Journal of Communication, Winter 1997

Language and the Crisis of Legal

Interpretation
A review essay by Thomas Streeter, University of Vermont

The Language of Judges. By Lawrence M. Solan. Chicago: University of Chicago

Press, 1993. 218 pp. $49.50 (hard); $18.95 (soft).
Justice as Translation: An Essay in Cultural and Legal Criticism. By James Boyd
White. Chicago: University of Chicago Press, 1990. 313 pp. $29.95 (hard); $14.95
(soft).
Acts of Hope: Creating Authority in Literature, Law, and Politics. By James Boyd
White. Chicago: University of Chicago Press, 1994. 322 pp. $27.50 (hard); $15.95
(soft).
Justice and Interpretation. By Georgia Warnke. Cambridge, MA: MIT Press,
1993. 178 pp. $13.95 (soft).
Theres No Such Thing as Free Speech . . . and Its a Good Thing, Too. By Stanley
Fish. New York: Oxford University Press, 1993. 332 pp. $11.95 (soft).
Law, Writing, Meaning: An Essay in Legal Hermeneutics. By Patrick Nerhot.
Edinburgh, England: Edinburgh Press, 1993. 198 pp. $65.00 (hard).
Politics, Postmodernity and Critical Legal Studies: The Legality of the Contingent.
aedited by Costas Douzinas, Peter Goodrich, and Yifat Hachamovitch. London:
Routledge, 1994. 233 pp. $18.95 (soft).

Most discussions of law in the field of communication tend to focus either on

the relevance of particular legal decisions and procedures for media and other
forms of communication, or on contributions communication research can make
to legal process and decision making, such as the effect of different messages
on juries or television audiences. What is seldom noted is that, in other fields,
the communicative has come to be seen as central to a much more fundamental
question: What is the law in the first place? Once again, communication turns
up near the center of a discussion that cuts across numerous disciplines. This
discussion should not be ignored by the field of communication itself.

Copyright 1997 Journal of Communicaiton, 47(1), Winter. 0021-9916/97/$5.00

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These books are part of an important strand of scholarship on the character

of the law that has focused on the fact that, whatever else you can say about it,
law is linguistic: It is made up of words, written and spoken. This might seem a
trivial observation, except that we usually justify the undemocratic powers we
delegate to judges and the legal system with the assumption that the law is
neutral, dispassionate, and fixed. Conventional thinking assumes that a properly
trained mind can find clarity and certainty in the law, a clarity assured by such
devices as legal precedent, the constitution, legislative intent, natural law, and
a favorite of conservative intellectuals these daysscientific economic principles. Yet, language often seems changing, slippery, fluid, unpredictable, and
contextual, particularly in light of late 20th-century scholarship about it. To put
it colloquially, what if the law is merely words, mere rhetoric? This question is
at stake in each of the books discussed here.
The basic problem is nicely laid out in Solans book. Solan, both a lawyer
and linguist by training, is clearly a rationalist and is no radical critic of our legal
system. In fact, this careful, detailed study of the use of language in judicial
decision-making is basically driven by the hope that law would be better if
judges were more sensitive to scientific linguistic principles when writing their
decisions. As Solan concludes from his numerous linguistically informed
dissections of legal cases, though, even the greatest judges (e.g., Cardozo) very
often conceal the unattractive truth that they are unable to make decisions
easily and based on the legitimate factors on which they are supposed to rely
(p. 176).
Of course, judges often say that their decisions are based on precedents as
interpreted through neutral rules and principles, such as the last antecedent
rule, the plain language rule, and the like. They do so inconsistently and not
infrequently illogically, however, invoking the plain language rule when the
language being interpreted is not all that plain or not invoking it when it is
and Solan provides good evidence that judges often have some awareness that
this is the case. Judges references to rules, then, are often simply linguistic
sleight of hand (p. 178) brought in to legitimate decisions made on other
grounds. This phenomenon, furthermore, is not the fault of only bad or particularly dishonest judges but simply of the fact that rules for interpreting legal
language in the end leave interpretive gaps, areas of uncertainty, that cannot be
filled with neutral principles.
Hence, in hard cases, Solan points out,
We are thus confronted with the intractable problem that . . . [a] judge who
justifies his [or her] decisions by issuing opinions based on linguistic sleight of
hand risks getting caught in a lie, thereby damaging the credibility of the
system that he [or she] was attempting to protect. But the judge who is candid
can, in hard cases, do nothing other than announce that the system, at least
in the case being decided, has no answer, and that the fate of the parties is in
the hands of the judge himself, who will simply do the best he [or she] can. The
result is the samea reduction in confidence that a rule of law governs the
exercise of power by government. (p. 178)

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Solan takes no strong stand on this dilemma, though he expresses a wish that
judges would more frequently adopt the second tactic of judicial candor,
presumably because it is honest.
The rest of the books in this collection begin, in a sense, where Solan leaves
off, and take the dilemmas of legal interpretation to heart. Hermeneutic philosopher Georgia Warnkes Justice and Interpretation is a good place to start,
particularly if one needs persuading of the basic validity of an interpretive
approach to law. She lays out the significance for theories of law of interpretive
and context-centered approaches such as hermeneutics in a clear and accessible
way and discusses a variety of well-known social and political theorists, from
Rawls to Habermas. An important point she makes is that the interpretive turn
in philosophy and social thought in the humanities is not limited to explicitly
interpretive theories such as hermeneutics or poststructuralism. Interpretation
has been growing in importance in a host of epistemologically conventional
works as well, on both sides of what political theorists call the libertarian/
communitarian divide. Rawls, for example, originally took a strictly Kantian
position that sought neutral, universally applicable principles of justice chosen
from behind a veil of ignorance that would exclude considerations of individuals and groups place in history and society. More recently, however, in
response to the impossibility of defining acceptable a priori universal, neutral
rules, he has moved toward a context-based theory of interpretation, suggesting
legal principles be grounded, not in some imagined sphere of universal abstract
forms, but in the settled convictions and deep self-understanding of a constitutional democracy, that is, in historical context (p. 39).
As she carefully works her way through each major theorist of the law,
however, Warnke finds limits to their approaches, typically because they try to
reconcile the interpretive character of legal decision-making with one or
another first principle or universalistic notion of the common good. Rawlss
effort to ground neutral rules in settled convictions, she points out, runs
aground on the inevitability of competing interpretations of what those convictions mean; she shows that similar problems exist with Rawlss model of a
well-ordered society, the original position, and so forth. Walzers more
explicitly interpretive theory nonetheless runs into similar problems when he
expects American society to have a relatively unified, conflict-free self-understanding to use as a basis for determining the procedures and meanings of
justice. Warnke also spends a chapter dissecting Ronald Dworkin. In his examples of good legal decision-making, she argues, at key moments Dworkin
abandons his explicitly interpretive principles of fit and best light by arbitrarily resorting to truths, which he takes to be self-evident, but which, on
closer inspection, are by his own criteria contestable. As a result, Warnke argues
persuasively, Dworkins system cannot adequately show why Plessy vs.
Ferguson, which upheld Jim Crow laws, was a bad decision, whereas Brown vs.
Board of Education, which in effect overthrew them, was a good one.
Habermas, of course, has made similar arguments and is adept with the
hermeneutic arguments that are Warnkes specialty, so it is no surprise that she
devotes considerable attention to him. Habermas, fearing that a purely herme-

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neutic, foundationless theory of justice could lead to anarchy or fascism, seeks

to solve the problems Warnke identifies in others thought by recourse to
discourse ethics. The basic human capacity for ordinary conversation,
Habermas argues, contains within it implicit standards of equality that, once
made explicit, can provide the truly universal principles of justice that elude
other theorists, without recourse to either ethnocentric notions of tradition or
imaginary abstract forms. Warnkes criticisms of Habermas are complex, but
generally involve either arguing that actual disputes are too complex and
embedded in values to be satisfactorily resolved by recourse to the model of
the ideal speech act or, more interestingly, arguing that Habermass model
succumbs to a vicious circle. In reality, perfect ideal speech acts are rare or
impossible, so for the model to work, there must be some consensus about
what counts in a given circumstance as a sufficient approximation to an ideal
speech act. For such a consensus to be reached legitimately, however, the
conditions of ideal speech must already have been achieved.
Warnke thus advocates a fully interpretive, foundationless model of justice.
Finding the approaches of Charles Taylor and Alasdair MacIntyre too reliant on
communitarian models of consensus, and thus closed to radical differences of
value and opinion, she advocates a liberal, dialogic model of dealing with
interpretive differences, or a model of hermeneutic conversation, subject to
constant revision and transformation. Hence, she takes from Habermas the
concern for systematic disturbances in communication caused by social and
economic conditions, and the goal of a discussion in which all voices are given
equal time, play and attention. The aim of this discussion, though, is not
solely a consensus over norms, as in Habermas, or an agreement over
meaning, as in Taylor, but rather the kind of mutual education that goes on in
the humanities and for which insight, enrichment and development, not canonical understandings, are the goal (p. 157).
Warnke does not spend a great deal of energy elaborating on her approach
of hermeneutic conversation, but she does suggest that it bears some of the
features of what Gadamer and Habermas characterize as aesthetic discussion
and judgment. Her model, then, sounds in some ways remarkably compatible
with the approach of James Boyd White, the liberal, humanist legal scholar and
advocate of literary approaches to law. For White, legal decision-making is an
art, not a science. Flouting the received wisdom, White writes in Justice as
Translation, Judicial excellence lies less in the choice of doctrine than in what
the doctrine chosen is made to mean (p. 214). This approach raises no problems of relativism, as far as White is concerned, for law is comfortably rooted in
tradition and community, in respect for texts and social life. Law is a culture of
argument . . . a set of ways of thinking and talking [and thus] a set of ways of
acting in the world (and with each other) . . . Its life is a life of art (p. xiii). At
its best, law and legal criticism should be reciprocal or mutually recognizing
[not] competitive and dominating, driven by love not a desire to dissect, to
dominate, to conquer (p. 99). The question we should ask of legal texts (which
are, in his theory, parts of conversations, not fixed objects) is this: Is this
conversation one in which democracy begins? (p. 101).

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The most profound obligation of each of us in using his or her language is to

try to recognize what it leaves out, to point to the silence that surrounds itto
acknowledge the terrible incompleteness of all speech, and thus to leave
oneself open to hearing other truths, in other languages. (p. 81)
The open, shifting, indeterminate character of law identified by Solan, then, is
not so much a problem as a potential strength.
Whites democratic values are appealing, and his arguments on behalf of a
foundationless, interpretive understanding of law are persuasive, but his attempt
to blend them with an optimistic stance toward the legal system is not. Whites
optimism is sustained only by limiting his willingness to follow his own admonition to leave himself open to hearing other truths, in other languages. On
the one hand, the readings that make up both Justice as Translation and the
subsequent Acts of Hope: Creating Authority in Literature, Law, and Politics, are
bound by an implicit political vision. It so happens that he chooses cases that
uphold civil rights, affirmative action, and the right to an abortion as good
examples of legal discourse, whereas slavery and apartheidboth of which
relied heavily on law for their implementationare found to be aberrations, not
true to the utopian impulses he imagines to be at the heart of law. For example,
when the pre-Civil War Supreme Court upheld slavery by reference to formalist legal devices such as plain meaning, it was engaging in bad legal decision-making, not illustrating the indifference of law to justice (p. 138). Yet when
a recent conservative Supreme Court was reluctant to overturn Roe v. Wade in
Plessy v. Casey on similarly technical grounds of respect for precedent, White
finds this to be good decision-making.
On the other hand, there is a studied silence regarding poststructuralist
literary theory, critical legal studies, critical race theory, and similar currents in
Whites work. When he does make brief mention of these movements, he tends
to lump them together, absurdly, with a sociologically reductive legal realism,
accusing them of forsaking engagement with the text for abstract theories and
reducing law to an epiphenomenon of other forces (e.g., Justice as Translation,
p. 98, or Acts of Hope, p. 81). Whereas what distinguishes both poststructuralism
and critical legal studies from other critical schools is precisely a detailed, close
focus on texts and textuality, hence the common Marxist charge against both
schools that they pay too much attention to texts and not enough to the material reality behind them. What White seems to be avoiding here is direct
engagement with the fact that poststructuralist and similar reading practices are
critical, not just of formalism and reductive realisms, but of many of the takenfor-granted concepts that are central to Whites optimism: the accepted literary
canon of great works, for example, or the dichotomy between art and science,
literature and theory. Most centrally, what White seems to be avoiding is the
poststructuralist emphasis on the indeterminacy or instability of meaning.
The rest of the books discussed here, then, in various ways engage the
recent developments in interpretive theory that White avoids, and confront the
indeterminate character of law that those theories imply. Stanley Fishs Theres
No Such Thing as Free Speech serves as a useful introduction. This collection of

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essays covers a host of topics, ranging from multiculturalism to literary criticism

to the absurdities of academic culture, but the several pieces about law and
legal interpretation serve as a good summary of Fishs take on these matters.
Fish is at his best when flippantly attacking the pieties of literate, liberal culture,
as in the title essay, which attacks the current quasi-religious, formalist faith in
the First Amendment on the grounds that speech is always embedded in
systems of power, that any speech that matters has an impact and is thus
arguably unprotected conduct, and that therefore appeals to free speech are
always strategic efforts to support some political positions at the expense of
others, whether we understand them that way or not. The entire rhetoric of free
speech in the United States, then, is basically a formalist ruse that hides straightforward political struggles behind an imaginary rule-governed neutrality. In
other essays, Fish discusses, for example, Dworkin, Posner, and White, and
finds them wanting on grounds similar to those already discussed.
The difficulties of a fully interpretive approach to law are nicely illustrated in
what is, for these purposes, a central essay of the book: The Law Wishes to
Have a Formal Existence. Here, Fish argues on behalf of what he calls a
radical or critical approach to the law, which he contrasts with both conventional formalism and humanism (e.g., White). Beginning with some readings of
legal cases that nicely demonstrate a series of legal sleights of hand similar to
those discussed by Solan, Fish then tackles the question of what we are to do
with this knowledge. Whereas he seems happy to use it to deflate some of the
more grandiose claims for law characteristic of conservatives, he also criticizes
the sense of pious outrage that accompanies such revelations in the work of
radical left critics. The outrage is not justified, he says, because to assert that the
law is rhetorical, is to state that it is an ordinary part of life; accusing law of a
lack of logical consistency is simply criticizing it for failing to be something that
it is not and can never be. Like White, Fish sees the fissures and contradictions
of law as strengths rather than weaknesses (p. 169), but in contrast to White,
he is content to assert the inevitability of this fact without trying to reconcile it
with a democratic, normative vision. The law is simply something we believe
in because it answers to, even as it is the creation of, our desires (p. 179).
Fish, though, leaves his readers hanging, stopping short of the next, obvious
question: If the law is ultimately political (which Fish seems happy to assert, at
least at times), then what are the appropriate political strategies regarding law?
Should racial inequalities and tensions, for example, be dealt with legalistically
(with appeals to civil rights), or would other, more straightforwardly political or
even revolutionary strategies (e.g., black power) be more effective? Should the
enormous prestige and power granted the legal system in the United States be
scaled back, more to the level of, say, law in Japanese society, which resolves
many disputes by nonlegal means? Are there contemporary legal trends that
those interested in democracy should oppose (e.g., the extension of property
rights to human genes) or support (e.g., the development of a right to communicate)? If what Fish says about the law is true, then these are entirely appropriate questions, arguably of some urgency, but Fish has almost nothing to say
about these or any other questions like them.

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The remaining two books try in different ways to take interpretive theories of
law beyond the moment of iconoclasm that Fish seems to enjoy so much.
Patrick Nerhots Law, Meaning, Writing: An Essay in Legal Hermeneutics
(translated from Italian) is a continental philosophers effort to apply historicist
hermeneutics to contemporary legal thought. This is a dense and difficult book
that can not be adequately summarized in a paragraph or two, but for the
purposes of this discussion it is important because it introduces a theme largely
absent from the previously discussed works: a deeply interpretive sense of
history. Nerhot sets out to elaborate an immanent rationality of law, that is, he
wants neither to claim for law some abstract standard of logic, la formalism,
nor to simply assert its mere rhetoricity, la Fish, but rather to elaborate the
practices of interpretation, reading, and argument that generate that which the
law perceives as rational.
On the one hand, Nerhot argues that the anticipation of meaning that guides
our understanding of a text is not an act of subjectivity, that is, interpretation
can not be reduced to a simple subjectivism. On the other, Nerhot also does not
want to follow Gadamer and many other interpretive theorists and account for
interpretation simply on the basis of the community that links us with the
tradition (p. 44). Instead, Nerhot brings in a complex sense of history, not only
in the sense that a look at the past can give us a sense of how the law came to
be the way it is, but more importantly, because the law itself relies on references to the past. Various forms of historical argumentation (reference to
precedent, documents, and so forth) are part of how the law constructs itself as
legitimate, and these practices can be understood as unfolding in history.
Nerhot criticizes the conventional, self-congratulatory argument that a
modern sense of history replaced the irrational medieval practice of chronicles
during the Renaissance more or less contemporaneously with the supplanting of
theocracy with a modern, rational, and secular sense of a rule of law. The error
here, Nerhot argues, is to approach these [historical] data from a point of
arrival (the rule of law) instead of from an initial issue (The role of legal
thought in Western rational thought) (p. 59). Using an interesting mix of
historical and hermeneutic argument, Nerhot discovers considerable continuities
between late medieval religious thought and the emergence of ideas of the rule
of law, instead of the radical medieval/modern break that is typically imagined
to be the case. He also identifies a premodern Christian rationality in which
the jurist plays a key, unifying role: Modern juridicial notions of proof, evidence, testimony, and so forth were drawn from and in some ways took the
place of late Medieval theology. Though Nerhot does not take this step, it is
tempting to conclude from his book that law has taken the place of religion in
the contemporary Western world.
Politics, Postmodernity, and Critical Legal Studies: The Legality of the Contingent is the latest work to come from a British-based branch of the critical legal
studies movement. The essays in this edited collection begin from an acceptance of the foundationless and contingent character of law, and, like Nerhot,
seek to move beyond the iconoclastic moment into understandings that both

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are more substantive and might point in the direction of new senses of justice, a
sense of the legality of the contingent. Again, too complex and diverse to
adequately summarize here, one theme of the book is important for the current
discussion: Most of the essays focus on the Anglo-American common-law
tradition. In contrast with American constitutional law and European codes, in
which the aspiration to logical coherence is central, the common law tradition is
frequently acknowledged by even some of the most conventional of legal
theorists to be a rather loose and not particularly logical system of interpretation
and practice. This collection takes the unique step of embracing common law
not as an old-fashioned remnant in the legal system, but as a fully postmodern
set of practices. This is an intriguing move, for it takes the least logical part of
law, and instead of merely showing up its incoherence or asserting its rhetorical
character, it systematically explores it for its radical potentials. Loosely situating
the widespread sense of laws incoherence in the general postmodern condition, the essays draw on a variety of continental theoretical traditions, such as
Lacanian psychoanalysis, phenomenology, and semiotics, often mixed with an
impressive command of older scholarly traditions, particularly (and by no
means coincidentally) rhetoric. Although Politics, Postmodernity, and Critical
Legal Studies is by no means the last word on the problems raised by fully
interpretive approaches to law, it is an important contribution to the growing
scholarship about law and interpretation, perhaps at the leading edge.
It is telling that, in spite of their mutual relevance, none of the authors in this
collection cite all of the others (although Fish and Douzinas et al. come the
closest to a comprehensive sense of the literature as a whole). The move
toward interpretive, contextual approaches to understanding law continues to
crop up in diverse quarters. For example, the leading neoconservative legal
scholar Richard Posner, who once attacked Fish and White on the grounds that
law should not be confused with literature because the former is objective,
scientific, and public (Posner, 1988), has since retracted many of his earlier
claims about legal certainty and adopted a forthrightly foundationless legal
pragmatism very similar to Fishs (Posner, 1990). In the end, the interpretive
turn in thought about law is more than an academic movement, and seems
rooted in the current state of law itself, or perhaps in the postmodern condition
more generally.
References
Posner, R. A. (1988). Law and literature: A misunderstood relation. Cambridge: Harvard University
Press.
Posner, R. A. (1990). The problems of jurisprudence. Cambridge: Harvard University Press.

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