutional review, for example, has in-
volved the imposition of ‘external’ values, in the sense that judges have
wilfully and arbitrarily imposed political visions into constitutional doc-
trine, would seem less credible than an understanding of an historical change
in the meaning of the Constitution that is based on the historical and cultural
factors which influence and constrain both the judge’s reading of the Con-
stitution and her reading of intervening interpretations of it. Thus, argues
Hoy, hermeneutic approaches to interpretation would reject as untenable
the dilemma that Fiss presents as central to the legitimacy of the adjudi-
cation process. The divorce of textual meaning from authorial or utterance
meaning does not imply that textual meaning can be interpreted arbitrarily,
and the idea that interpreters can choose an interpretation from numerous
possible meanings that are somehow independently engendered by the text
misconstrues the activity of the interpreter
in interpreting we do not so to speak, throw a signification over some naked
thing present-at-hand, we do not stick a value on it; but when something within
the world is encountered as such, the thing in question already has an involve-
66W. Outhwaite, Hans-George Gadamer, in Skinner, ed., supra, note 3, 21 at 23.
67D.C. Hoy, “Interpreting the Law: Hermeneutical and Poststructuralist Perspectives” (1985)
58 S. Cal. L. Rev. 135 at 137-38 [hereinafter “Interpreting the Law”].See also The Critical
Circle: Literature, History and Philosophical Hermeneutics (Berkeley: University of California
Press, 1982).
68Outhwaite, supra, note 66 at 25.
69Hoy,”Interpreting the Law”, supra, note 67 at 147.
701bid. at 141.
1989]
LEGAL INTERPRETATION
ment which is disclosed in our understanding of the world and this involvement
is one which gets laid out by the interpretation. 7′
Gadamer’s basic metaphor for this process of mediation is the “fusion
of horizons”, in which we approach what we wish to understand, not in a
state of factitious virginity, but with the prejudices which “constitute the
historical reality of [our] being”. 72 This process of coming-to-understand is
not a matter of unprejudiced appropriation of an object such as a text, but
a fusion of one’s own horizons of meanings and expectations (prejudices)
with that of the text, the other person, the alien culture.73 This suggests that
what a judge does when confronting a legal text is not different in kind from
what anthropologists do when making sense of another culture, or what any
of us do when dealing with the unfamiliar in everyday life. For “under-
standing is not a special feature of the human sciences, but a fundamental
way in which human beings exist in the world.”’74
These refinements on the nature of the context that constrains legal
interpretation have had implications for the way that scholars think about
the politics of legal interpretation. Dworkin, for example, asserts that all
legal practice is an exercise of interpretation, and so conceived, law is deeply
and thoroughly political: “Lawyers and judges cannot avoid politics in the
broad sense of political theory. But law is not a matter of personal or partisan
politics, and a critique of politics that does not understand this difference
will provide poor understanding and even poorer guidance.”75
Dworkin asserts that when literary critics disagree about interpretations
they disagree because they assume different normative theories about what
literature is, what it is for, and what makes one work of literature better
than another. 76 Interpreters proceed within certain interpretive conventions,
but major disagreements do not focus on these conventions, but on the
function or point of art more broadly conceived. Since people’s views about
what makes art good are inherently subjective, this aesthetic hypothesis
abandons hope of rescuing objectivity in interpretation. Theories of inter-
pretation are candidates for the best answer to the substantive questions
posed by interpretation; they incorporate evaluative beliefs about art.
Legal interpretation, like literary interpretation, also relies upon beliefs
and conventions of a formal character about what is involved in interpreting
7 1Outhwaite, supra, note 51 at 26 citing M. Heidegger, Being and Time, 7th ed., trans. J.
Macquarrie and E. Robinson (Oxford: Oxford University Press, 1962) at 190-91.
72Ibid. at 27, citing H.-G. Gadamer, Truth and Method, trans. W. Glyn-Doepel (London:
1975) at 245.
731bid. at 31.
74Ibid. at 29.
75R. Dworkin, “Law as Interpretation”, in W.J.T. Mitchell, ed., supra, note 1, 249 at 249.
76Ibid. at 253.
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a legal text, and substantive convictions about the purpose or value of the
history of decisions, structures, convictions, and practices:
But point or value here cannot mean artistic value because law, unlike liter-
ature, is not an artistic enterprise. Law is a political enterprise, whose general
point, if it has one, lies in coordinating social and individual effort, or resolving
social and individual disputes or securing justice between citizens and between
them and their government, or some combination of these. … So an inter-
pretation of any body or division of law, like the law of accidents, must show
the value of that body of law in political terms by demonstrating the best
principle or policy it can be taken to serve. 77
Interpretive disputes then, are arguments about political theory. When
different interpretations are plausible, even given conventional or enterprise-
specific practical constraints, then substantive political theory will play a
decisive role. Hence we find distinctly liberal, radical, and conservative
opinions not only about what the Constitution and laws of a nation should
be, but also about what they are; reliance on political theory is not a cor-
ruption of interpretation but part of what interpretation means. 78
Hoy agrees with Dworkin that any understanding of legal interpretation
must concern itself with the relation between interpretation and its nor-
mative commitments, but cautions against a conception of the relationship
which assumes a situation in which the interpreter reads his normative
convictions into the text. 79 A theory of interpretation that takes Gadamer’s
insights into account would not, he posits, disagree with the proposition
that politics forms a normative background for legal interpretation if that
is understood to mean that there is no such thing as pure interpretation
that is not shot through with normative and evaluative components. 80 Such
a theory of understanding again demonstrates that the cognitive act of un-
derstanding, the normative interpretation of a text’s significance, and the
reproductive application of that sense to a specific situation are not severable
operations, and makes it clear that such normative considerations or value
preferences preserved in interpretation are not optional or volitional. In
general, the process of interpretation is misdescribed if it is construed as a
secondary imposition of values on a primary set of facts. 81
While I don’t believe that Dworkin’s theory is guilty of such misdes-
cription, his representation of normative commitments as “inherently sub-
jective” does create the danger of such a reading, particularly in an
intellectual climate permeated by a liberal vision in which subjective realms
77Ibid. at 264.
78lbid. at 269.
79Hoy,”Interpreting the Law” supra, note 67.
80Ibid. at 150.
8’Ibid. at 151.
1989]
LEGAL INTERPRETATION
of value and belief are assumed to belong to freely autonomous individuals
as matters of volition and choice. Walter Benn Michaels, for example, argues
that although acts of interpretation may be influenced by political interests
and have political consequences, the interpretive act is not a political one
because interpretations do not involve “free political choices” for which we
can be held responsible as we are for other political acts. 82 Interpretations
are never freely chosen, and neither are beliefs; legal interpreters are never
in a position of choosing between political theories or in choosing between
possible meanings on the basis of these beliefs.
Again, a ‘context’ is presumed to make such choices impossibilities.
Since our understandings always are already mediated by cultural meaning
and belief systems, we are never in a position of believing nothing, and
therefore we are never required to ‘choose’ beliefs because no such space
exists, and if it did, we wouldn’t be able to choose beliefs but be in a situation
where choice would be an impossibility.83 Michaels suggests that the whole
debate about the politics of interpretation can be traced to a difficulty which
is “a function of an epistemological scenario in which the interpreter is
understood first as believing nothing and second as responding to this ‘mean-
ingless’ or’undecidable’ situation by choosing beliefs for political reasons.” 84
Because the first stage never takes place, the conditions required for the
second stage –
the moment of ethical choice –
never exist.
Such arguments 85 are less than compelling; we can, for example, accept
all of Michaels’ premises and still deny his conclusions. Obviously we live
in social worlds and are always in a position of believing something, but
this doesn’t mean that choice is non-existent, but that it is informed, con-
strained, and bounded by certain presuppositions. Clearly in a space of utter
conceptual emptiness choice would be an impossibility (in such a space we
82W.B. Michaels, “Is There a Politics of Interpretation?” in W.J.T. Mitchell, ed., supra, note
1,335.
83Ibid. at 341.
S4Ibid. at 343.
85The master of this type of argument is Stanley Fish, whose most recent efforts include a
dismissal of Mark Kelman’s efforts to deconstruct some of the interpretive constructs which
characterize criminal law. See S. Fish, “Dennis Martinez and the Uses of Theory” (1987) 96
Yale L.J. 1773 at 1794-1800. Again, all of our interpretive constructs are always already there
and in-place and such constructs are a condition of consciousness and therefore cannot be
chosen (and presumably therefore cannot be challenged) and will not be rendered any the less
compelling just because “a few guys in Cambridge and Palo Alto” are now able to deconstruct
law by pointing them out to us. It’s the same as it ever was. To accept this argument you need
to believe that interpretive constructs have no plasticity, cannot and do not change, and that
you have to have recourse to all of them, all of the time, to do any thinking at all. The possibility
that there are several of them, that they are not mutually coherent, that they may contradict
and that we may use some of them to put others in issue, and thus that our interpretive
constructs contain the conditions for their own transformation, cannot be addressed.
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[Vol. 34
would not be human); but we don’t need such a space for choice to be
conceivable. As Terry Eagleton points out, the notion that the political is
primarily a matter of personal choice is based upon an unrealistic ideological
and psychologistic model of ‘free’, conscious choice:
When I adopt a political position freely, I do not usually mean that an act of
choosing precedes or accompanies my adopting. It means that I am not forced
mindlessly into it by my class interests or by some ideological or pathological
obsession, that nobody is holding a gun to my head, that I am in a situation
to be able to weigh the arguments and recognize what would count as coun-
terarguments, and so on. ‘Freedom’ describes the material conditions in which
my believing goes on: it has a social and political reference rather than the
narrowly psychologistic one assigned to it by Michaels. … It is true that we
do not choose to believe, but there is an important sense in which belief is not
ineluctable either.86
Moreover, Eagleton astutely rejects the premise that the political is
primarily a matter of free choice as lacking an understanding of ideology
(and, we might add, as deriving its authority from and reinforcing liberal
premises which are themselves ideological). If interpretations are or seem
irresistible, this is a moral and political matter, “in so far as we find ourselves
‘irresistibly’ gripped (while being none the less free for all that) by certain
interpretations which are inscribed in a tradition of practices received from
the past.”’87 There are beliefs which we cannot help holding because to do
otherwise would involve a radical transformation in our practical forms of
social life, but to suggest that this form of ‘ineluctability’ logically entails
that interpretation is therefore an apolitical act, is certainly disingenuous.
The recognition that our interpretations are inscribed in the practical forms
of our lives should force us to acknowledge just how pervasive and ubiquitous
the “politics of interpretation” really is, rather than give us licence to ignore
or deny it.
Stanley Fish’s contribution to this debate is also one that emphasizes
cultural and historical context as limiting (or defining) the interpretive proc-
ess. Fish has used legal texts as exemplary cases in his arguments about
interpretation for a number of years, and an early example appears in an
article instructively titled, “Normal Circumstances, Literal Language, Direct
Speech Acts, the Ordinary, the Everyday, the Obvious, What Goes Without
86T. Eagleton, “Ineluctable Options” in W.J.T. Mitchell, ed., supra, note 1, 373 at 376.
871Ibid. at 378.
1989]
LEGAL INTERPRETATION
Saying and Other Special Cases”. 88 Fish argues that there is a level of ob-
servation or discourse at which meanings are obvious and indisputable and
that these are not properties of the world but properties of the world as it
is given to us by our interpretive assumptions. What we see is a product of
our mental and verbal categories, and because these categories do not add
to our perception or limit or distort it, but are in fact the very possibilities
of our perception, they seem to be a part of the world itself. Moreover, they
are historically and culturally contingent; they change, and so, therefore,
does what seems obvious, common-sensical, what goes without saying. For
Fish, the interpretive act is performed at so deep a level that it is indistinct
from consciousness itself.89
Therefore, Fish suggests, there exist no texts nor meaning in texts in-
dependent of or prior to our interpretations. What is ‘in’ the text is a function
of interpretive activity, but because such activities are performed at so pri-
mary a level, what they yield seems to be really in the text, and to pre-exist
the activity itself. Fish argues not “for an infinitely plural or an open text,
but for a text that is always set; and yet because it is set not for all places
or all times but for wherever and however long a particular way of reading
is in force, it is a text that can change.” 90 It is the knowledge that is the
content of being in a situation that stabilizes the meaning of texts. As con-
texts shift, so do the meanings of things, but in any situation there is a
meaning that seems so obvious that we don’t even recognize our activity
as interpretation.
So, for example, he discusses the reading of statutes in the adjudication
process to demonstrate the way in which the ‘literal’ meaning of the statute
881n Rabinow & Sullivan, eds., supra, note 9 at 243.See generally S. Fish, Is There a Text in
this Class? The Authority of Interpretive Communities (Cambridge: Harvard University Press,
1980) for the most complete account of Fish’s interpretive community thesis. Fish’s literary
theory is usually categorized as reader-response literary criticism, a field or movement which
became significant in the late 1970s and early 1980s as one of several reactions against formalism
and New Criticism. It was seen to have the potential to repoliticize literature and literary
criticism due to its acceptance of “the relativity of interpretation and the constitutive power
of interpretive systems: ‘When discourse is responsible for reality and not merely a reflection
of it, then whose discourse prevails makes all the difference.’ “: M. L. Pratt citing J. Tompkins
in “Interpretive Stategies/Strategic Interpretations: On Anglo-American Reader-Response Crit-
icism” in J. Arac, ed., Postmodernism and Politics (Minneapolis, University of Minnesota
Press, 1986) 26 at 33-34. However, as Pratt makes clear, rather than re-politicize literature and
literary criticism, reader-response theorists have gone to great lengths to avoid addressing the
political implications of their assumptions. Jeffrey Malkan also sees Fish’s work as “a fascinating
case study of how ideas originally thought to have a liberating or at worst a value-neutral effect
on social change can be made to accomodate a new set of conservative political goals.”:
“‘Against Theory,’ Pragmatism and Deconstruction” (1987) Telos 129 at 129.
89S. Fish, “Normal Circumstances” in Rabinow & Sullivan, supra, note 9 at 245.
9Ibid. at 248.
McGILL LAW JOURNAL
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is determined by reference to the purposes for which the statute was passed.
This, he suggests, is not something external to the text which is brought in
to aid the statute’s interpretation, but is integral to the interpretive process
itself; “[a] statute without a purpose would be meaningless … . To speak of
the literal meaning of a statute … is already to have read it in the light of
some purpose, to have engaged in an interpretation.” 91 The specification of
what is in a statute, like the specification of what is in the text, can always
be made, but as situations and the purposes that inform them change, it
will have to be made again.92 We never apprehend texts independently of
the context in which they are perceived, and therefore we never know them
except in the stabilized form a context has already conferred. 93
Given these premises, Fish asserts that there is no need to look for
external sources of constraint in legal interpretation like the disciplinary
rules Fiss posits. The fear of unbridled interpretation upon which this search
is based is groundless because to be inside a context is “to be already and
always thinking with and within norms, standards, definitions, routines,
and understood goals that both define and are defined by that context. ’94
Readers and texts are never in any need of the kind of constraints that
disciplinary rules purportedly provide. The assumptions and categories of
understanding embodied in the practice of legal interpretation, internalized
through the training or socialization for that practice, already constrain the
interpreter, who only apprehends the text in light of these. All interpretive
practice is a structure of constraints which are already in place, rendering
impossible uninterpreted texts and freely interpreting readers. In all circum-
stances, one’s interpretation will be at once constrained and enabled by a
general and assumed understanding of the goals, purposes, concerns, and
procedures of the enterprise.95
In Fish’s opinion, fears that law may be nothing but masked power,
judicial interpretation nothing but the exercise of official will, or adjudi-
cation nothing but random, irresponsible activity, are ungrounded and un-
realizable, because the shared understandings of the general purposes of the
legal enterprise and its underlying rationales will ensure both rational ad-
judication and readings of legal texts that yield determinate results.96 He
agrees with Dworkin 97 that legal interpretation is always an extension of an
9’Ibid. at 253 citing K. Abraham, “Intention and Authority in Statutory Interpretation”
(unpublished manuscript).
92Ibid. at 254.
93Ibid. at 256.
9 4Fish, supra, note 54 at 1332.
95S. Fish, “Working on the Chain Gang: Interpretation in the Law and in Literary Criticism”,
in W.J.T. Mitchell, ed., supra, note 1, 271 at 285, n. 4.
9 6Fish, supra, note 54 at 1340-45.
9 7Dworkin, supra, note 75.
1989]
LEGAL INTERPRETATION
institutional history made up of numerous decisions, structures, practices,
and conventions which ensure that interpretation is neither wholly objec-
tive, since there is room for disagreement, nor wholly subjective, since in-
terpreters do not proceed independently of what others in the institution
have done.98 Legal interpreters are constrained by the conventions of legal
interpretive practice in the sense that they must advance the enterprise at
hand; a judge cannot decide a case in a manner that would have no rela-
tionship to the history of previous decisions, because such a decision
wouldn’t be recognized as a legal decision and wouldn’t be supported by
reasons that would be considered as such in the legal community.99 The
dangerously free or inventing agent is simply not possible given the con-
straints of the enterprise. But the constraints of the enterprise do not, admits
Fish, predetermine the interpretation. Although the boundaries of practice
mark the limits of what anyone who is thinking within them can do, within
these limits they do not direct anyone to do this rather than that.10 0 Fish
presents a picture of practice that, like Gadamer’s, gives central place to
tradition as a force which both limits and permits the transformation of
practice:
To see a present-day case as similar to a chain of earlier ones is to resee that
chain by finding in it an applicability that had not always been apparent.
Paradoxically one can be faithful to legal history only by revising it, by redes-
cribing it in such a way as to accommodate and render manageable the issues
raised by the present. This is a function of the law’s conservatism which will
not allow a case to remain unrelated to the past and so ensures that the past,
in the form of the history of decisions, will be continually rewritten. 10 1
Like Gadamer, Fish does not feel that recognition of the present-day
situation and the application of a history of legal texts to that situation are
distinct operations but rather that “they emerge together in the context of
an effort to see them as related embodiments of some legal principle.”‘ 0 2
Fish and Michaels would seem to share a similar view of interpretation
and context, but whereas Michaels denies the politics of interpretation, Fish
wholeheartedly accepts its pervasiveness and, indeed, its ubiquity, and then
proceeds to ignore it, as an inevitable nuisance lying outside the scope of
98Fish, supra, note 95 at 272.
99Ibid. at 275. See also R. Dworkin, Law’s Empire (Cambridge: Harvard University Press,
1986) for another statement of the history of judicial enterprise as the primary means of
stabilizing legal interpretation. Dworkin’s views here are similar to those that look to cultural
tradition as a source of constraint. The limitations and inadequacies of such an approach are
discussed infra.
‘UOlbid.
lolIbid, at 277-78.
IO2Ibid. at 277, n. 2.
REVUE DE DROIT DE McGILL
[Vol. 34
inquiry of those interested in studying interpretation 10 3. Knowledge is sit-
uational. Facts can only be known by persons. Persons are always situated
in some institutional context. Thus facts are always context-relative and do
not have a form independent of the structure of interest within which they
emerge into noticeability.104 Knowledge is a product of being in a situation,
and like knowledge, conviction, belief, and persuasion spring from historical
conditions.
III. The Politics of Interpretation
While these assertions about practice seem indisputable, this hardly
seems the point at which we should evoke closure. If legal interpretations
and the knowledge, convictions, beliefs, and persuasions on which they are
based and in terms of which they are debated do not have a form inde-
pendent of the structure of interest within which they emerge, then it is
precisely .the nature of this ‘dependence’ we need to examine. While we
might agree with Fish that it is far too simplistic to examine this in terms
of individual interest or values, 10 5 I doubt that an interest-group theory of
politics is going to advance this inquiry much further. I suspect that Fish
(despite his energetic refutations of the pluralist vision that he believes most
participants in the interpretation debate share) does hold a pluralist vision
of politics. The fact that political and institutional forces confer meaning
on the Constitution, is for Fish, “simply a reflection of the even more basic
fact that values derive from the political and social visions that are always
competing with one another for control of the state’s machinery”; such
visions are socially rooted in some conventional system of purposes, goals,
and standards, and the very notion of individual interests is empty.10 6
A pluralist vision such as this avoids examining the constitution of the
competition it takes as given. It seems fairly clear that some social and
political visions never even enter the realm of this competition. Certain
conventional systems of purposes, goals, and standards, shared by certain
groups with certain types of social experiences, are routinely denied legiti-
macy. Fish tells us that disagreements about meaning are possible, not be-
cause a text has any number of meanings, but because different persons
may be reading according to the assumptions of different circumstances.
Such conflicts, however, are always being settled, and “the means of settling
them are political, social, and institutional, in a mix that is itself subject to
‘ 03As Daniel Cottom commented: “Only an academic and, probably, only an American could
have such ajolly sense of satisfaction in the submission of human beings to forms of authority.”:
“The Enchantment of Interpretation” (1985) 11 Critical Inquiry 573 at 579.
104S. Fish, “Interpretation and the Pluralist Vision” (1982) 60 Tex. L. Rev. 495 at 497.
105Fish, supra, note 54 at 1346.
0l61bid.
19891
LEGAL INTERPRETATION
modification and change.” 107 Again, we should critically examine these
‘means’; to what extent do they weigh the contentions of participants dif-
ferentially? Evaluations of legal interpretations may emanate from political,
religious, and moral concerns, but not all concerns or those of all social
groups find a voice or hearing in the evaluation process. 108 To characterize
choice in the interpretive process as being a matter of interpretive assump-
tions is to recognize that the struggle is one between understandings gen-
erated by particular forms of social experience. 109 We have to acknowledge
that in legal interpretation we are always affirming the legitimacy of the
understandings that are generated by certain varieties of experience and
denying the legitimacy of others.’ 10 To resign yourself, in the manner that
Fish and Dworkin do, to the fact that the whole system is political is to
concede the right of those with the licence and privilege to participate in
legal interpretive decisions to determine the outcome of the struggle. Gen-
erally, accounts of interpretation which stress the contextual constraints that
characterize interpretive practice, whether these be defined in narrowly in-
07Ibid. at 1336.
’05The historical experience of indigenous peoples with the Canadian criminal law system
and the long-term lack of recognition accorded to their cultural understanding of justice is
telling in this regard.
109See P.J. Williams, “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights”
(1987) 22 Harv. C.R.-C.L. L. Rev. 401 for an enlightening discussion of how “rights” can have
entirely different meanings for people from different racial, socioeconomic, and gender groups
with different types of experiences. Her discussion suggests, inter alia, that we should stop
arguing about whether “rights” have any intrinsic or essential meaning and start thinking about
the ways in which we can assist those who are silenced and oppressed in the project of putting
this “meaninglessness” to work in the service of their quests for empowerment. Signifiers only
become “fixed” in their association with a signified through political practices of articulation
(which is also the means to “unfix” them). For a discussion of this process see E. Laclau,
“‘Socialism’, the ‘People’, ‘Democracy’: The Transformation of Hegemonic Logic” (1983) 7
Social Text 115; “Politics and the Limits of Modernity” in A. Ross, ed., Universal Abandon?
The Politics of Postmodernism (Minneapolis: University of Minnesota Press, 1988) 63; C.
Mouffe, “Radical Democracy: Modern or Postmodern?” in A. Ross, ed., supra, this note, 31-
45, and E. Laclau & C. Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic
Politics (London: Verso Books, 1985).
“0A similar point is made by Peller, supra, note 28. Some examples of this are collected in
(1987) 42 U, Miami L. Rev., a symposium issue entitled Excluded Voices: Realities in Law
and Law Reform. The articles in that issue suggest, inter alia, that:
(i) the conditions defined at any time as problems, to which the law should
respond, are not facts but social constructions that reflect and reinforce established
beliefs, and rationalize inequalities based upon class, race, and gender;
(ii) law as elite ideological production is (although not recognized as such) the
self-interested response of elites to pressures and demands created by social rec-
ognition and acceptance of these social constructions as problems that must be dealt
with; and
(iii) in these legal responses, sexual and racial violence are legitimated and the
experiences and understandings of women and racial minorities are marginalized
and the full impact of their narratives of injury muted, diverted or evaded.
McGILL LAW JOURNAL
[Vol. 34
stitutional or more broadly cultural terms, must be recognized as both nec-
essary and in accord with the anti-positivist intellectual climate which gave
rise to the current debate about legal interpretation. We do need to identify
the enterprise-specific institutional constraints that operate within legal in-
terpretive practices, examine the ways in which the tradition of interpretive
activities influences current practice, investigate the assumptions and values
of those who confer authority on such practices, and think more generally
and more critically about the ways in which dominant cultural categorical
systems both enable and legitimate such practices. The importance of un-
derstanding the historically and culturally contingent contexts in which in-
terpretive practices are possible cannot be overstressed, especially in an
arena where the idea of the free and autonomous individual and the com-
monsense view of language are dominant elements of a pervasive liberal
ideology.
If I have reservations about this recourse to context in the debate about
legal interpretation, it is because context, convention, and cultural tradition
take on curiously rigid, static, and monolithic forms in these accounts. Mod-
em (or, more precisely, postmodem) anthropology has made significant con-
tributions to our understanding of cultural context by stressing that cultural
context is not a singular structure of constraints that, so to speak, “descends
from above”, but a dynamic of multiple discourses” I which exist only in
their reproduction and transformation in everyday practices. 12 Culture is
‘To presage my argument hereinafter, anthropologists in the 1980s have increasingly rec-
ognized the limitations of Geertzian interpretive anthropology. The symbolic systems approach
popularized by Geertz in the 1970s was seen as representing culture as altogether too coherent,
and to lack an adequate sociology, or a sufficient grasp of the political processes at work in
cultural production. Anthropologists have shifted their attention to exploring the ways in which
systems ofsymbolic meaning or cultures reproduce specific forms of social order (and, therefore,
relations of domination and subordination), how culture shapes consciousness, action, and
event (now understood in terms of hegemony), and the tactics and strategies through which
humans manupulate, interpret, legitimize, and reproduce the cultural categories that order their
social world. For a comprehensive overview of developments in anthropological theory see S.
Ortner, “Theory in Anthropology Since the Sixties” (1984) 26 Comparative Studies in Society
and History 126. See also R. Rosaldo, Culture and Truth: The Remaking of Social Analysis
(Boston: Beacon Press, 1989) for an extended discussion.
1121 have addressed the importance of attending to social practice in a larger discussion of
the nature of legal “structure”, symbolic improvisation, and cultural transformation in “Room
for Manoeuver: Towards a Theory of Practice in Critical Legal Studies” 14 Law and Social
Inquiry: Journal of the American Bar Foundation 69 [hereinafter “Room for Manoeuver”].
See also P. Bourdieu,Outline of a Theory of Practicetrans. R. Nice (New York: Cambridge
University Press, 1977); “Symbolic Power” in D. Gleeson, ed., Identity and Structure: Issues
in the Sociology of Education (Dimmifield, England: Nefferton, 1977); “The Social Space and
the Genesis of Groups” (1985) 14 Theory and Society 723; A. Giddens, New Rules of Socio-
logical Method: A Positive Critique ofInterpretative Sociologies (New York: Basic Books, 1976);
Central Problems in Social Theory: Action, Structure and Contradiction in Social Analysis
(Berkeley: University of California Press, 1979) [hereinafter Central Problems]; The Consti-
1989]
LEGAL INTERPRETATION
multivocal and overdetermined. It does not present itself neutrally with one
voice.11 3 We live in a world of multiple, overlapping, and often contradictory
discourses.’ 14 Fish, however, wants us to accept the proposition that there
will always be a singular context in which meaning appears self-evident and
what the context enables you to see seems obvious and inescapable.’ 15 It’s
the same as it ever was. We know, though, that we often find ourselves in
situations and circumstances where we are aware of a multiplicity of relevant
contexts, which make differential sense of the ‘texts’ we seek to understand,
or are cognizant of the claims and demands of competing audiences, where
we are compelled to deal with contradiction and ambiguity and, therefore,
to reflect on the question of meaning:
[Fish] recognizes, some of the time, that consensus is never peaceful, that
interpretations are always jostling for space, thumping on each others’ walls,
but he seems unwilling to pursue the full consequence of this fact, namely that
there is always doubt, conflict, disagreement, because interpretations are always
there in multiplicity denying each other the illusion of self-containment and
truth … People and groups are constituted not by single unified belief systems,
but by competing self contradictory ones. Knowledge is interested, and interest
implies conflict; to advance an interpretation is to insert it into a network of
power relations.” 6
Judges, regardless of their training, the institutional constraints within which
they operate, or the governing conventions they accept, must confront these
circumstances rather frequently.
Accounts of legal interpretation which point to contexts, however de-
fined, as stable referents which constrain practice, misunderstand the dy-
namic process whereby context or culture is both reproduced and
tution of Society: Outline of the History of Structuration (Berkeley: University of California
Press, 1984) [hereinafter The Constitution of Society]; P. Smith, Discerning the Subject (Min-
neapolis: University of Minnesota Press, 1988); A. Touraine, The Self-Production of Society,
trans. D. Coltman (Berkeley: University of California Press, 1977); Return of the Actor: Social
Theory in Postindustrial Society, trans. M. Godzich (Minneapolis: University of Minnesota
Press, 1988).
” 3Historians who adopted cultural anthropology as a model for social history in the 1970s
have become increasingly aware of this. Here, as in anthropology itself, we see a rejection of
symbolic forms as organized into systems which presuppose a coherent, unified, socially shared,
symbolic universe, in favour of analyses which explore the differences in appropriation and
use of cultural forms in divergent social struggles. See the discussion in Hunt, supra, note 20.
” 4Heller, supra, note 36. This is especially true today, “[fror cultural heritages in the modem
world are plural, not monolithic and unified. They intersect and clash according to the complex
circumstances surrounding the institutional and symbolic formation of interrelated social
groups.”: J. Brenkman, Culture and Domination (Ithaca: Cornell University Press, 1987) at
viii.
“5Supra, note 88 at 261.
116Pratt, supra, note 88 at 52.
REVUE DE DROIT DE McGILL
[Vol. 34
transformed by the practices it enables. 1 7 So, again to take Fish’s position
as exemplary, textual interpretations are deemed to change according to
which contingent context is currently ‘in place’. This neither recognizes nor
attends to historical forces, contingent circumstances, or the impact of event;
a situation of stasis always seems to prevail, although arguably it is a different
situation of stasis in each interpretive exercise. Fish gives us no sense of
the ways in which the structural constraints of the enterprise contend with
empirical circumstances and are thereby put at risk, or how conventions
become reevaluated and transformed through the practical activities, like
interpretation, which both constitute and modify them. To quote anthro-
pologist Marshall Sahlins:
Human social experience is the appropriation of specific percepts by general
concepts: an ordering of men and the objects of their existence according to a
scheme of cultural categories which is never the only one possible, but in that
sense is arbitrary and historical. … [T]he use of conventional concepts in em-
pirical contexts subjects the cultural meanings to practical revaluations …
[T]raditional categories are transformed. For even as the world can easily escape
the interpretive schemes of some given group of mankind, nothing guarantees
either that intelligent and intentional subjects, with their several social interests
and biographies, will use the existing categories in prescribed ways. I call this
double contingency the risk of the categories in action. 18
The task of legal interpretation is clearly one in which the conceptual
or conventional meets the existential or empirical, and is thereby continually
put at risk. The fact that in most cases legal interpretations probably re-
produce the conventions, interpretive assumptions, and verbal and mental
categories which make such practices possible, should not blind us to the
real and continuous potential for transformation that such activity contains.
I think, then, that we can appreciate Dworkin’s complaint that Fish
represents interpretation as altogether too homogeneous an activity, but
regret his failure to fully explore the ramifications of this. As he notes, the
fact that nothing judges do is pure finding nor pure inventing does not imply
that what judges do in interpretation is always necessarily the same.1 19 Fish
argues that if in deciding a case, a judge is able to give recognizable reasons,
then he is not doing anything new, but something that is implicit in the
enterprise. But, Dworkin responds, all sorts of radical innovations are
1171 discuss this in some detail in Room for Manoeuver: Towards a Theory of Practice in
Critical Legal Studies, supra, note 112. Another articulation of this may be found in Gidden’s
“theory of structuration” which is developed in Central Problems of Social Theory and The
Constitution of Society, supra, note 112.
“18 M.D. Sahlins, Islands of History (Chicago: University of Chicago Press, 1985) at 145.
19R. Dworkin, “My Reply to Stanley Fish (and Walter Benn Michaels): Please Don’t Talk
About Objectivity Any More” in W.J.T. Mitchell, ed., supra, note 1, 287 at 306.
1989]
LEGAL INTERPRETATION
thereby “implicit”. There are radically different ways in which a judge can
continue the practice of judging.120
Dworkin comes closest to approaching a “cultural hermeneutics”” / in
his insistence that we need to understand the understandings of those in-
volved in practices of interpretation to comprehend the nature of such prac-
tices and the ways in which it is possible for practitioners to argue about
the relative validity of interpretations themselves. It is only in terms of the
role that such concepts play in interpretive enterprises that notions of ob-
jectivity, right and wrong, and true and false interpretations have any mean-
ing at all. Interpretive judgments have the sense or force they do because
they figure in a collective interpretive enterprise and they cannot have any
‘real’ sense or truth-value which transcends this enterprise and somehow
encompasses the ‘real world’.122
Brian Langille has also made a strong case for a cultural hermeneutics
of legal practice in his eloquent and persuasive appeal for an approach to
legal interpretation which does full justice to the philosophy of the later
Wittgenstein. 23 For Langille, the central message to be gleaned from a read-
ing of Wittgenstein is that there can be no external foundation for inter-
pretation because interpretation involves language, and language (and hence
law) is an activity. Understanding is akin to an ability or mastery of a
technique and the criteria for understanding or interpretation lies in be-
haviour –
the proper use of an expression in the “language game” in which
that expression has a home.12 4 We cannot, therefore, claim that the lack of
any metaphysical foundation for language, or linguistic “indeterminacy” is
corrosive for law, “because our language has the determinacy of an activ-
ity.’ 1 25 Nor should recognition of indeterminacy lead us to “refer out” to
political context, but should instead provoke insights into the idea of prac-
tice as “bedrock.”‘ 26
I agree with Langille that the indeterminacy of language does not require
that judges “refer out to” or “smuggle in” their personal political preferences
and that this is a fallacy that too many of the Canadian constitutional critics
on the left127 fall into, as a consequence of their unfortunate acceptance of
12Olbid. at 305.
121This phrase is borrowed from Geertz, supra, note 13 at 5.
122Dworkin, supra, note 119 at 300.
123Langille, supra, note 2.
124Ibid. at 488.
175Ibid., citing Graff, supra, note 27 at 408.
126jIbid.
127See A. Petter, “The Politics of the Charter” (1986) 8 Sup. Ct L. Rev. 473; P.. Monahan,
“Judicial Review and Democracy: A Theory of Judicial Review” (1987) 21 U.B.C.L. Rev. 87.
McGILL LAW JOURNAL
[Vol. 34
the subjectivity of value. 128 However, Langille provides us with no reason
whatsoever as to why we should be sanguine with respect to the determinacy
of judicial activity or the bedrock of adjudicative practice (unless of course
one is entirely happy with the history of judicial practice in Canada). The
fact that such activities are (or seem) determinate or so completely cast in
stone that they have (or seem to have) the character of bedrock, should give
us less cause for complacency than it does for alarm. That a close reading
of Wittgenstein would indicate that judicial action upon encountering a rule
is best explained by the fact that judges “have been
–
trained to react to this sign in a particular way”, and that judges go by these
sign-posts “only in so far as there exists a regular use of sign-posts, a custom”,
and thus that “following a rule” or “using an expression correctly” is not
a mental process but a form of activity129, advances us no further. What
kind of activity is it? What consequences does it have?
say a sign-post –
Langille argues that this is not a point about “community consensus”
or “custom” (voluntaristically characterized), but a point about the neces-
sary background conditions (defined as “normality conditions”) which make
the use of concepts possible. What makes language games (like legal practice)
possible is not simply agreement in definitions, but agreement in judgments,
not in opinions, but in forms of life.’ 30 Constancy in human nature and the
constancy of the physical world are the only examples of such “normality
conditions” proffered, but even they should give us reason for pause. We
know (or we should know if we’ve left our positivism far enough behind
to be engaging in this discussion) that human nature is socially and culturally
constructed; it is not everywhere the same. What is taken to be generically
human varies from culture to culture; it is conventional.’ 3′ Moreover, for-
1281 find this unfortunate because it would seem that one of the central premises of liberalism
the subjective nature of value, interest, and desire –
forms the linchpin of the arguments
–
of those legal scholars in Canada who seek to criticize liberal constitutional discourse on political
grounds with which I am in sympathy. I have addressed the need to reconstitute our conceptual
understanding of subjectivity (and thus of subjective value) in efforts to deconstruct liberal
legal discourse elsewhere. See Coombe, supra, note 112 at 72-88.
129Langille, supra, note 2 at 489-90.
130See ibid. at 491-92.
a1’For example, Geertz argues that the Enlightenment view of man as having an immutable
human nature has been discredited by modem anthropology; ” … men unmodified by the
customs of particular places do not in fact exist, have never existed, and most important, could
not in the very nature of the case exist. … [T]he drawing of a line between what is natural,
universal, and constant in man and what is conventional, local, and variable [is] extraordinarily
difficult” and may, in fact, falsify the human situation. In other words, “there is no such thing
as a human nature independent of culture.”: “The Impact of the Concept of Culture on the
Concept of Man”, supra, note 12, 33 at 35-36 and 49.
Geertz also gives examples of incredible cultural variations in the notion ofpersonhood that
make the Western conception of the person appear to be a rather peculiar idea in the context
of world cultures. See”
‘From the Native’s Point of View’: On the Nature of Anthropological
Understanding” supra, note 13 at 55.
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mulations of “human nature” in any given culture support particular con-
figurations of power 132 and facilitate practices of domination. We might
consider the implications of the fact that what has been taken historically,
and expressed linguistically, to be generically human in our own society, has
always had the attributes of the male person as those gender attributes have
been constructed in Western cultures. In numerous and subtle ways, legal
language games have reflected and reinforced understandings of the human
which posit the white, adult male as the norm and the language that priv-
ileges this particular agent as neutral, objective and universal. 133
“The law reflects social visions that involve privilegings of particular
conceptions of human nature.”‘ 134 As critical legal scholars have demon-
strated, liberal legal discourse shares the logocentric bias of Western phi-
losophy; it presumes a Cartesian “truth” of human nature in which one’s
existence, desires, intent, and needs are immediately, transparently, and fully
evident, present to one’s consciousness and acted upon:135
We can think of a system of law as a community’s attempt to realize human
ends. This presupposes a description of the good and bad in human nature:
what people want from their lives and what their limitations are. This descrip-
tion necessarily involves privilegings of certain aspects of human nature over
others. Later, we justify our system by claiming that it is the best, given the
natural constraints of the human condition. For example, an advocate of lais-
sez-faire might argue that, given the natural self-interestedness of people, un-
regulated market transactions are the best way to realize human goals. But …
our social vision and system of laws are not based upon human nature as it
really is, but rather upon an interpretation of human nature, a privileging. We
do not experience the “presence’ of human nature; we experience different
versions of it in the stories we tell about what we are “really like.” These stories
are incomplete; they are metaphors and can be deconstructed. Too often we
forget that our systems of law are based upon metaphor and interpretation;
1
132See the discussion between Noam Chomsky and Michel Foucault in “Human Nature:
Justice versus Power” in E Elders, ed., Reflexive Water: The Basic Concerns of Mankind
(London: Souvenir Press, 1974) at 135-97. See also R Rabinow, “Introduction” in P. Rabinow,
ed., The Foucault Reader (New York: Pantheon Books, 1984).
33L. Finley, “Breaking Women’s Silence in Law – What Language Can We Use?: The Dilemma
of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame L. J. [forthcoming]. Also,
Robin West suggests that modem legal theory and jurisprudence and moral and political phi-
losophy assume as a first premise the universal existence of a human being whose attributes
and “nature” are not, in fact, “human” but exclusively male. The “natures” of women (and,
arguably, of those who live in non-Western cultures) put them outside of the community of
“human beings” who share the “universal human condition” to which legal regimes are seen
to respond. See “Jurisprudence and Gender” (1988) 55 U. Chi. L. Rev. 1.
134J.M. Balkin, “Deconstructive Practice and Legal Theory” (1987) 96 Yale L. J. 743 at 755.
135For a partial critique of this understanding of human nature as it manifests itself in law
and economics scholarship see M. Kelman, A Guide to Critical Legal Studies (Cambridge:
Harvard University Press, 1987) at 127-50.
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we mistake the dominant or privileged vision of people and society for real
“present” human nature …. 136
Human nature, then, is not a “normality condition” within which or upon
which legal practice proceeds but, rather, fundamentally contested and shift-
ing terrain; a politically reverberating faultline (vulnerable to seismic shifts
if we are to believe Foucault) within that “bedrock” of practice itself.
The physical world exhibits no more constancy; it is inscribed with our
social relations, narrativized with our history, rationalized through our re-
lations of production, and commodified by our markets. Its “natural”
rhythms and patterns are read differently according to the needs of the
“forms of life” in which it figures.
While I agree with Langille that the “conventionalism” to which Witt-
genstein points in his reference to the “normality conditions” that underlie
“forms of life,” does not require conscious (by which I believe he means
intentional or voluntaristic) agreement or consensus, 137 it is nonetheless the
case that “normality conditions” are socially based, culturally and histori-
cally differential, and thus contingent, in the sense that things could be, and
have been, otherwise. 138 This means, amongst other things, that things could
change, and that we have resources, drawn from other forms of life, in other
times and places (and from the margins of our own society), with which to
challenge the sense of inevitability which language games, like law, embody.
In other words, complacent, pacificatory declarations that “This is just the
way things are. There is as much stability as there is ” 139 and that “It is not
reasonable or unreasonable. It is there, like our life”‘140 and the passivity
136Balkin, supra, note 134 at 762.
137Langille, supra, note 2 at 493.
138Terry Eagleton argues that Wittgenstein cannot successfully avoid metaphysical illusions
merely by recourse to a context of everyday life. Concepts of certainty, exactness, truth, etc.
may operate only within practical forms of social life, but by failing to give these any historical
specificity, and positing a transcendentally unhistorical “context” or “language game” or “form
of life”, commentators merely reproduce the metaphysical idealism Wittgenstein was attempt-
ing to counter. IfWittgenstein’s point is that language is internally related to its social conditions,
then the political character of those social conditions is contained in language. As Eagleton
sees it, “Wittgenstein’s philosophy is reactionary not in its referring of beliefs and discourses
to social activity but in its assumption that such referring constitutes a liberation from the
metaphysical”, because metaphysics is nowhere more at home than in the ordinary language
of the everyday where objectification, reification, logocentrism, and the illusion of presence
are quotidian practices and experiences. (They are also the practices through which ideology
operates.) See “Wittgenstein’s Friends” in Against the Grain: Essays 1975-1985 (London: Verso,
1986) 99 at 107.
139Langille, supra, note 2 at 493, citing D.E Pears, Wittgenstein (Cambridge: Harvard Uni-
versity Press, 1986).
14Ibid. at 495, citing L. Wittgenstein, On Certainty, G.E.M. Anscombe &G.H. von Wright
eds, trans. D. Paul & G.E.M. Anscombe (New York: Harper & Row, 1969) para. 559.
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LEGAL INTERPRETATION
that these declarations engender (It’s the same as it ever was; it just is), can
be and should be resisted. Conscious human agreement or consensus never
has been necessary for certain “normality conditions” to achieve such social
predominance in a given historical period that they seem to be common-
sense assumptions and the form of life for which they are the framework
conditions to constitute an hegemony.141 But an hegemony is never total
and always contains both residual and emergent elements which may con-
tain the seeds of its destruction. Normality conditions are not fixed. They
just seem to be so, and this is a social and political matter.
The fact that legal practice is a way of acting, a form of activity, a social
practice, does not provide us with any licence to deny, evade, or in any way
marginalize the politics of interpretation. It puts it directly before us, and
it does so as a direct consequence of Wittgenstein’s propositions, 142 which
Langille summarizes as follows:
141The concept of cultural hegemony was developed by A. Gramsci, Selections from the
Prison Notebooks, ed. & trans. Q. Hocere (New York: International Publishers, 1971) and is
clarified and elaborated by R. Williams in Marxism andLiterature (Oxford: Oxford University
Press, 1977) at 108-10:
‘[H]egemony’ is a concept which at once includes and goes beyond two powerful
earlier concepts: that of ‘culture’ as a ‘whole social process’, in which men define
and shape their whole lives; and that of ‘ideology’, in any of its Marxist senses, in
which a system of meanings and values is the expression or projection of a particular
class interest.
‘Hegemony’ goes beyond ‘culture’ as previously defined, in its insistence on re-
lating the ‘whole social process’ to specific distributions of power and influence …
Gramsci therefore introduced the necessary recognition of domination and sub-
ordination in what has still, however, to be recognized as a whole process.
It is in just this recognition of the wholeness of the process that the concept of
‘hegemony’ goes beyond ‘ideology’. What is decisive is not only the conscious system
of ideas and beliefs, but the whole lived social process as practically organized by
specific and dominant meanings and values. … [The concept of hegemony] sees
the relations of domination and subordination, in their forms as practical con-
sciousness, as in effect a saturation of the whole process of living.., to such a depth
that the pressures and limits of what can ultimately be seen as a specific economic,
political, and cultural system seem to most of us the pressures and limits of simple
experience and common sense. … [Hegemony] thus constitutes a sense of reality
. It is … a ‘culture’, but a culture which has also
for most people in the society…
to be seen as the lived dominance and subordination of particular classes.
142Joan Williams, in an article to which Langille does not refer, also assesses the implications
of the “new epistemology” (which rejects a belief in objective truth and the associated claims
of certainty) for legal theory using the philosophy of Wittgenstein. She comes, however, to a
radically different conclusion:
An acceptance of the new epistemology necessarily leads one to the conclusion
that doctrine’s role in constraining discussion is political. But, as I have shown, it
does not follow that law is inherently a method of domination, as critical legal
scholars often appear to assume. The message of the new epistemology is that, in
the absence of absolutes, our law – like our language – is what we choose to make
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The upshot of Wittgenstein’s view of language is that all of our language has
meaning only within the language games and “forms of life” in which they are
embedded. One must understand the use, the context, the activity, the purpose,
the game which is being played… . [E]ven the simplest and most concrete use
of simple language, manipulation of straightforward concepts, and application
of the most basic rules can only be understood within the framework of the
language game or “form of life” in which the language, concept, or rule is
embedded …. “[H]uman rationality is essentially social in character’.”‘ 43
It is also the case that the social is essentially political in character, and
so, too, is rationality. A “form of life” is also a lived experience of social
relations of inequality and domination, and thus “even the simplest and
most concrete use of simple language,” can only be understood within the
framework of the language game or social form of domination and oppres-
sion “in which the language, concept, or rule is embedded.”‘ 44 We may
accept that there are no foundations for ethics, knowledge, or language, and
that, as Langille approvingly cites John Searle, no such foundations are
necessary, because the lack of such foundations “doesn’t threaten science,
language, or common sense in the least.” As Wittgenstein says, “it leaves
everything exactly as it is.”‘ 145 Things are left exactly as they are.
For some of us, however, leaving things exactly as they are, is quite
problematic. If metaphysical foundations are neither possible nor necessary,
then I suggest that our task is to look at things, exactly as they are, and to
insist that if no transcendental basis of legitimacy for the language game
that is law can be found, a social and experiential basis of legitimacy had
better be provided. The language game of law, its bedrock as practice and
its determinacy as activity exist as part of a form of life. We have every
it. Since our choices about doctrine constrain the scope of our conversations about
vital issues, and delimit future sense and nonsense, they are important choices
indeed. For example, do we want a legal system in which our pain at seeing poor
people homeless has no voice? Do we want a law in which our sharp concern over
environmental degradation is discussed largely in terms of whether bureaucrats have
followed correct procedures in enforcing often unsatisfactory statutes?
… The ultimate message of the new epistemology is not ethical relativism, but
that ethical choices are ours to make, and that we must accept responsibility for
the constraints and choices we have embodied in our law.”: “Critical Legal Studies:
The Death of Transcendence and the Rise of the New Langdells” (1987) 62 N.Y.U.L.
Rev. 429 at 495.
143Langille, supra, note 2 at 495-96.
144One need only consider the social constructions of gender difference that form background
conditions for our everyday language use. For a discussion of the ideological dimensions of
language use see J.B. Thompson, Studies in the Theory of Ideology (Cambridge: Polity Press,
1984) at 1-15. For examples of the gendered nature of legal language, see Finley, supra, note
133.
145J. Searle, “The World Turned Upside Down” New YorkReview of Books (27 October 1983)
as cited by Langille, supra, note 2 at 497.
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reason, and every obligation, to ask what social qualities this form of life
has and to protest if we find it wanting. 146
To the extent that “law as a set of social rules” embodies a “language
game” “embedded” in a “form of life” that is constituted, in-any part, by
such injustices, we should attempt to understand if and how “the use, the
context, the activity, the purpose, the game which is being played”‘147 (the
social rules of the legal system) exacerbate rather than alleviate hunger, pain,
grief, and the rage of disempowerment. We can only do so from a position
which attempts to understand the experiences of those who suffer such
hunger, pain, grief, and rage, and in a manner which conveys and amplifies
the voices of those whose experiences these are.
Legal decision-making may perhaps only be understood and analyzed
in terms of forces or ideas internal to the actual concepts or reasons which
those engaged in the practice allege they utilize but this is no position from
which to consider either its political constitution or its social consequences.
The meanings of the legal system’s practices to persons who are privileged
enough to participate in them are not the same meanings as those which
these practices have to persons who merely endure their omnipresence. To
reiterate a point made earlier, to solely accept the standards of those who
stand within this charmed circle and dismiss all criticism engendered else-
where as non-legal (and implicitly non-legitimate) is to accept that “might
is right”. If we are “external legal sceptics” to insist that the “meaningfulness
of legal behavior” is not the same meaningfulness for those who do not
participate in such behaviours (or who do so from marginalized positions),
it may not necessarily be because we miss “the point, the purpose, the
meaning of the activity involved.”‘ 148 It may be because “the point, the
purpose, the meaning of the activity” to its most influential practitioners
is not the sole meaning that this activity has. It has other meanings in the
lives of those who must live with its values, ideals, and consequences.
It is indeed true that “it is only within a practice, culture, and form of
life that meaning is possible.”‘ 149 But there are practices other than those of
law (and differentiations of practice within law): cultures are never seamless,
integral wholes, but fractured constellations of multiple, often discordant
discourses (which cohere as much through tension as through harmony),
and forms of life are often forms of domination, oppression, and exploi-
46We do not have, nor do we need, any transcendental or metaphysical foundation to
1
legitimate our convictions that poverty and sexual violence, torture and racial discrimination
should not be tolerated as part of the social reality or form of life in which we live, and the
lack of such foundations will not alter our political practices in the least.
147Langille, supra, note 2 at 496.
148Ibid. at 501.
1491bid.
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tation. Meaning is never singular and transparent but multivalent; it is
always contextually, and therefore socially, specific. It depends upon where
you stand. If, as legal academics, some of us choose to stand outside of legal
practice to understand it, it is not because we cannot or will not understand
its internal constitution of meaning; it is because “the crucial dimensions
of human life that matter to law” 150 are not always synonymous with the
crucial dimensions of human life that matter to those who find their voices
silenced, their understandings delegitimated, and their injuries belittled or
denied recognition when they encounter the legal system.
Langille does allow that “[e]xternalist analysis of the conditions under
which certain concepts are ‘made available’ within a form of life is a viable
enterprise” but insists (quite rightly) that there is no perspective beyond
our form of life from which it can be critically analyzed.1 5 1 My point is that
we can engage in critique without claiming any transcendental observation
point because the form of life in which we are embedded is not a singular,
hermetically sealed system, but a constellation of shifting conjunctures of
multiple discourses which itself provides resources that make criticism both
possible and meaningful.
Although the descriptive and interpretive enterprise that Dworkin and
Langille advocate is an important one, it should now be clear that I consider
it to be a grossly inadequate means to explore the practices of legal inter-
pretation. It risks both idealism and apologia. We cannot focus on meaning-
systems, especially such ideological and politically consequential ones as
those shared by legal interpretive communities, merely as social semiotic
systems whose significance can be determined by an analysis wholly internal
to that community. In fact, one of the general charges laid against herme-
neutic approaches is their inability to deal with the ideological nature of
the symbolic systems they explore.’ 52 Language and the cultural systems
through which communication is effected are part of more general social
processes which cannot be reduced to communication alone.
As the German social and political philosopher Jurgen Habermas re-
sponded to Gadamer, we should not absolutize cultural tradition. To do so,
overlooks the fact that language itself is dependent upon social processes which
are not wholly linguistic. … “Language is also a medium of domination and
social force. It serves to legitimate relations of organised power”. … [T]o hy-
150Ibid.
151Ibid. at 504.
152See for example, Giddens, Central Problems in Social Theory, supra, note 112 at 251.
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postatise language in the manner of linguistic and hermeneutic philosophy, is
to fall into the conservative clutches of a naive and submissive idealism. 153
Or, according to cultural theorist John Brenkman:
Culture does not stand above or apart from the many other activities and
relationships that make up a society, including the socially organized forms of
domination, exploitation, and power pervasive in our own society and its
history. Granted, cultural practices foster social solidarity and collective iden-
tity. But that does not keep them from participating in social divisions and
exclusions … . Indeed, whether conceived as spirit, consciousness, superstruc-
ture, or the symbolic, culture is not a realm unto itself or a separate domain.
[S]ocial relations of domination [are] inscribed within cultural practices. 54
In the discipline of cultural anthropology, Talal Asad has commented
on the tendency of interpretive anthropology to reduce problems about the
nature and consequence of particular public discourses (like law) to ques-
tions of meaning.1 55 Asad criticizes hermeneutical or interpretive ap-
proaches to cultural forms which accord priority to systems of human
meaning on the basis that they leave unasked the question of how it is that
particular political and economic conditions maintain or undermine given
forms of authoritative discourse. 156 Are there, for example, specific political
and economic conditions which make certain rhetorical forms objectively
possible and authoritative? Emphasis on meaning deflects attention from
our endeavours to explore the “social connections between historical forces
and relations on the one hand, and the characteristic forms of discourse
sustained or undermined by them on the other.” 157 Crucial questions about
how different forms of discourse come to be materially produced and main-
tained as authoritative systems, and how and in what context of social,
material processes these may come to be undermined, cannot be posed.
Asad also argues that we cannot look at ideological systems merely as
systems of meaning, and that we cannot establish the determinate function
of a given ‘meaningful’ discourse if we continue to isolate what is said from
its rhetorical context. So doing
suppresses the tensions and ambiguities (conscious as well as unconscious) that
obtain within a given field of discourse in specific historical conditions, and
thus suppresses also the process by which motives, rhetorical devices and forms
153J.B. Thompson, Critical Hermeneutics: A Study in the Thought ofPaul Ricoeur andJurgen
Habermas (Cambridge: Cambridge University Press, 1981) at 82, citing J. Habermas, ZerLogik
der Socialwissenshaften (Frankfurt: Suhrkamp, 1970) at 287 [Thompson’s translation].
154Brenkman, supra, note 114 at vii.
155 “Anthropology and the Analysis of Ideology” (1979) 14 Man (N.S.) 607.
156Ibid at 607.
157Ibid at 616.
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of comprehension are constructed and reconstructed. It is of course precisely
these ambiguities of discourse and the elaboration they call for, that makes
political argument possible. 58
Not only should we bear this in mind when we consider the process of
legal interpretation and the legal discourses sustaining this process, but we
should consider its relevance for our own debates about the nature of legal
interpretation and the reliance on “context” (however defined) as a source
of constraint. I think we should appreciate Peller’s assertion that we cannot
assume that “context” simply exists around social events like legal inter-
pretation independently of the representation of “context” in discourse. 159
The contexts, communities, or conversations adduced to serve as founda-
tions for law “are not given but produced – produced by exclusions”‘ 60 of
the constructions of meaning and significance that marginalized peoples give
to their experiences. “Context” is not a self-present source for meaning, but
the derivative effect of representational practices in which some elements
of social life are said to constitute context to the exclusion of others.161
The metaphysics of contextual presence accordingly reverses the metaphor of
subjective priority into one of objective priority. Thus meaning does not flow
intrinsically from the words or intent of the subject, but extrinsically from
factors outside the subject which are seen to constitute subjective meaning.
The inside, the text, is seen to originate in the outside, the context. This outside,
as a self-present and undifferentiated source or origin, thus is taken as a tran-
scendental object, existing prior to and separate from the social construction
of context.162
Peller reminds us that context is a discursive construction of situated social
agents and thus that we should attend to the rhetorical strategies that shape
the way “context” is defined amongst scholars in the academic discourse
about legal interpretation.
I think we have to be particularly suspicious of accounts of legal inter-
pretation which waive fears of illegitimate exercises of power by asserting
that the necessary constraints are always already in place due to the fact
that meanings seem clear to most interpreters most of the time because the
contexts in which texts are apprehended generally ensure that meaning
seems indisputable. A recent variation on this theme is found in Fish’s
Dennis Martinez and the Uses of Theory163 in which he shows his interlo-
University Press, 1982) at 153.
1581bid. at 620-21.
159Peller, supra, note 28.
160See J. Culler, On Deconstruction: Theory and Criticism after Structuralism (Ithica: Cornell
161Peller, supra, note 28 at 1224.
I62Ibid. at 1224-25.
163Supra, note 85. See also my discussion there of the premises that must be sustained to
accept this argument.
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cutors (Michael Moore, Ronald Dworkin and Mark Kelman) that judges
need no theory to properly perform their tasks, that judicial practice is not
random or ad hoc activity without such a theory, and that we need not
despair about the inability of theory to generate or guide practice because
when judges are judging, they are not using any theory at all,
[but] merely registering what they see and proceeding in ways that seem to
them … obligatory and routine, and they do these things not because they have
applied this or that epistemology, but because within the beliefs and assump-
tions that constitute their perception and their sense of possible courses of
action, there is nothing else they could do.164
“[J]udging … cannot be understood as an activity in the course of which
practitioners regularly repair for guidance to an underlying set of rules and
principles”‘ 165 because practice, “rather than being in need of the guidance
theory might claim to provide, is itself sufficient, is, in fact, self-sufficient,
and in need of nothing additional” 166 because practice constrains and needs
no additional constraints. 167 To be an agent embedded in that practice, “[is
to be] an agent who need not look to something in order to determine where
he is or where he now might go because that determination is built into,
comes along with, his already-in-place sense of being a competent member
of the enterprise.” 168 “[A]n experienced judge is working simply by being
what practice has enabled him to be”‘169 and “[t]he internalized ‘know how’
or knowledge of ‘the ropes’ that practice brings is sufficient unto the day
and no theoretical apparatus is needed to do what practice is already doing,
that is providing the embedded agent with a sense of relevancies, obligation,
directions for action, criteria, etc.”‘ 170 It’s the same as it ever was and ever
shall be, Amen.”Fish’s discourse shows us how things couldn’t be
otherwise.”‘ 7′
Fish’s paean to the status quo of judicial practice, its sense of its own
complete and utter integrity, and its total disregard for and disinterest in
any suggestion that its “sense of relevancies, obligation, directions for action,
criteria, etc.” might be misguided, biased, or have socially destructive con-
sequences is, and should be, an occasion for despair. As a descriptive claim
about the way in which judicial interpretive assumptions often, but not
always, shape judges’ perceptions of things, we should appreciate that mean-
ing often does seem indisputable. Once again, however, this shouldn’t be
‘6Ibid. at 1785 (emphasis added).
16SIbid.
1661bid. at 1787 (emphasis added).
l67Ibid. at 1788.
168Ibid. at 1789 (emphasis added).
169Ibid.
170Ibid. at 1790 (emphasis added).
171Malkan, supra, note 88 at 154.
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seen as the end of our inquiry, but as its beginning. Texts may seem to have
fixed qualities when a particular way of reading is in force, but this ignores
crucial questions about how particular ways of reading become dominant
and attain such legitimacy that they seem to be a matter of common sense.
In other words, it evades an examination of the political struggles that
produce this sense of inevitability, and the ongoing political battles that are
waged to sustain it. Our common-sense assumptions about the world (or,
to use Wittgenstein’s language, the normality conditions that make possible
language games like law) are culturally and historically contingent and, as
Peller forcefully argues, they always reveal traces of their own artificiality.172
Moreover, as I endeavoured to establish earlier, these assumptions are
not unrelated to the structure of the social world. Indeed, as social theorists
and critical legal scholars have attempted to illustrate, it is these very com-
mon-sense assumptions that reinforce and reproduce social relations of in-
equality in society.173 “Domination is a human act that tends to appear to
human beings themselves as a mere fact of life. It is a violence that disguises
itself as the order of society and the stability of meanings and values.”‘ 74
We cannot conscionably address the activity of legal interpretation in iso-
lation from a larger understanding of the nature of the hegemonic process.
One very important operation of the hegemonic process is the contin-
uous creation of cultural traditions. Thus, attempts to embrace cultural
‘traditions’ incorporating the effective histories of texts, as a source of lim-
itation (and constrained transformation) in legal interpretation, share the
same inadequacies as those attempts which resort to interpretive commu-
nities, contexts,language games, or the history of the enterprise, to the extent
that they efface the social struggles involved in the construction of these
referents. Dworkin, for example, suggests that the ideal judge always makes
reference to the community’s political and legal principles – its traditions –
which will constrain the judge’s interpretation of what justice and fairness
172Peller, supra, note 28. See also Geertz, “Common Sense as a Cultural System” supra, note
13 at 73 for a discussion of how dramatically common sense varies from one people to the
next, with examples of the wild heterogeneity of its diverse cultural forms.
‘”See also B. Smart, “The Politics of Truth and the Problem of Hegemony” in D. C. Hoy,
ed., Foucault:A CriticalReader (Oxford: B. Blackwell, 1986) at 157-63 for a discussion of how:
Hegemony contributes to or constitutes a form of social cohesion not through
force or coercion, nor necessarily through consent, but most effectively by way of
practices, techniques, and methods which infiltrate minds and bodies, cultural prac-
tices which cultivate behaviors and beliefs, tastes, desires, and needs as seemingly
naturally occurring qualities and properties embodied in the psychic and physical
reality (or ‘truth’) of the human subject. [at 160]
See also both Peller, ibid., and R.D. Gordon, “New Developments in Legal Theory” in D.
Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982)
281, for discussions of law and hegemonic processes.
‘ 74Brenkman, supra, note 114 at 4.
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mean in that context. 175 His allegiance to the legitimacy and binding au-
thority of tradition, however, fails to provide room for any critical reflection
on tradition and its construction, or for any questioning of the community’s
legacy of principles.Hermeneutics renders itself complicit with tradition-
alism and rehabilitated prejudice by remaining “impervious to the ways in
which coercive and nonreciprocal relationships within a society shape its
culture”. 176
Most commentators on legal hermeneutics do recognize that tradition
is an actively shaping force. But as Raymond Williams reminds us, “[w]hat
we have to see is not just ‘a tradition’ but a selective tradition: an inten-
tionally selective version of a shaping past and a pre-shaped present, which
is then powerfully operative in the process of social and cultural definition
and identification.” 177 To quote Brenkman:
The heritage of modem culture has indeed to be actively constructed. As a
consequence, we have not only conflicting interpretations and valuations of
specific texts but also competing constructions of tradition. When interpreters
seek to recover, preserve, or reconstruct cultural heritages, they enter into the
politically charged conflicts of interpretation – the wars of persuasion – that
characterize modem culture.178
Traditions can be shown to be radically selective. History is full of
examples of situations in which specific interpretations get ‘read out of’ the
effective history of the text; they are denied legitimacy for one reason or
another. Williams argues that this selection of certain meanings and prac-
tices, and concomitant exclusion of others, is presented and usually suc-
cessfully passed off as “the tradition”, “the significant past”, and is therefore
one of the decisive processes within any hegemony.179 Traditional herme-
neutic approaches actively engage in the construction of”a cultural tradition
in the guise of a unified realm of meanings and values separated from social
relations of domination and power.”‘ 80
Theorists of legal interpretation should consider and address the chal-
lenge that postmodern critical literary theorists have posed to their coun-
terparts in the literary academy. Traditional literary criticism, the
postmodern critics contend, “refuses to take seriously the effects of the social
world on the aesthetic and visionary figuration which it values, defends,
175Dworkin, supra, note 99.
176Brenkman, supra, note 114 at viii.
177Williams, supra, note 141 at 115. For examples of this, see E. Hobsbawn & T. Ranger,
eds, The Invention of Tradition (Cambridge: Cambridge University Press, 1983).
178Brenkman, supra, note 114 at viii.
179Williams, supra, note 141 at 115.
180Brenkman, supra, note 114 at viii.
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and studies”.’ 8′ This objection to literary criticism is often countered with
claims that literature is a semi-autonomous social institution with its own
internal system of rules and traditions that can be examined and compre-
hended in isolation from other socially powerful discourses:
one might answer that it is incumbent on anyone holding such a belief to
demonstrate that these rules and traditions are generated internally, independ-
ently of any other actions in the social world … They would have to show, in
other words, that there is an “inside” to literary history that is independent of
the “outside” history of other material practices [instead they have just as-
sumed it]. Or, alternatively, they would have to admit that what they produced
was a static ideological model representing present interests. 182
Substitute law for literature and legal for literary and the challenge to ac-
ademic commentators on legal interpretation is quite clear.
The recourse to forms of life, language games, cultural context, disci-
plinary conventions, and institutional traditions to situate law, legal mean-
ing, and legal practice was and is a promising one but only if these social
domains are addressed in their historical specificity. Instead what we have
seen is an endless invention of new idealist devices that repress history and
the voices of its antagonists. If truth, meaning, certainty, right and wrong
have sense only in social practices, let us look then at the numerous histories,
struggles, competing claims, and differential relations of which these prac-
tices are always internally conflictual effects. If we must situate legal texts
and practices in relevant contexts to understand them, then why limit this
context to an idealistically conceived, ahistorical, unified system of meaning
– the imaginary culture of a privileged elite. Instead, let us take the contex-
tualizing impulse seriously and reinscribe legal practice, legal meaning, and
historically specific cultures of legal decision-making within the historical
movements and structures of the relational, differential social processes of
which they are a product.
There are a number of grounds then, for the need to fundamentally
rethink the ‘political’ nature of legal interpretation. Thus far, the ‘politics’
of legal interpretation has been addressed in terms of the danger of the
imposition of personal or partisan values, the influence of a judge’s back-
ground and experience on his reading of texts, or the ubiquity of politics
as an inevitable background context to interpretive practices. A more pow-
erful statement about the nature of the ‘politics’ of interpretation was made
by Robert Cover, who argued that the literature focusing on the importance
181P Bove, “The Ineluctability of Difference: Scientific Pluralism and the Critical Intelligence”
in Postmodernism and Politics, supra, note 88 at 5.
18Ibid. at 6.
1989]
LEGAL INTERPRETATION
of interpretive practices in law blithely ignores the central fact that “legal
interpretation takes place in a field of pain and death.”‘ 83
Legal interpretive acts signal and occasion the imposition of violence upon
others. A judge articulates her understanding of a text, and as a result, some-
body loses his freedom, his property, his children, even his life. Interpretations
in law also constitute justifications for violence which has already occurred or
which is about to occur. When interpreters have finished their work, they
frequently leave behind victims whose lives have been torn apart by these
organized, social practices of violence. Neither legal interpretation nor the
violence it occasions may be properly understood apart from one another. 8 4
Legal interpretation, he reminded us, takes place in the context of the
organized social practice of violence. The meaning-construction or world-
building which constitutes law is maintained “only to the extent that there
are commitments that place bodies on the line…. [T~he interpretive com-
mitments of officials are realized, indeed, in the flesh. 85
Cover made a crucial and too-often evaded point when he claimed the
priority of the fact that legal interpretation is essentially related to the leg-
itimated practice of political violence. But I question his representation of
this relationship and wonder whether it doesn’t underestimate the violence
inherent in legal interpretation. His discussion proceeds under the assump-
tion that legal interpretation takes place in a context of violence, because it
signals or occasions the potential for violence, and violence (be it capital
punishment, imprisonment, being deprived of one’s children or property)
is the likely result or consequence of such interpretation.
What Cover might have argued, and what most critical modem social
theory implies, is that legal interpretation is not something joined with the
practice of violent domination, but an example of that practice; in other
words, the process of legal interpretation can itself be seen as a practice of
political violence, not simply a practice which has political violence as a
likely consequence. To accept this, however, we would have to radically
reconstrue the way we think about violence in the social world. While I do
not wish to deny the reality of the pain experienced both in anticipation of
and upon the infliction of brute force, I do think the equation of pain with
legally sanctioned capital punishment, imprisonment, manhandling, and
deprivation of family and property, resonates only with the perspective of
those comfortable enough never to have imagined the myriad forms of
violence that those in minority groups in our society face on an everyday
basis (the quotidian carnage of industrial accidents, the everyday experience
of incest and wife battering, the habitual encounters with racial intolerance,
183R.M. Cover, “Violence and the Word” (1986) 95 Yale L.J. 1601 at 1601.
184Ibid.
185Ibid. at 1605.
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homophobia, and sexual degradation and harassment, the constant fear of
homelessness, deportation, AIDS, rape, etc.). Most people’s lives are played
out in fields of pain and death, as are the interpretations in which they
figure.
This can be clarified through a comprehension of Pierre Bourdieu’s
concept of “symbolic violence”. Bourdieu, who can best be described as a
social theorist, is one of a growing number of scholars interested in the role
of language in the reproduction of social life. He insists upon exploring the
social and political conditions of language use, and attempts to demonstrate
that “there is no linguistic exchange, however insignificant or personal it
may seem, which does not bear traces of the social structure that it helps
to reproduce.”‘ 18 6
Bourdieu develops a theoretical framework which enables one to “ana-
lyze the ways in which symbolic practices exercise their own type of violence,
a gentle invisible form of violence which is never recognized as such, or
which is recognized only by concealing the mechanisms upon which it de-
pends.”‘ 187 He has approached the symbolic practices involved in art, sci-
ence, language, religion, and law, to explore the intimate relationships
between culture, power, and stratification in both pre-industrial and modem
social “forms of life”.’88
Bourdieu sees the social world as one in which:
different classes and class factions are engaged in a specifically symbolic struggle
to impose the definition of the social world most in conformity with their
interests. The field of ideological positions reproduces in transfigured form the
field of social positions. They may carry on this struggle either directly in the
symbolic conflicts of everyday life, or indirectly through the struggle waged by
specialists in symbolic production (full time producers), in which the object
at stake is the monopoly of legitimate symbolic violence –
that is to say, the
power to impose (and even indeed to inculcate) instruments of knowledge and
expressions of social reality (taxonomies) which are arbitrary (but unrecognized
as such). The field of symbolic production is a microcosm of the struggle
between the classes. 189
Bourdieu, then, focuses upon those attitudes, dispositions and ways of
perceiving reality that are taken for granted by members of a profession,
social group, or a society, and that form the normality conditions, back-
‘ 86Thompson,”Symbolic Violence: Language and Power in the Writings of Pierre Bourdieu”
supra, note 144 at 43.
187Ibid.
88For a complete bibliography of Bourdieu’s work, see L. Wacquant, “Toward a Reflexive
1
Society: A Workshop with Pierre Bourdieu” (1989) 7 Soc. Theory [forthcoming].
189P Bourdieu, “Symbolic Power”, supra, note 112 at 115. For a more elaborate explication
of Bourdieu’s theory of ideological production and his understanding of the functions of the
juridical field as an instance thereof, see Coombe, supra, note 112.
1989]
LEGAL INTERPRETATION
ground “contexts”, or cultural “traditions” that are taken so unproblema-
tically to constrain legal decision-makers in the legal scholarship that theo-
rizes legal interpretation. For Bourdieu, as for Williams, these unquestioned
‘cultural arbitraries’ are the underpinnings of any system of domination, of
the hierarchies that characterize relations both among individuals and
among social classes in society.190
For legal scholars, Bourdieu’s work suggests several lines of inquiry.
Although we are becoming more comfortable thinking about law as a form
of language or discourse, we have yet to seriously explore the social and
political conditions of its formation and its use (except in instrumental or
functionalist terms) or to examine the ways in which legal discourse “bears
traces of the social structure it helps to reproduce.” 191
Bourdieu’s understanding of “ideology” also suggests that we think
about judicial interpreters as one group of symbolic producers who exercise
a monopoly on certain forms of legitimate symbolic violence in our society,
by imposing and reproducing certain arbitrary representations of social real-
ity which serve to sustain and reproduce relations of inequality. Moreover,
it suggests that we reconsider the specific conventions of legal decision-
making and the particular institutional constraints on legal interpretation,
not in terms of how they limit the willful imposition of personal or subjective
political values, but in terms of how these operate as rationalizations ad-
vanced by legal institutions about their own processes. Such rationalizations
serve to obscure the reproduction of hierarchies which legal institutions
effect by contributing to the systematic misrecognition of the institution’s
processes which are accepted both by practitioners in these institutions and
by the public they purport to serve. As Bourdieu makes clear, symbolic
violence involves the imposition of a “cultural arbitrary” and is, in modem
societies, exercised by institutions of ideological production which succeed
in such imposition only insofar as arbitrariness is misrecognized as such,
that is, is recognized as legitimate because of the objective and relative
autonomy claimed by such institutions. 192
Legal interpretation, then, appears to be ‘political’ in a far more complex
and pervasive fashion than legal scholars have thus far acknowledged. It is
not a field of study that can conscionably be isolated from a study of the
social and economic conditions which sustain and enable it, or from a
comprehension of the nature and scope of ideology, or more general he-
gemonic processes. Legal meanings are continually mobilized for the main-
190P Di Maggio, “On Pierre Bourdieu” (1979) 84 Am. J. Soc. 1460 at 1461.
191Thompson, supra, note 186.
1921 provide a longer and more critical discussion of the potential resources afforded by
Bourdieu’s theoretical insights for legal scholarship in “Room to Manoeuver”, supra, note 112.
652
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tenance of relations of domination, and legal interpretation plays an integral
part in the maintenance of social relations of inequality in our society. Our
heightened awareness of the indeterminacy of meaning should not cow us
into positions where we either deny the politics of interpretation, reassure
ourselves that our conventions protect us from the consequences of it, or
retreat into a complacent, smug, or resigned sense that it’s the “same as it
ever was” (and ever shall be), and that we need do no more than leave it
to the experts. A greater understanding of the implications of the fact that
law is interpretation should encourage us to enter the fray and compel us
to attend to the historical specificity and significance of political struggle.
It’s not the same as it ever was; it never has been, and it never will be.
