Allan C.

Hutchinson – Identity Crisis: The Politics of Interpretation

Prepared by Joshua Lee

I. Introduction
a. Michael Foucault’s Question
i. What difference does it make who is speaking?
ii. Dismissal of relevance of authors in hermeneutical enterprise
b. Hutchinson’s Thesis
i. Seeks to elaborate and supplement the idea role that “difference” makes
ii. There is a distinction between the “metaphysical claim of difference” and a “political
understanding of difference.”
iii. Political understanding of difference has significance of interpretive practice and
theory
II. The Death of the Author
a. The normative basic claim was that judicial interpretation should seek to find a
Constitution’s meaning in the Framer’s Intentions
i. This claim has been dismissed as unrealizable and dubious
ii. Interpretation through author’s intention does not best serve democracy
b. Alternatives
i. Mainstream Legal Theorists
1. Legal theorists still refuse to accept that there is no legitimate and
appropriate form of judicial review
2. They are concerned to prevent interpretation from becoming reader
anarchy
3. Theory: Find meaning in communal precepts of interpretive regularity or in
the establishment of an interpretive practice of institutional integrity.
a. Ex. Dworkin’s idea that legal interpretation should proceed on the
basis that legal rights and duties “were all created by a single
author”
b. Interpretive authority is generated in the organic interaction
between the law and its interpreters
ii. Postmodern or Deconstructive Approach
1. Seeks to totally disregard author’s intent as authority to proliferate meaning
III. Criticisms of the Post Modern Approach
a. Deconstruction leads to reader anarchy: The only constraints on interpretation are
imaginative ingenuity and political cunning
b. If deconstruction is such a potent method for transforming textual meaning, there is no
need for political change
i. No need to introduce more women or blacks into judiciary because the authors of
texts have no influence over meaning that can be attributed to their texts
IV. Identity, Postmodernism, and the Law
a. Modernism’s View of Identity
i. Identity is a given quality that must be perceived and preserved
ii. Identity is something that each person has by virtue of their existence as unique
individuals
iii. Each subject is normatively full grown with a raw set of values, preferences, and
characteristics that can be more or less given expression in the historical act of living
and socializing.
 iv. Freedom – successful resolution of both the search of that true intrinsic identity and
the struggle to live one’s life in accordance with its dictates
v. Justice – reached when people attain an unimpeded sense of themselves
vi. Society also plays a formative role.
b. Postmodernism’s view of identity
i. Identity is relative, not intrinsic; fluid, not fixed; perspectival, not netural; and
protean, not perfected; Subject is a cultural creation, not a biological given
ii. Identity always shifts and is often self-contradictory
iii. Post modernism challenged the bourgeois format of society and aims to reorganize
itself in line with the radical imperatives of an experimental democracy that
recognizes the systemic and social character of oppression
c. Identity divested from metaphysical authority
i. Post modernism looks to create meaning and knowledge in the situated particulars
of embedded experience
ii. Identity being political is released to become a vehicle to promote knowledge and
action and will always be contestable
iii. Action and identity are inseparable and mutually reconstituting
iv. The doer of a deed is constructed in and through the deed
v. There is nothing essential about people’s identities: while experienced as real,
identities are always reconstructible.
vi. By providing reconstructive insight, postmodernists can contribute to the struggle
for social justice and individual empowerment.