Adjudication is Not Interpretation: Some Reservations About the Law-as-Literature Movement
77 Pages Posted: 3 Jun 2011
Date Written: 1987
Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation, that an adjudicative act is an interpretive act, more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.
In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, has carried legal theorists too far. I also will argue, the danger posed by interpretivist excesses is not simply conceptual confusion. By insisting that adjudication is interpretation, interpretivists misconceive not only the nature of adjudication, but also the nature, and even the possibility, of legal criticism.
In order, partly, to demonstrate what I take to be the real value of literature to lawyers, I will argue that two works of literature themselves teach us the irresponsibility of viewing legal analysis as either an objective or subjective interpretive act. I will argue that the exploits of two fictional lawyers: Mark Twain's, "Pudd'nhead Wilson," from the novel of the same name, and John Barth's Todd Andrews from, "The Floating Opera," are illustrative of where, in my view, interpretivism has gone wrong. Thus, it is my contention that Mark Twain and John Barth have done important work for legal theorists: Twain's lawyer protagonist "Pudd'nhead Wilson" scrupulously follows the objective interpretive strategies of Ronald Dworkin's mythical and interpretive Hercules, yet he is no hero. And John Barth's lawyer protagonist Todd Andrews just as scrupulously lives out the assumptions of subjectivist interpretivism in his law practice in a small town on Maryland's Eastern Shore. Todd Andrews, similarly, is no hero; in fact, he constitutes a form of evil. These two works of fiction about lawyers and lawyering reveal important truths about interpretivism: Both stories reveal "interpretivism" to be a justificatory illusion. When we exercise power, through courts or otherwise, we must do better than Wilson and Andrews. We must do better than even the highest ideal of interpretive behavior upon which our modern interpretivists insist.
In Part Two I will argue that objective interpretivism, as defined in Owen Fiss's influential article Objectivity and Interpretation, should be rejected. Part Three argues that the danger of relativism posed by objective interpretivism is thematically explored in Mark Twain's legal novel Pudd'nhead Wilson. Part Four argues that subjective interpretivism, as expressed in a recent article by Stanley Fish entitled Anti-Professionalism, should be rejected because it rests on a nihilistic morality. Part Five argues that the dangers of subjective interpretivism are dramatized by the exploits of the protagonist Todd Andrews in John Barth's legal novel The Floating Opera. In the conclusion I will argue briefly that only by first focusing on the imperative core of adjudication can we state and clearly apply the moral criteria by which law should be criticized.
Keywords: Law and literature, constitutional interpretation, legal criticism, American legal theory
JEL Classification: K00, K19
Suggested Citation: Suggested Citation