The politics of postmodern jurisprudence.

• Author: Feldman, Stephen M.
• Position: Response to Dennis Patterson, Texas Law Review, vol. 72, p. 1, 1993, and J.M. Balkin, Michigan Law Review, vol. 92, p. 1131, 1994

For me the world has always been more of a puppet show. But when one looks behind the curtain and traces the strings upward he finds they terminate in the hands of yet other puppets, themselves with their own strings which trace upward in turn, and so on. In my own life I saw these strings whose origins were endless enact the deaths of great men in violence and madness.(1)

What is the politics of postmodern jurisprudence? Forms of postmodern interpretivism, including philosophical hermeneutics(2) and deconstruction,(3) assert that we are always and already interpreting. This assertion has provoked numerous scholarly attacks, many of which invoke standard modernist hobgoblins such as textual indeterminacy, solipsism, ethical relativism, and nihilism.(4) From the modernist standpoint, postmodern jurisprudence thus is either conservative or apolitical because it lacks the firm foundations necessary for knowledge and critique. In this article, I argue that these modernist attacks not only are mistaken but that they also obscure the potentially radical political ramifications of postmodern interpretivism.(5)

My discussion focuses on two recent and seemingly opposed articles: Dennis Patterson's The Poverty of Interpretive Universalism: Toward the Reconstruction of Legal Theory(6) and J.M. Balkin's Transcendental Deconstruction, Transcendent Justice.(7) Patterson directly assails postmodern interpretivism, which he refers to as "interpretive universalism"(8) and "hermeneutic holism."(9) According to Patterson, we must reject interpretivism because it necessarily leads to an infinite regress of interpretations: interpretivism sends us reeling into an abyss where we can never grasp the meaning of a text because it constantly slips away into another interpretation, another meaning - and another, and another, and another. In contrast to Patterson, Balkin identifies himself as a deconstructionist - a type of postmodern interpretivist - and in fact, Balkin's article can be read as an effort to respond to Patterson's concerns. Balkin acknowledges and directly confronts the potential nihilism of deconstruction, and in doing so searches for a source of human values. Specifically, Balkin attempts to identify the source of the human desire or drive for justice. He concludes that "transcendent values," including justice, arise from "the wellsprings of the human soul," which transcend "the creations of culture."(10)

I shall argue that both Patterson and Balkin are wrong. Patterson mischaracterizes postmodern interpretivism. It does not lead to an infinite regress of interpretations that undermines meaning, but rather, to the contrary, interpretivism explains how meaning and understanding are possible in the first place. We experience a meaningful being-in-the-world because we are always and already interpreting. Meanwhile, Balkin errs by concluding that postmodern interpretivism, in the guise of deconstruction, needs to be augmented in order to explain the human desire for justice. Balkin underestimates the significant social and political implications of deconstruction: deconstruction itself can explain how humans constantly quest after justice but never attain it. In short, the reality of postmodern interpretivism - the way of our being-in-the-world - responds to both Patterson and Balkin. Interpretivism explains how we come to understand a text, and simultaneously, how we have an inexhaustible urge for justice.

Part I of this article describes and critiques Patterson's argument against postmodern interpretivism and explores the relation between understanding and interpretation.(11) In his article, Patterson focuses on Ronald Dworkin and Stanley Fish as "two exemplary proponents"(12) of interpretivism.(13) I do not attempt to defend either Dworkin or Fish; in fact, Fish already has defended himself.(14) Fish's defense, however, revolved around his persuasive demonstration that Patterson had misread Fish's corpus.(15) Fish did not attempt to address the central questions raised by Patterson: how does one come to understand a legal text, and how are understanding and interpretation related?(16) In critiquing Patterson's position, Part I explores the importance of philosophical hermeneutics to the resolution of these questions. Part II focuses on postmodern interpretivism and justice by first examining the relationship between philosophical hermeneutics and deconstruction and then critiquing Balkin's argument connecting justice and transcendental deconstruction. Part II concludes by discussing how philosophical hermeneutics helps us to understand the meaning of justice and how deconstruction feeds our inexhaustible urge for justice.(17) Parts I and II are tied together by their overlapping discussions of the political ramifications of postmodern jurisprudence.

1. On the Relation Between Understanding and

   Interpretation

   1. The Attack on Postmodern Interpretivism

      How does one come to understand a legal text - or any other text, for that matter? Because Patterson believes postmodern interpretivism errs in response to this vital question, he focuses his assault on this issue. He launches his attack fairly enough by accurately presenting a basic tenet of postmodern interpretivism: "our fundamental mode of being-in-the-world is interpretive."(18) His very next sentences, however, demonstrate that he misconstrues the deep ontological significance of this insight. He states: "To be is to be the bearer of an interpretive grid. One comes to have a world by virtue of one's possession of an interpretive template laid against the external world, and the external world is then rendered intelligible."(19) Thus, Patterson mistakenly construes interpretivism in modernist instead of postmodernist terms: he sharply separates the individual interpreter from an external world. The interpreter seemingly possesses an interpretive template that she invokes to render the alienated external world understandable. Patterson's rendition of interpretivism suggests a near-blind person (the interpreter) who gropes about in a house (the external world) until she fortunately finds a pair of glasses (the template). Suddenly, she can see - that is, understand the world. In Patterson's words, interpretivists argue that texts can be understood only "through some lens."(20) Indeed, Patterson suggests that interpretivists believe that one can readily exchange one kind or shade of glasses for another - say, green-tinted for rose-colored.

      Because Patterson construes interpretivism in modernist terms, his vision of the hermeneutic act is radically disjointed: interpretation is a process that mediates between understanding and text. Patterson writes: "[T]he act of interpretation is interposed between the utterance and our grasp of its meaning. Interpretation is an act of mediation: Done correctly, it results in the apprehension of meaning. Done poorly, comprehension eludes us."(21) Thus, when postmodern interpretivists claim that we are always and already interpreting, Patterson jumps up and exclaims, "Impossible!" To Patterson, postmodern interpretivism mistakenly sends the interpreter spinning into an infinite progression of interpretations, an endless series of mediating acts. The interpreter thus never quite grasps the meaning of the text.(22)

      With textual indeterminacy gathering around our feet, Patterson predictably declares that the mud and muck of relativism and solipsism are about to gush forth into a life-threatening onslaught:

      Because interpretations or perspectives can and do differ, there may in principle be no way to choose between competing interpretations. The slide to relativism is swift and sure, for there is no stopping the infinite regress of interpretation. Every perspective begets another and so on and so on. In the end, it seems, all we have are our own perceptions.(23)

      Because of this impending solipsism and relativism, Patterson solemnly pronounces that postmodern interpretivism threatens to wash away the ground needed for social critique or critical theory: "Deconstruction, and other versions of `hermeneutic holism,' give us no place to start [a critique]. Every place is as good as any other, so no particular set of terms can be taken as the appropriate place to begin."(24) Postmodern interpretivism, in the end, generates political conservatism.

      What can save us from this interpretive slide to abysmal quietude? Patterson's answer, of course, is Wittgensteinian pragmatism.(25) Patterson proclaims that "[t]he only way out of this vicious regress [of postmodern interpretivism] is to recognize that the normativity of rule-guided behavior (e.g., law) lies not in the act of the individual (e.g., interpretation) but in a practice."(26) The essential practice that saves us from the disaster of interpretivism is understanding. Understanding, in turn, is knowing how to participate in a practice: "[W]e have a world in concert with others because we understand the manifold activities that constitute that world. Catching on to and participating in these activities - knowing how to act - is the essence of understanding."(27)

      Most important to Patterson, we must sharply distinguish understanding from interpretation. Understanding is "primordial,"(28) while interpretation is secondary.(29) Understanding stands as "unreflective linguistic practice,"(30) whereas interpretation involves one's deliberate reflection about the meaning of a text. Interpretation, therefore, emerges as a "second-order, reflective enterprise"(31) that we engage in only if we fail to understand a text immediately because its meaning is ambiguous or otherwise unclear.(32) Patterson argues:

      The criterion for understanding an utterance is not engagement of a process; rather, it is acting appropriately in response to the utterance. For example, one evinces understanding of the request "Please pass the salt" by passing the salt or by explaining why it is impossible to do so...