Legal Hermeneutics - Interpretation of the law is based on assumptions about the nature of texts,

language, and the act of interpretation itself. These fourteen new essays trace the origin of these
assumptions, examine their philosophical implications, and extend legal interpretation in new and constructive
directions.

Legal Hermeneutics

The question of how best to determine the meaning of a given text (legal or otherwise) has always been the
chief concern of the general field of inquiry known as hermeneutics. Legal hermeneutics is rooted in philosophical
hermeneutics and takes as its subject matter the nature of legal meaning. Legal hermeneutics asks the following
sorts of questions: How do we come to decide what a given law means? Who makes that decision? What
are the criteria for making that decision? What should be the criteria? Are the criteria that we use for
deciding what a given law means good criteria? Are they necessary criteria? Are they sufficient? In whose
service do our interpretive criteria operate? How were these criteria chosen and by whom? Within what
sociopolitical, sociocultural, and sociohistorical contexts were these criteria generated? Are the criteria
we have used in the past to ascertain the meaning of a given law the criteria we should still use today?
Why or why not? What personal or political goals do the meanings of laws serve? How can we come up with
better meanings of laws? On what basis can one meaning of a given law be justifiably prioritized over another?
Through an interrogation into these meta-interpretive questions, legal hermeneutics serves the critical role of
helping the interpreter of laws reach a higher level of self-reflexivity about the interpretive process. From a legal
hermeneutical point of view, it is primarily through this heightened transparency about the process of
interpretation that better meaning assessments are generated.

Some distinctive features of legal hermeneutics are (1) it is rooted in philosophical hermeneutics; (2) within the
schema of mainstream philosophies of law, it is most closely conceptually related to legal interpretivism; (3) it
shares an antifoundationalist sensibility with many alternative theories of law; and (4) within jurisprudence proper
(legal theory), its primary substantive focus is on the debate in constitutional theory between the interpretive
methods of originalism and non-originalism.

Table of Contents

1. Roots: Philosophical Hermeneutics

2. Legal Hermeneutics and Mainstream Philosophy of Law
3. Legal Hermeneutics and Alternative Theories of Law
4. Legal Hermeneutics in Jurisprudence Proper
5. Conclusion
6. References and Further Reading
a. References
b. Further Reading
1. Roots: Philosophical Hermeneutics
The term hermeneutics can be traced back at least as far as Ancient Greece. David Hoy traces the origin of term
to the Greek god Hermes, who was, among other things, the inventor of language and an interpreter between the
gods and humanity. In addition, the Greek term , orhermeneutice, is central to Aristotles On
Interpretation ( as), which concerns the relationship between language and logic and meaning.
Hermeneutical approaches to meaning are thematized and utilized in many academic disciplines: archaeology,
architecture, environmental studies, international relations, political theory, psychology, religion, and sociology.
Specifically philosophical hermeneutics is unique in that rather than taking a particular approach to meaning, it is
concerned with the nature of meaning, understanding, or interpretation.

Legal hermeneutics is rooted in philosophical hermeneutics, which asks not only the question of how best to
interpret a given text, but also the deeper question of what it means to interpret a text at all. In other words,
philosophical hermeneutics takes as its object of inquiry the interpretive process itself and seeks interpretive
practices designed to respect that process (Dostal 2002; Malpas 2014; Wachterhauser 1994). Philosophical
hermeneutics, then, can be alternately described as the philosophy of interpretation, the philosophy of
understanding, or the philosophy of meaning. The central problem of philosophical hermeneutics is how to
successfully ascertain anything on the order of an objective interpretation, understanding, or meaning in light of
the apparent fact that all meaning is ascertained through the filter of at least one interpreters subjectivity
(Bleicher 1980: 1). Philosophical hermeneutics seeks transparency in the interpretive process en route to better
meaning determinations. On this view, better theories of interpretation (1) capture the key features of the
interpretive process, (2) recognize each act of understanding as an interpretation, and (3) are able to distinguish
between more and less legitimate or objective interpretations, understandings, or meanings.

Philosophical hermeneutics has its theoretical origins in the work of 19 th century German philologist Friedrich Ast.
Asts Basic Elements of Grammar, Hermeneutics, and Criticism(Grundlinien der Grammatik, Hermeneutik und
Kritik) of 1808 contains an early articulation of the main components of what later became known as the
hermeneutic circle. Ast wrote that the basic principle of all understanding was a cyclical process of coming to
understand the parts through the whole and the whole through the parts. This basic principle derived, for Ast,
from the original unity of all being (Ast 1808: Section 72) or what Ast called spirit or Geist. (Asts Geist is
commonly understood to have been derived from Herders concept of Volkgeist.)
To understand a text, for Ast, was to determine its inner meaning or spirit, its own internal development, through
a circularity of reason, a dialectical relation between the parts of a given work and the whole (Ast 1808: Section
76). What Ast called the hermeneutic of the spirit involved, in turn, the development of an understanding of the
spirit of the writer and her era and an attempt to identify the one idea, or Grundidee, that unified a given text and
that provided clarification regarding the relationship of the whole to the parts and the parts to the whole. In this
process, for Ast, it was incumbent upon the interpreter to always remain cognizant of the historical period in
which the text was situated.
Friedrich August Wolf was a contemporary of Asts and a fellow philologist. His Lecture on the Encyclopedia of
Classical Studies (Vorlesung ber die Enzyklopdie der Altertumswissenschaft)of 1831 defined hermeneutics as
the science of the rules by which the meaning of signs is determined. These rules pointed, for Wolf, to a
knowledge of human nature. Both historical and linguistic facts have a proper role in the interpretive process,
according to Wolf, and help us to understand the organic whole that is the text. For Wolf, however, the primary
task of hermeneutics was not the identification of the Grundidee or focal point of the text la Ast, but the much
more practical goal of the achievement of a high level of communication or dialogue between the interpreter of
the text and the author, as well as between the interpreter and those to whom the text is to be explained.
Although aspects of the hermeneutics of both Ast and Wolf have survived into contemporary philosophical
hermeneutics, the hermeneutics of both are generally understood to be concerned with what later became known
as regional hermeneutics, or hermeneutics applicable to specific fields of study. Friedrich D. E. Schleiermacher, by
contrast, was the first to define hermeneutics as the art of understanding itself, irrespective of field of study
(Palmer 1969: 84). Underlying and grounding the specific rules of interpretation of the various fields of study, for
Schleiermacher, was a unity grounded in the fact that all interpretation takes place in language (bid.).
Schleirmacher thought that a general, rather than regional, hermeneutics was possible and that such a general
hermeneutics would consist of the principles for the understanding of language (Ibid.). Specifically, for
Schleiermacher, proper interpretation, or understanding, was not merely a function of grasping the thoughts of
the author, but of coming to grips with the extent to which the language in which the thoughts took place affected,
constrained, and informed those thoughts. Schleiermacher, then, is calling our philosophical attention to the fact
that when we say we understand something, we are essentially just comparing it to something we already know,
most basically a given language. Here, to understand is to place something within a pre-existing context of
intelligibility. Understanding, for Schleiermacher, was therefore decidedly circular, but for him this did not amount
to the conclusion that understanding was impossible. Instead, circularity is how understanding is defined.
Understanding necessarily and structurally entails that the text and the interpreter share the same language and
the same context of intelligibility.

Wilhelm Dilthey continued Schleiermachers pursuit of understanding qua understanding, but he sought to do so
within the specific context of what he called the human sciences, or theGeisteswissenschaften (Dilthey 1883). The
methods of scientific knowledge, for Dilthey, were too reductionist and mechanistic to capture the fullness of
human-created phenomena (Palmer 1969, 100). The human sciences, or humanities, required instead two
particular processes: (1) the development of an appreciation for the role of historical consciousness in our
conceptions of meaning, and (2) a recognition that human-created phenomena are generated from life itself
rather than through theory or concepts (Ibid.). In contemporary hermeneutic theory, the first process is often
referred to as the historicality, or Geschichtlichkeit, of meaning and the second as life-philosophy,
or Lebensphilosophie, the phenomenological view that meaning can be only be generated and understanding can
only be had through lived experience (Erlebnis) and not through the examination of concepts, theories, or other
purely idealistic or rational methods (Nenon 1995).
While Dilthey observed that the categorical methods of understanding useful in science were inappropriate for use
in the human sciences, Martin Heidegger switched the entire hermeneutic enterprise from an epistemological
focus to an ontological one. This switch is customarily referred to as the ontological turn in hermeneutics (Kisiel
1993; Tugendhat 1992). For Heidegger, in his classic, Being and Time (1962/2008), the question of the nature of
understanding, or Verstehen, could only be answered by first answering the question of the nature of what it
means to be. Accordingly, Heidegger set out in Being and Time to discover the nature of being qua being. To do
so Heidegger went to the things themselves, or die Sachen selbst, in keeping with the phenomenological
methodology he learned from his teacher, Edmund Husserl. Heidegger called his phenomenological inquiry into
the nature of being qua being fundamental ontology. He also called it hermeneutic ontology, which highlights that,
for Heidegger, being and interpretation are inextricably linked almost to the point of identity.
The idea that, for Heidegger, being and interpretation were virtually the same phenomenon is arguably best
captured in two of Heideggers key concepts: Dasein and being-in-the-world. Daseincan be roughly translated as
the human way of being, but its literal translation is being there or being here. With these concepts,
Heidegger is attempting to stress that the human way of being is interactive both with ones environment and
with others in the world. To be human is to be active and involved in ones world and with other people rather
than to be in a particular static state. There are no isolated human subjects separate from the world, for
Heidegger, and the human way of being is not adequately characterized by the traditional philosophical distinction
between subject and object, or by the distinction between subject and other subjects (or minds and other minds,
as this polarity is sometimes described) that originates, for Heidegger, in Descartess Meditations. Instead, being,
for humans, is being-in-the-world, a term meant to highlight the lack of clear barriers between human beings and
the contexts, or schemas of intelligibility, in which they find themselves (Dreyfus & Wrathall 2002). According to
Heidegger, what this means for the phenomenon of understanding is that it is always a function of how a given
human being is in the world, that is, a function of context. The relationship between being, or context, and
understanding is reciprocal. Understanding, for Heidegger, discloses to us what it means to be, and who we are
affects how we understand things. In other words, understanding, for Heidegger, is not a sort of apprehension of
the way things really are, as the canonical, modern, philosophical tradition might think of it, but rather it is the
process of appreciating the manner in which things are there for a particular person, or group of persons, in the
world. Further, the manner in which things are there for us in the world is a function primarily of shared social
and cultural practices. To understand something, then, is to be able to place it within a schema of intelligibility,
which is generated by the shared social and cultural practices in which one finds oneself (Dreyfus & Wrathall
2005).
In his Truth and Method (1975), Hans-George Gadamer picks up on Heideggers concept of the hermeneutic circle
of understanding that is at the core of what it means to be human in the world, but while it is true that Gadamer
works within the Heideggerian paradigm to the extent that he fully accepts the ontological turn in hermeneutics,
Gadamers own stated project in Truth and Method is to get at the question of understanding qua understanding.
Specifically, Gadamer observes that the traditional paths to truth are wrong-headed and run antithetical to the
reality that being and interpretive understanding are intertwined. In the traditional paths to truth, truth and
method are at odds. The methods used in the Western tradition will not get us to truth. These methods are critical
interpretation, or traditional hermeneutics, and the Enlightenment focus on reason as the path to truth. Both of
these methods have what Gadamer calls a pre-judgment against pre-judgment. That is, they both fail to
acknowledge the role of the interpreter in determining truth. Traditional critical interpretation is inadequate
because it seeks original intent or original meaning, that is, it holds on to the fiction that the meaning of the text
can be found in the original intent of the author or in the words of the text. The Enlightenment focus on reason is
an equally inadequate path to truth because it retains the subject/object distinction and thinks the path to truth is
through the scientific method, both of which are wrong-headed.
For Gadamer, the word pre-judgment, or Vorurteile means the same thing as Heideggers fore-structure of
understanding. Gadamer claims that todays negative connotation of pre-judgment only develops with the
Enlightenment (Schmidt 2006: 100). The original meaning of pre-judgment, according to Gadamer, was neither
positive nor negative, but simply a view we hold, either consciously or unconsciously. All understanding
necessarily starts with pre-judgments. The pre-judgments of the interpreter, for Gadamer, rather than being a
barrier to truth, actually facilitate its generation. The pre-judgments of the interpreterheld as a result of the
interpreters personal facticitynot only contribute to the generation of the question being raised in the first
instance, but, if taken into account on the path to truth, are capable of being critically evaluated and revised, with
the result that the quality of the interpretation is improved. Additionally, pre-judgments are either legitimate or
illegitimate. Legitimate pre-judgments lead to understanding. Illegitimate pre-judgments do not. One of the goals
of Truth and Method is to provide a theoretically sound basis upon which to distinguish between legitimate and
illegitimate pre-judgments (Schmidt 2006: 102). Understanding or meaning, for Gadamer, is a function of
legitimate pre-judgments.
The model for how understanding actually operates, for Gadamer, is the conversation or dialogue. In an authentic
dialogue, says Gadamer, understanding or meaning is something that occurs inside of a tradition, which is just a
set of cultural assumptions and beliefs. A tradition is a worldview, orWeltanschauung, a system of intelligibility, a
framework of ideas and beliefs through which a given culture experiences and interprets the world. A tradition, in
this Gadamerian sense, is the theoretical grandchild of what Ast called a given texts Grundidee, or one idea that
unified it. For Gadamer, a legitimate pre-judgment is a pre-judgment that survives throughout time, eventually
becoming a central part of a given culture, a part of its tradition. Understanding or meaning is an event, a
happening, the substance of which is a fusion of this narrowly defined concept of tradition and the pre-judgments
of the interpreter. In this sense, understanding is not willed by the participants. If it were, the dialogue would not
be authentic and understanding or meaning could never be achieved. Instead, the conversation or dialogue wills
the path to understanding. The thing itself reveals the truth.
In the course of the dialogue, and as a direct and organic result of the things being discussed by the particular
participants of the conversation, a question arises. This question becomes the matter at hand, the topic of the
conversation. As the conversation proceeds, the answer will show up as well, and it will be a function of the
fusion of horizons between the perspectives or pre-judgments of the participants of the conversation (Gadamer
1975). This fusion is understanding/meaning. It is the answer to the question and the closest thing there is to
truth. In this way, both the things themselves and the participants of the conversation together generate both the
conversation topic (the question) and the answer. Together, the things and the participants of the conversation
generate the truth of the matter. Moreover, all of this takes place within a tradition that gives legitimacy and
weight to the meaning generated.

It is important, for Gadamer, that the path to truth is phenomenological, that is, we must go to the things
themselves, and the path is also hermeneutic in that it appreciates that the pre-judgment against pre-judgment is
unavoidable. Every interpreter arrives at a text with what Gadamer calls a given horizon, or conglomeration of
pre-judgments, which is analogous to a Heideggerian world or fore-structure of understanding and which has
been described as a given schema of intelligibility in which an interpreter finds himself or herself. A Gadamerian
horizon is a shared system of social and cultural practices that provides the scope of what shows up as meaningful
for an interpreter as well as for how things show up. Picking up on the hermeneutic circle, Gadamer holds that an
act of understanding is always interpretive.

Another key element of Gadamerian philosophical hermeneutics is Gadamers insistence that interpretation,
understanding, or meaning cannot take place outside of practical application. Interpretation is more than mere
explication for Gadamer. It is more than mere exegesis. Beyond these things, interpretation of a given textand it
is important that everything is a textalways and necessarily takes place through the lens of present concerns
and interests. The interpreter always and necessarily in other words, comes to the table of the interpretive
conversation or dialogue with a present concern that is grounded in a given epistemological or metaphysical
horizon in which the interpreter dwells. In this way, for Gadamer, Aristotle got it right that understanding
necessarily occurs through practical reasoning, or phronesis. For Gadamer, [a]pplication does not mean first
understanding a given universal in itself and then afterward applying it to a concrete case. It is the very
understanding of the universal.itself (Gadamer 1975). That phronesis is central to Gadamers hermeneutics is
not disputed (Arthos 2014).
But, even more important than this, for Gadamer, the distance in time between the interpreter and the text is not
a barrier to understanding but that which enables it. Temporal distance between text and interpretation is a
positive and productive condition enabling understanding (Gadamer 1975). When we seek to interpret a text,
we are trying to figure out not the authors original intentbut what the text has to say to us (Schmidt 2006: 104),
and this is a function of the extent to which the authors original intent and the meaning generated by the
contemporary context and the contemporary interpreter agree, that is, the extent to which the horizons of the
author and the instant interpreter fuse or blend. (Gadamer specifically discusses legal hermeneutics in Truth and
Method. He writes that there are two commonly understood ways of determining meaning in the law. The first is
when a judge decides a case. In such a scenario, the judge must necessarily factor the present facts into the
decision. The second is the case of the legal historian. In this second scenario, although it may seem as if the task
is to discover the meaning of the law by only considering the history of the law, the reality is that it is impossible
for the legal historian to understand the law solely in terms of its historical origin to the exclusion of
considerations of the continuing effect of the law. In other words, determinations of meaning in the law, as is the
case of all determinations of meaning, necessarily and at all times involves practical application.)
Post-Gadamerian philosophical hermeneutics takes many forms but can arguably be said to begin with the work of
Emilio Betti. Finding what he saw as an epistemological relativism in the philosophical hermeneutics of Gadamer,
Betti returns to the general hermeneutics of Schleiermacher and Dilthey and resists the tide of the ontological
turn (Pinton 1972, 1973). Betti was a legal theorist who tried to bring the hermeneutic project back to one of
interpretation without reference to the human way of being. Betti believed in and sought objective understanding
or objective interpretation, or Auslegung, while at the same time stressing that texts reflected human intentions.
Accordingly, he thought it was possible to ascertain the meaning of the text through replicating the original
creative process, the train of thought, so to speak, of the texts author. Betti believed in the autonomy of the text
(Bleicher 1980: 58). Objective interpretation was possible, for him, but this objectivity was based both in terms of
a priori epistemological existence la Platos forms and of historical and cultural coherence. (Bleicher 1980: 28-
29).
Jrgen Habermas, like Emilio Betti, seeks objective understanding (Habermas 1971), but, unlike Betti and in
agreement with Gadamer, Habermas believes that hermeneutics is not and cannot be merely a matter of trying to
find the best method of interpretation. Instead, objectivity of interpretation is grounded in something Habermas
called communicative action, a sort of Gadamerian dialogue modified by the recognition that power imbalances
often distort what passes for collective understanding, and that real consensusthe closest thing available to
truth and/or objective understandingcan only be had where that consensus has been generated impartially and
in circumstances where agreement has been unconstrained. (Habermass communicative action concept is also
known as communicative praxis or communicative rationality.) While Gadamers philosophical hermeneutics
grounded a kind of quasi-objectivity in the authority of tradition, however, Habermas found this approach
insufficiently able to guide social liberation and progress. The task of hermeneutics is not merely to deconstruct
the process of understanding and/or to somehow ground that understanding in either method la Betti or
tradition la Gadamer, but to determine rules of ascertaining universal validity in the social sciences en route to
social change. In this way, Habermass hermeneutics claims that hermeneutics can and does permit the kind of
value judgments of which some critics say hermeneutics is incapable.

Paul Ricoeur was a contemporary philosophical hermeneutist who is known for creating what is often described as
a critical hermeneutics. For Ricoeur, meaning and understanding are to be obtained through culture and
narrative, as these take place in time. Influenced by Freud, Ricoeur thought all ideology required a critique to
uncover repressed and hidden meanings that exist behind surface meanings that pass for truth. In The Conflict of
Interpretations (1974), Ricoeur argued that there were many and various paths to understanding and that each
uniquely adds to meaning. Ricoeurs work has been taken up recently by phenomenologists interested in questions
of the nature of paradox (Geniusas 2015).
The work of Jacques Derrida (Derrida 1976, 1978) is more commonly associated with a 20th century movement in
French philosophy known as deconstruction than with philosophical hermeneutics per se. However, there are
important similarities between the two movements. First, deconstruction on its own terms, like hermeneutics, is
not a method. Instead, deconstruction is a critique of authoritative systems of intelligibility or meaning that
exposes the hierarchies of power within those systems. In understanding itself as outside of existing theoretical
schemas, in other words, Derridas deconstruction is within the hermeneutic tradition. Second, deconstruction is
based on Heideggers concept of Destruktion, a central concept in his hermeneutic ontology. But, while
Heideggers Destrucktion, a project of critiquing authoritative systems of meaning that are based on structures of
foundationalist metaphysics or epistemology, concludes that every act of understanding is an act of interpretation
(Heidegger, 2008/1962), Derridas deconstruction involves identifying that language, or text, contains conceptual
oppositions that involve the prioritizing of one side of a given conceptual opposition over the other, for example,
writing over speech. Still, Derridas deconstruction is clearly in the hermeneutic tradition in that it is designed to
highlight the elliptical and enigmatic nature of language and meaning. This is particularly evident in Derridas
concept of diffrance, according to which every word in a given language implicates other words, which implicate
other words, in a process of infinite reference and therefore what Derrida calls absence, meaning an absence of
definitive meaning.
Susan-Judith Hoffman argues that Gadamerian hermeneutics furthers feminist objectives and can be understood
as a form of feminist theorizing. Highlighting Gadamers account of the importance of difference, his notion of
understanding as an inclusive dialogue, his account of pre-judgments as conditions for understanding that must
always remain provisional, his account of tradition as that which is transformed by our reflection, and his account
of language (Hoffman, 2003: 103), Hoffman argues that Gadamers philosophical hermeneutics is in line with
feminist theorizing in that it overthrows the false universalism of the natural sciences as the privileged model of
human understanding (Ibid.: 81). In the process, Gadamers hermeneutics amounts to feminist theorizing in two
important ways. First, it contains a sensitivity to the historical and cultural situation of knowledge and knowledge
seekers, and second, it contains the critical power to challenge reductive universalizing tendencies in traditional
canons of thought (Ibid.: 82).

Linda Martn Alcoff also sees value for feminist theory in Gadamers hermeneutics. For Alcoff, Gadamers
openness to alterity, his move from knowledge to understanding, and his holism in justification and immanent
realism all align themselves with feminist theorizing (Alcoff 2003: 256). That Gadamers philosophical
hermeneutics contained these elements was insisted upon by Gadamer himself, who saw his philosophical
hermeneutics as a critique of the Enlightenment view that truth could be had through abstract reasoning,
divorced from historical considerations, as well as a call for the acknowledgment that the path to truth was
through the particular rather than through the universal (Gadamer 1975). Miranda Fricker has recently developed
hermeneutical themes into what she calls hermeneutical injustice, according to which an injustice is done when
the collective hermeneutical resources available to a given individual or group are inadequate for expressing one
or more important areas of their experience (Fricker 2007).

The work of Donatella di Cesare, Gnter Figal, and James Risser is at the forefront of contemporary hermeneutics.
For Cesare, the ground of hermeneutics is in Heideggerian existentialism, but this does not mean that
hermeneutics is a kind of nihilism. Instead, hermeneutics, or the philosophy of understanding, is aimed at
consensus; it is a constructive enterprise (Cesare 2005). For Figal, hermeneutics is most fundamentally a critique
of objectivity and a call to understand things previously understood as objective elements of human life (Figal
2010). Risser has been interpreted as attempting to advance beyond Gadamers philosophical hermeneutics by
acknowledging the radical finitude at stake in the phenomenon of tradition (George 2014).

2. Legal Hermeneutics and Mainstream Philosophy of Law

Within mainstream philosophy of law, legal hermeneutics is most closely aligned with legal interpretivism. Legal
interpretivism is conceptually positioned between the two main subfields of philosophy of law: legal
positivism and natural law theory. While mainstream philosophy law has many faces, and includes, among other
theories, legal realism, legal formalism, legal pragmatism, and legal process theory, legal positivism and natural
law theory form the theoretical poles between which each of the mainstream theories can be understood to lie.
Legal positivism is the view, in broad strokes, that there is no necessary connection between law and morality and
that law owes neither its legitimacy nor its authority to moral considerations (Feinberg and Coleman 2008;
Patterson 2003). The validity of law, for the legal positivist, is determined not by its moral content but by certain
social facts (Hart 1958, 1961; Dickson 2001; Coleman 2001; Gardner 2001). Natural law theory is grounded in the
work of two main thinkers: John Finnis and Lon Fuller. For Finnis, an unjust law has no authority (Finnis 1969;
1980; 1991), and for Fuller, an immoral law is no law at all (Fuller 1958). Natural law theory, generally speaking,
then, is the view that there is a necessary connection between law and morality and that an immoral law is not a
law (Raz 2009; Simmonds 2007; Murphy 2006).
Sometimes called a third, main theory of law, legal interpretivism, developed by Ronald Dworkin, is the view that
the law is essentially interpretive in nature and that it gains is authority and legitimacy from legal principles.
Dworkin understands these principles to be neither bare rules nor moral tenets, but a set of guidelines to
interpretation that are generated from legal practice (Dworkin 2011, 1996, 1986, 1985, 1983). Some describe
legal interpretivism as a hybrid between legal positivism and natural law theory for the reason that Dworkins
principles seem to qualify both as rules and to have a kind of normative quality that is similar to moral tenets
(Hiley et al. eds. 1991; Brink 2001; Burley 2004; Greenberg 2004). But, what distinguishes legal interpretivism
from both legal positivism and natural law theory is its insistence that legal meaning is tempered by the legal
tradition within which it operates (Greenberg 2004; Hershovitz 2006). For the legal interpretivist, in other words,
the line between legal positivism and natural law theory is not clearly drawn. Instead, rules and normative
guidelines together shape and form both what the law is and what it means. This approach to legal ontology and
meaning is known as the interpretive turn in analytic jurisprudence (West 2000; Feldman 1991).
Arguably, however, what legal positivism, natural law theory, and legal interpretivism all have in common is
epistemological and metaphysical foundationalism. While, for the legal positivist, the answer to both the question
of what the law is and the question of what the law means can be found in rules (Hart 1958), for the natural law
theorist, the answer to both questions can be found in morality (Fuller 1958). Similarly, for the legal
interpretivist, the answer to both questions is found in legal principles. In other words, for the legal interpretivist,
law gains its legitimacy and authority from principles emanating from legal practice. Although law is interpretive
in nature, on this view, the interpretative process stops at the point at which a judgment call has to be made as to
what the/a law means, preferably by someone well-versed in the relevant legal tradition. Once that judgment call
is made, we have our answer. Meaning has been determined.
The legal hermeneutical approach is similar but different in the important respect that no meaning determination
is ever understood to be fixed. As is the case for the legal interpretivist, for the legal hermeneutist, law is
interpretive in nature, but at no point can any meaning determination rise to the level of definitive. Things like
Dworkinian principles are acknowledged and considered, along with myriad other factors relevant to good
interpretive practice, but the story of the meaning of the law, for the legal hermeneutist, most certainly cannot
end at any point. There is no foundation to the law, for the legal hermeneutist, and there can be none. Instead,
there can only be better or worse interpretations, measured comparatively and by the quality of the interpretive
practices used to generate the various interpretations. More importantly, however, for the legal hermeneutist,
objective interpretation simply is not and cannot be the project. Instead, the search for legal meaning is a critical
project. The search for legal meaning involves critical engagement with previous interpretations and the current
interpretation and includes critical analysis of the conditions for the possibility for both.

Legal hermeneutics, then, while similar to legal interpretivism in many respects, provides an alternative to the
three main theories of law in that its approach to legal meaning can be understood to avoid engagement with the
question of foundationalism that is characteristic of the traditional approaches. Rather than offering a new theory
of law, legal hermeneutics provides us with the necessary protocols for determining meaning (Douzinas,
Warrington, and McVeigh 1992: 30). Legal hermeneutics provides no specific theory of law and privileges no
particular methodology or ideology. Instead, legal hermeneutics calls the interpreter of legal texts first and
foremost to the fact that every act of understanding a law is an act of interpretation, and at the same time,
highlights that better interpretation takes conscious and proactive account of what philosophical hermeneutics, as
described above, reveals as the necessary structures and components of the interpretive process. Some might
describe this feature of legal hermeneutics as taking the determinacy of meaning to be context-dependent and
open-ended. While this account is on track, another key feature of legal hermeneutics is that it is a descriptive
rather than a normative project. Legal hermeneutics, then, is more a way of clarifying the nature of how legal
interpretation actually works than a theory of how legal interpretation ought to work. In this way, legal
hermeneutics can be understood to provide the tools with which to investigate, clarify, and help solve what appear
from other perspectives to be insoluble legal problems, particularly problems based in conflicts of interpretation.

3. Legal Hermeneutics and Alternative Theories of Law

Legal hermeneutics shares an antifoundationalist sensibility with many alternative theories of law, including the
critical legal studies movement, Marxist legal theory, deconstructionist legal theory, postmodernist legal theory,
outsider jurisprudence, and the law and literature movement. For each of these theories of law, the goal of
locating laws ultimate legitimacy, authority, or meaning anywhere at all is understood as an exercise in futility.
Some characterize this feature of these theories as the failure of complete determinacy as a semantic thesis,
rather than as a failure of ultimate justification as an epistemological thesis. However, for others, this distinction
is not meaningful and fails to adequately account for the radical rejection of the entire project of justification
inherent in alternative theories.
The critical legal studies movement was an intellectual movement in the late 1970s and early 1980s that stood for
the proposition that there is radical indeterminacy in the law. Conceptually based in the critical theory of the
Frankfurt School, critical legal studies stands for the proposition that legal doctrine is an empty shell. There is no
such thing as the law, for the critical legal theorist, as the law is understood as an entity that exists out of context
(Binder 1996/1999: 282). Instead, law is produced by power differentials that have their origins in differences in
levels of property ownership. The liberal ideal of the rule of law devoid of influence from power differentials,
contained in all analytic approaches to jurisprudence, is an illusion. For this reason, law is inherently self-
contradictory and self-defeating and can never be a mere formality, as liberal theory and analytic jurisprudence
would have us believe. This way of understanding the law is known as the indeterminacy thesis. For some, this
does not necessarily mean that law is indeterminable. However, it means that determinability is context-
dependent. Others do not find this distinction meaningful.

Marxist legal theory begins with the work of Evgeny Pashukanis and takes place in contemporary form in the work
of Alan Hunt, among others. For Pashukanis, law was inextricably linked to capitalism and hopelessly bourgeois.
Outside of capitalism, things like legal rights are unnecessary, since outside of capitalism there are no conflicting
interests or rights to be meted out or over which it is necessary for persons to fight. In the socialist society that
Pashukanis envisions on the other side of capitalism, what would take the place of law and all talk of individual
rights would be a sort of quasi-utilitarianism that values collective satisfaction over the perceived need to protect
the individual interests of individual legal subjects (Pashukanis 1924). What contemporary Marxist legal theory
retains from Pashukanis is the view that law is inescapably political, merely one form of politics. In this way, law is
always potentially coercive and expressive of prevailing economic relations, and the content of law always
manifests the interests of the dominant class (Hunt 1996, 1999: 355). So described, the content of law, for Marxist
legal theorists, has no theoretical or practical basis in anything epistemologically foundational or universal.

Deconstructionist legal theories can be considered post-structuralist like critical legal studies but are unique in
that they center around conceptual oppositions or binary concepts, also known as binaries. According to the
deconstructionist approach, within a given conceptual opposition, one term in the opposition has been
traditionally privileged over the other in a particular context, or text. A text can be a written text, an argument, a
historical tradition, or a social practice. Jacques Derrida, considered the forerunner of deconstruction as a
philosophy of language and meaning, famously identified a conceptual opposition between writing and speech, for
example, with writing being the privileged form (Derrida 1976). Privileged, in deconstruction, means truer, more
valuable, more important, or more universal than the opposing term (Balkin, 1996, 1999: 368). According to
deconstructionist theories of law, legal distinctions are often masked conceptual oppositions taht privilege one
term over another. For example, individualism is privileged over altruism, and universalizability is privileged over
the attention to the particular that is an inherent part of equitable distribution. These binary concepts and the
privileging of one term in each binary lend an instability to the law, on deconstructionist terms, that is decidedly
anti-foundationalist. J.M. Balkin, for example, argues that the true nature of the legal subject is ignored and
obliterated by conventional legal theory (Balkin 2010; 1993). Balkin argues that when an attempt is made to
understand a law, we bring our subjective experiences to bear on that attempted understanding (Ibid.). For Balkin,
mainstream philosophy of laws failure to acknowledge that this is the case is its very deep and abiding flaw.

Postmodernist legal theories are grounded in a 20th century movement in aesthetic and intellectual thought,
which departed from interpretation based in universal truths, essences, and foundations. Postmodern legal theory
departs from a belief in the rule of law, or any generalized or universalizable Grand Theory of Jurisprudence, in
favor of using local, small-scale problem-solving strategies to raise new questions about the relation of law,
politics, and culture (Minda 1995: 3). Other than this statement, it is difficult to describe postmodernist legal
theory in any general way, since the entire point of postmodernist legal theory is that generalized theories are
vacuous, even impossible. Instead, there are only individual theories, individual authors of theories, and individual
texts/laws. It is fair to say, however, that postmodern legal theorists generally resist the sort of conceptual
theorization routinely practiced by more mainstream legal academics and analytic philosophers for the reason
that more mainstream approaches unduly emphasize abstract theory at the expense of pragmatic concerns (Ibid.).
The postmodern rejection of ultimate theories can be construed as a form of antifoundationalism.
Outsider jurisprudence is an area of legal theorizing that is highly skeptical of the ability of mainstream legal
theory to address the needs of members of historically marginalized groups. Although there has been a
proliferation of kinds of outsider jurisprudence in the early 21st century, including LatCrit and QueerCrit
(Mahmud 2014; Valdes 2003; Eskridge 1994), there are two main kinds of outsider jurisprudence: critical race
theory and feminist jurisprudence (Parks 2008; Jones 2002; Delgado 2012; Levit and Verchick 2006). Critical race
theorists are concerned with the particularized experiences of African Americans in American jurisprudence. They
share with the postmodernists a rejection of the idea of the existence of one grand and universally applicable
theory of law that applies equally to everyone: There is a hidden category of persons to whom the laws do not
equally and universally apply, for the critical race theorists, and that category of persons is African Americans
(Minda 1995: 167). Key themes in critical race theory are a call to contextualized theorizing about the law that
acknowledges that the lives and experiences of African Americans in America have a juridical tenor very different
from the lives and experiences of other Americans, a critique of political liberalism, which bases its apportionment
of rights on the fiction that African Americans as a group have the same degree of access to rights, in American
society, as other Americans, and a call for juridical acknowledgment of the persistence of racism in American
society (Ladson-Billings 2011; Whyte 2005; Delgado 1995: xv).

Feminist jurisprudence [goes] beyond rules and precedents to explore the deeper structures of the law
(Chamallas 2003: xix). It operates under the belief that gender is a significant factor in American life and explores
the ways in which gender, and related power dynamics between men and women throughout American legal
history, have affected how American law has developed (Ibid.). Feminist jurisprudence concerns itself with legal
issues of particular significance to women, such as sexual harassment, domestic violence, and pay equity. It also
approaches legal theory in a way that comports with many womens lived experiences, that is, without pretending,
as mainstream jurisprudence tends to do, that gender is irrelevant to the outcome of legal disputes (Ibid.). Of
primary concern to feminist legal scholars is the systemic nature of womens inequality and the pervasiveness of
female subordination through law in America. The methodology of feminist jurisprudence is the excavation and
examination of hidden legalized mechanisms of discrimination to uncover hierarchies in law that operate to the
detriment of the ideal of equal rights for women (Ibid.). The feminist legal scholars identification of hidden power
dynamics at work in American law can be construed as yet another antifoundationalist perspective on law.

A recent development in outsider jurisprudence is intersectionality theory, or the idea that oppression takes place
across multiple, intersecting systems, or axes, of oppression (Cho, Crenshaw, and McCall 2013; MacKinnon 2013;
Walby 2007). Intersectionality theory is grounded in the thought of Kimberl Crenshaw (Crenshaw 1989, 1991)
and reinforces the idea from critical race theory and feminist jurisprudence that law operates differently on the
bodies of the oppressed. For Crenshaw, race and gender discrimination combine on the bodies of black women in
a way that neither race discrimination nor gender discrimination alone capture or are able to capture or handle.
Crenshaws point is that ignoring race when taking up gender reinforces the oppression of people of color, and
anti-racist perspectives that ignore patriarchy reinforce the oppression of women (Crenshaw 1991, 1252). But,
more specifically, taking up any form of oppression in a vacuum ignores the way that oppression actually works in
the lives of the oppressed. For the law to help combat oppression, it must grapple with the complexities and
nuances of lived experience.

Containing very similar themes to legal hermeneutics is what is known as the law and literature movement (Fish
1999; Rorty 2007, 2000, 1998, 1991, 1979; Bruns 1992; Fiss 1982). The law and literature movement, like certain
forms of legal hermeneutics, is heavily influenced by the deconstructionist philosophy of Jacques Derrida (Derrida
1990, 1992). The literary legal theorist, in other words, has developed an appreciation for the costs of excluding
certain types of questions from the process of ascertaining meaning in the law (Levinson and Mailloux 1988: xi).
Moreover, there is an active attempt on the part of the literary legal theorist to dismantle or undo the conventional
illusion that the structures that support claims to authentic, legitimate, or official meaning are built on solid
ground. The role of the interpreter is also highlighted in these approaches, as is the inextricability of
determinations of meaning from the power dynamics in which they take place (Thorsteinsson 2015; Surrette
1995).

4. Legal Hermeneutics in Jurisprudence Proper

Legal hermeneutics in jurisprudence proper, legal theory, can be traced back to the publication of Francis Liebers
19th century work, Legal and Political Hermeneutics (Lieber 2010/1880). There, Lieber tried to identify principles
of legal interpretation that would bring consistency and objectivity to the interpretation of the U.S. Constitution,
and at the same time exposed strict intentionalist interpretative methodsdefined as those in which the so-called
intent of the Framers had interpretive authorityas incoherent (Binder and Weisberg 2000: 48). More than 125
years after Liebers landmark text, contemporary legal hermeneutics is still trying to find that balance.
Contemporary legal hermeneutics retains Liebers goal of objectivity of interpretation and his attention to the
roles of history, temporality, politics, and socio-historical context in credible meaning assessments. The central
question of legal hermeneutics in constitutional theory is: What sorts of interpretive methods should we use to
come up with an interpretation of the constitution that approaches objectivity despite the fact that, owing to
certain realities about how the interpretive process works, it is impossible for us to ascertain the intent of the
Framers?
Another question at the core of legal hermeneutics, however, is: Even if we could ascertain the intent of the
Framers, which all legal hermeneutists think is impossible, why would we want to do so, given the nature of what
a constitution isa living, breathing text designed to govern real people in real life contextsand the fact that
legal hermeneutical principles based in philosophical hermeneutics dictate that the particular time and place, that
is, the context, of a given application of a given law significantly influences, and should influence , the content of
the interpretation? This is an example of the hermeneutic circle at work in legal interpretation. That is, from the
vantage point of legal hermeneutics: What the constitution means in a particular instance is importantly
influenced by the context in which the interpretation is taking place, the application, and the context in which the
interpretation is taking place, the application, is importantly influenced by what the constitution means in that
same context.
The primary focus of contemporary legal hermeneutics is the debate in constitutional theory between the
interpretive methods of originalism and non-originalism. Originalism is the view, generally, that the meaning of
the constitution is to be found by determining the original intent of the Framers, understood to be most prudently
found in the text of the constitution itself (Scalia and Garner 2012; Calabresi 2007; Monaghan 2004). By contrast,
non-originalism is the view, generally, that the constitution is a living, breathing document meant more as a set of
guidelines for future lawmakers than as a strict rulebook demanding literal compliance (Cross 2013; Balkin 2011;
Goodwin 2010). For clarification purposes, it should be noted that the divide between originalism and non-
originalism is akin to the divide between epistemological foundationalism and antifoundationalism.

Within the debate between originalists and non-originalists, clearly all legal hermeneutists are necessarily non-
originalists, since by the basic tenets of legal hermeneutics, original intent cannot be ascertained. But, what
separates the legal hermeneutist from the average non-originalist is a high degree of respect for the text of the
constitution as an interpretive starting point, together with a call to heightened self-reflexivity regarding the
degree to which ones own pre-judgments, and the pre-judgments of previous interpreters, may be affecting the
interpretive process. By the same token, just as the legal interpretivist is constrained by the principles of legal
practice in the interpretive process, the legal hermeneutist is similarly constrained by the spirit of the text.
Finally, while the goal of the average non-originalist is a definitive interpretation of the text, however at odds with
the original intent of the Framers, the legal hermeneutist has the more modest goal of deconstructing the mosaic
of considerations that went into previous interpretations in an effort to examine each tile of the mosaic, one by
one, more in the service of understanding the text/law within a given context than in the service of producing
anything on the order of a definitive interpretation for posterity.

Another way of thinking about legal hermeneutics, however, is to see it as neither originalist nor non-originalist,
but orthogonal to the originalist/antioriginalist continuum. In other words, it is consistent with the themes of legal
hermeneutics that it rejects the originalist/antioriginalist continuum itself as wrong-headed and unproductive.
Indeed, legal hermeneutics rejects interpretive method altogether in favor of a call to an increased level of self-
reflexivity on the part of the interpreter, a call that is meant to actively and consciously engage the interpreter in
the interpretive process in a way that neither originalism nor non-originalism demands.

On the contemporary scene, George Taylors work in legal hermeneutics follows Ricoeurs in philosophical
hermeneutics. In his Hermeneutics and Critique in Legal Practice, Taylor argues that Ricoeurs approach to
hermeneutics gets it right when it attempts to mediate the difference between understanding and explanation
(Taylor 2000: 1101 et seq.). Understanding, on this view, is obtained through hermeneutic methods, but
explanation is obtained through science. Ricoeur, according to Taylor, sees the interpretive enterprise as
containing both elements. The way Taylor sees it, Ricoeurs emphasis on the narrative nature of meaning
acknowledges the roles of both understanding and explanation in a successful interpretation (Taylor 2000: 1123).
The usefulness of legal hermeneutics, for Taylor, is that it correctly identifies and brings to the forefront that there
is explanation or fact in understanding or interpretation, and there is understanding or interpretation in
explanation or fact, shedding a kind of glaring light on all understandings that might deny this reality. The goals of
originalism, on this view, are simply impossible to reach.
Francis J. Mootz, III agrees with Taylor about the impossibility to ascertain the original meaning (Mootz 1994).
Accordingly, instead of engaging in what he understands as the necessarily fruitless exercise of attempting to
ascertain original meaning, Mootz argues, we should instead attempt to find the interpretation that allows the
text to be most fully realized in the present situation (Mootz 1988: 605).

Georgia Warnke describes the interpretive turn in the study of justice as an abandonment of the attempt to
discern universally valid principles of justice in favor of attempts to articulate those principles of justice that are
suitable for a particular culture and society in light of that societys culture and traditions, the meanings of its
social goods, and its public values (Warnke 1993: 158). We would then appeal to hermeneutical standards of
coherence to reject interpretations that fail to respect that culture or those traditions, or meanings (Ibid.). Such
an approach, for Warnke, [shifts] the emphasis from a conflict between two opposing rightsto a conflict
between two interpretations ofactions and practices that are consonant with [a given cultures] traditions and
self-understandings (Ibid.: 162).

For Gregory Leyh, legal hermeneutics reveals to us the political nature of every act of constitutional
interpretation. This includes both originalist approaches to constitutional interpretation as well as non-originalist
approaches. However, for Leyh, legal hermeneutics also provides us with some constructive lessons for improving
the quality of our necessarily political acts of interpretation. Specifically, in Toward a Constitutional
Hermeneutics, Leyh makes the case for a legal hermeneutics based in the philosophical hermeneutics of Hans-
George Gadamer (Gadamer 1975) in which, as the self-understanding of the interpreters of legal texts is
increased, the quality of the interpretation produced by those interpreters is increased (Leyh 1992). This self-
understanding would include primarily an explicit acknowledgment of the role that history plays in the
development of both understanding and meaning (Ibid.: 370), an explicit acknowledgment of the irreducible
conditions of all human knowing (Ibid.: 371), and attentiveness to the kinds of issues characteristically associated
with the interpretation of all texts, including legal texts (Ibid.). For Leyh, a call to the constitutions original
meaning, la a standard originalist approach, for example, entails certain assumptions about historical
understanding, for example, that it is fixed and identifiable by subsequent interpreters, which legal hermeneutics
exposes as impossible. What constitutional theorists need, for Leyh, is not greater insight into the intent of the
framers, for this is not obtainable, but deeper reflection on the issue of the conditions that make historical
knowledge possible at all (Ibid.: 372). For Leyh, legal hermeneutics sets for itself an ontological task, namely, that
of identifying the ineluctable relationships between text and reader, past and present, that allow for
understanding to occur in the first place (Ibid.).

There are two key aspects to Leyhs legal hermeneutics: (1) an appreciation for the role of language in
understanding, which sharpens our awareness of the historical structures constitutive of all knowledge, and (2)
a recognition of the enabling character of our prejudgments and preconceptions as windows to the past (Ibid.:
372). Taking these things into consideration, it is impossible, according to Leyh, for us to obtain an understanding
of historical texts like the constitution without going through the language we use today and our present-day
prejudgments and preconceptions, or what Hans-George Gadamer called our pre-judgments. For Leyh, all reason
is historical, and there is a historicity to all inquiry (Ibid.: 375). No text simply sits before us and announces its
meaning, Leyh writes (1988: 375).

Rather than understanding the historicity of all inquiry as an impediment between the contemporary interpreter
and the text, however, Leyh suggests that this information should aid us in recognizing that reason finds its
expression only as it is applied concretely (Ibid.). In other words, interpretation is always practical, it always
occurs in a particular set of circumstances at a particular time and place, and it applies itself to a particular set of
facts. An acknowledgement of this reality on the part of the interpreter, for Leyh, adds a level of awareness vis--
vis the interpretive process that can only aid in making sound judgments of constitutional interpretation.

David Hoys take on legal hermeneutics involves a focused critique of the intentionalist position in constitutional
theory, according to which the so-called intent of the framers is the ultimate authority on constitutional meaning
(Hoy 1992). For Hoy, while the intentionalist believes that no interpretation is needed to locate the intent of the
framers, the hermeneutist understands that the concept of intended meaning presupposes a prior understanding
of meaning in a different sense of the word. The concept of an ambiguous sentence highlights this prior
understanding of meaning. A given sentence can have two different meanings in this prior sense, Hoy explains,
whether either or both of them were intended or not (Hoy 1992: 175). The hermeneutist acknowledges, in other
words, according to Hoy, a difference between sentence meaning and speakers meaning. However, while the
intentionalist incorrectly presumes that there are only two possible bases for a theory of meaningintention and
convention (Ibid.)the hermeneutist understands that there can be no fact of the matter vis--vis sentence
meaning. Hoy writes, [Hermeneutics] acknowledges semantic complexity. It does not exclude questions about
intention when these are relevant to interpretation, but it believes that since textual meaning is not reducible to
intended meaning, there are many other kinds of questions that can be asked about texts (Hoy 1992: 178).

At the same time, Hoys hermeneutics stands for the proposition that the traditional way law is practiced operates
as a constraint on judicial discretion. It provides a schema of intelligibility in which a judge must necessarily
decide a case. As Hoy indicates, using discretion to decide what the law means within the tradition of the practice
of law is what judges do all the time. Only when the judges know that the law entails one decision and they
nevertheless decide something else could they be said to be rewriting, writes Hoy (1992: 183), and the
hermeneutic claim is that this is almost never the case. See also Hoy, David (1987) Interpreting the Law:
Hermeneutical and Poststructuralist Perspectives, Southern California Law Review 58 (1985): 136-76 and
Dworkins Constructive Optimism v. Deconstructive Legal Nihilism, Law and Philosophy 6 (1987): 321-56. If Hoy
is right, then, as Leyh points out as well, there is no act of judicial interpretation that takes place without
interpretation. Such a possibility is an illusion. Instead, all acts of understanding are acts of interpretation
including originalist and/or intentionalist acts of understanding.
In the early 21st century, John T. Valauri argued that the new questions for legal hermeneutics are different from
the ones of the late 1980s and early 1990s (Valauri 2010). For Valauri, the continuing significance of hermeneutics
for legal theory is to help us sort through the varieties of originalism that compete for our allegiance in the
aftermath of what he sees as a kind of unanimous consent to originalisms legitimacy. In other words, for Valuari,
the hermeneutical question is no longer whether originalism is valuable, but what kind of originalism is valuable
(Ibid.). The remaining questions that need to be answered to help us sort through the varieties of originalism, for
Valauri, are (1) whether the various forms of originalism share a common conception of understanding and
interpretation, and (2) whether hermeneutics is a descriptive or normative practice. To address these questions,
says Valauri, we need to [recover]...the fundamental hermeneutical problem (Gadamer 1975), which means
focusing on three key hermeneutical paradigms: (1) the process of application, (2) Aristotles practical wisdom,
and (3) a focus on the Aristotelian face of hermeneutics over the Heideggerian one (Valauri 2010). The
significance of paradigms (1) and (2) are self-explanatory and common to all forms of hermeneutics, legal and
otherwise. By paradigm (3), Valauri hopes to recover legal hermeneutics from its Heideggerian-based, full scale
rejection of method that many mainstream legal theorists find so unpalatable.

Drawing themes and seeking overlap between the various contemporary legal hermeneutists, a legal
hermeneutical approach to constitutional theory can be understood as a call to the interpreter of the constitution
to take into conscious consideration the following factors when engaged in constitutional interpretation: (1) the
identity of the interpreter, of previous interpreters, and the original author, (2) the sociohistorical context in which
the text was written and in which the interpretation is taking place, (3) the political climate at the time the text
was written and in which the interpretation is taking place, (4) the extent to which the meaning of words and
concepts relevant to the interpretation have changed or have not changed over time, (5) the particularity of
experience of those affected by a given law, (6) the extent to which that experience is acknowledged or
unacknowledged by previous interpretations, (7) the relationship between who the interpreter is, who the
interpreter takes herself to be, and the kinds of interpretive choices the interpreter makes, (8) the necessary truth
that original meaning is an illusion and cannot be ascertained, and (9) the extent to which ones own pre-
 judgments enter into ones attempt at ascertaining meaning. This final aspect adds a level of self-reflexivity to the
interpretive enterprise that is understood to significantly improve the quality of the interpretation. In other words,
from the vantage point of legal hermeneutics, the more that assumptions customarily unacknowledged in
mainstream legal theory are excavated and examined, the greater the degree of legitimacy of the interpretation.

5. Conclusion
Legal hermeneutics is an approach to legal texts that understands that the legal text is always historically
embedded and contextually informed so that it is impossible to understand the law simply as a product of reason
and argument. Instead, meaning in the law takes place according practical, material, and context-dependent
factors such as power, social relations, and other contingent considerations. As Gerald Bruns has put it:

Legal hermeneutics is what occurs in the give-and-takethe dialoguebetween meaning and history. The
historicality of the law means that its meaning is always supplemented whenever the law is understood. This
understanding is always situated, always an answer to some unique question that needs deciding, and so is
different from the understanding of the law in its original meaning, say, the understanding a legal historian would
have in figuring the law in terms of the situation in which it was originally handed down. The historicality of the
law means that its meaning is always supplemented whenever it is understood or interpreted. Supplementation
always takes the form of self-understanding; that is, it is generated by the way we understand ourselveshow we
see and judge ourselvesin light of the law. But, this self-understanding throws its light on the law in turn,
allowing us to grasp the original meaning of the law in a new way. The present gives the past its point. (Bruns
1992)

This seems to mean, at a minimum, that every Supreme Court decision is an interpretation, which directly
undermines all originalist approaches to constitutional theory.

The claim that every Supreme Court decision is an act of interpretation, however, is not a claim about the
indeterminacy of meaning itself but a more modest claim about the impossibility of ascertaining original meaning.
The difference between these two positions is subtle but important. While for the non-originalist, the possibility of
authoritative meaning is an illusion, for the legal hermeneutist more and less authoritative meanings are possible
and are a function of the interpreters taking conscious account of several key factors that inform and shape the
interpretive process. Taking conscious account of each of these factors when attempting to interpret a given legal
text lends to the interpretative process a sort of legitimacy and authority, the possibility of which most non-
originalist positions deny.

Legal hermeneutics, then, can be understood as an anti-method in constitutional theory. As Gregory Leyh has
identified, [H]ermeneutics neither supplies a method for correctly reading texts nor underwrites an authoritative
interpretation of any given text, legal or otherwise (Leyh 1992: xvii). Instead, the activity of questioning and
adopting a suspicious attitude toward authority is at the heart of hermeneutical discourse. Hermeneutics involves
confronting the aporias that face us, and it attempts to undermine, at least in partial ways, the calm assurances
transmitted by the received views and legal orthodoxies (Leyh 1992: Ibid.). Arguably, any approach to legal
hermeneutics that rejects its distinctively critical enterprise, then, misses the point of legal hermeneutics entirely.
As an approach to legal interpretation, it is necessarily, following Heidegger and Gadamer, a complete rejection of
the gods of both truth and method in favor of a call to the interpreter of laws to cast an incisive and self-reflexive
gaze on all that is called mainstream legal orthodoxy.

6. References and Further Reading

a. References
Alcoff, Linda Martn (2003) Gadamers Feminist Epistemology in L. Code (ed.) Feminist Interpretations
of Hans-Georg Gadamer, University Park: Penn State University Press.
Aquinas, Thomas (1998) On Law, Morality, and Politics. Ed. William P. Baumgarth and Richard J. Regan
Indianapolis: Hackett Publishing Co.
Aristotle (350 B.C.E./ 2000) On Interpretation. Trans. E.M. Edghill. Adelaide: University of Adelaide
Library.
 Arthos, John (2014) What is Phronesis? Seven Hermeneutic Differences in Gadamer and
Ricoeur, Philosophy Today, 58(1): 53-66.
Ast, F. (1808) Grundlinien der Grammatik, Hermeneutik und Kritik. Landshut, Ger.: Jos. Thomann.
Balkin, J.M. (2011) Living Originalism. Cambridge: Belknap Press of Harvard University Press.
Balkin, J.M. (2010) Deconstruction in A Companion to Philosophy of Law and Legal Theory (Second
Edition), Dennis Patterson, ed., Malden: Wiley-Blackwell.
Balkin, J.M. (1999, 1996) Deconstruction in A Companion to Philosophy of Law and Legal Theory. Ed.
Dennis Patterson, Malden: Blackwell Publishing, 367-374.
Balkin, J.M. (1993) Understanding Legal Understanding: The Legal Subject and the Problem of Legal
Coherence, 103 Yale Law Journal 105.
Binder, Guyora (1996/1999) Critical Legal Studies, in A Companion to Philosophy of Law and Legal
Theory. Ed. Dennis Patterson, Malden: Blackwell Publishing, 280-290.
Bleicher, J. (1980) Contemporary Hermeneutics: Hermeneutics as Method, Philosophy and Critique.
London, Boston: Routledge & Kegan Paul.
Brink, David (2001) Legal Interpretation and Morality, in B. Leiter (ed.), Objectivity in Law and Morals.
Cambridge: Cambridge University Press.
Bruns, Gerald L. (1992) Law and Language: A Hermeneutics of the Legal Text, in Legal Hermeneutics:
History, Theory, and Practice, ed. Gregory Leyh, Berkeley: University of California Press, 23-40.
Burley, Justine (ed.) (2004) Dworkin and His Critics: With Replies by Dworkin. Oxford: Blackwell.
Calabresi, Steven (2007) Originalism: A Quarter-Century of Debate. Washington, D.C.: Regnery Pub.
(Di) Cesare, Donatella (2005) Reinterpreting Hermeneutics, Philosophy Today, 49(4): 325-332.
Chamallas, Martha (2003) Introduction to Feminist Legal Theory. 2nd Ed. New York: Aspen Publishers.
Cho, S., K.W. Crenshaw and L. McCall (2013) Toward a Field of Intersectionality Studies: Theory,
Applications, and Praxis, Signs, 38(4): 785-810.
Coleman, Jules (2001) The Practice of Principle. Oxford: Clarendon Press.
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