"All This And So Much More"

Original Intent, Antagonism and Non-Interpretivism

 

 

P.G. Monateri*

 

 

 

 

 

Introduction. 2

From Framers' Intent to Adjudication Critique. 2

The Bulk of Interpretivism.. 6

The Packing of Interpretation. 9

Librarians, Fathers and Humanists. 9

Romantic Meanings. 17

The Unpacking of Interpretation. 19

Is There a Community Somewhere?. 19

The Order of Foucault 21

Irony, Antagonism and Doubleness. 24

 


 

Introduction

 

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.

 

 

From Framers' Intent to Adjudication Critique

 

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.

 

The Bulk of Interpretivism

 

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.

 

 

The Packing of Interpretation

 

 

Librarians, Fathers and Humanists

 

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 Iit was not neutral at all: its practice was precisely to wash out Christian meanings: to substitute for an old ideology (as production of meanings), a new mechanism of meaning production. It was a strategy to transcend Christianity[55].

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.


 

Romantic Meanings

 

NowIn this section  I examine, without going into details that lying outside the scope of the current essay, how it was that source criticism came to be embodied within the paradigm of General Hermeneutics developed in Romanticism[56].

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 hasve been a distinctive features the 19th cent. German legal thought, through which a new German legal identity defined and reaffirmed.

 

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" , namely that the meaning of an utterance is but the outcome of the  willingness of the interpreter to read that meaning, instead of another. Something which in political terms becomes a matter of power to speak, and to attach a meaning to something.

All this, and so much more, has been finally wrought out in what I call the "Mmerging theory" developed by Gadamer[60] where the mechanism of the "biased encounter" with something radically different from ourselves is assumed as the same consciousness of interpretivism. Understanding involves engagement, and it is not a matter of forgetting our own horizon of meanings and putting ourselves within that of the alien texts or the alien society; it means merging or fusing our own horizons with theirs: it is an actual incorporation into our lives, and our preconceptions and prejudices are what make understanding possible in the first place[61].

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 Unpacking of Interpretation

Is There a Community Somewhere?

 

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 Aamerican debates over criticism. Thus I just focus on these aspects and especially on reader response criticism.

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 closolsed to the conceptions expressed in the field of law oby Frankfurter and Llewellyn.

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 fictional world upon the reader"; namely "[t]he author's means of controlling his reader"[69]. Of course this reopening of the opposition between the text-as-object and the text-as-interpretation: the "something which is to be mediated" as existing prior to interpretation, and acting as a constraint on interpretation, can be seen as a typical essentialistic move for which meaning precedes both text and reader[70].

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 recentcurrent  debate on the limits of interpretation raised by Umberto Eco in his Tanner Lectures 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.

 

The Order of Foucault

 

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.

 

Irony, Antagonism and Doubleness

 

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.