Reading the law – hermeneutics and deconstruction

Chapter 3

Reading the law – hermeneutics
and deconstruction

A view on language is sketched in the above chapters but many difficult questions remain. How can we say that a legal judgment is based on a text? How do we decide what the text means and what it commands? With the insights into language drawn from Wittgenstein and Derrida we are now better equipped to tackle these questions. But these theories contain nothing that can anchor meaning for the purposes of a theory of legal interpretation. It is necessary to widen the scope of research from the philosophy of language to interpretation and understanding on a more general level. This way we may get a better grip on the difficult questions of legal interpretation. Therefore, after the rather narrow discussion of language and meaning, the question that now has to be addressed is that of interpretation. We can already see that it is unavoidable to study interpretation as an activity, not just language as a system, in order to be able to answer any questions concerning legal interpretation. When focusing on the activity of interpretation, the interconnectedness of meaning and the choices of living, people in different circumstances become more visible. Interpretation is always done by someone in a certain time and place. In this chapter, interpretation is studied in the hermeneutics of Hans-Georg Gadamer and the semiotics of UmbertoEco. After this we can turn to Derrida’s deconstruction, which includes a critique of hermeneutics.

A hermeneutic view on interpretation

Hermeneutics is one of the great philosophical schools of thought of the twentieth century. Philosophical hermeneutics has roots in Heidegger’s philosophy, but the central work is Gadamer’s Truth and Method, published in German in 1960. Gadamer is first and foremost interested in human understanding. He develops the hermeneutical circle described by Heidegger.1 The idea in its simplicity is that in order for us to understand anything we already have to understand something. But if all understanding depends on previous understanding, we are trapped in a circle.

However, the circle is not a vicious one. It is what makes understanding possible. For instance, a person who wants to understand a text constructs for themselves the meaning of the whole text as soon as they are able to grasp any meaning in it. And they are able to understand any meaning in the text only because they have some presuppositions about what the text means. Understanding is a process, where new meanings are projected continuously (see Gadamer 1979: 236). A person is always inside a horizon consisting of his or her presuppositions.

In hermeneutics, understanding and interpretation are intertwined and their structure is circular or spiral. The interpretation of a text takes place in this circular movement. The interpreter’s anticipation of the text as meaning something, saying something understandable, is the attitude they have at the beginning of the interpretation process. This anticipation of meaning involves stepping into the hermeneutic circle. The interpreter is only able to understand meaning in a text because they have some presuppositions about what the text means. But this anticipation is only the step into the circle. Once inside the process, the prejudices of the interpreter are replaced by new ones as the interpretation evolves. This view of interpretation stresses the relationship between the parts and the whole. We can understand the whole only through understanding its parts, but the whole also determines the meaning of the parts. The two-way movement from parts to whole to parts is a basic structure of interpretation, and the task of the interpreter is to create a meaning for the whole. The harmony of the parts and the whole is one criterion for successful understanding.

In hermeneutics, interpretation is seen as taking place within a tradition without it being possible to take the interpretation out of the tradition or the tradition out of the activity of interpretation. Since tradition and historicity are important aspects of any interpretation, hermeneutics strives for a contextual, even situational, understanding of a text. Tradition, the text’s home, as well as the place and time of the interpretation, should be taken into account when we strive for an understanding of the text.

It is not, then, at all a case of safeguarding ourselves against the tradition that speaks out of the text but, on the contrary, to keep everything away that could hinder us in understanding it in terms of the thing. It is the tyranny of hidden prejudices that makes us deaf to the language that speaks to us in tradition.

(Gadamer 1979: 239)

A text can of course use language in a manner different from ours. According to Gadamer, we usually notice language use that is different from ours in that a text does not seem to convey any meaning or the meaning is not reconcilable with what we expected. It is not the case that the reader can hold any meaning as the meaning of a text. He or she has presuppositions about the meaning and at the same time waits for the text to mean something – he or she seldom waits for it to mean nothing or anything. We have the right to suppose that, except in some exceptional circumstances, a person who speaks the same language as we, speaks it in the same intelligible manner as we do (Gadamer 1979: 237–238).

Being open to the text

Tradition and prejudices are necessary for interpretation, but they do not absolve our responsibility for it. Prejudices are replaced by new and more appropriate ones as the interpretation evolves. Moreover, the tradition to which the text is seen to belong does not determine interpretation; at most, it pushes it in some direction. When we interpret a text we have to be both prejudiced and open to its meaning. We have to assume that the text wants to tell us something but not decide too rigidly what that something is. Our presuppositions should not be static so that we hold on to an anticipated meaning even where the text wants to tell us something else. At the core of hermeneutics is the requirement of sensitivity to the text’s newness. What is important is that the interpreter has a basic level of self-knowledge that enables them to understand and acknowledge their presuppositions so that the text can show its own truth against them (Gadamer 1979: 238). Thus hermeneutics searches for the text’s truth, its own new and singular meaning.

According to Gadamer, all language, including interpretation of texts, should be seen as conversation or dialogue. It becomes evident that one crucial precondition of interpretation is to listen to the other (be it a written text or a person talking) and be open to what the other wants to say (Gadamer 1979: 238; see, also, Taylor 2002: 127–128). ‘[L]anguage is conversation. One must look for the word that can reach another person. And it is possible for one to find it […]’ (Gadamer 1989a: 106).

What is essential in language for Gadamer just like it is for Wittgenstein is that it is an activity of sharing and being with somebody. According to Gadamer, every time language occurs, whether a text, a word or a whisper, conversation also occurs (Gadamer 1989b: 95). Language should not be studied and described abstractly because this gives an unnatural picture of what it is. Gadamer remarks in Truth and Method that Wittgenstein’s idea of language games seemed natural to him when he came across it (Gadamer 1979: 500, note 12).2 Language always has some context. It involves a constantly changing common way of being in the world, a shared orientation and shared understandings. This way language and understanding possess a social and ethical character (see Palmer 2006: 2–3). Language is living speechand writing.

Being open to a text, which is a prerequisite for understanding, is like engaging in a conversation with it. Thus the only way for an interpreter to understand the text is to listen to it and try to grasp what it wants to say. This dialogical structure is for Gadamer what makes the hermeneutic experience universal. Language is conversation always and everywhere: ‘The word is what one person speaks and another understands’ (Gadamer 1989b: 95). This universality entails language, meaning and interpretation being grounded in dialogue and inter-human understanding, which establishes a foundation for hermeneutics at a profound level (see Gadamer 2006b: 35). Hermeneutics is a general basis for all understanding as well as a background against which a variety of scholarly disciplines can be built.

Gadamer seems to be fully aware of the risk involved in dialogue. The speaker may mean something but be interpreted as saying something else. Meaning is never simply something that is transported from one person to another.

What is pushed aside or dislocated when my word reaches another person, and especially when a text reaches its reader, can never be fixed in a rigid identity. Where understanding takes place, there is not just an identity. Rather, to understand means that one is capable of stepping into the place of the other in order to say what one has there understood and what one has to say in response.

(Gadamer 1989b: 96, emphasis in original)

To understand what the other says is to be able to respond to them. But it is never easy to understand, and what we understand is not exactly what the other person says. And what is more, one cannot say fully and exactly what one means.

A successful interpretation happens through a fusion of the horizons of the interpreter and the text. In conversation, the horizons of the participants must merge in order for understanding to be possible (see Gadamer 1989c: 119). Likewise in interpretation, the horizon of the interpreter has to merge with that of the text in order for interpretation to succeed. The risk in this way of thinking is that interpretation turns into a totalising activity in which the horizon of the interpreter, their prejudices and their tradition, come to dominate the horizon of the text, losing the otherness of the text in the hegemony of the interpreter. This is a Levinasian critique of hermeneutics to which Gadamer responds by underlining openness to the meaning of the other as a prerequisite for understanding. ‘One must seek to understand the other, and that means that one has to believe that one could be in the wrong’ (Gadamer 1989c: 119). Thus the idea of horizons fusing is not to be understood as the idea that the text is absorbed in the horizon of the interpreter, which would indeed mean a form of violence done to the text. Neither does communication carry one person’s opinion across to another’s but transforms the viewpoints of both (Gadamer 2006c: 17). Gadamer seeks to understand the other, but not toown them. And he underlines the need for the interpreter to be aware at all times of their fallibility.

The idea of dialogue also concerns our relationship with tradition. We are always in a tradition, and tradition plays a role in interpretation. The dialogue that understanding is takes place within a tradition and in itself forms part of a tradition, but dialogue also occurs with the tradition. As stated above, the tradition and the prejudices and presuppositions we have on entering a dialogue with the text are replaced by new ones during interpretation of the text, that is, in conversation with it. We enter into a dialogue with the tradition as well: it is by no means a fixed entity, something predetermined, or a straightjacket restricting our interpretation, but should rather be seen as a flexible background in which and through which interpretation takes place. Tradition is neither something given nor something clearly distinguishable. In fact, it is not clear how to separate a text and its tradition. All texts belong to some tradition, and a tradition is nothing other than a collection of texts.

When I speak there [in Truth and Method] of tradition and of conversation with tradition, I am in no way putting forward a collective subject. Rather, ‘tradition’ is simply the collective name for each individual text (text in the widest sense, which would include a picture, an architectural work, even a natural event).

(Gadamer 1989a: 111)

A conversation always carries with it the risk of misunderstanding. This risk looms at every interpretation. It is inevitable. It stems from language, since meaning is always slightly open and slippery.

Language is such that, whatever particular meaning a word may possess, words do not have a single unchanging meaning; rather, they possess a fluctuating range of meaning, and precisely this fluctuation constitutes the peculiar risk of speaking. Only in the process of speaking, as we speak further, as we build up the fabric of a linguistic context, do we come to fix the meanings in the moments of meaning of our speaking, only in this way do we mutually agree on what we mean.

(Gadamer 2006c: 25)

There is no final meaning for a text, nor is there an ordinary meaning. Gadamer puts it beautifully: ‘[…] the conversation that we are is one that never ends. No word is the last word, just as there is no first word. Every word is itself always an answer and gives rise always to a new question’ (Gadamer 1989b: 95). We see that hermeneutics can leave room for otherness and differences. For Gadamer, the essence of understanding is to be responsive to ‘what aims at being said beyond all words sought after or found’ (Gadamer 1989c: 118).

On the ethics of hermeneutics

If prejudices are necessary for understanding a text, how do we draw the line between acceptable interpretation and unacceptable interpretation? What if the reader is bad? A bad reader is, according to Derrida, a fearful reader, a reader in a hurry, or one who does not like retracing their steps (Derrida 1987: 4; see, also, Lindroos-Hovinheimo 2009). We may even call him or her violent if they use power against the text, stubbornly reading it in their own way. Such a reader is, in short, disrespectful of the text. Is this a danger that looms behind the picture of a hermeneutic interpreter? Are they respectful enough? Can Gadamer’s views be criticised on account of his not recognising the threat of the bad reader?

We should not think of prejudices simply as conditions of understanding that somehow determine the outcome of the interpretation process. Rather, Gadamer thinks that interpretation is always subject to revision when we encounter new evidence or information (see Grondin 2002: 44). We do have anticipations of the meaning of a text when we start reading and interpreting it, but they are, and should be, shattered in the process of interpreting the text. This may be exactly what ‘retracing one’s steps’ means. Ultimately, what is necessary in understanding is openness to something new, something other, and a readiness to replace one’s prejudices by new ones (see Gadamer 1979: 323–325). The interpretation process creates something that is unique every time (see Gadamer 1989c: 117). In Gadamer’s view, the interpreter learns something every time they interpret the text, just as the participants in a conversation can never know in advance where the conversation is taking them, or control it, or direct it towards a predetermined meaning.

The hermeneutical method does not guarantee ‘correct’ interpretation. This would require that the understanding reached would fully correspond to the ‘fundamental’ or ‘true’ meaning of a text. Gadamer’s theory gives no guarantees. This can be understood to mean that the ideal of objectivity is abandoned. But the hermeneutical circle is for Gadamer neither subjective nor objective. Hermeneutics is a way of thinking that dissolves traditional conceptions of objectivity and subjectivity. An interpreter is always necessarily inside some tradition, time and world. Although in Gadamer’s view no definite meaning is contained in any text or work, the interpreter’s preconditions structure the interpretation in the sense that it cannot result in arbitrary meanings. Still, no fixed or fundamental meaning exists because anything that means something means it for someone in some place and time (see Llewelyn 1985: 103–105).

Hence hermeneutics does not include a search for the original meaning of a text seen as an author’s original intention. As was discussed already in connection to Derrida, the text, be it a spoken utterance or a written statement, takes on an independent life after it leaves the author. The text and its meaning are no longer dependent on the author’s intentions, which is not to say that the author’s intentions are wholly irrelevant. Gadamer considers the case of a work of art. A work of art, unlike an object or handicraft, is not made for a designated use. It is in a strange way suspended from use as well as from misuse. It stands for itself and exists for its own sake. The intention of the artist has somehow gone into the work of art and can no longer be determined separately from it, nor found behind it or before it. Works of art are detached from their origins and begin to speak independently. When it comes to poetry or literature, Gadamer thinks that no word or sentence refers directly back to the intention of the author. Things are rather the other way around: every reader is subjected to the command of the text. The work in itself has something to say to us (Gadamer 1989c: 123). Thus the work of art enjoys autonomy in leaving the sphere of influence of its author.

A work of art has something to say to us: it commands something of us; it demands a response. It is a kind of sovereign that can give us orders. We see this in Gadamer’s insistence on our being open to the text and its unique meaning; it is a short leap, almost no step at all, to the requirement of responsible interpretation. Openness is not restricted to mere neutrality but demands a more active stance in the interpreter. The sovereign authority of the work of art is also a call for responsible answers and dialogue (see Derrida 2004: 6). The interpreter has a responsibility before the work, a responsibility that he cannot avoid.

What I suggest here is that we can read Gadamer’s hermeneutics as including an ethical element. What lies at the core of his theory is a willingness to understand, to listen to what somebody wants to say. To understand what the other says is to be able to respond to them. Also, the idea about the tradition can be read as meaning that the interpreter is never alone; they always carry with themselves the tradition and hence, other people (see Llewelyn 1985: 101). Thus we can see Gadamer’s ideas being perhaps closer to a Levinasian view than would seem to be the case at first sight. In hermeneutics, language is communication and being together, so that interpretation necessarily involves a welcoming.

How, then, does this way of thinking provide any means of limiting interpretation? After all, hermeneutics does not offer us a clear method of interpreting: it does not give us any rules or procedures for how to interpret and it does not deliver criteria by which to determine a good interpretation from a bad one. However, it is not even the aim of an ethical view of interpretation to be able to develop clear rules. This should not be seen as a lack. First, it would be unwise to suggest that the only way to draw up some boundaries or limits for interpretation would be by defining a method including rules, which the interpreter, for instance a judge, would be obliged to follow. How a rule is followed is not something self-evident and, as can be seen from Wittgenstein’s various remarks on rule-following, the power of rules to draw clear limits for an activity is questionable. This approach is therefore not what an ethical view of interpretation is after. But an ethical view does still search for ways of limiting interpretation; it simply does not believe that these limits can be found in methodological rules.

Hermeneutics and law

Many differences set legal interpretation apart from other forms of interpretation. Let us concentrate on Gadamer’s discussion of the work of art in which he stresses its autonomy. A work of art has a history of interpretations or readings, but to understand it and for the work to be able to speak to us, we do not need to know all it has been through (see Gadamer 1989c: 123). Likewise, the legal text has a degree of independence, but is it more like some handicraft?

Regarding the autonomy of legal texts, we face severe difficulties in specifying the identity of the text, including where it begins and ends. This was also seen above in discussion on the pragmatics of legal language. A marked feature of legal texts is their intertextuality. They usually refer both explicitly and implicitly to other texts. Legal texts can seldom be seen as independent or complete works; rather, they are like pieces in a puzzle. But to some degree this is true of all texts. Furthermore, because of this intertextual nature as well as because of the purposes for and situations in which they are written and read, legal texts do not speak to us alone. In addition to referring to other texts, they also refer to previous interpretations of themselves and of other texts. We do not need to know all that the legal text has been through in order for us to be able to make a legal interpretation of it, but we have to know a lot. Still, one could argue that some common features link interpreting a legal text and interpreting a work of art. The legal text, like the work of art, has a life independent of its author. Legal interpretation has to stay open to the meaning of the text itself, not simply to what the author(s) perhaps wanted to say.

An important feature in hermeneutics is that here interpretation, understanding and application are mixed. They amount to more or less the same thing. Interpretation and application of law are intertwined activities in that we always interpret the normative content of law from the point of view of a certain (or hypothetical) case. Interpretation has a goal that is inherent in the need to find an answer to the situation at hand. Hermeneutics is sensitive to the particularities of different interpretation situations. Gadamer says in his discussion of legal hermeneutics that to understand an order is to apply it to the specific situation to which it is relevant. ‘The criterion of understanding is clearly not in the actual words of the order, nor in the mind of the person giving the order, but solely in the understanding of the situation and the responsibleness of the person who obeys’ (Gadamer 1979: 298). The situation has to be understood, for sure. But I want to highlight not the responsibility of the one who obeys but the one who interprets. The most important feature of legal interpretation is the challenge that doing justice places on it. It is the ultimate criterion by which legal interpretations are measured. A necessary pretension to justice is built into the work of all legal institutions, and this way a requirement for justice is inherent in legal interpretation (see, also, MacCormick 2007: 276). The demand for justice influences the interpretation of legal texts and hence shapes the meaning of law, that is, what we can say to be in accordance with the law or prohibited by it.

We have now studied some features of Gadamer’s hermeneutics, from which a certain view on what interpretation is has started to develop. Some preliminary remarks on the ethical elements contained in understanding and the responsibility of the interpreter have been sketched. It is necessary to ponder these ideas more deeply in order for us to be able to see what this approach really entails and, more importantly, what this kind of approach could give us when we consider the particular demands of legal interpretation.

Eco and the text’s rights

To understand the interpreter as an active agent with responsibility instead of somebody who can hide behind the meanings of words is a central idea in this book. This suggests that we can assess and criticise interpretive choices that have been made. In this section the ideas of interpretation and over-interpretation developed by Eco are studied because he makes an attempt to solve some of the puzzles regarding the freedom of the interpreter and the correctness of interpretation. A text can be given many meanings but should not be given just any meaning. There has to be something that limits interpretation, at the same time as a text always allows for multiple meanings. Eco thinks that a text cannot perhaps have one correct interpretation but that not all interpretations are equally good. There are better and worse interpretations of a text. The problem is of course how we tell these apart.

Eco thinks that the text itself and its particular characteristics set the limits for a successful interpretation. However, it is hard to find an answer from him on what these characteristics are exactly and how they set the demarcation between an acceptable and an unacceptable interpretation. In Interpretation and Overinterpretation, he distinguishes between the text’s rights and the interpreter’s rights, remarking that in recent discussions the interpreter has been given too powerful a role (Eco 1992: 23). Eco seems to claim that in interpretation, which is influenced both by the object of interpretation, that is, the text, and by an actor, that is, the interpreter, the text should be given the central position that belongs to it. The interpreter is never totally free in their actions; the text delimits them. Eco distinguishes between: (a) the intention of the author of the text; (b) the intention of the text; and (c) the intention of the interpreter. The intention that should be in focus, Eco claims, is that of the text. A good interpretation concentrates on finding the intention of the text (Eco 1992: 24–25).

What, then, is the intention of the text, which Eco finds so crucial for distinguishing a good interpretation from a bad one? It cannot be found on the mere surface of the text. To grasp it, conscious and focused effort is needed. The intention of the text is to create a model reader, who can make assumptions about the meaning of the text. To find out a text’s intention is to recognise a certain semiotic strategy, which can sometimes be deduced from some stylistic features of the text. For instance, if the text begins with ‘once upon a time’, we can assume that the model reader is a child (Eco 1992: 64–65).

Semiotics often emphasises the importance of finding the right frequency of interpretation, the right code. Relevant factors are, for instance, the historical situation and the interpreter’s characteristics, such as education and upbringing. A lawyer is trained to interpret legal texts, finding different meanings in them than a layman. However, this kind of analysis of a model reader does not take us very far. To find out what class or type the text belongs to is no doubt important, but it is seldom the problem. A legal text is usually quite easy to recognise, but to decide what the text commands, what it stipulates or what it allows is another matter. The schooling of a lawyer does not determine the interpretation that he or she makes. All texts, including legal ones, involve some openness, and in a way the difficult task of the interpreter begins after the text has been decided to be a certain kind of text, for instance a legal text. There is always room for interpretation in a particular category of texts. Lawyers and literature researchers alike are seldom unanimous regarding the correct interpretation of a text, regardless of their education and training. We can agree with Gadamer here:

It is certainly correct that a certain decoding process underlies all writing and reading of texts, but this represents merely a precondition for hermeneutic attention to what is said in the words.

(Gadamer 1989a: 112)

However, the importance of the first step of interpretation, in which the text is identified as belonging to a certain group of texts, should not be underestimated either. The interpretation process in law is of a particular nature. In order for legal reasoning to be able to claim at least a certain degree of autonomy, it is important to trace how we can define legal interpretation as properly legal. Eco gives us clues to this with his idea of semiotic strategies. They can be seen to include the particular encyclopaedic knowledge that a member of the legal sphere has learnt to use when engaged in legal interpretation. With the help of semiotic strategy, we can recognise a legal text and decide on the different ways that it can be understood. Semiotic strategy does not, however, explain how and why one meaning should be chosen instead of others.

According to Eco, the way to examine what the intention of a text is entails studying the text as a coherent whole. The internal coherence of the text, its own structure, controls an otherwise uncontrollable reader (Eco 1992: 65). Interpretations of different parts of the text have to fit together. However, this still leaves much open. Surely examples exist of coherent interpretations of texts that we still could not consider good interpretations. A functioning interpretation rests on the features of the text on which a coherent whole can be built, but this means that some other features are considered secondary or irrelevant at the same time (see Eco 1992: 144–146). The interpreter thus has great power over the meaning of a text.

Although Eco focuses on the text and its intentions, he does pay attention to the interpreter as well. The interpreter has to be competent. He or she has to have sufficient knowledge of the encyclopaedia. Every interpreting situation is a difficult encounter in which the competence of the interpreter and the competence that the text requires stand face to face.

Interpretation or use?

Eco distinguishes between interpretation and use of texts. A text can be used for many things: it can be parodied, used as inspiration or as a sleeping aid. Interpretation means that the text’s cultural and linguistic background is respected (Eco 1992: 69). To use a text is to exploit it for personal, political or ideological reasons. Interpretation, on the other hand, respects the text itself. In a way, Eco pinpoints this respect on a respect for the semantic meaning of the utterances that the text consists of.4 When a text is used, its semantic meanings are not respected and the interpreter is reading it as he or she wants. He seems to partially identify false interpretation with use. However, he admits that an element of use is always present in interpretation, and that these two ways of encountering texts cannot always be clearly separated (see Eco 1990: 57–58, 62). A reader often uses and interprets a text at the same reading.

Even if we cannot clearly say where interpretation stops and use begins, use is the type of reading that is freer in Eco’s theory. Interpretation can be good or bad, and ultimately it is the community’s opinion and other interpretations that determine whether it is good or bad, but use of a text is in a way revolutionary. By using texts we can break free from earlier and approved interpretations and come to a new understanding of the text (Eco 1990: 62). Using a text is thus a means for the interpreter to free themselves from the conformity of interpretation and cannot be seen simply as something negative directed against the intention of the text. In using texts, we do not first try to establish what the text wants to say and it is not the intention of the text that directs the reading. Using a text is imposing the reader’s intentions on it, but it is not the case that an encounter with a text is always at best interpretation and at worst use.

Eco sees a good interpretation as one that the consensus of the community would accept. His argument is based on the Peircean notion of habit in that the convention of the community is something similar to an ultimate criterion for a successful interpretation. Interpretation thus gets an intersubjective character, which lends it a degree of objectivity (see Petrilliand Ponzio 2005: 336). Here, Eco sees a similarity between his own views and Gadamer’s ideas on tradition (Eco 1992: 144). Eco leaves room for new and groundbreaking interpretations in saying that a good interpretation can be built on preceding ones accepted in the community and at the same time form a new way of interpreting. An interpretation may be new and different, but only time will tell whether it is a good one. The question that arises then is what help we have from Eco’s theory in the interpretation situation when we try to achieve a good or just interpretation.

Eco attaches much weight to the community and its approval. His version of Popper’s falsification thesis is that even if we cannot prove that any interpretation is absolutely the right one, we can still reach an agreement that certain interpretations are not allowed for contextual reasons. An air of pragmatism permeates Eco’s views, which is perhaps natural when considering the close connection between his thinking and Peirce’s semiotics. A good interpretation is one that the community comes to accept, use and base new interpretations on. Eco says: