Are There Nothing But Texts in this Class? Interpreting the Interpretive Turns in Legal Thought
42 Pages Posted: 24 Jun 2011
Date Written: 2000
Allan Hutchinson remarks at the beginning of his interesting article that Gadamer's writings have had only a peripheral influence on legal scholarship: Only occasionally cited, and then begrudgingly so, and never given the serious attention they deserve or require. Nevertheless, Hutchinson acknowledges, Gadamerian influences can be noted, particularly in the now widely shared understanding that adjudication is, fundamentally, an interpretive exercise. Even with this qualification, though, I think Hutchinson understates Gadamer's impact. Whatever may be true of Gadamer's influence in other disciplines, his influence in law has been unambiguously both broad and deep, although it has come in what, at least at first glance, seems to be a surprising place. Gadamer has had less of an impact than one might have thought on conservative or liberal legal thought, particularly given the Burkean conservatism of much of his writing, and the striking similarities between his own and liberal theories of adjudication. But in the Canadian, American, and English critical legal studies movement, Hans-Georg Gadamer's influence has been undeniable, and recognition of the debt owed has hardly been begrudging. Indeed, it is no exaggeration to say that Hans-Georg Gadamer directly or indirectly set much of the agenda for the entire founding generation of critical legal scholars. That is no insignificant feat, given that the critical legal studies movement was the first movement since the legal realists of a half century earlier to be rigorously and consciously critical, rather than reformist, of our most basic legal norms, institutions, and adjudicative practices. Gadamer set the direction, tone, and much of the content of our critical contemporary movements in legal thought.
What I want to offer in this article commenting on the articles in this Symposium celebrating the centennial of Gadamer's birth is an interpretation of the interpretive turn itself, and I want to do it toward the end of criticizing where the interpretive turn has taken us. The critical interpretation I will offer of the interpretive turn will emphasize two of its relatively unremarked features. First, I want to emphasize, indeed insist upon, its multiplicity. There has been, I will argue, not one interpretive turn in legal theory, but several, or at least, several distinct ways in which the interpretive turn has altered the direction of critical legal thought. More concretely, as I will argue in the bulk of this Article, there have been at least seven such turns in legal thought, and my first goal is simply to map them out. Second, I want to try to clarify, in my interpretation of various interpretive turns of legal theory and critical legal theory, not so much the nature of hermeneutic interpretation, the subject in some way of all of these articles, as the nature of the turn. Every turn in life is a turn away from something as well as a turn toward something. This is as true of turns in critical legal theory as it is true of turns on the Appalachian Trail. My basic claim is that every interpretive turn in critical legal thought has entailed a turn away from something, as it has directed us toward interpretation. I want to highlight what the interpretive turn has turned us from, rather than what it has turned us toward.
Keywords: Constitutional scholarship, Hans-Georg Gadamer, Allan Hutchinson, critical legal theory, Constitutional interpretation, hermeneutical and originalist approaches, Due Process Clause, Fourteenth Amendment
JEL Classification: K00, K19
Suggested Citation: Suggested Citation