"All
This And So Much More"
Original
Intent, Antagonism and Non-Interpretivism
P.G. Monateri*
From Framers' Intent to Adjudication
Critique2
The Packing of Interpretation. 9
Librarians, Fathers and Humanists9
The Unpacking of Interpretation. 19
Is There a Community Somewhere?19
Irony, Antagonism and Doubleness24
In
this paper I start discussing "originalism" as a
practice of interpretation purporting the intent of the framers
as "the" governing factor in interpretation. My first
step is to contrast it with the approach of non-interpretivism.
Then I discuss "interpretation" itself as a package to
depict social practices of meaning production, focusing on three
peculiar historical settings : Alexandria, Scholasticism, and the
"birth" of Hermeneutics. My aim is to show the
"essentialist" move of posing the concept of
"meaning" as a key factor in the "ideology"
of interpretation. Such a discussion is introductory to a
reappraisal of the current debate about criticism and of the
distinction between interpretation and use-of-the-texts. I then
examine archeology as a radical alternative to interpretive
practices. But my final step will be to shift away from the blunt
opposition between interpretivism and non interpretivism, to
suggest a more complex arrangement based on an ironic misuse of
interpretivism, and a framing of interpretation as an
antagonistic process.
I
start my argument considering the current American debates on the
original intent of the framers as a governing factor in
developing the meaning of the Constitution[1].
The
praise for the search of original intent emerged as a
response to the well settled idea of having a "living
Constitution" ,which is to be unrolled by judges not
confined either by the words of the document, or by the intent of
the framers. An idea which walked hand-in-hand with the central
concern of post-realism for the indeterminacy of the law[2].
Since the law is indeterminate, judges are to create meanings: in
particular the Supreme Court ." [i]s compelled to put
meaning into the Constitution, not to take it out"[3]. A lot of
American Classics can be cited for the point that "[T]he
words [of the Constitution] are empty vessels into which [a
judge] can pour nearly anything he will"[4]. We live under
a Constitution, but the Constitution is what the judges say it is[5].
From this point of view the Supreme Court is to be seen as a kind
of Constituional Convention in continuous session[6], and the
written Constitution is but a piece in a broader tradition of
unwritten Constitutional law[7].
But, as we have said, in the mid eighties there emerged
praise for limits, with a peculiar reference to
"originalism" in interpretation[8], and even an
effort to define formal criteria for the use of interpretive
arguments[9]. Something which becomes today
a reappraisal of "textualism" with the explicit aim to
induce judges to stay within their proper governmental sphere[10].
In exploring the "neglected" art of statutory
interpretation, Scalia urges that judges resist the temptation to
use legislative intention and legislative history.
In his view, it is incompatible with democratic government to
allow the meaning of a statute to be determined by what the
judges think the lawgivers meant rather than by what the
legislature actually promulgated. Eschewing the judicial
lawmaking that is the essence of common law, judges should
interpret statutes and regulations by focusing on the text
itself. Scalia then extends this principle to Constitutional law.
He proposes that we abandon the notion of an everchanging
Constitution and pay attention to the Constitution's
"original meaning". It is worth noticing that
"original meaning" is captured through the text,
rejecting the aids of legislative intention, and legislative
history. It is the judge's reading of the text which leads him to
a reappraisal of the original intended meaning.
Thus
we can see how the praise of the author's intention came late on
the stage, as a means to frame limits to the "activism"
of the court and of the Supreme Court in particular, in the field
of Equal Protection and Due Process Clauses[11].
The quest for the author's intention has been a political move
against a political tendency. It has not been neutral at all,
nor, as we shall mantain, could have ever been neutral. Anyway
the rise of originalism and textualism against activism in
interpretation required the development of a newer more
sophisticated response than the plain assessment that judges put
meaning on words. The conventional response has been that we are
blessed with an "interpretive community" that sets
limits on judicial discretion that are powerful and objective
(being collective) though they cannot be reduced to a formula[12].
Such a community is shaped by legal education to share a common
collective understanding of the legal discourse limiting
individual discretion. As Felix Frankfurter said once "In
the last analysis … the law and the lawyers are what the law
schools make them"[13].
This
position is today challenged because of the "growing
disjunction" between the law teaching and the legal
profession[14], rising a
serious alarm for what some authors see as the disproportinate
power that radical multiculturalists wield in the legal world[15] .
Moreover
the theory of an "interpretive community" led by the
Professoriat is said to have been plausible in the thirties when
there were approximately 100 law professors, but it is totally
out of the way now when there are at least 5,500 professors in
the law schools[16]. In the
present conditions of a divided academic profession, especially
because of the presence of strong leftist movements within the
law schools, it is impossible to rely on "community" to
have safe guidelines on limiting interpretive discretion. This
contention is often coupled with a sense of distrust[17]
for the bogus charade that has become legal reasoning in America.
Thus
the debate is still among those who think that originalism is
"[l]ittle more than arrogance cloaked as humility"[18],
and those who think that interpretive activism is plain
arrogance.
It is
within this framework that now Dunckan Kennedy purported to offer
a a new theory of adjudication based on an open leftist
modern/postmodern (mpm) approach[19].
Kennedy frames interpretation at the core of the juripsrudence of
adjudication and he singles out no fewer than five general
strategies for dealing with the problem.
The
first, associated with classical positivism through H.L.A. Hart ,
is to deny the possibility of a middle term, arguing that what is
not law application is for all intents and purposes judicial
legislation.
The
second position , that Kennedy associates with Hans Kelsen,
Roberto Unger, Mark Tushnet and others, collapses the distinction
between rule making and rule application, by showing that rule
application cannot be insulated from "subjective"
influence, including ideological influence. There are a number of
arguments supporting this theory and relying on philosophers as
diverse as John Locke, Ludwig Wittgenstein, Richard Rorty and
Jacques Derrida, but the major is that there are no
"objective" tests of correspondece outside the text, or
the "rules" employed to produce a meaning out of it.
The common response to this approaach has been, as we have
already seen, that the rule applier acts according to the
consensus of the "interpretive community", or whatever.
Kennedy's feeling is anyway that the experience of core meanings
survives the loss of its metaphysical grounding[20].
The
third position is that while there is no middle term between
application and legislation, judicial law making is nonetheless
distinct from legislation because it is bounded in its substance.
This is a classic position within the American legal culture
purported by a number of sacred cows as Oliver Wendell Holmes,
Felix Frankfurter, or Joseph Raz.
The
fourth solution addresses this problem by proposing a genuine
middle term , and this is the method of coherence or
"fit", through which the judge can make new rules of
law without consulting his or her own legislative preferences.
Kennedy associates this solution with Benjamin Cardozo, Karl
Llewellyn, Lon Fuller, Henry Hart and Albert Sacks, and finally
Ronald Dworkin. With the passage from Cardozo to Dworkin, there
is a noticeable evolution of this position. It moves in the
direction of blurring the difference between the middle term of
coherence and judicial legislation, while at the same time
vigurously affirming its importance.
Finally
Kennedy contrasts the civil law version of adjudication, as a
fifth strategy that combines all of these elements in yet another
way. The judge has to deploy interpretive techniques based on the
presuption that the Code is the gapless coherent working out of a
particular conceptual structure[21].
According
to Kennedy, as soon as we shift from understanding adjudication
as rule application to understanding it as interpretation, we
threaten to destabilize the larger Liberal conceptual structure
that distinguishes courts from legislatures, and law from
politics. This larger structure plays a central role in
ideological controversies among various conservativisms,
liberalisms, and radicalisms, including the Marxist variants.
"The question of the role of ideology in adjudication is an
ideological question"[22].
Kennedy is proposing not a solution but an attitude[23].
Sometimes it makes sense to strategize the politicization of the
setting. Sometimes it doesn't make sense, in which case passivity
by all means. Politicizing means trying to set up a political
identity to the left or liberal bad faith, without being or
seeming to be a wrecker. He does not mean "principled"
politicization, rather opportunist politicization. In other words
"doubleness".
It is
from this point that I want to start my furhter argument, in a
form that I try to shape in the next section.
Much
more radical than critiquing originalism, my aim here is to
critique interpretivism as such. And much more post-modern than
critiquing, my proposal is to misuse interpretivism against
itself.
From
my standpoint I thus would first notice how far
"intepretivism" is still a prevailing paradigm. Current
debates are framed on the very idea that we have to cope with
words and to rely on given sets of authoritative words to guide
societal action. Even those who oppose originalism or textualism
are captured within the paradigm and try to elaborate
"interpretive" responses. They seriously share the
framework, so that radical positions are self-defined as
nihilist. Nihilism of course is a label justified only within
intepretivism. The very idea of "activism" depends on
the belief in the existence of the face-value of a text which is
superseded by intepretive moves of the readers. Thus what I want
to do is primarly to try to get out of intepretivism. My first
concern will then be not about originalism as such, or textualism
as such, but on interpretation itself as a way of coping with
received texts. My first aim is to delegitimate the same idea of
interpretivism as a practice in the legal field.
In so
doing I think just to make a reappraisal of Llewllyn's theory
that an "institution" is not , in first
instance, a matter of words and language[24].
But I do not only mantain that law has to do with institutions,
and interpretation has to deal with language and words, and that
language and words are not , notwithstanding the appearance, the
first concern of institutions. I try to mantain also, from a
broader point of view, that intepretivism is not the only viable
theory to cope with language and words, even when they are the
first concern. Thus I want to show how the ideas fundamental for
interpretivism came together as a theory, how they have been
packaged in our tradition, to see how we can delegitimate the
package. My concern with interpretivism is not an interest in one
theory of interpretation, but in "Interpretation as
Theory".
Now if
we adopt a definition of "ideology" as a generic term
for the processes by which meaning is produced, challenged,
reproduced and transformed[25],
Interpretation as Theory becomes the ideology of ideological
processes, asserting that such processes are interpretations. It
is the theory which gives "sense" to ideology as interpretivism
: the theory according to which ideology shows up and shows off
as interpretation. Thus interpretivism is to be seen as the
"mask" assumed by ideology at least within the
Western culture. The strenght, and impudence of interpretivism is
in its assuming the same mechanism of ideology as a ground for
self-legitimation[26]. From this standpoint the
final step of the Theory is the consciousness associated with
Hermeneutics as "the" paradigm for the Humanities. And
the soundness of ideological practices is assured by the theory
that anyway Hermeneutics copes and deals with "Truth"[27].
From this standpoint we can see Gadamer's work as the most
sophisticated veil of ideological processes, giving a newer
ground for ideological pretensions[28].
For
intepretivism hereinafter I thus mean not any particular
intepretive practice, but the the elaborate theory suggesting to
look at texts or facts in an interpretive mood, meaning the idea
that an understanding of them depends on their
"meaning" to be reconstructed, reconstructing a
"text" and looking at what lies behind the text, within
the text, and after the text. Thus I cast a doubt not only on
textualism or originalism, but also on text-context
relationships, or "activism", for their lying within
the theory itself[29]. What I
question is the very belief in "meanings"
accompanied by several and different practices of deriving from,
or putting meanings on, texts and things. I see this theory as an
essentialist move because it poses "meaning" as the
governing aspect of the text, and of reconstruction and
production of the text itself, whereas "meaning" is a
metaphysical entity invoked for governing real societal
practices.
Interpretivism
is so rooted in our culture that it is pretty difficult to see
how we could live without it. But if we reason in terms of units
like translating, understanding, explaining, covering, unrolling,
lending authority, bulding a tradition, tracing roots etc.
we can try to see how it was that interpretivism came to
assembled. In the next section I shall present four peculiar
moments of this assemblage: The settlement of an offiical Greek
literature at Alexandria, the fall out that this effort had on
Jews and Christians, the major break with the past that occured
in the Reinassance, and the final attempt to propose
interpretation as a general paradigm for the Humanities which
occured in Romantic Germany. I do not have space to give all the
needed details, and I shall just sketch out the argument to be
more fully developed in further works.
In so
doing I think that we can single out at least five different
models of interpretation: The Librarians's Model, or the theory
of the deeper insight, a theory which coupled text
"rightness" with new added and "fitting"
meanings, and which had a deep impact on Jewish and Christian
cultures; the Scholastic Model, or the theory of the common
house, a pluralist theory of coexistence of different meanings
within the same text; The Reinassance Model, or the theory of the
lost origins, a theory of "the" original true meaning;
The Romantic Model, or the lost friend theory: the model of
re-encounter; a dialectical theory of current understanding by
sharing the eventually distant author's "feelings"; and
finally the Death-of-Interpretation Model, or the hermeneutic of
suspicion, from which I try to derive an antagonistic theory of
interpretation.
My
argoment is not linear at all, and it rather passes through four
major knots:
1. Interpretation
is not something natural, but a cultural artifact, and it is the
mechanism of ideology used to legitimate legitimation projects.
2. If
we come back to origins we can uncover, and thus we can unpack,
the package of originalism and interpretivism, thus we can misuse
originalism against itself.
3. "Archeology"
, as defined by Foucault, would lead us toward a "choice for
candor", a project to show the projects at work, but the
strategic and antagonistic nature of interpretive settings,
revealed by the same unveiling of the package, does not allow for
candor about choices[30].
4. Thus
we cannot define a viable practice of non interpretivism, but we
can cast irony upon interpretive practices, and we can misuse
interpretivism as a viable strategy.
I
develop my argument in two main parts, a first part devoted to a
reconstruction of the constitution of “packaging” of
interpretation, and the second part presenting the current
unpacking of conventional artifacts.
As I
said before Interpretation as Theory has passed through a number
of assemblages to become the cultural artifact we know. Here I
start my argument considering the Greek grammarians' theories.
I see,
indeed, no better place to start from than the Museum, the
Alexandrian Library, because it is there that we find a first
sophisticated package of interpretivism[31],
with the aim of forming a complete "official"
collection of Greek literature[32]
in the context of Hellenism[33]. I insist on the
"official" character of the enterprise because it is at
the root of the need to establish the authoritative text of
Homer, and other classical authors, inspiring scholars to define
and apply the principles of literary scholarship more
systematically than had been attempted before. Their first aim
was to put the texts in order. Within a short time texts
different from those established by scholars disappeared from
circulation[34]. This suggests that the
scholars succeded in imposing their texts as standard, and in
grouping a governing cultural elite. Thus the first achievement
was the standardization of texts, the production of a
"reliable" text, but the second feature of Alexandrian
scholarship was to develop a number of aids to the reader,
including commentaries in which textual problems were discussed,
and interpretations offered. The final development of the
system as applied to Homer was made by Aristarchus, who produced
complete editions of both Iliad and Odyssey. As is
quite well known Alexandrine interpretations[35] were base on
a procedure which made the Alexandrians notorious for ther
readiness to condemn lines as spurious, frequently alleging
undignified language or conduct. Often their comments were that
it was improper for Agamennon to make such and such remarks, or
that it was unbecoming for the goddess Aphrodite to carry a chair
for Helen.
On
this basis they developed allegory as a major practice of
interpretation. It is worth noticing that allegory was jutified
on the basis of the principle that Homer had to be interpreted by
Homer. That's to say that the production of new meanings in
accordance with new , not homeric, moral standards was
justified by a general principle of "internal"
interpretation. From the standpoint of ideological criticism the
production of new meanings was justified by the need of
interpreting the old texts. This need was felt because of the distance
between the old and the new ideals and belief, and the whole
practice was covered by a call for "internal" internal
interpretation, with reference to the needed
"coherence" of homeric texts.
Thus
we can find here a real first package of that peculiar
ideological artifact of imposing new meanings, using a paradigm
of interpretivism. Indeed within the "Librarians
paradigm" we can trace the ideal of a twofold philosophy of
interpretation: there is an apparent face value of words,
e.g. Aphrodite carrying a chair for Helen, and a deeper meaning
to be attached to the text to save its coherence, and
meaningfulness, a meaning eventually opposite to that of the
basic meaning of the words used within the text.
There
are two basic motives for more-than-literal interpretations: one
is backward looking, concerned to affirm the truth and relevance
of the ancient texts; the other is forward looking, concerned to
extend the authority of the texts up to the present in order to
serve as a legitimation for current beliefs and practices. Both
motives have a lot to do with power and authority.
A
second point worth noticing is that this package of
interpretation was used to cover also non Greek traditions,
namely the Jewish trafition of dealing with sacred books.
That
greatest of Hellenistic cities, Alexandria, acted as a magnet to
draw Jews[36], who very
soon made up a large and flourishing settlement within it. They
no longer spoke Aramaic but Greek, and it was for this community
that the Hebrew scriptures were translated into Greek, a work
that began in the middle of the third century BCE and continued
to the second, giving us the version known as the Septuagint. It
was in this period that began to grow in importance, in all
Jewish communities, the study and interpretation of the
scripures. The cardinal Jewish doctrine became the supremacy of
the Torah. It was to be unterstood as timeless and perfect,
containing no errors or contradictions. But the statements of Law
left much up in the air. Thus the tradition grew that Yahweh had
given Moses two kinds of Torah: a written Torah and an oral
Torah. It became the duty of Jewish scholars (the sopherim
- who are called grammateis in the Greek New Testament) to
find this oral Torah, by, as it were, reading between the lines
of the written Torah. In the process of adapting the Torah to
practical use and to the changing times, the scholars had to
perform a good many feats of interpretation. It was normal to
remove statements from context to scrutinize them, if by doing so
they could be made to yield a meaning that satisfied the purpose
at hand. Besides the splintering of the text practiced by the sopherim,
another technique, coming from a very different source, had a
great influence on the tradition of interpretation: allegorizing.
In the second century BCE a hellenized Jew, Aristobulus of
Paneas, picked up the technique applied by Greek scholars to the
texts of Homer, and used it to cope with the Torah, attempting to
remove the anthroporphisms in its treatment of God by
allegorizing them. The most determined allegorizer of all was a
contemporary of Jesus, the hellenized aristocratic Egyptian Jew
Philo of Alexandria. He did not deny the literal sense of most
scriptures, but his whole effort was to extract higher and more
philosophical meanings from the text than showed on its surface.
In his hands the scriptures became a kind of code book to the
hidden truths of Platonic and Stoic philosophy. His main purpose
was indeed to show that there was no conflict between the Jewish
Bible and Greek philosophy. Anything in the scriptures unworthy
of God, or the Greek "new" conception of God, anything
inelegant or insufficiently elevated, anything apparently too
simple-minded-all had to be seen as having a higher,
philosophical or ethical sense. It was not a way of doing
violence to the Bible, but of honoring the scriptures. The
concern of Philo was to mantain the reputation of the Bible and
to extend its authority to new situations.
Once
again, we can find in this practice, the construction of a
text, and its use to cover present issues, to make a new use of
it casting present ideas on the past. It is again a the twofold
doctrine of the existence of a meaning, which is different from
the face value of words, and which is to be attached to the text,
but through a call for originalism, and coherence.
Thus
the basic truth that the bible is not a single book , but an
anthology , a set of selections from a library of religious and
nationalistic writings produced over a period of some one
thousand years[37], was denied
by a practice of interpretation pointing at its internal
coherence against the face value of things.
A
third point I wish to develop is that Christian communities used
the same kind of package, the same cultural artifact, to cope
with Jewish sources to superimpose on them a Christian meaning.
Of course the leading figure in this project was the Hellenized,
cultivated Jew, who first invented Christianity as a coherent set
of doctrines, namely St. Paul.
His
major theory of interpretation was that earlier stages of Jewish
history carried prophetic meaning for the later[38].
His use of the scriptures was based on lifting passages out of
context and relying on the significance of arbitrarily chosen
words, and above all bringing in allegorical or typological
explanations when it suited his purpose to do so[39]. Of course in
Paul's terms the meaning he attached to the text fit better than
other possible meanings within the whole design of the scripures,
and besides it was the intended original meaning of the
Author, since He obviously generated His Son, and sent to men
signs of His future coming. Patently things go the other way
round from a Jewish perspective: Christians ignored the sense
intended by the authors (Author) of the books; they gave a
totally unfitted, and incoherent meaning[40].
Thus
once again originalim and "fitness", or coherence, can
be combined just to superimpose totally unexpected meanings, or
to attack and deny the possibility of attaching such meanings. I
mean that the same strategy of interpretation can be used with
reference to the same texts to support opposite interpretations.
It is obviously to me a matter of politics and power to give a
meaning to words.
Indeed
if we look at Paul's interpretivism without prejudices we
can appreciate his blunt "doubleness". Sometimes he
contemptuously dismisses the literal sense[41].
Sometimes he does not dismiss the literal sense but he shows that
he has no interest in it - only in what he can make of it[42].
Yet he can be quite literal minded when it serves his turn[43].
It's always for him a matter of tactics.
Reading
the Jewish scriptures for their more-than-literal sense became
very early a necessity in Christianity. Jesus himself practiced
typological interpretation[44].
Christian "interpretation" is something even more
general than allegorizing, it is explaining the significance of
contemporary situations in terms of biblical ones, to permit the
extending of biblical authority forward to cover new forms and
new practices.
This
necessity came into play in late classical and early medieval
times, when both Judaism and Christianity found themselves in
drastically different situations from anything the authors of the
Bible could have envisioned[45].
Judaism lost its Temple (70 CE) and then its access to the holy
city of Jerusalem (135 CE). The very survival of Judaism depended
on its finding new forms of worship and religious expression. For
this purpose the freedom of going far beyond the literal sense of
the text was absolutely essential, but it was reached thourgh the
ideology of interpretivism. Christianity developed from a
decidedly fringe religion appealing to minority groups in the
first century to the official religion of the Roman Empire in the
fourth. Again the Bible had to be very freely interpreted if the
new ecclesiastical structure - a highly organized, wealthy, and
powerful Church centered in Rome - was to find its warrant in
God's word. Once the habit of reading for hidden senses becomes
established, especially in institutional interpreting, it is
difficult to limit it or ever again to give primary attention to
the plain sense of the text. But the ideology used to cope with
the problem has always been an ideology of original and coherent
interpretivism : The Bible had to interpreted through the Bible
alone , first of all according to the face value of the words,
and secondly according to a scheme of coherence[46]. It is, as we
said, the same mechanism of ideology used to justify ideological
practices. It is shriking that Christians applied the same
techniques also to pagan writers and philosophers, thus providing
a global Christian interpretation, i.e. a Christian framing, of
the Roman and the Greek culture. What is even more stunning is
that Muslims did the same, and so that the works of many pagan
scholars, such as Aristotle, received in turn a pagan, a
Christian, a Muslim, and sometimes even a Jewish meaning, often
by the use of exactly the same interpretive techinques. Those are
all examples of how much interpretation has to do with a lending
of authority rather than with the search for meaning.
During
Scholasticism this Classical heritage was absorbed into the
systems of contemporary thought[47],
with its strong tendency to allegorize and elaborate. The wide
reading of ancient authors gave way to more practical manuals.
The writers of the 12th and 13th centuries
took their place alongside the ancient authors. But all this
happened through the peculiar fourfold theory of interpretation,
adopted by Scholasticism[48], of the coexistence of a
literal meaning, with a spiritual meaning, which could be
allegorical, moral, and anagogic.
According
to the theory all these meanings can coexist even if they are
opposite or contrasting. Thus a literal meaning based on a
historical reconstruction of the author's intention, can walk
hand in hand with a new moral meaning attached to the same text,
because different meanings serve different projects, and are
derived using different approaches. Scholasticism does not commit
itself to the belief in the existence of a single meaning, it
does not share the metaphysics of meaning in its strongest
version, and it is bluntly political in that the ancient texts
must be re-used to serve a Christian project, so that the new
Christian meaning can coexist with the old pagan, or Jewish
understanding. From this point of view it is a quite liberal
interplay of the perception of "the Same in the
Different", and of "the Diferent in the Same".
In
contrast with this liberal attitude and open politics of
interpretation, a major break occured in the Reinassance,
which is peculiarly fitting for a current understanding of the
original packaging of interpretivism, because it was in this
period that the issue of originalism became really relevant.
The
main feature is the "love affair" with the
"sources". Reinassance[49]
men and women were essentially interested in the past. They were
serching for fontes or "sources", and so they
looked behind Christianity to pagan Rome, behind Rome to Greece;
and eventually behind Greece toward Egypt[50].
Reinassance
love for the old can be explained on the basis of the theory that
the old was nearest to the divine truth. Ancient was primary[51].
I think that this theory emerged as an Anti-christian project. In
the Middle Ages - an historigraphycal category invented in the
Reinassance to mark the insulation of this age, and the need to
restart from where the Pagans had left off - Christianity had
covered the past with its own understanding of it, but now all
this had to be set aside, and the "original", non
Christian, meaning of the texts was to be rediscovered. Thus the
paradigm of originalism, and the metaphysics of "the"
meaning as a treasure to be "discovered" somewhere ,
becomes plainly understandable in terms of a political project.
Also the ideal of objectivity, to be pursued by historical
reconstruction of the original intention, can be plainly
perceived as a political reaction to Christianity. Christians had
subverted "the pastness of the past" actualizing it
according to their "subjective" values, but the past is
stil there in its pastness, and we can reach it, if only we give
up with the whole Christian understanding, and look for the
original exact meaning.
This
is a major break with tradition, because as we saw, virtually all
the "interpreters" have been interested in actualizing
and transforming the old texts, even when they were interested in
reconstructing an uncorrupted text, to attach to it new moral
meanings. Now the shift was in the opposite direction, but once
again it was justified by an actual political pressure. The
business of tradition had been to cumulate, to heap up meanings.
The business of textual criticism, mainly developed in the
Reinassance, became in a sense to reverse this process[52],
to follow back the threads of transmission and try to restore the
texts as closely as possible to the form which they originally
had. The business of interpretation has always been the unrolling
of old but authoritative texts, but it became the search for the
"true" original meaning.
In my
opinion this original meaning was perceived as the inner more
spiritual higher meaning, so the attitude was always to look for
"something more"[53],
but the higher meaning was identified with the
"original" sense.
What I
propose is a Political reading of the Reinassance as
De-Christianization[54]. Thus
i
So far
we have seen basic moments of the "original packing" of
originalism, but now, in the next section, we have to see how it
was that the paradigm of interpretivism was sponsorized not only
as way of coping with texts, but as a general model of appraisal
for the understanding of nature and human studies.
NowIn this section
The
two major traits of this conception are a frameork theory of
understanding, and the purport of interpretivism as the
prevailing paradigm for social and humanist studies.
Indeed,
the conventional hermeneutic conception of understanding , as it
developed in the Romantic period, is that it is something which
is not automatic; it requires a certain openess of mind, and
ability to put oneself into the place of the "author".
A notion of projection grounded upon the sharing of a common
sphere of experience[57]. This notion
was coupled with a stretching of interpretivism as a general
paradigm: nature, society, and history all became texts to be
captured by way of interpretation. A theory carefully wrought out
in the works of Schleiermacher (1768-1834) and Dilthey
(1833-1911).
Romanticism
has a lot to do with "roots" and genealogies, with
language and the "encounter" with the alien. It had
also a lot to do with the new academic setting estabilished at
Goettingen, and Humbold's reforms at the Prussian Ministry of
Culture, the birth of comparative linguistics, and the same
establishment of classics as a discipline[58].
Those are all important details we cannot cope with here. From
our viewpoint Romantic hermeneutics certainly represented a
re-birth of the "author", in contrast with the
automatic Enlightment view of understanding, but within a
peculiar framework notion of understanding. A notion, which, I
mantain, has been distinctively linked with German Historicism.
My strategy here is, indeed, to approach Romanticism not as a
general philosophical problem, but as a peculiar German issue.
And from this standpoint we can return to lawyers since a new
form of interpretivism and historicism hasves
What I
want to show is that the framework notion of understanding,
coupled with interpretivism, allows a reappraisal of the
"original" framework within the scope of the reader's
mind , which is functional for this latter's projects. The fusion
of horizons is a dialectical device to build up an image of
"sources" which is a projection of current politics[59].Nietsczche
I
think that it was the consciousness of such mechanisms, coupled
with a strong attack on still overwhelming Christian biased
cultural traits, that led Nietszche to state the theory of
suspicion, or of "interpretation as will"
All
this, and so much more, has been finally wrought out in what I
call the "Mm
I
think that this "consciuosness" is a move to reply to nihilism
giving a new ground to interpretivism as a general paradigm of
human studies. This new packt makes it cleae that a
reconstruction of the original would be no more than the recovery
of a dead meaning[62], and that what matters is the
significance for today[63]. Thus the consciousness of
prejudices and of the relevance of current issues can become,
contrary to the conventional view, the same key safeguard of
interpretivism. In this project we can see a final impudence
of interpretivism, in the reframing of a major attack (the isse
of prejudices) on its premises, as a newer basis for
Hermeneutics. All in all Gadamer's notion of effective history as
a key factor in the appraisal of meaning, works out a theory of
meaning-as-success, which legitimates past and current governing
elites in attaching their own meanings to receveid past
authorities.
Of
course Gadamer's
conception gave rise to endemic controversies in the humanities
studies, about the ways in which the meaning of texts is
produced and reproduced. We shall try to deal with some aspects
of these debates in the next section.
The
purpose of this second section is to show a way to unpack
intepretation through a reading of some aspects of the current
debate. Of course I'm not willing to review the whole European
debate from Nietzsche to deconstructivism, but just to see how
post-Nietzschean viewpoints, as those represented by Derrida[64],
can be placed in comparison with Aa
First
of all we have to keep in mind how diverse are the positions
today. Philological-historical criticism seeks out the
"world behind the text"- the history of the text's
production - , the School of Constance is concerned with the
world "in front of the text"[65] - the history
of the text's reception, and the Formalists try to look
"inside" the text.
A
simple but powerful story is often told about the evolutin of
reader-response criticism[66]. In the beginning the New
Criticism set against the Affective Fallacy, meaning a confusion
between the text (a poem) and its impact on the reader, a
confusion producing impressionism and relativism. In opposition
to the New Critics the reader-response critics denied that texts
make meaning; rather they affirm that readers make meaning[67].
The dominant question becomes whether the text or the reader
dominates the reading experience. Texts are said to be construed
(as whatever they are deemed to be) always and only by readers in
the act of reading[68]. But in the notion of
interpretive communities readers are not free to read texts in a
willful, unconstrained manner, because they are trained,
licensed, and regulated by the communities in which they read.
Something very closolso
Quite
naturally attention to reader responses lead to paying attention
to the rhetorical strategies woven into the text by the author:
the ways an author "[t]ries, consciously, or unconsciously,
to impose hishis
As we
have seen these are all positions to be found also in the
field of legal theory. For instance democratic pluralists, which
are a large portion of the peolple involved, hold that a text has
a determinate core of meaning, but they oppose the idea that it
can have only one correct meaning[71],
a conception shared also by the most of the lawyers. Thus, it is
within the scope of an appraisal of current legal theory
problems, that we can look at the recent essay
on "overinterpretation"[72].
Eco reframes a distinction between interpretation and
use-of-the-text worth noticing, arguing that the former should be
devoted to a major encounter with the author's intention, and the
latter should be more bluntly free, but also, he says frankly
less important, just because it becomes apparent that it is not
an interpretation, but a more or less biased reader's activity
designed to serve his or her ends. Not surprisingly Eco refers to
the intentio operis , meaning the intention embodied
within the text as the governing factor of interpretation, and,
not too differently from Scalia, he invokes text coherence as a
standard to control intepretations. Thus it looks again as the
same old story of finding meanings by return to such a value as
coherence. This new reframing of the story, coming from a widely
recognized authority in the field, quite engaged within a
pro-reader paradigm, is of course destined to produce an impact
on the public. All in all the reframing is apparently in contrast
with the theories he put forward in his novels. A commonly shared
reading of The Name of the Rose has been that the real
meaning of the "signs" disseminated all along the
story, was not important to unveil the plot. The would be
Sherlock Holmes could reach the solution even if his or her
whole scheme of meanings proved to be globally inadequate. An
even more common reading of Foucault's Watch had it that
there was no great plan, and no hidden meaning, even if all the
characters were acting as if it existed, and their actions could
be explained on such theory. Anyway from my viewpoint it is
important to realize the growing embarassment with
"overinterpretations", and to understand how
delegitimative for critique, can be the
"doubleness" of the move to deny the label of
interpretation to a number of text uses. Thus I plunge into these
issues in the next section trying to define a radical alternative
to the practice of interpretivism.
At the
very end I think that we face two opposite paradigms, even if the
strong opposition between the two is not often perceived: a
paradigm pointing at unity and coherence, and a
paradigm of dissemination and discontinuity. Because of that I
said in the previous sections my preference is clearly directed
toward the latter, since it tries to disassemble ideology, and to
show how much interpretation is a package of different units and
instances, wrought out in time bound cultural artifacts, and not
a general category of the human mind. Thus I see Hermeneutics as
belonging to the former paradigm of unity and coherence, whereas
I see Archeology as the real radical alternative to projects of
"rightness"[73] and
"coherence".
Hermeneutics
may not think of itself as a version of metaphysics , but the
hermeneutic desire to decipher the univocal meaning of the text
may mirror the desire of metaphysics for a complete and
comprehensive account of the meaning of everything, for the truth
of the whole and the unity of the world[74].
Hermeneutics is the heir of methaphysics, it is a reframing
of its tradition, and it is still engaged in the interplay of
traditions and meanings, in sharp contrast with the richness of
dissemination, and the contention that there is "no
measure to its undeciphrerability"[75].
Deconstructivism is in a way a radical alternative to
Hermeneutics,and , in contrast to source criticism, the
construction that deconstruction disassembles is not the history
of the text's assembly. Rather it is the grammar or logic of the
text's linguistic organization, dismantling the rhetoric of
its expression, to identify point of failures in the system. But,
from this viewpoint, deconstruction is something odd to lawyers,
and to civil lawyers in particular[76]. They have
always been engaged in focusing on the inner grammar or logic of
the text's organization to find out points of failures to make
room for their own interpretations. Thus, if, and (ironically)
only if, we look for a stronger paradigm of discontinuity we
should refer back to Foucault's archeology. First of all because
archeology is bluntly not an interpretive discipline[77]. It is a discourse about
discourses[78], and a discourse that is
self-dissolving of its own authority. Foucault's
"histories" are as fraught with discontinuities,
ruptures, gaps, and lacunae as his arguments[79]. The units
archeology refers to are utterances as discontinued word
events, sometimes connected by a common style[80].
In this perspective style is a manner of utterance arising in the
tropological space finding its own rule of dispersion, coming to
an end as arbitrarly as it began, but leaving a verbal something
in the place of the nothing that occasioned it. To conceive
discourse in this way would be to free it from subjection to the
myth of "signification"[81]. Uttereances
are events and then "[t]he meaning of an utterance would be
defined non by the treasure of intentions that it might contain,
… but by the difference that articulates it upon the real or
possible statements, which are contemporary with it or to which
it is opposed in the linear series of time"[82]. Style
is the name we give to the mode of existence of word-events.
These conditions of existence are not to be sought in some
correlation of what is said with an order of things, but in
internal ordering and distribution and "rarefactions".
The issue is who has the right to speak on a given subject [83].
Truth and error are always a function of the modality of
discourse prevailing in centers of social power at different
periods. It is not a matter of communities, but a more political
issue of governing elites. Literal meaning, like
"proper" usage, or the construction of an author's
intention, is the product of the application of a norm, social in
nature, hence arbitrary, rather than a result of the operation of
a law[84].
We
face a world of rarefacted utterances. We see the face value of
statements[85] and their
dispersion. What archeology wishes to uncover is primarly the
play of analogies and difference[86], by which
this dispersion is wrought out into a unity, with its inclusions
and exclusions. Archeology disassembles the practices of
discourses, which in the field of law are patently practices of
social governance. All in all to speak is always to do something
- something other than to express what one thinks, to
translate what one knows, and something other than to play with
the structures of a language[87]. What archeology aims to show
is this "other" which is performed by using, and
denying, the power to speak.
If we
start from discontinuity and dissemination, it is rather interpretation,
re-construction, re-membering, re-writing, or simply writing (In
the sense of Derrida) that enables continuity, on the basis of a
project. Thus the shift toward non-interpretivism is a shift from
"text, source, intepretation and meaning" toward
"authority, strategy and legitimation of speaking".
What
we call strict interpretation, for instance, is just the
prohibition of the production of new utterances in the vacuum of
the already existing rarefacted statements. Only those statements
can exist, and nobody has the power, or authority, to fill the
dispersion. This is a common device used in Criminal Law to
entrust the power to speak only to State legislatures, whereas in
private law matters we allows for the writing, within the
tropological space of the dispersion of State enacted statements,
of new statements, peculiarly based on the dominat trope on
analogy as the chief mechanism of working out a parallel among
statements. Thus we can say that in such fields the State shares
its power to speak with a professional elite[88],
and everything that we can say, can be said without reference to
the metaphysics of meaning.
The
issue of limits of the power to speak becomes bluntly a problem
of what one should do[89],
as a moral, ethical, professional, or institutional problem, but
certainly not a philosophical problem. I rather would say
that the attempt to frame the question of the limits of
interpretation in abstract terms is a typical effort to hide the
real issues at stake.
Thus I
think it is on this basis that we can define a practice of
non interpretivism, that we shall try to sketch in the next
section.
Non
interpretivism is a move away from interpretive techniques. Since
interpretation is a doctrine of legitimation, non interpretivism
is a typical deligitimative move. Essential to this effort is
ideological criticism, because interpretivism assumes the
ideological mechanism as its own foundation in the packaging of
interpretation as theory.
From
this standpoint Hermenutics is useful in its reference to
effective history as an account of how discursive practices have
attached meanings to rarefacted utterances. But non
interpretivism is patently a move out from hermeneutics as
committed to the metaphysics of meaning. Rather non
interpretivism points at the way the rarefaction of statemets is
used to build up a strategy of discourse.
Working
within non interpretivism frames the problem of limits not as
limits of interpretation as such, but as limits of peculiar
practices. For instance Humanists committed themselves to three
basic rules[90]: Never give
the words of an older text a meaning one cannot find in older
authors; Never cite a text for a principle of which the author
did not consciously have in mind; Never interpret a text in the
light of principles that trascend the historical context in which
the text was written. Patently there are a number of things one
cannot do if he or she confines his or her activity to the use of
such rules. But those are limits of a peculiar practice of
interpretation, not of interpretation as such as the mechanism of
production of meanings.
The
scope of theory, as an organized , rational and comprehensive
conception, expressed in a narrative about the significance of a
story in certain places and times, being to give floor to a
practice rather than to others, a theory can be judged on the
ground of practices it allows or supports. Now the issue is if
non interpretivism , as the original unveiling of
ideological mechanisms embodied in interpretivism as its
self-legitimation device, is useful in the legal process, or in
criticism.
Thus
we are to face archeology as a project of unveiling the
ideological nature of interpretive theories, and non
interpretivism as a possible practice within the field of law.
Since,
as we said, ideology is the mechanism of production of meanings,
and interpretativism is the same mechanism of ideology used to
legitimate legitimation projects of an ideological nature, I
think that it is right to allude to non interpretivism as
necessarily clearing ground for similar ideological practices.
Thus, quite ironically, I think that there is no room for a
radical practice of non interpretivism, because he or she who
speaks against interpretivism would deprive himself or herself of
any authority or right to speak.
At the
very end we have a delegitimative theory, which is not
legitimating a delegitimative practice; which accounts for both
the greatness and the failure of arheology as a project.
In
order to define a viable practice we should then, in the light of
what we said in the previous sections, pass through four knots,
reframe interpretivism in terms of antagonism, and use irony and
doubleness as key postures.
The
four knots we have encountered in the story can be easily stateed
as follows:
1. Interpretation
is the same mechanism of ideology used to legitimate legitimation
projects.
2. If
we come back to origins, we can uncover, and thus we can unpack,
the package of originalism and interpretivism, thus we can misuse
interpretivism against itself.
3. Archeology
would lead us toward a "choice for candor", a project
to show the projects at work, but the strategic and antagonistic
nature of the Law game, and of criticism, revealed by the same
unveiling of the package, does not allow candid choices[91].
4. Thus
we cannot define a viable practice of non interpretivism, but we
can cast irony upon interpretive practices, and we can misuse
interpretivism as a viable strategy.
Thus
my final suggestion, especially about originalism, is
"misuse", "irony"[92],
and "doubleness" [93], within an antagonistic
paradigm of interpretation.
By an
antagonistic paradigm I mean a reversal of current hermeneutic
values. Up to now the scheme adopted by a number of interpretive
theories has been centred around the "Encounter
values": search, faithfulness, discovery , revealing, the
myth of lost origin, in contrast with politicizing, strategizing
etc. Encounter values are bluntly non neutral because they simply
cover a discriminating practice of those who have the power to
speak against those who are uncovering the bad faith. My proposal
is to adopt "Antagonistic values" to describe
interpretive processes, I mean values which are exemplfied in
such terms as resistance, stretching, contest, struggle, but also
emulation, and mediation , especially rhetorical mediation.
Antagonistic values are more apt to depict the nature of the
process, showing how much all parties engaged with texts are
fighting to extract or attach or stretch a meaning out of them.
This
is of course a post-Nietzschean global reversal of values,
more apt to display the contest between official sources and
hidden patterns, but also between texts and intentions, authors
and readers, and so on. All in all wheter one is a pro reader or
he or she is not, antagonistic descriptions make it plain
that there is a tension, that there is an "agon"
where one has to take position, to be engaged, and that there is
the necessity of a "governing" factor. I mean that
interpretivism can become palatable in its antagonistic version.
Of course from the antagonistic viewpoint the distinction between
interpretation and use of the texts collapses pretty soon. But
not in the sense of self assuming the role of users insted of
that of interpreters, rather casting doubt on rivals. I mean that
within an antagonistic setting one can assume an interpretivist
scheme if it fits to delegitimate the rivals. It's a matter of
bad guys weapons to be used against the bad guys. Once again we
can say that antagonistic intepretivism is a return to the
rhetorical orgins of interpretation, (mis)using originalism
against rivals.
Since
a global critique of interpretivism is by necessity clearing the
ground to a new construction that would perform the same function
as that which is destroyed, I mantain that a viable practice
cannot be grounded in non interpretivism, but that the practice
of non interpretivism is to be "antagonistic
interpretivism".
That's
why, I think, that "mere" non interpretivism
cannot be popular, and that finally it has two major defects: it
can degenerate with a utopian project, or a burgeois posture.
Indeed it can become a praise for the burgeois posture of a
"choice for candor", where the move for candor turns
out to be a deligitimation of he or she who adopts it, rendering
his or her critique unlegitimated. All in all I think that none
of those who praise candor adopted candid strategies in coping
with authorities and principles.
A
critical practice is rather to understand the antagonistic nature
of interpretation, and to assume an Ironic mode. The tactic
of Irony being to affirm tacitly the negative of what is on the
literal level affirmed positively, or the reverse[94].
Irony is one with doubleness, and it is a positive value
in antagonistic games. This means the possibility to
"use" the same ideology of interpretation, to have more
weapons, including the weapons of originalism and textualism.
Those are pretty powerful weapons that cannot be abandoned to
rivals[95]. Thus I see a
real delegitimative reversal in Ironic doubleness because one can
have a theory to delegitimate interpretivism, and a practice of
interpretivism to legitimate critique[96].
The
reason why doubleness is a positive value in antagonistic
settings is its consciousness. Since all interpretation is
ideology one is allowed to be as much ideological as the others
are, and one can attack rivals for being bad faith politicizers,
while working at framing his or her own meaning production in the
shape of textual or original interpretations. What is the more
ironic is that non inteprpretivism can't be respectable, but that
it can become powerfully respectable using the same techinques it
doesn't allow to others. From this standpoint we have a lot to
learn from St.Paul. Consciousness makes you free. Even to
interpret.
* Professor of Law, Univ. of Turin,
Law School (Torino, Italy); Int'l Faculty of Comparative Law
(Strasbourg, France); ass. member Int'l Academy of Comparative
Law (Paris and New York). I really wish to thank Mauro Bussani
(Univ. Trento, Italy) with whom I always discussed profitably
these and other ideas. I wish to thank also Ugo Mattei (Hastings
College of the Law, San Francisco), James Gordley (Boalt Hall,
Berkeley), and Jeff Lena (LLM, Berkeley), who gave me deep
insights on comparative and historical issues, Justice Barak
(Supreme Court of Israel), whose scholarly works and
practice at the bench have been pretty useful to me, Duncan
Kennedy (Harvard Univesrsity), Gianni Vattimo and Maurizio
Ferraris (University of Torino, Italy) with whom I discussed, at
a seminar with Jacques Derrida organized in 1995 by Mauro Bussani
at the University of Trento, for the first time some of the ideas
embodied in this paper, and finally Rodolfo Sacco (Académie
Francaise, and Accademia dei Lincei) whose works on legal
interpretation have been the basis of my further studies.
Mistakes are obviously my own. Except when otherwise noted all
translations are by the author
[1] See Boris I. Bittker, Interpreting
the Constitution : Is the Intent of the Framers Controlling? If
Not ; What Is ?, 19 Harv. J. Law & Pub.Pol'y 9 (1995).
[2] See Duncan Kennedy, A Critique
of Adjudication (fin de siècle) 26-30 (Harvard Univ. Press,
1997).
[3] Felix Frankfurter, Mr. Justice
Holmes and the Constitution, in Mr. Justice Holmes 50
(Felix Frankfurter ed., 1931).
[4] Learned Hand, Sources of
Tolerance, 79 U.Pa.L.Rev., 1, 12 (1930).
[5] Charles Evans Hughes, Speech
Before the Chamber of Commerce, May 3, 1907, in Public
Papers of Charles Evans Hughes 139 (Albany, NY, J.B.Lyons
co., state printers, 1908).
[6] Edward S. Corwin, The
Constitution and what it means today, 5 (14th ed.
Princeton Univ. Press, 1978).
[7] See Thomas Grey, Do We Have an
Unwritten Constitution?, 27 Stan.L.Rev. 708 (1975).
[8] See Larry G. Simon, The
Authority of the Constitution and Its Meaning: A Preface to a
Theory of Constitutional Interpretation, 58 S.Cal.L.Rev. 603,
605 (1985); Id., The Authority of the Framers of the
Constitution: Can Originalist Interpretation Be Justified?,
73 Cal.L.Rev. 1482 (1985).
[9] See R.H.Fallen,
jr., A Constructivist Coherence Theory of Constitutional
Interpretation, 100 Harv.L.Rev. 751 (1987).
[10] See Antonin
Scalia (ed.), A Matter of Interpretation (Princeton
University Press, 1997).
[11] See Bittker, Interpreting
the Constitution, supra note 1,
at 41. The stress on the role of the Supreme Court is peculiarly
justified when it is invoked to be an authoritative interpreter
whose interpretations bind all others, including all nonjudicial
officials, see Larry Alexander and Frederick Schauer, On
Extrajudicial Constitutional Interpretation 110 Harv.L.Rev.
1359 (1997).
[12] Id.,
supra note 1, at 46. See also Richard B. Saphire, Making
Non Interpretivism Respectable: Michael J. Perry's Contributions
to Constitutional Theoory, 81 Mich.L.Rev. 782, 800 (1983).
[13] Letter from Felix
Frankfurter to Mr. Rosenworld (May, 15, 1927) in Felix
Frankfurter Papers (Harvard Law School Library).
[14] See Harvey T.
Edwards, The Growing Disjuntion Between Legal Education and
the Legal Profession 91 Mich.L.Rev. 34 (1992).
[15] See Daniel A.
Farber & Suzanna Sherry, Beyond All Reason: The Radical
Assault on Truth in American Law ( Oxford, University Press,
1997) claiming that there can be no hope for real justice, and
real peace in a legal system that rejects the existence of truth,
or worse, denies that it matters.
[16] See Bittker, Interpreting
the Constitution, supra note 1, at 46.
[17] See also Paul F.
Campos, Pierre Schlag and Steven D. Smith, Against the Law
(Constitutional Conflicts) (Duke University Press, 1996).
[18] William J.
Brennan, jr., The Constitution of the U.S.: Contemporary
Ratification 27 S.Tex.L.J. 433, 434 (1986).
[19] Duncan Kennedy, A
Critique of Adjudication , supra note 2, at 30-38.
[20] Id., at
32.
[21] In this respect
Dworkin is a Continental , see Id., at 36.
[22] Id., at
37.
[23] Id., at
374-376.
[24] Karl Llewllyn, The
Constitution as an Institution 34 Colum.L.Rev. 1, 17 (1934).
[25] Michèle Barrett,
The Politics of Truth: From Marx to Foucault 97 (Stanford
Univ. Press, 1991).
[26] If we plunge
interpretivism in the field of law, we can immediately see how it
fits into the machinery of government. The issue is who is
invested with the authority to speak, and who is deprived of it.
Which is the mechanism of interpretation as revealed by
non-interpretivism.
[27] See See William
Outhwaite, Hans-Georg Gadamer, in Quentin Skinner (ed.), The
Return to Grand Theory in the Human Sciences 23, 23-24
(Cambridge, University Press, 1985, rpt. 1994).
[28] For the link
between meaning and power see John B. Thompson, Ideology and
Modern Culture: Critical Social Theory in the Era of Mass
Communication 7 and 20 (Stanford University Press, 1990);
Terry Eagleton, Ideology: An Introduction 5 (London,
Verso, 1991).
[29] Thus I do not see
a fundamental difference between originalism and activism so far
as they are both aspects of interpretivism.
[30] Because the
unpacking clears the ground for a new construction that would
perform the same function as that which is destroyed ; see Duncan
Kennedy, supra note 2, at 344.
[31] See Maurizio Ferraris, Storia dell'ermeneutica [History of Hermeneutics] 13 (Milano, Fabbri, 1988).
[32] L.D.Reynolds and
N.G.Wilson, Scribes and Scholars. A Guide to the Transmission
of Greek and Latin Literature 7 (3d ed. Oxford, Clarendon
Press, 1991).
[33] Hellenism is not,
anyway, a well defined and clear-cut period in History, besides
its terminilogy derived from a confusion made by John Gustavus
Droysen, Geschichte des Hellenismus [History of Hellenism]
(1836) between the Greek speking Jews in the Christian community
of Jerusalem (See Acts 6:1, referring to "Hellenists"
murmuring against the "Hebrews", Aramaic speaking
Christians of the same community) and the "Oriental
Greeks"; see See Michael Avi-Yonah, Hellenism and the
East. Contacts and Interrelations from Alexander to the Roman
Conquest, 1 (Published for The unstitute of Languages,
Literature and the Arts, The Hebrew University, Jerusalem, by
Univesity Microfilms International, Ann Arbor and London, 1978).
Here we mean simply the great span of time from Alexander's
sudden death in 323 BCE up to the Roman conquest of Near East.
[34] Reynolds &
Wilson, Scribes & Scholars, supra note 32, at
8.
[35] Though the Homer
commentaries of Aristarchus and his colleagues are lost, enough
of them can be reconstructed from the extant scholia of later
authors.
[36] John B. Gabel
& Charles B. Wheeler, The Bible as Literature 149-156
(2d ed., Oxford, University Press, 1990).
[37] Id. , at
10.
[38] Id., at
223-224.
[39] See also Samuel
Sandmel, The Genius of Paul: A Study in History
(Philadelphia, Fortress Press, 1979).
[40] Gabel &
Wheeler, Bible as Literature, supra note 36, at
262.
[41] See e.g. I
Corinthians 9:9-10.
[42] See e.g. Gal.
4:24.
[43] See Gal. 3:16.
[44] See Luke 24:27
"The he began with Moses and all the prophets, and explained
to them the passages which referred to himself in every part of
the scriptures".
[45] See Robert M.
Grant, A Short History of the Interpretation of the Bible
(New York, Macmillan, 1963).
[46] Accordin to the
Origen's principle of interpreting the Bible through the Bible,
which parallel the Librarians' principle on interpreting Homer.
Origen indeed transplanted many of the Librarians techniques into
the Christian tradition, and adapted the system of marginal signs
used by Alexandrian critics to the Old Testament, see Reynolds
& Wilson, supra note 32, at 49.
[47] See Reynolds
& Wilson, Scribes and Scholars, supra note 32,
at 114-118.
[48] See the massive
work of Henry de Lubac, Exegèse médiévale. Les quatre sens
de l'écriture [Medieval Exegesis. The Four Meanings of the
Scriptures] (Paris, Aubier, 1959-64).
[49] See Ian McLean, Interpretation
and Meaning in the Reinassance: the Case of Law (Cambridge,
University Press, 1992).
[50] F.Yates, Giordano
Bruno and the Hermetic Tradition 12-14 (London, Routledge
& Keegan Paul, 1964).
[51] Id. at 85.
[52] See Reynolds
& Wilson, Scribes and Scholars, supra note 32,
at 207.
[53] For instane
Reinassance scholars cultivated "etymologizing" (that
is, going back to the source meaning of words) as as a way to
"discover" more-than-literal senses.
[54] The critical
standards of the surging humanism were carefully probed by
Lorenzo Valla in his attacking the Donation of Constantine, a
notorious document, fabricated as early as the eighth or ninth
century, which grounded papal claims to temporal power by
recording the legendary gift of Rome by Constantine to the Pope:
in 1440 Valla proved that the Donation was a forgery. Thus
historical and linguistic tools were soon used on a political
ground. Valla also attacked the spurious correspondece between
Seneca and Saint Paul. See Reynolds & Wilson, supra
note 32, at 142.
[55] See E.Wind, Pagan
Mysteries in the Reinassance 7 ss. (rev. edn. , Oxford,
University Press, 1980); See also Jean Seznec, The Survival of
Pagan Gods: The Mythological Tradition and its Place in
Reinassance Humanism and Art (B.E. Sessions transl., New
York, Pantheon, 1953).
[56] Unfortunately I
cannot cope with Enlightment, even if it was the prevailing
theory of interpretation which allowed for the ideal of
controlling courts by framing the law in a single authoritative
set of words, the code: see O.F.Robinson, T.D.Fergus and
W. M. Gordon, European Legal History 242-260 (2.nd ed.,
London, Butterworths, 1994)
[57] See William
Outhwaite, Hans-Georg Gadamer, in Quentin Skinner (ed.), The
Return to Grand Theory in the Human Sciences 23, 23-24
(Cambridge, University Press, 1985, rpt. 1994).
[58] See M. Bollack
and H. Wismann, Philologie und Hermeneutik im 19. Jahrhundert
[Hermeneutic and Philolgy in 19th. cent.](Goettingen,
Vandenhoek und Ruprecht, 1983).
[59] See e.g. Robert
E. Norton, The Tyranny of Germany over Greece?: Bernal,
Herder, and the German Apprpriation of Greece in Mary R.
Lefkowitz and Guy MacLean Rogers (eds.) Black Athena Revisited
403 (Univ. of North Carolina Press, 1996).
[60] See Hans-Georg
Gadamer, Truth and Method (W. Glyn-Doepel transl., London
and New York, Crossroad, 1972)
[61] William
Outwhaite, Hans-Georg Gadamer, in Quentin Skinner, The
Return of Grand Theory in the Human Sciences 23, 24-25
(Cambridge Univ. Press, 1985).
[62] Gadamer, Truth
and method, supra note 60, at 149
[63] William
Outwhaite, supra note 61, at 27.
[64] See 2 Richard
Rorty, Philosophical Papers. Essays on Heidegger and
Others 2 (Cambbridge, University Press, 1991).
[65] See Paul Ricoer, The
Hermeneutical Function of Distantiation, 131-144 in Paul
Ricoer: Hermeneutics and the Human Sciences (John B. Thompson
ed. and transl., Cambridge, University Press, 1981).
[66] George Aichele,
et al., The Postmodern Bible. The Bible and Culture Collective
25 (New Haven, Yale University Press, 1995).
[67] See e.g. Jane P.
Topkins, Reader-Response Criticism: From Formalism to
Post-Structuralism (Baltimore, Johns Hopkins University
Press, 1980).
[68] Stanley Fish, Is
There a Text in This Class. The Authority of Interpretive
Communities (Cambridge, Ma., Harvard University Press, 1980).
[69] Wayne C. Booth, The
Rhetoric of Fiction xiii (2d ed., Chicago, University of
Chicago Press, 1983).
[70] Wolfgang Iser, Talk
Like Whales: A reply to Stanley Fish, 11 Diacritics
82, 84 (1981).
[71] Robert Alter, The
Pleasures of Reading in an Ideological Age 213 (New York,
Simon & Schuster, 1989).
[72] Umberto Eco, Interpretation
and Overinterpretation (Cambridge Univ. Press, 1992).
[73] See Duncan
Kennedy, supra note 2, at 341.
[74] See David Hoy, Jacques
Derrida, in Quentin Skinner (ed.), The Return to Grand
Theory in the Human Sciences 43, 56 (Cambridge, University
Press, 1985, rpt. 1994).
[75] Jacques Derrida, Spurs:
Nietzsce's Styles 135 (B. Harlow trans., Chicago and London,
1979).
[76] This could
explain the scarce appeal, in comparison with the Americans, that
Derrida exercises even on openly leftist lawyers in Europe.
[77] Michel Foucault, Archeology
of Knowledge (A.M. Sheridan Smith transl., New York,
Pantheon, 1976).
[78] Id., at
205.
[79] Hayden White, The
Content of the Form. Narrative Discourse and Historical
Representation 108 (Johns Hopkins Univ. Press, 1987).
[80] The notion of style
has become peculiarly relevant for comparative lawyers being used
to separate legal families: see Konrad Zweigert and Hein Koetz, Introduction
to Comparative Law (Tony Weir transl., Cambridge, Clarendon
Press, 1992).
[81] See White, at
111.
[82] Michel Foucalut, The
Birth of the Clinic: An Archeology of Medical Perception xvii
(A.M. Sheridan Smith transl., New York, Vintage, 1973, rptr.
1994).
[83] (216-217). (sse
hart and sacks on authoritative sets of words)
[84] Michel Foucault, The
Order of Things: An Archeology of the Human Sciences 110-115
(A.M. Sheridan Smith transl., New York, Vintage , 1970, rptr.
1994) .
[85] For the Political
relevance of words face value see infra note 95.
[86] Michel Foucault, Archeology
of Knowledge, supra note 77, at 160.
[87] Id., at
209.
[88] Thus judges
become legitimate not because they are interpreters, but
because they are judges : it becomes apparent that their
legitimation depends on the process of appointment, and so that
their role can be delegitimated with reference to such a process,
see Mark Tushnet, Institutional Contingencies in Enforcing
Fundamental Rights, Paper to be presented at the Int'l
Conference on Civil Rights, Tel Aviv University Law School, June
2-4, 1997 [on file with author].
[89] See J.Bleicher, Contemporary
Hermeneutics. Hermeneutics as Method, Philosophy and
Critique 84 (London, Boston & Henley, 1980).
[90] See James
Gordley, Humanists and scholastics, in Alan Watson (ed.), Daube
Noster: Essays in Legal History for David Daube (Edinburh,
Scottish Academic Press, 1974).
[91] Because the
unpacking clears the ground for a newconstruction that would
perform the same function as that which is destroyed , see Duncan
Kennedy, supra note 2, 344.
[92] For irony as a
self-conscious misuse see Hayden White, Metahisotry. The
Historical Imagination in Nineteenth-Century Europe 31-38
(Baltimore and London, The Johns Hopkins University Press, 1973),
at 36-37.
[93] Duncan Kennedy, supra
note 2, at 376.
[94] For Irony as a
structural device of narrative where words are a double-edge way
see John B. Gabel and Cahrles B. Wheeler, The Bible as
Literature. An introduction 37-41 (2.nd ed. Oxford Univ.
Press, 1990).
[95] From this
standpoint we have to reappraise the relevance of face value from
a political point of view, for two main reasons. First who claims
to rely on face value is always in a better situation, because he
or she can denies to make a real interpretation and puts the
burden of proof on the other side. Secondly the collapse of the
distinction between face value and an inner, hidden, or superior
meaning has always to the public the taste of a forgery, in favor
of some hidden political design, and indeed, as we have seen, it
requires a pretty sophisticated theory to be carried on. The same
can be reapeted for originalism, since common sense has it that
quite always every utterance has an author, and that authors do
have real intentions, and that very often authors are more
entitled to speak than "interpreters". Thus, ironically,
the notions of face value, or author's intention, are
politically useful, and cannot be plainly dismissed in favor of
utopian or irrilevant projects.
[96] See the four
maxims of opportunist politicization in Duncan Kennedy, supra
note 2, at 376.