Reply to Greenawalt

Yale Journal of Law & the Humanities Volume 9 | Issue 2 Article 6 January 1997 Reply to Greenawalt Georgia Warnke Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Georgia Warnke, Reply to Greenawalt, 9 Yale J.L. & Human. (1997). Available at: https://digitalcommons.law.yale.edu/yjlh/vol9/iss2/6 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Warnke: Reply to Greenawalt Reply to Greenawalt Georgia Warnke Professor Greenawalt's perceptive Essay raises at least four issues: the issue of what he calls modernization, the issue of standards of interpretation, the distinction between discourse within the law and public debate over social values, and the question of the compatibility of hermeneutics and natural law. I would like to look briefly at each of these issues in turn. I. Professor Greenawalt is suspicious of the idea that literary critics and lawyers should always try to interpret texts or laws in ways that show their relevance or application to a modern audience or citizenry. Moreover, he denies that it is always inappropriate to attempt simply to reconstruct an author's original intentions or the original intent of a law. I do not disagree. Rather, I want to emphasize that both conscious efforts at modernization and conscious efforts at reconstruction are subject to hermeneutic conditions insofar as both are historically situated. The point, in other words, is not that we should always try to show the modern relevance of a text or law or that we should always reconstruct original intentions. Rather, to the extent that we try to understand a text or a law at all, we are interested in what it says or means. But texts and text-analogues do not say or mean in a vacuum. They say something to someone or fail to do so. Hence, to the extent that we try to understand, we try to understand what a text or law means to us, given our situation and the concerns and questions that orient our appropriation of the text or law in question. As Gadamer puts the point, understanding is always already application.' The hermeneutic approach I am proposing does not deny the difference between interpreting existing law and making new law. Still, that distinction is often confused with the distinction between 1. HANS-GEORG GADAMER, TRUTH AND METHOD 308 (Joel Weinsheimer & Donald G. Marshall trans., 2d ed. 1989) (1960). Published by Yale Law School Legal Scholarship Repository, 1997 1 Yale Journal of Law & the Humanities, Vol. 9, Iss. 2 [1997], Art. 6 Yale Journal of Law & the Humanities [Vol. 9: 437 interpretive judgments with which one agrees and interpretive judgments from which one dissents. Interpretation, as Professor Greenawalt argues, involves judgment and, I would add, application in which one has to understand what the law says with regard to the issue or circumstance that motivates looking to the law in the first place. Passing a new welfare law is distinct from trying to understand what the old one means. But we also have to understand what the new one means and in trying to do so we cannot avoid interpreting it from the point of view of specific questions, interests, and concerns. II. Professor Greenawalt raises two questions with regard to the standards I ascribe to interpretation. First, he points out that the hermeneutic notion of the unity of part and whole may not make sense when applied to the law. Second, he questions whether the second standard I proposed, that of illumination, makes sense at all. I think I can best try to clarify my claim by returning to the issue of affirmative action. The interpretive claim I want to make points to the one-sidedness of a critique of affirmative action that understands the meaning of equal opportunity only in terms that require strict racial and gender neutrality in hiring and admissions decisions. Such an understanding assumes that civil rights struggles were limited to ending discrimination and thereby overlooks Supreme Court decisions from the case of Sweatt v. Painter2 through the school busing cases, decisions which spoke not only to the end of legal segregation but also to full integration and participation for groups previously denied an equal part in American institutions and practices. To the extent that the critique of affirmative action fails to incorporate this part of the record into its understanding, its interpretation of equal opportunity is less adequate than one that does since it fails to unify all the parts of the text of our civil rights struggles with the whole. To be sure, a defense of affirmative action that overlooks the connection between equal opportunity and racial and gender neutrality is equally one-sided and inadequate. Indeed, the current concern with the extent to which women and minorities are stigmatized within the institutions and practices into which they have been admitted indicates the strength of the connection between equal opportunity and neutrality. An interpretation of equal opportunity that encompasses both neutrality and participation might succeed in unifying all parts of the civil rights record, struggles, and decisions. Such an interpretation, moreover, might indicate that the solution to unequal racial and 2. 339 U.S. 629 (1950). https://digitalcommons.law.yale.edu/yjlh/vol9/iss2/6 2 Warnke: Reply to Greenawalt 1997] Warnke Reply gender participation is not an end to affirmative action but its supplementation with all the remedial, educational, and sensitivity programs necessary to erase the presumption that women and minorities are not as qualified as the white men who occupy the same positions. The second criterion of interpretation I examined, that of illumination, is harder to defend. The attempt here is to discover if the understanding of meaning can ever see through its own dogmatism where it is dogmatic and the problem with dogmatism is that it may be opaque to itself, unifying part and whole only by employing a kind of Procrustean bed that mangles the meaning of the parts to fit with an unchanging and adamant conception of the whole. The idea is that an interpretive understanding can overcome dogmatism only to the extent that it recognizes its interpretive elements and is open to the possibility that the text or text-analogue is other than what its assumptions first supposed. I have tried to cash out this idea in terms of a condition that genuine understanding involves, namely that one allows, in advance, for the possibility that the text or text-analogue might undermine one's prejudices and require one to rethink that which one thought one already knew. In the case of the man who interprets a woman's attempt to reject (...truncated)