The major conclusions in Georgia Warnke's illuminating Essay, Law, Hermeneutics, and Public Debate are persuasive, but some that appear almost self-evident instead rest on controversial evaluative judgments. Many of my comments deal with these complexities, drawing from her book on interpretation and political theory as well as her Essay. Other remarks develop subjects Warnke barely touches. My thoughts are, thus, some combination of clarification, supplementation, and disagreement.
My initial effort is to refine in just what senses interpretations of texts, social practices, and legal rules must speak to our concerns. I next explore how interpretations of legal texts that are applied in the present and are backed by coercive force differ from portrayals of literature; then I inquire how these differences bear on strategies of interpretation. I endorse Warnke's rejection of a jurisprudence that focuses exclusively on original meaning, but I argue that this rejection cannot be grounded in general hermeneutic theory standing alone. Crucial moral and political judgments have to be made about allocating public functions. I then turn to Professor Warnke's analysis of debate over great constitutional issues. I emphasize the multiple levels of legal analysis of a subject like abortion. The terms of public debate usually connect to the terms of legal analysis, but these forms of discourse are not identical. Relatedly, interpretation of relevant legal texts will not always track broader interpretations of social meaning. I next consider Professor Warnke's account of legitimate constitutional interpretation. I question some of her conclusions about illegitimate interpretations, and raise doubts about how far the two criteria she offers for legitimate interpretation apply to legal interpretation. Finally, I address the theme that there may be something like "the nature of the thing," and offer brief suggestions about how a hermeneutic approach to interpretation like Warnke's may fit with belief in natural law.
"Interpretation and Judgment,"
Yale Journal of Law & the Humanities:
2, Article 5.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol9/iss2/5