Williams on Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling

Telia Mary U. Williams, Northern Illinois University College of Law, has published Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling. Here is the abstract.

The validity of the two predominant methods of interpreting the U.S. Constitution has been long and hotly debated. Both of these methods— originalism and living constitutionalism—draw their force from hermeneutics, or methodological principles of interpretation that commonly assist readers of scriptural texts. These divergent constitutional hermeneutic approaches ultimately treat the Constitution as a civic scriptural or holy text, and the multiplicity of interpretations that result from them, largely derive from one of two principal scriptural or Biblical hermeneutical approaches. Indeed, the two principal approaches to constitutional interpretation map onto one of either “sola Scriptura” or Magisterial traditions. Sola Scriptura denotes the ethos of determining the meaning and purpose of a text apart from any authorial imperative, whereas a magisterial tradition determines the meaning and purpose of a text by way of a predetermined and dispositive authority. Importantly, and fundamentally, both approaches repose authority in a Magisterium writ large to settle the meaning of their respective sacred texts. (In the case of the Constitution, that Magisterium is reposed in the United States Supreme Court). However, that legal scholars and courts (perhaps unwittingly) employ biblical or theological modes to arrive at a constitutional interpretation, forecloses other, non-sectarian hermeneutical modes that assist judges, particularly those who preside over lower jurisdiction courts, to decide cases. Speaking as a judge pro tempore in a limited jurisdiction state court, as well as a tenure-track law professor at a state school, I propose that an alternative methodology of interpretation of storytelling may serve to honor both text and community. A “judicial hermeneutic” of storytelling may reconcile the enduring (and unproductive) “religious” dichotomy of constitutional interpretation and better address the cause of justice in everyday constitutional matters. Apart from possibly mitigating the dilemma of interpretation, such an approach may also promote a multiplicity of meaning, and a greater plurality of voices in this constitutional arena.

Download the article from SSRN at the link.

Poscher on the Hermeneutics of Law @CambridgeUP

Ralf Poscher, Albert-Ludwigs-University Freiburg, is publishing The Hermeneutics of Law: An Analytical Model for a Complex General Account in The Cambridge Companion to Hermeutics (Michael Forster and Kristin Gjesdal, eds., Cambridge University Press, 2017). Here is the abstract.

In contrast to monistic conceptions of hermeneutics as interpretation, legal hermeneutics has always been acutely aware of the complexity of our hermeneutic practices. The legal tradition thus speaks in favor a complex conception of hermeneutics that identifies the different activities involved. The essay tries to show that such diverse activities as interpretation, rule-following, construction, association, the exercise of discretion, and judgments on significance can all be involved in the application of the law. All of these distinct practices involve distinct theoretical issues, most of which can be linked to particular debates in analytic philosophy. To prove the point that this complex conception of hermeneutics is not specific to the law, but applies to hermeneutics in general, some parallels in the field of the hermeneutics of art are drawn. In theoretically following up on the distinctions inherent in legal doctrine and methods, hermeneutics in general can live up to Gadamer’s observation that there is something to be learned from looking at the law.

Download the essay from SSRN at the link.

Poscher on the Normative Construction of Legislative Intent

Ralf Poscher, Albert-Ludwigs-University Freiburg, is publishing The Normative Construction of Legislative Intent in Droit & Philosophie, Annuaire de l‘ Institut Michel Villey (forthcoming). Here is the abstract.

Legislative intent is not only important for the legitimacy of large parts of the law. More fundamentally it is also central to an analytical reconstruction of legal hermeneutics. As amongst others the work of Paul Grice and Donald Davidson has highlighted, non-natural signs acquire their meaning only through the communicative intentions that are connected to them. No meaning, no interpretation and no hermeneutics of linguistic expressions can exist without communicative intentions, be they factual or fictive. Central to communicative intentions is an intentional subject. For codified law, that means the legislature. Without a convincing reconstruction of legislative intent, the whole analytical reconstruction of legal hermeneutics fails to get off the ground. In modern legal systems, however, legislation is a collective process involving often several hundred individuals. In the more recent literature the thus raised issues of collective intentionality have often been addressed by pointing to reductive accounts in the theory of action and group agency. There is, however, little reason to be confident that the conditions of reductive accounts of collective intentionality, which have been designed for small sized groups, can be met by the legislature. The essay shows why this is the case even if we take the anaphoric character of the vote on legislation into account. The anaphoric analysis of the voting act, however, allows to reveal the linguistic structure of our legislative practices and the normative assumptions build into it. It then becomes apparent, how our talk of legislative intent relies on normative ascriptions of communicative intentions to individual legislators. It is via normative ascriptions of intentions – also ubiquitous in other areas of the law – that we arrive at the necessary overlap of communicative intentions for a reductive account of legislative intent. This normative construction of legislative intent has to be distinguished from legal construction as a practice to amend the law mainly in cases where legislative intent runs out.

Download the essay from SSRN at the link.