Critical Hermeneutics: The Intertwining of Explanation and Understanding as Exemplified in Legal Analysis

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.

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

Accepted Paper Series