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Abstract:
The claim of conscience is one that relies on a "transcendent" norm, some ultimate sense of "rightness" that is not reducible to mere social norm or social construction. Is it still possible, however, for us responsibly to appeal to a sense of conscience when cognitive theory - the science of the brain and mind - describes human consciousness as a function of our biology? May we retain, then, a notion of conscience as an appeal to some transcendent value that is not simply the product of our physical constitution? In this Article, I defend the viability of a notion of conscience, not through avoidance of the insights of cognitive theory but through a demonstration of the space that this theory leaves open for conscience on the basis of cognitive science's own criteria.

In my presentation of cognitive theory, I concentrate on its portrayal of human categorization. Cognitive theory demonstrates the reliance of categorization - including legal categorization - on the structuring of the human mind and brain. The more general insight is that we humans have no direct access to reality. Our understanding of reality, whatever it is, is mediated through our structured conceptual systems in the mind.

My reservations about cognitive theory turn on whether human and legal categorization lead to the degree of predictability it contends they do. I do not deny that reasoning is structured but maintain that this structuring permits more play than cognitive theory argues. At the heart of my criticism lies an objection that cognitive theory permits an insufficient role for creative metaphor. Creative metaphor is true to cognitive theory in that it operates throughout human categorization, not just in poetry. Contrary to the claims of cognitive theory, however, creative metaphor does not simply build on existing categorization, it also disrupts and transforms categorization. This space for creative metaphor is located outside existing conceptual structures and provides an opening for an appeal to values and norms that, precisely, transcend existing conceptual structures. This is the space for conscience.

cognitive theory, conscience, consciousness, human categorization, legal categorization, law, creative metaphor

Abstract:
This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel's idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin's analysis, basing the critique in part on Gadamer's argument that meaning and application are interrelated and that meaning changes with application. Central to this interplay is the speculative form of analysis that seeks to fix meaning, contrasted with metaphorical thought that seeks to undermine some fixed meanings and create new meanings through interpretation. The result is that speculative and metaphorical forms are conjoined in an interactive process through which new adaptations emerge. Taking this critique an additional step, we use examples from contemporary intellectual property law discourse to demonstrate how an interactive approach, grounded in metaphor, can yield important insights.

metaphor, commoditization, objectification, objects, interpretation

Abstract:
Scholars on the work of Paul Ricoeur contend that if there is one philosophical problem that pervades a number of Ricoeur's inquiries, it is that of imagination. I agree. Yet in Ricoeur's published work we find only scattered references to this topic and no comprehensive development on this subject so apparently central to his thinking. My claim is that scholarly attention to Ricoeur's unpublished "Lectures on Imagination" may redress this lacuna in his work. These Lectures provide the only place where we find a more complete systematic presentation of Ricoeur's argument as it moves from an analysis of reproductive to productive imagination.

In the Lectures, Ricoeur argues that classical and contemporary accounts of imagination in Western thought prototypically emphasize reproductive imagination. These accounts distinguish between an original - reality - and a copy - the image or the imagination - and the copy is always less than the original, because it is a replica of a preexisting outer reality. By contrast and building in part on Kant, Ricoeur argues for a space for productive imagination, a "nowhere" not bound by an original that may produce a new reality. The domains of productive imagination articulated in the Lectures include social and cultural imagination (the utopia), epistemological imagination, and poetic imagination. These Lectures came at a critical cusp in Ricoeur's career. During this period Ricoeur also presented a set of lectures on ideology and utopia that I later edited for publication. Ricoeur's book on metaphor, La metaphore vive, had just been published, and elements of that work are revived in the Lectures. Late in the Lectures his subsequent work on narrative is also foreshadowed. At this central juncture, Ricoeur is crystallizing his thoughts on poetics. Imagination lies at the heart of his thinking at this time.

Ricoeur's work on imagination informs my evaluation elsewhere of the role played by imagination and creativity in law.

philosophy of imagination, Paul Ricoeur, imagination, reproductive imagination, productive imagination, poetics, creativity

Abstract:
One of the most vexing questions in hermeneutics is whether it can be critical-whether it can engage in critique. In Part I of this Article, I show how within legal hermeneutics the element of critique is present even within those forms of legal interpretation most adherent to stances of "understanding." Here I concentrate on the work of Robert Bork and Justice Antonin Scalia and demonstrate how distance, separation, critique is present within their theories. In Part II, I reverse emphases and show how elements of "understanding" persist within legal theories most avowedly reliant on forms of "explanation." My exemplar here is work of Judge Richard Posner. In Part III, I explore Judge Posner's larger critique of much contemporary legal theory, in particular his criticisms of what he calls "top down" theory and "bottom up" theory. My claim here is that the dialectic between understanding and explanation that forms the character of hermeneutics (explored in Parts I and II) responds to Posner's critique.

Finally, in Part IV, I assess the import for law of its being a product of both understanding and explanation. If anthropologist Clifford Geertz differentiates between "an experimental science in search of law" and "an interpretive one in search of meaning," how is it possible to recover a sense of "law" within the legal domain that encompasses both? To address this issue, I briefly advert to some work in evolutionary theory by biologist Ernst Mayr. Mayr claims that evolutionary biology itself does not proceed on the basis of deterministic "laws." Mayr's example from within the natural sciences reinforces the point that there are other forms of "explanation" than nomological explanation, explanation by "law." Mayr's work also provides a useful counterpoint to Posner, who invokes evolutionary biology as a more nomological form of explanation. My thesis, then, is that there is a fundamental dialectic between understanding and explanation: each lies at the heart of the other.

hermeneutics, legal hermeneutics, Paul Ricoeur, understanding, explanation, ideology, Clifford Geertz, Hans-Georg Gadamer, Robert Bork, Justice Antonin Scalia, Judge Richard Posner, Ernst Mayr

Abstract:
Use of the narrative form in law and legal analysis remains controversial, especially by advocates of critical race theory. Critics maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, the claim goes, must be evaluated on the basis of objective standards. My Article argues that this posture critical of narrative is mistaken. I contend that to comprehend how narratives should be interpreted, their literary character must first be understood.

The Article examines the narratives of Derrick Bell, the preeminent critical race and narrative scholar, and maintains that Bell's narratives should be read as parables. I analogize the literary nature of Bell's narratives to the use of parable in the Bible's New Testament, a subject that has received significant attention by New Testament scholars. (The analogy draws upon the method of New Testament interpretation and sets aside any question - pro or con - of the New Testament's truth.) The claim is that just as the New Testament parables should be read on the basis of the methodological criterion of manifestation - the manifestation of new knowledge and insight - rather than on the basis of adequation - adequation to existing norms and knowledge - so should Bell's narratives. New Testament parables and Bell's parables seek to reorient, and they do so by disorienting existing understandings. I argue that the method gleaned from parable scholarship and Bell's work can resituate the ambitions of narrative legal theory in general. I conclude by justifying the Article's defense of narrative within the debate over whether an argument for racial change needs to promote a more material and less idealistic - in other words, less narrative-oriented - basis for change.

al narratives, parables, Derrick Bell, critical race theory, civil rights, racism, discrimination, theology, religion, Christianity, New Testament, Richard Delgado

Abstract:
My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic, political, or cultural criteria, important as those may be. The perspective of religion or theology offers another vantage point from which to comprehend racism's workings, a perspective that may in fact offer a "deeper foundation" for understanding racism's perdurance.

Second, despite the likely inclinations of many that any conjunction of race and religion would typically be a positive, even inspirational one-the story of how religious faith has sustained many engaged in the long struggle for civil rights - that is not at all the only story of race and religion to be told. In Part I, I want to relate both the positive and negative stories-including the positive value that his Christian faith has for Bell himself-but we must begin there by facing the negative. The negative story of racism's employment of Christianity requires us to ask what there is about Christianity that has led to this stain. In Part II, I then expand on Bell's comments and assess more directly the interrelation of religion and law, particularly civil rights law. I specifically attend the interrelation between the spiritual inspiration of religious faith and its potential institutionalization in law.

Finally, in Part III, I go beyond Bell and briefly assess the ascriptions of faith applied to law and their consequences for the civil rights movement. Throughout we will find positive and negative intertwined on both sides.

Derrick Bell, critical race theory, civil rights, racism, discrimination, theology, religion, Christianity, institutionalization

Abstract:
The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell's thesis of racism's permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr's paradox that social action is both necessary and meaningful despite the inextricable presence of human sin. The argument is that the dynamics of the relation between sin and action may illuminate the dynamics of the relation between racism and action. One need not necessarily agree with Niebuhr's theology to find the lived experience he describes a potentially rich source of understanding for the paradox that Bell maintains.

Derrick Bell, critical race theory, civil rights, racism, Reinhold Niebuhr, theology, social action, sin, action, racial discrimination

Abstract:
In the larger field of hermeneutics, legal hermeneutics is characteristically described as exemplary. While I detail ways in which legal hermeneutics is paradigmatic - particularly in its immersion in application to new cases - more generally I argue that its insights are more regional. I contend in particular that Paul Ricoeur's hermeneutics offers much to refine the insights of legal hermeneutics, but the discreteness of the field of legal interpretation requires refinement of Ricoeur's own theory.

The chapter proceeds in three steps. First, I briefly review the main themes of Ricoeur's hermeneutics, particularly his emphasis on the semantic autonomy of the text, and draw upon examples from the American legal context that generally support and extend the significance of Ricoeur's insight. Second, I turn to the limitations of Ricoeur's general hermeneutics as applied to American legal interpretation. The author of the legal text does retain a significance in legal interpretation that is not required in other fields. Because a legal author - a legislature or court - requires obedience to the terms of a text it promulgates, its expression is limited to the range of its legitimate authority. Third, I show how the law can act as an exemplary form of hermeneutics in its attention to the application of meaning to particular circumstances. As Gadamer anticipated and as Ricoeur more expansively details, legal hermeneutics here does offer insights into a more general hermeneutics in its imaginative correlation between meaning and application.

hermeneutics, legal hermeneutics, Paul Ricoeur, Hans-Georg Gadamer, legal interpretation

Abstract:
This chapter probes how philosophy may help us understand how legal creativity occurs. The inquiry is basically descriptive, but there is an underlying normative element also to the extent that the inquiry opens a space alternative to rule formalism and the recourse only to the past, both of which can often be stultifying for both the law and the legal profession.

The chapter relies principally on approaches in continental philosophy, particularly hermeneutics and the work of Paul Ricoeur on metaphor and imagination. It also adverts to recent work in cognitive theory that helps deepen the philosophical insights. While legal scholarship has debated the nature of legal creativity in the context of analogy, the claim is that the resources of hermeneutics allow a more precise, sophisticated, and illuminating rendering of this subject.

The potential reinterpretation of meaning required at the moment of application is a basic theme of hermeneutics. The relationship between meaning and application is not one of subsumption; meaning is not determined once and for all at the moment of origin but must be reassessed as the meaning is applied to new circumstances. Meaning can change as it is applied; the determination of meaning requires creative judgment.

Our understanding of the interrelation between meaning and application can be enriched by describing the interrelation as metaphoric. The ground for metaphoric predication arises when customary meaning is challenged. In metaphor, writes Ricoeur, “the similar is perceived despite difference.” Metaphoric predication is a creative act that can expand a category. In the interrelation of meaning and application, we may see resemblance where we had not before.

Analysis is extended a step further by considering how the interrelation of meaning and application in legal judgment is not simply metaphoric but imaginative. The creation of metaphoric resemblance is an act of imagination. The relationship between meaning and application is not one of deduction of the particular from the general principle but rather of a transfer of meaning. Making the transfer requires imagination. Philosophic analysis of metaphor and imagination allows us to ascertain how significant is the role of creative judgment in law.

creativity, hermeneutics, legal hermeneutics, Paul Ricoeur, imagination, legal imagination