September 23, 2003

Constitutional interpretation & power

The remarkable silence in the Australian Constitution about citizenship is important for the process of interpretation since citizenship brings the play of political power into the foreground. For Gadamer the historical process of interpretation leads to consensus and a fusion of horizons within a circle of interpretation. That process of understanding in the Constitutional debate from both the point of view of the various assumptions and situations of the framers of the Constitution, and the process education through the debates and the lead to citizenship being silenced in the Constitutional text. Silence on citizenship was the consequence of understanding as a consensus on meaning.

In his early paper on law and interpretation Lawrence Solum approaches the play of power on interpretation of Constitutional texts in terms of Habermas's criticisms of Gadamer. Lawrence says:


"Habermas acknowledges the validity of much of Gadamer's theory of hermeneutics. He argues, however, that Gadamer's view of the role of tradition in producing understanding has a conservative bias. While Gadamer is correct to see understanding as arising from a traditional consensus on meaning, he overlooks the possibility that the traditional consensus is the irrational product of systematically distorted communication. The argument that all traditions stand on an equal footing because no person stands outside of a tradition ignores the real difference between a tradition which achieves consensus through manipulation, force, or coercion, and a tradition in which consensus is based on reasoned discourse. Not all traditions can make equal claims to truth and right."

Habermas does have a point. Understanding as a consensus of meaning was influenced by ideology: the desire to exclude Indians and Chinese then resident in Australia from becoming citizens. Australian citizens were to be white. No coloured were wanted. In the language of Habermas the consensus of the framers was systematically distorted. The consensus was not the product of unihibited discussion; rather it was from maintaining a repressive status quo and unequal structure of political power. The constitutional silence masked a hierarchical power structure. So we need to move behind the manifest meaning of this constitutional consensus to the social and historical conditions that produced it.

As Lawrence says, this means that we need a critically enlightened hermeneutics that can differentiate between insight and blindness., between prejudice and ideology. The racism behind the constitutional silence about citizenship was more than prejudice as the bias of the framers. It was systematic.

Lawrence then makes a good point. He says:


"It is important to note that Habermas' notion that rational consensus can be achieved under conditions of unconstrained communication does not assume an Archimedean standpoint that is outside of any tradition. We begin the effort to forge a rational consensus from within our tradition and attempt to achieve a consensus with others who begin from within their traditions. The point is that an agreement is rational only if it is not the product of force or deception."

There is an acceptance that in moral, legal and political life our actions are guided by a public reason and knowledge that is different from natural and social science. Such a public reason is a practical philosophy that can deal with public issues that matter to us; and, as a public reason, it is constituted in dialogue--in the give and take of conversation.

It is at this point that we part company with Lawrence Solum since his concern is with systematic theory building and developing a method for differentiating between better and worse theories. As he says:


"If I can demonstrate through rational argument that existing theories are inadequate and that a superior theory exists, then the enterprise of theory construction is not doomed to failure by metatheoretical relativism.The relativist does not have an a priori argument that demonstrates the impossibility of producing the best theory of free speech."

We are quite happy to stay with the practical dialogic philosophy that is linquistically informed. We have enough to be able to make sense of the history of historical interpretations around the constitutional text, and to sift the the competing interpretations of citizenship that have been developed by the legal tradition to fill the lack in the Australian constitution.
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Posted by Gary Sauer-Thompson at September 23, 2003 09:19 AM | TrackBack
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