for the past two weeks the subject of legal hermeneutics has been a reoccurring theme in my classes. particularly in my contracts class and in my class on statutory interpretation. because i spent a great deal of my undergraduate studies focused on both linguistics & biblical hermeneutics i cannot avoid making comparisons between law & theology.
here is how i want to frame this issue:
in every attempt to interpret text one has the option of reading the text alone or looking to external evidence surrounding the text, i.e., the context.
what i have observed is surprising to me, that is lawyers are far more conservative (in a non-political sense) than most theologians. further, the rules of legal contract & statutory interpretation reflect a far more optimistic view of the ability of any audience to understand language.
of course, there are exceptions, but generally this appears to be the case. i imagine this difference relates to the different purposes of those seeking to interpret & the differences of the texts themselves.
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biblical hermeneutics
while studying in college, hermeneutics probably was the subject that most increased my appreciation for the biblical text. this discipline taught me the value of nuance & that what seems clear or plain, is often quite the contrary. to wit, simplicity has no place in attempting to comprehend a document from the ancient near east.
certainly the most oft repeated phrase was, "a text without a context, is only a pretext."
thus, the interpreter must begin in the text itself, but suspend their conclusions on its meaning until they have thoroughly understood the historical, philosophcial, religious, context of the original audience.
this view arises from the belief that an author has an actual intention in their writing. that intention is the sole meaning of the text. thus, this method places a burden on the modern reader to not insert their own views into the text, while asserting that there is an objective meaning to the text.
any view, but the original authors, is flawed & ought to be abandoned.
thus, biblical hermeneutics require a great deal of work outside, extrinsic to the text. there is no reason to ignore "plain meaning" rules in this work. in fact, if one wishes to insist their is a meaning contrary to the plain appearance, the burden rests on them to make that case convincingly. still, an interpreter has failed, fatally, in their task if they stop with the text & do not seek the context.
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legal hermeneutics*
what is striking is the opposite in legal theory. instead, in both contracts & statutory interpretation, the role of the judge is to examine the final document of text. they cannot look to extrinsic evidence, such as prior writings in contracts or legislative history in statutes. their concern is neither to interpret the intention of the of the contracting parties nor the intention of the legislature.
instead, the text itself shall be interpreted as it is.
the purpose is to increase objectivity.
and there might be some truth here, contracts & statutes, as texts, were not translated from ancient semitic or greco languages. they are much closer to the original author as interpreters.
but, because law depends on legitimacy to be effective, i propose this view is mistaken because it ignores the inherent ambiguity of language.
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conclusion:
i would propose that the latter view is actually more subjective. & less legitimate. by ignoring the reality that words carry inherent ambiguity as they transmit semantics from speaker to audience, these judges wrongly assume their ability to objectively read a text.
they are wrong because they assume they can be objective readers. But the reality is that only the text itself is objective.
they are interpreting subjects; the text a static object.
that's not to say words are not connected to reality, i won't go into that philosophical debate here. assuming that language is referential, i propose that reading the text alone is an error in hermeneutics. i am not advocating theories of linguistic contingency.
by reading a text alone, the interpreter cannot help but insert themselves into their interpretation. this is human psychology: self-focused first & able to think outwardly second.
textualist theories are then selfish theories, autonomous theories that disrespect community. author's intent must be the goal while attempting to interpret either a contract or a statute. thus, external evidence should always be employed for the purpose of learning the context of the statute or the contract. this will lead to more legitimate law because the process of interpretation then involves more than one mind.
that is my proposition.
any thoughts?
* this only reflects the common law & a majority of jurisdictions. some states have employed a much more comfortable view toward use of extrinsic evidence in interpretation. California has done so in contract theory & Kentucky has done so in their processes of judicial review. Judge Kozinski of the ninth circuit court of federal appeals, spoke harshly toward the opinion of Judge Traynor in the California Supreme Court precedent but followed it nonetheless, snooting, "i can understand the meaning of words..."
