Wednesday, May 26, 2010

His Or Hermeneutics?

To some hermeneutics is scientific, to others it is religious, but to the lawyer it is the highway which the law travels upon.

It is easy to illustrate how difficult the trip along that highway can become, by checking out some of the potential for bumps in the road.

Lets take a look at just two of those bumps along the road, one is an issue called "ambiguity", the other is "the reasonable person standard".

Ambiguity is a realm in the interpretation of law that automatically arises when any text is capable of more than one meaning when interpreted by a "reasonable person".

Think of that as you read these lyrics:
Well Mack the Finger said to Louie the King
I got forty red, white and blue shoestrings
And a thousand telephones that don’t ring
Do you know where I can get rid of these things
And Louie the King said let me think for a minute son
And he said yes I think it can be easily done
Just take everything down to Highway 61
(Bob Dylan, Highway 61). It may surprise some folks to learn that some legal text is equal in ambiguity to some song lyrics, for example:
Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.
(Professor Gates Was Falsely Arrested). That law goes back to a time before the United States or the U.S. Constitution existed.

Yet it is still used in one of our oldest states, and if you read the link, you will see that the same text in that law was recently applied against a university professor in his own home, as well as against a woman picking up her own kids from school.

The old adage "the constitution says what the Supreme Court says it says" indicates not only that the interpretation of law is a function of legal hermeneutics, but that it is foundational to our system of law.

The impact of one's method of interpretation, one's hermeneutics, should not be underestimated, especially when one is being considered for the U.S. Supreme Court.

Yet, can anyone point us to a question ever asked of a Supreme Court nominee by Senators or the media that contained the word hermeneutics?

The concept and the interpretive cognition embraced by this subject matter goes back to ancient struggles and understandings:
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.

– Marbury v. Madison (1803)

[W]hoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.

– Bishop Hoadly’s Sermon, preached before King (George I of England), March 31, 1717
(The Dynamic Constitution). In one sense, then, your life is governed by hermeneutics is it not?

Perhaps then you can take interest in a revolutionary modification to our standard legal hermeneutics which has been proposed by a legal scholar:
Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?
(Stanford Law Review, emphasis added). After 200 years one would surmise that things had settled a bit more than this wouldn't one?

Yet every subject on your mind today (the liability of BP for the Deepwater Horizon catastrophe, is BP a person, what department of government declares war if the Korea conflict goes there, what rights do states have at the U.S. border, etc.) depends on how the constitution and laws are interpreted by the use of legal hermeneutics, which is in flux still.

1 comment:

  1. Which is why the battle for control over The Supremes is fought so tenaciously I guess. That said, recent actions by the Executive Branch would seem to indicate that, according to Bush/Cheney at least (and not repudiated by Obama either), the Prez and his boys don't necessarily give one flying hoot WHAT the Supremes have to say, at least if they differ from the party line of the moment.

    In fairness to Bush/Cheney (those lovable old teddy bears!), we haven't fought an actual declared war since WWII (THE GREAT ONE!), so I guess some things are just too much trouble to bother with. Remind me again, exactly WHAT do we pay them fat bastards for?

    And as the corporate boys know all to well, access to the legal system is primarily determined by the depth of your pockets and the ability to spend years or even decades waiting for a settlement/verdict. BP's damn sure counting on that fact as we speak. The rest of us are merely along for the ride.