Legal Interpretation's Disputed Terrain

This dissertation is structured around three recurring questions about legal interpretation. What is its purpose? Is it profitable to bifurcate the interpretive process into one step focused on understanding and another on application? And what is the relationship between interpretation and method?

The chapter on legal interpretation’s purpose focuses on the work of Ronald Dworkin and Joseph Raz. Despite their differences, both agree that a judge’s approach to interpretation ultimately depends on a view of what makes law valuable in the first place. But these scholars disagree about law’s purpose, and their answers help explain the divide between prevailing schools of legal interpretation. For Raz, law’s value centers around its ability to provide authoritative solutions to community problems. For Dworkin, it comes from protecting individual rights.

The next chapter addresses the alleged impossibility of separating understanding and application in hermeneutic theory. Hans Georg Gadamer famously argues these cannot be separated, and many American legal scholars have deferred to this view. But another (better) strand of hermeneutic theory disagrees. Emilio Betti, E.D. Hirsch, and, most recently, Vittorio Hösle present a sophisticated account of understanding in which the initial aim is to reconstruct the author’s intended meaning. And this is different than the subsequent significance (or application of) that meaning to some present concern.

The final chapter addresses the extent to which originalism is methodological. No theory of interpretation can supply interpreters with a formula, but this is not what originalism purports to do. Instead, originalists properly contend that the end of the first, re-creative step of interpretation is to identify the Constitution’s original communicative content. This suggests certain means that are appropriate to this end, and even what ordered, transparent, and transferable procedures a judge might employ to test his or her conclusions. To the extent originalism attempts to go beyond this by providing methods for the second (applicative) step of interpretation, however, it is vulnerable, because application involves multiple, incommensurable ends.