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Performance and Pragmatism in Constitutional Interpretation
Published online by Cambridge University Press: 09 June 2015
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Is there the possibility of a critical standpoint from which to adjudicate the correctness or validity of constitutional interpretation? This basic question has been given considerable attention in contemporary constitutional theory and has been the focus of the pragmatist law as literature movement born of the interpretive turn in legal theory. At issue is the very purpose of constitutional practice: is it to recover the truth of a set of foundational, moral ideals from the constitution and apply it to a particular factual conflict? Or is it to preserve continuity between the various elements of our cultural practices, to keep the peace?
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- Copyright © Canadian Journal of Law and Jurisprudence 1990
References
I would like to thank Donna Young, Alison McKeen, Joel Bakan and Richard Bronaugh, all of whom have commented on versions of this paper. This article is a version of a paper which was awarded the J.E. Sullivan Prize at the UBC Faculty of Law in 1989.
1. Stanley, Fish, “Interpretation and the Pluralist Vision” (1982), 60 Texas L.R. 496.Google Scholar A vast critical literature has accumulated, mostly in the U.S. Among important recent entries are Sanford, Levinson and Steven, Mailloux, Interpreting Law and Literature: A Hermeneutic Reader Evanston IL: Northwestern, 1988); Moore, Michael “The Interpretive Turn in Legal Theory: A Turn for the Worse?” (1989), 41 Stanford L.R. 871;Google Scholar also Moore’s, “A Natural Law Theory of Interpretation” (1985), 58 S. Cal. L.R., 277;Google Scholar Stanley, Fish, “Dennis Martinez and the Uses of Theory” (1987), 96 Yale L.J. 1773;Google Scholar Martha, Minow, “Interpreting Rights: An Essay for Robert Cover” (1987), 96 Yale L.J. 1860;Google Scholar Mootz, Francis J. III, “The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur” (1988), 68 Boston U.L.R. 523.Google Scholar An interesting Canadian contribution is Evan Simpson (ed.), Anti-foundationalism and Practical Reasoning: Conversations Between Hermeneutics and Analysis Edmonton: Academic Printing, (1987).Google Scholar
2. The Canadian Charier of Rights and Freedoms, Constitution Act 1982; Reference Re s.94(2) of the B.C. Motor Vehicle Act, 24 D.L.R. (4th) 536 (1986) (S.C.C.).
3. Walter Benn, Michaels, “is There A Politics of Interpretation?”, in Mitchell, W.J.T. (ed.), The Politics of Interpretation (Chicago: Univ. of Chicago Press, 1983) at 339.Google Scholar This latter constructivist approach is probably naive in assuming freedom to result from the absence of objective constraints. Power and ideology may fill the gap, leaving us no more free than before. Some Critical Legal Studies positions endorse this brand of sceptical freedom.
4. A somewhat different discussion of these epistemological positions appears in Steven, Knapp and Michaels, Walter Benn “Against Theory” reprinted in W.J.T. Mitchell (ed.), Against Theory (Chicago, 1985) at 27.Google Scholar See also Michaels’, Knapp update, “Against Theory 2: Hermeneutics and Deconstruction”, (1987), 49 Critical Inquiry at 49–68. I address these epistemological issues more broadly in Halewood, “Dialectics of Disenchantment: Weber and Adomo” (1985) McGill J. of Pol. Sci. No.l at 19, and in Halewood,Google Scholar “The Discourse Unto Death: Foucault and Theories of the State” (1987,Google Scholar M.A. Thesis on file at McLennan Library, McGill University).Google Scholar
5. If this source is ultimately only convention or consensus, then positivism may fall prey to the same procedural vacuity to which other social contract theories are prone. For the classic study, see H.L.A. Hart, , The Concept of Law (New York: Oxford, 1961) at 181“207.Google Scholar
6. Much turns on this uncertainty. See the general discussion in Simpson, supra, note 1 at 195-8.
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9. This is the essence of Fish, “Working on the Chain Gang: Interpretation in Law and Literature”, (1982), 60 Texas L.R. 551 Google Scholar
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20. Id. at 209.
21. Id. at 210.
22. Fiss, supra note 17 at 762-3.
23. Dworkin shares some such view of interpretive community and the limited objectivity it produces, but is more explicitly hermeneutical in method.
24. Joel Bakan suggests that Fiss and Dworkin are neutralists, not objectivists, i.e., that they claim only that legitimacy is grounded in the supposed neutrality and impartiality of the process that generates the result. It is judicial attitude which ensures this neutrality, for Dworkin through the judge’s adoption of “interpretive attitude”, and for Fiss through the judge’s internalization of the “disciplining rules”. See Bakan, supra note 17 at 11-22.
25. Gerald, Graff, “Keep Off the Grass’ and Other Indeterminacies: A Response to Sanford Levinson” (1982), 60 Texas L.R. 405 at 406.Google Scholar
26. Fish, supra note 1 at 497.
27. Sanford, Levinson, “Law as Literature” (1982), 60 Texas L.R. 373 at 386.Google Scholar
28. For the pragmatists the absence of foundational method does not invalidate interpretation, it is just not relevant to the question of interpretation. Their point is that we do interpret. Our practices justify themselves as we go along, in a Kuhnian sense. See the discussion in Sullivan, W. “After Foundationalism: The Return to Practical Philosophy”, in Simpson (1987), supra note 1 at 31–5.Google Scholar
29. Levinson, supra note 27, at his note 94.
30. Graff, supra note 25 at 408-12.
31. Stanley, Fish, “Fish v. Fiss” (1984), 36 Stanford L.R. 1325 at 1326.Google Scholar
32. Id. at 1331.
33. Id. at 1333.
34. Id. at 1334.
35. Id. at 1339. The difference then is only a matter of critical attitude toward these politics; not a matter of internal vs. external perspectives on law.
36. Id. at 1343.
37. Id. at 1347.
38. Graff, supra note 25 at 408-12.
39. An utterance must conform to such conditions as sincerity, obligation, convention, and intention in order to perform or function rather than remain purely propositional. One then distinguishes between its locutionary and illocutionary effects; i.e., whether as an act it merely ‘says’ something, or ‘does’ something further. See Searle, John R., “What is a Speech Act?” in Searle (ed.) The Philosophy of Language (Oxford, 1971) at 45–51,Google Scholar on the performative function of obligation relevant to law (“commissives” etc.). For a specifically legal but linguistically technical discussion of speech acts in law and judicial decisions, See Dennis, Kurzon, It is Hereby Performed: Legal Speech Acts (Philadelphia: J. Benjamins Pub. Co., 1986),Google Scholar Pragmatics and Beyond Series.
40. For the general development of the notion of “felicity” with respect to speech acts, and their locutionary and illocutionary effects, see Austin, J.L. How To Do Things With Words (Oxford, 1962).Google Scholar The pragmatist significance of Austin and speech acts is discussed in Fred, Dallmayr, Language and Politics (Notre Dame, 1984) at 90–136.Google Scholar
41. Dallmayr, supra note 40 at 92, note #7.
42. Austin, supra note 40, and Searle, supranote 39, each attempt to specify these conditions.
43. Graff, supra note 25 at 408. This notion of interpretation as an empirical enterprise is also developed in Knapp and Michaels, “Against Theory” supra note 4 at 24-5.
44. Id. at 412.
45. Fish, “Interpretation and the Pluralist Vision” (1982) 60 Texas L.R. 495 at 501.Google Scholar
46. Rorty, (1982) supra note 14.Google Scholar
47. 163 U.S. 537 (1896).
48. Stone, G. and Seidman, L. (eds.), Constitutional Law (1986) at 1,Google Scholar quoting the text of the U.S. Constitution.
49. 347 U.S. 483 (1954).
50. Allan Hutchinson faults Stanley Fish with this in “Doing Interpretive Numbers: (Gone Fish-ing)” in Hutchinson, Dwelling on the Threshold (Toronto: Carswell, 1988) at 149.Google ScholarPubMed
51. See MacCormick, supra note 19.
52. Dworkin, “How Law is Like Literature, On Interpretation & Objectivity”, in Dworkin, A Matter of Principle, supra note 8 at 146–180.Google Scholar Though the former of these articles does not represent Dworkin’s later thinking about these issues, it nevertheless reflects an existing position on interpretation in law.
53. Id. at 150. See also Dworkin, , Law’s Empire (Cambridge: Harvard Univ. Press, 1986), chs.2,4,6, and 7. The chain novel allegory is at 228.Google Scholar
54. Id. at 168.
55. Id. at 169-70.
56. Id. at 160.
57. Bakan characterizes Fiss and Dworkin not as claiming that there are right answers out there, but rather as claiming that neutral and impartial adjudication occurs only when judges believe that right answers exist. See Bakan, supra note 17 at 11-20.
58. Dworkin, , “The Forum of Principle” in Dworkin, A Matter of Principle, supra note 8.Google Scholar
59. Fish, supra note 9.
60. Id. at 562.
61. Hutchinson “Doing Interpretive Numbers: (Gone Fish-ing)”, in Hutchinson, supra note 50 at 150.Google Scholar
62. Jurgen, Habermas, “Appendix: Knowledge and Human Interests: A General Perspective”, in Knowledge and Human Interests, Habermas (Boston: Beacon, 1971) at 315.Google Scholar Habermas shares the pragmatic emphasis on consensus as the basis for our self-understandings but would construct universal norms from language to give us universalist criteria, the normative procedural ideal of the undistorted speech situation, by which to criticize our practices.
63. Spivak, Gayatri, “The Politics of Interpretations”, in Mitchell, W.J.T. (ed.) 1983) supra note 3 at 350.Google Scholar
64. I address Habermas’s project in very abbreviated terms. It is pointed out here only as a prominent theme in the literature and as a possible solution to the alleged relativism of pragmatism.
65. Hoy, David “Interpreting the Law: Hermeneutic and Post-Structural Perspectives” (1985), 58 S. Cat. L.R. 135 at 152.Google Scholar
66. Hans-Georg, Gadamer, Truth and Method (New York: Seabury, 1975).Google Scholar
67. Bruns, Gerald L. “Law as Hermeneutics: A Response to Ronald Dworkin” in Mitchell, W.J.T. (ed.) (1983), supra note 3 at 319. Google Scholar
68. Id. at 317.
69. Hoy, supra note 65 at 153.Google Scholar For a fuller explication of Gadamer’s reliance on the notion of interpretive community, see Bernstein, Richard J. Beyond Objectivism and Relativism: Science, Hermeneutics and Praxis (Philadelphia: U. of Pennsylvania Press, 1983) at 154.Google Scholar
70. Hoy, id. at 153.
71. Id. at 157. Consensus is presupposed by any claim to truth; thus it has normative significance.
72. id. at 161.
73. The position represented by Habermas is a sort of “pragmatism with standards”, i.e., he looks to language to construct a “regulative ideal” by which to adjudicate practice, but remains pragmatic in doing so, inferring from “speech acts” the practicality of language itself, even when used as a regulative ideal. He uses speech acts to maintain the distinction between “doing and simply discoursing” necessary to practical rationality. Doing is pragmatic (Rorty’s notion of “how things hang together”); discoursing is foundational (getting outside practice and explaining it). “Conditions governing correctness in discourse can give a conception of rationality in practice”, i.e., “the notion of consensus in the ideal speech situation gives a conception of truth or at least correctness”: Sullivan, W. “After Foundationalism: The Return of Practical Philosophy”, supra note 28 at 206–12.Google Scholar
74. Habermas fashions his “semantic universals” from the conditions of rational communication: “some meanings are a priori universal in as much as they establish conditions of potential communication and general schemes of interpretation”. “Inter-subjectively universal” patterns are said to be those “fixed on structures which first develop in linguistic communication itself; these are the necessary criteria of “communicative competence”, i.e., their pragmatic meaning linked to the speech situation as such. So expressions are not “simply aspects of contingent interactions” but reflect the “oniversal pragmatic power” of utterances. Speech situations do not “coincide with empirically verifiable contexts, they rather exhibit a universal linguistic structure composed of universal ingredients.” These are “dialogue constitutive universals”. Communicative competence is “defined by the ideal speakers mastery of the dialogue-constitutive universals, irrespective of actual restrictions under empirical conditions.” Thus “in performing any speech action, one must raise universal validity claims.” The conditions of communicative competence include a normative component by which to adjudicate interpretations: “the validity of an utterance depends on whether this action conforms to a recognized normative background.” See Fred Dallmayr, supra note 40, ch.5, “Transcendental Hermeneutics and Universal Pragmatics”.
75. Ely, John Hart Democracy and Distrust (Cambridge: Harvard Univ. Press, 1980) at 18.Google Scholar
76. 11 D.L.R. (4th) 641 (S.C.C.).
77. “Substantive due process” is the name of a U.S. doctrine of interpretation which allows the courts to look into the substance of a piece of legislation under the authority of the due process clause (of the First or Fourteenth Amendments). In other words, the doctrine allows the courts to engage in substantive review of the merits of legislative policy where the constitutional text does not explicitly allow it. For a discussion of substantive due process doctrine in Canada, see Halewood,, Peter H. “Green Pastel Redness: Substantive Due Process, the Charter, and Wilson v. B.C. Medical Services Commission ” (1989,Google Scholar on file at the University of British Columbia Law Review).
78. Legal vocabulary has it that “interpretivism” in constitutional interpretation signifies the view that meaning is located in the text and that we can objectively and mechanically “retrieve” it; essentially the textual positivist position. “Non-interpretivism” is the view that we must go “beyond” the text itself to recover its meaning; i.e., into natural law, fundamental rights, etc.
79. Ely, supra note 75 at 13.
80. Id. at 290.
81. Id. at 20-30.
82. Laurence, Tribe, Constitutional Choices (Cambridge: Harvard Univ. Press, 1985).Google Scholar
83. Id. at 5.
84. Id. at 17.
85. Id.
86. Id. at 20. This is also a major point made in ch. 10 of Dworkin, Law’s Empire, supra note 12 at 94.
87. Bobbitt, supra note 12 at 94.
88. Id. at 100.
89. Id. at 147.
90. Id. at 150.
91. Michaels, , “The Fate of the Constitution” (Review), supra note 12.Google Scholar
92. Id. at 767.
93. Id. at 771.
94. Patrick, Monahan, Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada (Toronto: Carswell, 1987).Google Scholar For a critical study of the legalization of politics under the Charter, see Mandel, Michael The Charter of Rights and the Legalization of Politics in Canada (Toronto: Wall & Thompson, 1987).Google Scholar
95. Monahan, Id. at 97-136.
96. Id. at 111-26.
97. Id.
98. Id.
99. Id. at 115-38.
100. This view has several detractors. Andrew, Petter & Politics and the Constitution: The Charter, Federalism, and the Supreme Court of Canada Allan, Hutchinson, “The Liberal Lie of the Charter”, 38 (1988), University of Toronto L.R. 283, characterize the Charter as an essentially liberal-individualist document.Google Scholar
101. 24 D.L.R. (4th) 536 (1986).
102. John, Whyte, “Fundamental Justice: The Scope and Application of Section 7 of the Charter” (1983), 13 Manitoba L.R. 548 at 458–61.Google Scholar
103. Mens rea is a criminal law term signifying the intentional component of an accused’s offence.
104. Andrew, Petter & Patrick, Monahan, “Developments in Constitutional Law: 1985-6 Term”, 9 Sup. Ct. L.R. (1987) at 79–80.Google Scholar
105. See id., and Jamie, Cameron “The Motor Vehicle Reference and the Relevance of U.S. Doctrine in Charter Adjudication”, in Sharpe, Robert J. Charter Litigation (Toronto: Butterworths (1987).Google Scholar
106. See Cameron, id.
107. Reference Re. s.94(2) of the B.C. Motor Vehicle Act, supra note 90 at 547, quoting Chief Justice Dickson.
108. See id., and Petter, and Monahan, , supra note 104 at 86-93.Google Scholar
109. Motor Vehicle Reference, supra note 101 at 549.
110. Id. at 557.
111. Id. at 564-5, Madam Justice Wilson.
112. Id. at 544-5.
113. John, Whyte, “Annotation” to the Motor Vehicle Reference, 48 C.R. (3d) 291 at 291–293.Google Scholar
114. Petter, and Monahan, , supra note 104 at96–7.Google Scholar
115. The Court could have struck down s.94 (2), which made driving with a suspended licence punishable by mandatory imprisonment without proof of intention on the part of the accused.
116. Petter, and Monahan, , supra note 104 at 80,Google Scholar and Cameron, , supra note 105 at 87, citing the political abuses of the U.S. Supreme Court of the substantive due process doctrine to strike down welfare and economic management legislation in the 1920’s and 1930’s.Google Scholar
117. (1985) 17D.L.R.(4th)385,and(1988)53D.L.R.(4th) 171 (B.C.C.A.) respectively; two controversial substantive due process cases from British Columbia. For a commentary, see Lepofsky, M. David, “A Problematic Judicial Foray Into Legislative Policy-Making: Wilson v. B.C. Medical Services Commission”, (1989), 68 Can. Bar Rev. No.3 at 615.Google Scholar
118. Cameron, supra note 105, at note 76 in her text.
119. Wilson v. B.C. Medical Services Commission, supra note 117, a British Columbia Court of Appeal decision, used substantive due process doctrine to import both economic rights and mobility rights for doctors into “liberty” under Section 7 of the Charter, contrary to traditional interpretations of the section. A special “professional” right for mobility of professionals was asserted. Leave to appeal was refused by the Supreme Court of Canada in 1988.
120. See Bakan, , supra note 17 at 18–19.Google Scholar See also Bakan, “Constitutional Arguments: Interpretation and Legitimacy in Canadian Constitutional Thought” (1989), 27 Osgoode Hall L.R. No.1, 123.Google Scholar
121. This is not to deny the basic Critical Legal Studies insight that law is a form of politics and serves a plainly ideological function in supporting existing hierarchies, etc. Rather it is to distinguish constitutional substantive argument as an internally constrained, differentiated form of political argument peculiar to its context, outside of which it becomes nonsensical. This modifies the orthodox Critical Legal Studies view that politics and law are simply indeterminate. Note that politi¢al theory itself is divided between those who see its claims as substantive or procedural, determinate or indeterminate.
122. An example of such a derivation is the s.7 right to mobility and so-called “non-economic” right to pursue a professional livelihood established in Wilson v. B.C. Medical Services Commission (B.C.C.A.), supra note 117.