Legal Reasoning is Necessarily Political: A Discussion

Legal Reasoning is Necessarily Political: A Discussion

Introduction

Beginning in the late 1970s, interpretation became a focal point of legal studies. In large part, this fascination with interpretation was prompted by the interpretive turn associated with the writings of Hans-Georg Gadamer (1900-2002), Richard Rorty, Clifford Geertz, and Jacques Derrida (1930-2004). The interpretive turn was itself prompted by the recognition that culture and human action could be—or more strongly, had to be—read as texts. In accordance with this insight, the methods and approaches of literary criticism became relevant to the humanities, to the social sciences generally, and eventually to legal studies.

Bobbitt (2004) mentions in the United States, this interest in legal interpretation was also prompted by a more parochial, though no less important, source: the fascination of U.S. legal academics with the question of judicial review in constitutional law. Throughout the 1960s and the 1970s, leading U.S. constitutional thinkers confronted the question, how can judicial review be reconciled with democratic legislative decision making? While the specifics of the answers differed, the general form was nearly always the same: virtually all U.S. legal academics affirmed that, given a proper interpretation of the Constitution—namely, their own—judicial review and democratic decision making were entirely compatible (Bobbitt, 2004).

All this, of course, placed great pressure on identifying and justifying the proper mode of constitutional interpretation. Among the more conventional approaches to legal interpretation were textualism, framers' intent, history or tradition (Bobbitt, 2004), popular consensus, and moral-political philosophy, which, importantly, remain operative in the courts. From this fascination with conventional forms of interpretation in the constitutional context, leading thinkers in law gradually came to delve into more sophisticated (though not necessarily juridically useful) forms of interpretation borrowed from Gadamer, Rorty, Derrida, and literary criticism generally. Increasingly, radical challenges—many of them stemming from the work of critical legal studies scholars—came to produce a crisis of interpretation in the legal academy of the 1980s and 1990s. Significantly, U.S. judges and lawyers paid virtually no attention.

Conventional Approaches to Interpretation

Conventional forms of interpretation remain operative in the courts. Textualism holds that the proper form of constitutional interpretation requires resort to the text. Hard textualism holds that the Constitution has to be interpreted in terms of the plain meaning of the text. Only the text of the Constitution has been ratified by the American states, and thus only the text is authoritative. Soft textualism holds that constitutional meaning can be supplemented by resorting to sources other than the text, such as the framers' intent or case law, but that in all cases, constitutional meaning has to be consistent with the words of the text. In both its hard and soft versions, textualism, as theorized and practiced by legal academics and judges, depends on a naive understanding of law and legal meaning—namely, the supposition that words do have a plain meaning independent of the contexts (legal and otherwise) to which they refer and through which they are read.

Resort to the framers' intent—sometimes called intentionalism —is an approach that requires resort ...