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Published online by Cambridge University Press: 09 June 2015
The opposition between originalism and relativism is a persistent dualism in current debates over the nature of legal interpretation. For many legal academics, choice in interpretive theory is limited to the either/or of the authorial model of discourse or the “anything goes” approach of relativism of one stripe or another.
The struggle between these interpretive polar opposites had its origins in literary theory. In their classic essay, “The Intentional Fallacy,” W.K. Wimsatt and Monroe C. Beards ley argued that the only meaning worth investigating was that found in the literary text: to search after the “real intentions” of an author was to chase ghosts. Wimsatt and Beardsley influenced a generation of critics, but their thesis has, of late, been challanged anew.
Copyright, 1988, Dennis M. Patterson. I wish to thank Jefferson White and Keith Werhan for helpful comments on a draft of this article.
1. Wimsatt, W.K. and Beardsley, C. “The Intentional Fallacy” reprinted Google Scholar inWimsatt, W.K. and Beardsley, C. The Verbal Icon: Studies in the Meaning of Poetry (Lexington, KY1954) at 3–18.Google Scholar
2. Steven, Knapp and Walter, Benn Michaels, “Against Theory” reprinted Google Scholar in Against Theory ed. Mitchell , W.J.T. (Chicago: Univ. of Chicago Press,1985) at 11–30.Google Scholar
3. Ibid.p.19
4. Steven, Knapp and Walter, Benn Michaels, “Against Theory 2: Hermeneutics and Deconstruction”(1987) 49 Critical Inquiry at 49–68;Google Scholarall further references to this work, abbreviated AT2, will be included in the text.
5. Gadamer, Hans-Georg Truth and Method,Garrett Barden, … John Cumming, trans, ed.(New York: 1975); all further references to this work, abbreviated TM, will be included in the text.Google Scholar
6. This is not the place for an extended discussion of Gadamer’s conception of truth. For an accessible discussion, see Richard J. Bernstein, Beyond Objectivism and Relativism: Science Hermeneutics and Praxis (Philadelphia, PA, 1983) at 154 (“Gadamer is appealing to a concept of truth that (pragmatically speaking) amounts to what can be argumentatively validated by the community of interpreters ....”).
7. SeeRonald Dworkin, Law’s Empire (Cambridge,(1985) at 93 Google Scholar.
8. This hypothetical is a variation on an example first advanced by H.L.A. Hart. See H.L.A. Hart, “Positivism and the Separation of Law and Morals,” reprinted in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford, 1988), at 49–87. Knapp and Michaels employ a variation on the example that is takenfrom Paul Brest, “The Misconceived Quest for the Original Understanding,”(1980), 60 Boston University Law Review at 204–38. What is and Michaels,the point of the example is not only lost, but it is nowargued that it illustrates the opposite of what Hart’s original example showed so well: that legal concepts are “open textured” and must be interpreted.
9. After protracted criticism of his position, Hirsch now agrees “with Gadamer’s idea that application can be part of meaning.” E.D. Hirsch, Jr., “Meaning and Significance Reinterpreted”(Dec. 1984), 11 Critical Injury at 212. Some see the price of this concession as too high (for Hirsch). See Joel Weinsheimer, “History and the Future of Meaning” (1985), 9 Philosophy and Literature at 139–51.
10. SeeEarl Maltz, “The Failure of Attacks on Constitutional Originalism” (1987),4 Constitutional Commentary at 43–56.Google Scholar.
11. Aristotle, Nicomachean Ethics, at Book V, ch. 10.Google Scholar
12. As Gadamer puts it, the judge must “refrain from applying the full rigour of the law”(TM, p. 284).Google Scholar
13. Church of the Holy Trinity v. United States,143 U.S. 457 (1892).
14. 23 Stat. 332 ch. 164(1885)
15. In fact, the reports of the Senate and House committees recommended that the statute be amended priorto promulgation to limit the scope of the act to manual labor only. Importantly, this recommendation was not followed and the language of the statute was not amended prior to its becoming law.
16. 143 U.S. at 457,463.
17. Aristotle,ibid.1137b-22-4.
18. 115N.Y. 506, 22 N.E. 188(1889).