Judgment in Law and the Humanities

Abstract

The interdisciplinary temperament of ‘law and the humanities’ is both perplexing for law, and intriguing for the humanities. This perplexity and this intrigue come to a head precisely over one of the most important institutional necessities and problems of law: judgment. If a text is not a truth but a debate; if it embodies not one story or meaning but many; if a statute, let us say, or a court case cannot be neatly separated from literature, or rhetoric, or politics – then there is literature, and rhetoric, and politics, in every interpretation and in every decision. One of the central questions that the influence of the humanities on law raises is this: how, and with what legitimacy, can judgment take place if the texts on which judges base their decision do not – even in principle, let alone in practice – yield ‘one right answer.’ Over the past few years, as the question of judgment has ever more urgently weighed upon scholars within the broad church of the humanities, at least two kinds of answer have emerged: one broadly speaking influenced by Derrida’s later work and the other, equally schematically, taking Heidegger as its point of departure. Now these two streams draw very closely on a common intellectual tradition and share many points of similarity. Nevertheless I wish to insist in this essay that the two strands part company on the crucial question of judgment in law. In this chapter I focus on these two divergent paths now open to law and the humanities. The key difference between them (although not everyone will agree) lies in the transcendentalism – I would say the Romanticism – of the latter, and the relativism pragmatism – I would say the humanism – of the former. This chapter argues that we have both social and intellectual reasons to prefer the humanist perspective over its romantic alternative. Drawing on the language of deconstruction, and the experience of literature that lies at its heart, I want to defend an understanding of the purpose and nature of legal judgment which places as its central concern the provisional and multi-vocal experience of human discourse. From this we might develop a theory of judgment that is neither positivist nor Romantic.

Keywords: law and humanities, judgment, interpretation, Derrida, Heidegger, romanticism, positivism, modernism