A Social Psychological Interpretation of the Hermeneutic of Suspicion in Contemporary Legal Thought

Abstract

The hermeneutic of suspicion is a disposition of participants in legal discourse to interrogate skeptically claims of legal necessity made to justify decision of a legal issue involving significant ideological stakes. The hermeneutic critiques a particular claim of legal necessity and alleges an ideologically motivated error. This article proposes a social psychological explanation of the hermeneutic as the projection of the actor onto his opponent of his own denied ideological motives. The projection lessens the pain of role conflict. Legal technique is supposed to purge ideological motives from legal judgment, but regularly puts the jurist in the position of choosing rather than following law, and requiring that he deny what he is doing. Cause lawyers, whether believers or realists, and legal neutrals, respond differently to the dilemma. Because they are bound to pursue substantive justice as well as legality in an unstable legal field, and substantive justice claims are today not distinguishable from ideological claims, all lawyers have to (should) doubt their own motives. Projection of the denied forbidden motive onto the opponent is solace. But ideology forms law through substance far more than through ideologically motivated error, and this too is elided by the projection.

Keywords: Hermeneutic of suspicion, projection, role conflict, path dependence in legal reasoning, substantive justice vs. legality, critical legal studies, realist vs. believer cause lawyers