September 19, 2003

Hermeneutics, free speech & democracy#2

In the previous post we rejected two ways of interpreting the meanings of the Australian Constitution as a historical text. These were the argument that meaning of the Constitution is a literal one and that its meaning is equivalent to the intentions of the framers of the Constitution. The circle of interpretation is an integral part of law and undermines Sir Owen Dixon's claim that legal reason is a method of high technique and strict logic.

We now come to the third argument mentioned byLawrence Solum The third argument, he says, holds that "because the meaning of the first amendment is relative to the many particular interpretive traditions in our pluralistic culture, there can be no single true theory of the first amendment."

Thus we have different interpretations of citizenship about which the Australian Constitution is silent. If we turn to the Kim Rubenstein article we discover two conceptions of citizenship. There is the legal formal notion that is primarily concerned with the legal status of individuals within a community. For instance, in Australia citizens are contrasted with permanent residents, temporary residents and unlawful non-citizens. The legal issues associated with the formal status include the acquisition and loss of citizenship; the criteria for citizenship by grant; dual or multiple citizenship; and discrimination based upon citizenship status.

In contrast, we have the normative notion of citizenship. This discusses citizenship in non-legal, normative frameworks in a variety of ways, primarily in terms that look to the material circumstances of life within the polity, and notably to questions of social membership and substantive equality In this way the normative notion is much broader than the legal notion, as it is concerned with how persons and the way persons should act and be treated as members of a national community.

Hence hermeneutics must grapple with the spectre of relativism given the absence of absolute knowledge. The above argument, that there can be no single true theory of the first amendment, implies that meaning is created by the reader (judges) so is specific to each reading or textual 'performance'.

A basic hermeneutic response to this argument about the relativity of many different reasons is that, in confronting other beliefs and other presuppositions about citizenship, we can see the inadequacies of our own and transcend them. Secondly, the very tradition of legal interpretation of the constitution establishes a set of canonical problems and incorporates standards of truth and legal justification. Over historical time, from the perspective of these standards, the interpretations provided by the legal tradition (the sum total of all readings, past, present, and future) will appear inadequate:----as is indicated by the High Court's shift to reading the Australian Constitution in tems of implied rights. What is happening here is that legal rationality is opened up to guidance that another tradition may provide. This implies a willingness to accept the posssibility of better options and interpretations; and a willingness to accept that one's knowledge and interpretation of the constitutional text is always open to refuation or modification from the vantage point of another perspective.

The emphasis here is on a critical approach that concentrates on the process of reading and interpretation rather than on the text as object. As Lawrence Solum states it, what develops is a tradition of interpretation that is embodied in the opinions and judgments rendered in cases that deal with the constitution.

What can we say of this process of law as interpretation? Though the Legal positivists were right in that legal rules are part of the legal system as H.L.A. Hart described it; the legal system is also part of a tradition that embodies principles and policies. So the judges, in being a part of this system, have a duty to continue the legal tradition and on the whole do so.

The tacit implication of this hermeneutical response is a rejection of the separation of law and morals, the view that the law is an autonomous discipline and that judicial method cannot legitimately be influenced by political, social or economic factors. The hermeneutic account presupposes that the liberal and democratic ideals of liberal society are also embodied, upheld and defended in Western systems of law. Hence public law is best understood as an interpretation of the political practices of a society. In deciding a legal case, judges decide in accord with the interpretation of the society's institutions and legal texts that best fits and justifies the society's history and practices.

What I have outlined above is Ronald Dworkin's theory of interpretation.Dworkin holds that:

"....judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract." (Dworkin 1982, p. 165).

On Dworkin's theory of judicial interpretation, there are two elements to a good interpretation of a constitutional text. First, insofar as an interpretation justifies the particular practices of a particular society, so the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.

This gives us a way to probe the republican conception of citizenship that sits buried in the republican dimension of the Australian constitution and embodied the actual practices of the body politic.

Posted by Gary Sauer-Thompson at September 19, 2003 03:46 PM | TrackBack
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