Understanding Legal Understanding– Part III

Understanding Legal Understanding– Part III

Copyright 1993-1999 Jack M. Balkin. All Rights Reserved.

IV. Legal Coherence as Reduction of Cognitive Dissonance

In our earlier discussion of the different varieties of coherence, I noted the special nature of the coherence of the world. The coherence of the world derives from the self’s need to believe in its own coherence. The world must make sense to us because we must make sense to ourselves. Accounts of coherence in the social world are driven by our need to believe that our own beliefs are ordered, coherent, and rational, and that we are rational, morally sensitive individuals. To do this, we may need to conclude that certain parts of the social world are lacking in logical, normative, or narrative coherence–that a certain person is behaving unreasonably, that a certain argument makes no sense, that a certain legal doctrine makes arbitrary distinctions, and so on. We can make the world coherent by assuming the coherence or the incoherence of specific and limited parts of it, including those parts of the social world we call law. That is because the need to preserve beliefs about the self is prior to judgments about the coherence of any part of the social world, including the legal system. If we hope to understand the subject’s contribution to the nature of the law she observes, we must consider how the preservation of the self’s beliefs about itself shapes and motivates its judgments of legal coherence.

We can explore the relation between our beliefs about ourselves and our beliefs about law through the psychological theory of cognitive dissonance. When faced with inconsistent beliefs and attitudes, we engage in cognitive work to reduce the resulting dissonance.⁽⁶⁹⁾ Thus, we might believe what we do about the coherence or the incoherence of the law because it reduces cognitive dissonance. This possibility places debates about legal coherence in a very different light. Legal coherence becomes not a desideratum for law but a strategy of self-affirmation; legal incoherence becomes not a focus for political critique but a method for externalizing internal conflict. The question becomes not whether the law is coherent or incoherent but why it is important that the law appear coherent or incoherent and what steps legal subjects will take to ensure that it appears that way.

People reduce cognitive dissonance in many ways. They selectively recall events, reinterpret them, or reduce the importance of different elements in what they recall.⁽⁷⁰⁾ They compartmentalize situations to avoid considering them together. People sometimes reject or de-emphasize information or interpretations inconsistent with attitudes they hold and previous actions they have taken while favoring consistent information or interpretations. They do this by selectively focusing on past experiences that support their beliefs and behaviors while downplaying or forgetting experiences that do not support them, by selectively focusing their attention on parts of current experience that support their beliefs and actions, or by selectively interpreting events to resolve ambiguities in favor of consistency.⁽⁷¹⁾

Dissonance theory does not require that individuals adopt any particular mode of dissonance reduction.⁽⁷²⁾ It merely predicts that when dissonance occurs, it will lead to a change in behavior, beliefs, or attitudes. Some beliefs are more important to people than others. These beliefs are less likely to be reformed or abandoned.⁽⁷³⁾ Conversely, people are most likely to modify the dissonant cognitive elements that are the easiest to change or abandon.⁽⁷⁴⁾ Over time, dissonance theorists have recognized that at the heart of dissonance production and resolution is preservation of the concept of self.⁽⁷⁵⁾ Hence, inconsistent cognitions by themselves do not produce dissonance; rather, dissonance arises from cognitions whose inconsistency threatens the self’s view of itself.⁽⁷⁶⁾

What is the connection between the need to reduce cognitive dissonance and judgments about the coherence of the norms and results produced by the legal system? Conflicts between one’s own beliefs and actions are quite different from conflicts between legal norms. People have a stake in the consistency of the former that they may not have in the latter. It is important for people to believe that they are non-hypocritical, consistent, and morally sensitive individuals; it is not always important for them to believe that a set of legal norms is principled, just, or fair. The former beliefs are likely to be central to any individual’s self-conception; the latter beliefs may be more easily abandoned, may not be held at all, or may even conflict with other beliefs an individual holds.⁽⁷⁷⁾People will have a need to alter their beliefs about the legal system or the social world only if their beliefs about the coherence or incoherence of legal norms produce a significant conflict with their other commitments and their sense of self. In such cases, they will employ the various strategies of cognitive dissonance reduction: they will subtly alter their judgments of justice and fairness, selectively redescribe or ignore facts, avoid or deny recalcitrant experiences, and compartmentalize situations in order to reach the conclusion that various legal doctrines are rationally reconstructible or are not amenable to rational reconstruction.

When considering how judgments of legal coherence are affected by the need to reduce cognitive dissonance, we must always trace our inquiry back to the individual’s imperative to believe in the coherence of her own moral and political judgments and to believe in herself as a morally sensitive and reasonable individual. The key question is whether an individual has an “ontological stake” in the coherence of the legal system, a particular set of legal doctrines, or a particular political or moral theory she believes is embodied in the law. If she lacks this stake, it may be easier for her to conclude that the legal system (or some part of it) is incoherent than to accept that her own moral and political beliefs might be. Indeed, if an individual has an ontological stake in believing in the fundamental incoherence (or the fundamental injustice) of the legal and political system, she will tend to find unresolved moral conflicts and contradictions in various parts of the law because belief in their coherence might conflict with her precommitments. She may find it helpful to preserve the coherence of her own beliefs by projecting incoherence onto the beliefs of an Other–in this case, the law.⁽⁷⁸⁾

When might individuals have a personal stake in the coherence of the legal system or parts of the legal system? If a person’s moral beliefs coincide with a large part of existing law, then an attack on the coherence of legal norms is also an attack on her moral judgments. However, most individuals are not aware of the actual content of much of the law and fewer still have considered all of the possible moral conflicts among legal doctrines. Moreover, people often make judgments based on relatively limited factual evidence about the practical effects of legal norms. Despite this, they may still form strong beliefs that various aspects of existing doctrine are normatively coherent even when they have devoted little thought to the possible conflicts between them or are largely ignorant of their content or their practical effects. They will argue fervently for the coherence of existing legal doctrines (as they understand them) when presented with attacks on their coherence. Thus, individuals may have strong commitments to belief in the coherence of the legal system or parts thereof even when they are largely ignorant or mistaken about the content or practical effect of legal doctrines.

What accounts for these features of our moral experience? One explanation is that individuals often engage in simplifying assumptions about the moral consistency and justification of prevailing social norms and arrangements in the society in which they live. For example, they may assume that generally accepted social norms and arrangements make sense and are justified unless there are strong reasons to believe that they are incoherent and arbitrary. Such simplifying assumptions can reduce cognitive work and make understanding the social world easier.

Thus, individuals may have a considerable stake in the belief that prevailing social norms and arrangements are presumptively morally coherent for several reasons. First, to assume otherwise might produce considerable dissonance because a person would be forced to conclude that she lives in a society whose basic norms and arrangements are morally arbitrary or incoherent. People may therefore be strongly committed to believing that they live in a basically just society, and that elements of arbitrariness, unreasonableness, or injustice, are the exception rather than the rule.⁽⁷⁹⁾ Hence they may work on the assumption that legal norms are reasonable and justified both in their content and in their application unless demonstrated otherwise.⁽⁸⁰⁾

Second, the belief that prevailing social norms and arrangements are morally incoherent would require people to engage in considerable cognitive work to arrive at alternative conceptions of the vast number of social arrangements and norms that they unself-consciously understand, apply, and accept. Thus, even people who believe that the society they live in is basically unjust in important respects nevertheless depend heavily on the moral coherence of many concrete social norms and institutions in making their critical moral and social judgments. Indeed, there is an important sense in which almost all dissenting or unorthodox views are parasitic on existing social norms.

Third, people may assume that social and legal norms are the product of considerable thought and effort, or, in the case of social custom, long experience. Hence they may work on the assumption that the legal or social status quo is not only a descriptive but also a prescriptive norm. Existing norms are presumptively coherent and reasonable, whereas deviations from those norms must be justified. In this way people can have a considerable stake in the moral coherence of the status quo (as they imagine it to be) regardless of their knowledge of its content.

Fourth, legal norms may coincide with a person’s own norms because the former have helped to constitute the latter. A person’s judgments about issues of social regulation may result from her study of the law, particularly if she has not thought much about these issues before she begins her study of the relevant legal doctrines. Thus, although a person’s preexisting moral commitments can affect her judgment of the coherence of legal norms, the reverse is also true. A person’s experience in working with and understanding legal norms can have the effect of shaping her moral and political commitments and hence her judgments about the legal system.⁽⁸¹⁾

Fifth, people may have a stake in the coherence of legal norms because they have used them to justify their actions and commitments. Cognitive dissonance is likely to be greatest when people feel personal responsibility for their actions and commitments.⁽⁸²⁾ If people justify their previous actions on the grounds that their conduct is legal or that the position they have taken is consistent with existing law, then they may have a stake in the coherence of legal norms that justify their behavior.⁽⁸³⁾

At first glance, practicing lawyers would seem likely candidates for strategies of dissonance reduction to avoid uncomfortable conclusions about legal coherence and incoherence. Lawyers work with the law every day and are often paid well to argue that various aspects of the law are coherent or lack coherence, often in ways that conflict markedly with their own beliefs. In fact, the situation is more complicated; in some cases, lawyers’ financial compensation may actually lessen their urge to reduce cognitive dissonance. Our need to reduce cognitive dissonance arises when we experience a threat to our self-concept or a state of negative arousal. The more negative the experience of dissonance, the greater the urge to reduce it. Conversely, self-affirming or other positive experiences have the opposite effect; they lessen the urge to reduce dissonance.⁽⁸⁴⁾ As a result, offering people greater incentives to act contrary to their beliefs does not make them more likely to adjust their beliefs to conform with their actions because the incentives act like positive reinforcements.⁽⁸⁵⁾ This relationship explains the results of “forced compliance” experiments that suggest, surprisingly, that individuals who are offered larger sums of money to write essays contrary to their beliefs are less likely to modify their beliefs to conform with their actions than people who are given smaller amounts. A higher payment acts as a greater balm to any negative feelings and hence results in less net dissonance. Conversely, the net negative consequences from behaving contrary to one’s attitudes and beliefs are greater when one is offered a smaller payment.⁽⁸⁶⁾

These studies suggest that we should not expect that lawyers will necessarily change their beliefs to conform with those of their clients because they are very well paid to represent those clients. Indeed, the better paid they are, and the more social status they obtain from their lucrative practices, the less net dissonance they will experience, and the less need they will feel to make their beliefs conform with their actions. The less-well-paid lawyer may be more likely to engage in self-justifying adjustment of her beliefs and attitudes.⁽⁸⁷⁾

Of course, most accounts of legal coherence and incoherence appearing in law reviews are not written by practicing lawyers or even by judges. They are written by legal academics. Legal academics’ social positions give them a somewhat different stake in the order and coherence of legal norms. They defend and critique legal norms and theories about legal norms. Thus we should expect that academics will employ strategies of dissonance reduction when they have a personal stake in perceiving legal norms or theories as coherent or incoherent, and when contrary perceptions would significantly threaten their self-conception. At one level, legal academics have a strong stake in discovering normative incoherence and disorder in the law. Legal academics are expected to say original things about the legal system, and their self-worth is shaped by this imperative. Hence, academics have obvious incentives to find something wrong in existing materials so that they may write articles that demonstrate that there is a better way of reconstructing doctrine. Moreover, although legal academics are usually strongly committed to the coherence of their own theories, they also have incentives to poke holes in the work of previous academics.

Political commitments may also affect academic judgments. Like everyone else, legal academics are more likely to believe that legal norms they agree with are normatively coherent; a contrary conclusion might produce dissonance by casting doubt on the coherence of their own beliefs. Conversely, if they find aspects of the law unjust, they are likely to find them lacking in coherence as well.⁽⁸⁸⁾

Nevertheless, much academic discourse about law depends on the assumption that legal doctrines are generally coherent. Legal academics often use existing doctrines as a background for comparison; they argue that a particular doctrine they are attacking is anomalous because it produces a local failure of coherence.⁽⁸⁹⁾ When an academic proposes a change in or a reinterpretation of law, people implicitly assume that she is claiming that her proposal will make the law more normatively coherent.⁽⁹⁰⁾ If it does not, this will usually be counted as a defect in the proposal. This phenomenon is simply a special case of rational deconstruction’s debt to rational reconstruction. If an academic engages in selective rational deconstruction, she must already accept to a large degree the coherence of the system within which she works. Legal academics may simultaneously have a stake in the local incoherence of particular legal norms and the global coherence of a larger set of legal practices they employ as a background test for normative coherence. As before, this stake can produce strategies of dissonance reduction when academics confront perceptions of law that contradict their most deeply held commitments and beliefs.

V. Rational Reconstruction’s Power over the Self

A.The Ontological Basis of Rational Reconstruction

In the discussion of cognitive dissonance I emphasized the importance of our ontological stake in particular beliefs: the connection between our self-image and a set of beliefs about the social world. This ontological aspect of understanding–that understanding is tied to our selves as selves–can be generalized beyond dissonance theory. In this section, I shall argue that the very process of seeking to understand legal doctrines and applying them to concrete cases–the process of rational reconstruction–engages us and affects our beliefs. Rational reconstruction, in other words, is not merely something that we do to the law; it is also something that the law does to us. Rational reconstruction is a form of vulnerability; it is the occasion for a certain type of hermeneutical power over the individual. Thus, the study of subjectivity is important to the study of jurisprudence because the act of legal understanding affects the legal subject in ways that standard jurisprudential accounts do not contemplate.⁽⁹¹⁾

When we attempt to understand legal norms so that we can apply them to specific situations, we must begin with the presumption that they make sense–that they represent an intelligible and defensible scheme of regulation. We must bring an attitude of openness and acceptance to the object of our interpretation. Obviously, we may later criticize the law for making arbitrary and unjust distinctions. Nevertheless, if our goal is not critique but application–if we seek to understand doctrines so that we can apply them to a concrete factual situation, an assumption of coherence becomes necessary as a test of our understanding. If legal norms make no sense to us, if they make distinctions that seem incoherent or arbitrary, this may be the result either of a lack of coherence in the norms themselves or of our failure to grasp the reasons that lie behind them and the correct manner of their application. If we do not assume that the legal norms we are trying to understand are coherent, we will have no way of determining whether our conclusions are due to a failure of our own understanding. Moreover, our debates about whether we have applied particular doctrines correctly will necessarily be waged against a background assumption of normative coherence. An interpretation of how a doctrine should be applied will be suspect if it makes the regulatory scheme seem more arbitrary or incoherent.

Hans-Georg Gadamer has argued that this attitude of interpretive openness and acceptance is central to all understanding.⁽⁹²⁾Gadamer purports to offer a unitary theory of cultural understanding, a position I have argued against repeatedly in this Article. In fact, his account of legal hermeneutics best suits the application of legal norms through rational reconstruction, in contrast to the many other types of legal understanding. This is not surprising, given that Gadamer devotes the majority of his discussion of legal hermeneutics to application of laws by a judge, and sees other forms of legal understanding as special cases of this type of application.⁽⁹³⁾ Nevertheless, as long as we recognize the limitations of Gadamer’s unitary approach to understanding, he sheds considerable light on the specific form of understanding called rational reconstruction. Indeed, what is most important about his theory, and what separates it from most Anglo-American jurisprudential accounts, is its recognition that the act of understanding affects the subject as well as the object of interpretation.

Gadamer calls the attitude of openness towards the object of interpretation the “anticipation of completion”;⁽⁹⁴⁾ it is the assumption of the coherence of the object of interpretation. He argues that this requirement follows from the traditional conception of the hermeneutic circle through which we revise our interpretations: we revise our understanding of what the parts of a text mean by considering their relation to the whole, and we revise our understanding of the meaning of the whole by considering its parts.⁽⁹⁵⁾Understanding is not possible unless we can revise our initial conception of an interpreted object. But revision is not possible unless we assume that the parts and the whole are related to each other consistently so that we can check our conclusions about one against our conclusions about the other.⁽⁹⁶⁾ In the context of legal rules, the anticipation of completion is an assumption not about logical consistency or narrative coherence of the law but about normative coherence. It is the assumption that the legal doctrines we are trying to understand and apply have reasons behind them and that these reasons (and choices among conflicting rationales) make sense.

One might object that applying legal norms only requires their intelligibility; we do not have to assume anything about the normative coherence of doctrines in order to apply them. However, Gadamer’s point is that the form of understanding I call rational reconstruction requires us to go much further. He claims that when we attempt to understand a text we also seek to understand the “truth” expressed by the object of interpretation.⁽⁹⁷⁾ We must be open to the possibility that what it says is true and that it has something to teach us. Understanding is receptivity; it is the willingness to be confronted by what the text says and recognize it as possibly having more authority than our own judgments.⁽⁹⁸⁾ This argument rests once again on the notion that understanding requires us to have a way of revising our beliefs about the object of interpretation and rejecting some interpretations as misinterpretations. Unless we are open to the possibility of the text’s truth, we cannot be sure that our conclusions that the text is mistaken are the product of the text or our misunderstanding of it.⁽⁹⁹⁾

The hermeneutic claim that understanding requires receptivity to the truth in the object of interpretation has a special meaning for legal understanding. The “truth” that legal doctrines offer us is a truth about the appropriate forms of social regulation. To understand and apply a legal doctrine is to attempt to see its point about how social regulation should occur. The conclusion that understanding is an attempt to recognize the validity of legal norms may seem surprising from a traditional positivist orientation that assumes that law need not be just to be law. One might think that a positivist conception requires or at least allows us to distance our own beliefs about justice from the content of the legal norms we study. The hermeneutical point is that even the positivist, when she comes to apply the law, cannot take so distanced an attitude. Her beliefs are implicated in the very act of understanding and application; to understand legal norms she must attempt to grasp the extent to which they promote just and valid aims.

Consider once again the distinctions in the law of owners and occupiers between trespassers, licensees, and invitees. Suppose that we are asked to learn these doctrines and to apply them in a series of concrete cases involving accidents on a defendant’s property. Our ability to understand these distinctions is directly related to our ability to apply them. Conversely, our failure in understanding these concepts is precisely our failure in applying them; we do not understand them because we do not know how to apply them.⁽¹⁰⁰⁾ However, the process of understanding these doctrines so that we can apply them requires us to take a certain attitude towards them. We must assume that the doctrines draw intelligible distinctions and similarities that it is our goal to discover. If we do not assume this, we cannot tell whether any difficulties we encounter in application are due to the fact that the distinctions are incoherent or are due to the fact that we have failed to grasp their point fully. Thus, the very act of application creates in us the urge to make sense of distinctions, to create conditions of intelligibility that are the result of our interaction with the legal texts we are applying.

Moreover, the application of legal norms requires us to grasp their possible validity as well as their intelligibility. In order to apply the distinction between invitees and licensees, for example, we must also attempt to see the point of this scheme of legal regulation.⁽¹⁰¹⁾ We must try to grasp why someone would find this an acceptable and valuable regulatory distinction. To understand this is precisely to understand the point of the legal norm. If we do not try to understand why someone would find the norm an appropriate form of social regulation, we cannot be sure whether our puzzlement is due to the norm’s moral incoherence or to our own failure of understanding.

The “point” of a legal doctrine is not necessarily a single thing. It may be a balance or combination of various purposes, policies, and principles that the doctrine seeks to further. We understand the doctrine when we grasp this combination of purposes, policies, and principles and how they are balanced against each other in specific situations. Obviously, different people may see a different point to a particular legal doctrine. That is because when we try to imagine why a person might find the legal norm an acceptable type of regulation, we bring our own judgments about what is right and good and about how one should balance competing purposes, policies, and principles. Because our judgments about these matters may differ, so may our conclusions about the point of particular legal doctrines. However, this does not change the basic claim: our attempt to apply legal doctrines still requires us to consider how the norm might embody valid principles of regulation, even though we disagree with others about what those principles are and what balance the legal norm strikes between them.⁽¹⁰²⁾ Moreover, what is most significant about our disagreement is the implicit terms of agreement through which it occurs. When we disagree about the proper application of a legal norm, we do not disagree about whether the legal norm is coherent; rather, we disagree about the point of a legal norm whose coherence we accept for purposes of our argument. We attack our opponent’s theory about the point of the norm because it makes the legal norm less coherent from our perspective–because it misdescribes the purposes, policies, and principles underlying the doctrine, or balances them in an unconvincing or arbitrary way. When application is at issue, we place ourselves “on the side” of the legal norm, defending it from those who would apply it improperly.

Our previous discussion has emphasized that understanding the “why” of law (that is, why the law makes the distinctions it does) and the “how” of law (that is, how to apply law) are inseparably linked. Understanding is application; to understand is to be able to apply. This is the central insight of Gadamer’s discussion of legal hermeneutics.⁽¹⁰³⁾ Indeed, Gadamer claims that this connection between understanding and application underlies all hermeneutical activity; it is the source of his provocative claim that legal hermeneutics is the paradigmatic case of interpretation and understanding.⁽¹⁰⁴⁾

The requirement of openness to the truth of legal doctrines is perhaps easiest to see in the context of learning or teaching legal rules. Suppose that we wish to understand the doctrines of owner-occupier liability. We can memorize the elements of these doctrines, but we do not truly understand them until we can apply them. We cannot apply them until we understand the purposes the doctrines serve. And we cannot understand the purposes the doctrines serve until we attempt to see why they make sense as a scheme of social regulation. We must employ this assumption as a necessary check on our mastery of legal materials. If we cannot imagine valid policies underlying a doctrine, we will find ourselves unable to explain what the contours of the doctrine should be. Thus, we cannot rest content with the conclusion that the doctrine as applied makes ridiculous or incomprehensible demands. If it does, perhaps that means that we do not fully understand the doctrine.

The experience of the first-year law student confirms that puzzlement about the content of a doctrine often results from uncertainty about its application in concrete circumstances. The student is perplexed because the bare words of the doctrine might be applied in any number of different ways. When I explain to my torts students that the theory of res ipsa loquitur requires that the accident that occurred be unlikely to occur in the absence of negligence, they are sometimes puzzled as to when this is the case. They do not understand how to apply the doctrine; they lack the know-how or “situation sense”⁽¹⁰⁵⁾ of a lawyer who understands the rules. I then have them consider a series of hypotheticals in which particular accidents occur and ask them whether they believe that the doctrinal test has been met. In making these judgments, they must develop a conception of why one would allow a res ipsa case to go to the jury. To do this, they must understand why the doctrine makes sense as a scheme of human regulation. Hence, they imagine policies that stress the need to compensate innocent plaintiffs, the need to “smoke out” information from recalcitrant defendants, and so on. They then apply these theories to sort out the various factual situations as falling within or outside the doctrine. The act of understanding and applying these doctrines requires them at some level to accept the validity of these policies and their furtherance through the doctrine of res ipsa loquitur.

The conclusion that understanding legal norms requires us to seek to understand their validity will be most troubling in the context of laws that we believe to be unjust. For example, suppose that we believe that abortion is murder and we are asked to apply a statute that permits abortions to go forward after a statutorily prescribed waiting period. In applying this statute in close cases, we must attempt to understand not only why it makes sense to require a waiting period, but also why it makes sense to permit abortions to go forward after the waiting period is over. To use an earlier metaphor, we must place ourselves “on the side” of the statute for purposes of our interpretation. Yet there is no doubt that individuals who believe that abortion is murder can understand and apply such a statute. Their understanding of the law’s appropriate application may differ from the understanding of those who hold contrary views about abortion because in attempting to understand the point of the regulation, they bring a different set of values to bear and may reach different conclusions about the appropriate balance among the purposes the regulation is designed to serve. For example, an opponent of abortion may emphasize the need to ensure that choice is fully informed and that the physical and emotional consequences of abortion are fully understood by the mother; hence, she may apply the regulation strictly so as to limit the number of cases in which abortions may proceed. Nevertheless, even a committed opponent of abortion, in order to understand and apply the waiting period requirement, must attempt to see how it makes sense as a scheme of human regulation. Our ability to understand the validity of even those norms with which we strongly disagree is essential to our understanding of their proper application.

I have emphasized that understanding legal norms for the purpose of rational reconstruction requires an attempt to make legal distinctions intelligible and to grasp their validity. However, not all attempts are successful. On occasion, we may conclude after considerable effort that a particular distinction makes no sense at all; we simply do not understand how it can be applied coherently. This conclusion indicates that we have given up the quest for understanding for the purpose of application. We must retreat to other forms of understanding, for example, to understanding the political or sociological factors that lead others to make decisions using the doctrine. Nevertheless, the issue of application may arise in a new context. We may say that our interest lies not in applying the law, but only in predicting how others will apply it. Yet even here the act of understanding another’s actions may implicate our own ability to apply the law. It will be difficult indeed to explain why another person applies the law in certain circumstances if we cannot make sense of the reasons she believes to underlie the law. If she sees legal norms as intelligible and grasps their validity, our explanation of her behavior may require us to understand the law on those terms. Hence, we have not fully surrendered the attempt to understand how to apply the law. Only if we regarded it not as a norm guiding human action but as a mere stimulus that created a predictable response would we truly have abandoned the attempt to make the legal norm intelligible as a norm.⁽¹⁰⁶⁾

This discussion suggests that we must consider the type of understanding I call rational reconstruction in a new light. Our attempt rationally to reconstruct the law is an act of understanding and application that brings the assumption of completion to legal materials. It is an attempt not only to see the law as a consistent set of norms but also to understand the “truth” inscribed in the law. It involves a receptivity to the validity of the policies that underlie legal doctrine. It requires us to be open to the possibility that the law actually has something to teach us about the proper forms of human association, the limits of human freedom, and the contours of human nature. It entreats us to consider the possibility that the law has more authority on the question of regulation of a particular area of social life than we do ourselves. It asks us to assume that the rules are the way they are for a good reason and that it is our job to find out what that good reason is. It hopes to see the law as the emanation of reason–not just the formal and barren reason of mere logical consistency, but a full-blooded substantive conception of reason suited to the demands of practical affairs.

The dominant metaphors in this hermeneutical conception are openness, receptivity, and submission to the constructed object of interpretation. Indeed, Gadamer suggests that understanding is partly a surrender to the possibility of truth of the text.⁽¹⁰⁷⁾ When we truly understand, our understanding will result in a change of our attitudes in response to the truth of the text that we understand. This alteration of our own beliefs in response to hermeneutic activity is part of what Gadamer calls the “fusion of horizons.”⁽¹⁰⁸⁾We approach the text-as-we-interpret-it by revising our own beliefs as much as we make the text approach us through our interpretation of it.⁽¹⁰⁹⁾

Behind Gadamer’s theory is an idea borrowed from Heidegger: interpretation is existential as well as intellectual.⁽¹¹⁰⁾ Interpretation is not just something that we do to the objects we interpret; it is something that happens to us. To interpret is to be called, to be challenged or summoned. “Understanding begins,” Gadamer tells us, “when something addresses us. This is the primary hermeneutical condition.”⁽¹¹¹⁾ That is why we are not wholly safe when we interpret. To understand is not, as some might think, to study the object of interpretation at a distance, free from its claims upon us. It is above all to be challenged, to be vulnerable to the alteration of our own beliefs through the fusion of horizons. To risk understanding is to risk change.

Thus, Gadamer’s theory is above all an existential theory of interpretation. It associates the nature of human understanding with the conditions of human existence, and it emphasizes the effects that human understanding has over human lives. However, it should not be confused with the vision of a radically free subject associated with Sartrean existentialism. Quite the contrary; the Gadamerian subject is the product of her cultural moment. She is thoroughly culturally constructed; she cannot shed her fore-understandings and prejudices by an act of will.⁽¹¹²⁾ And yet her acts of interpretation will undoubtedly affect her life, for to risk interpretation is necessarily to risk alteration of one’s own beliefs. Yet this risk is not one she can easily avoid. The urge to understand is part of the human condition. We might even call this the “will to understand.” But unlike Nietzsche’s “will to power,” the will to understand is not a celebration of human domination. The urge to understand is an urge towards a certain type of vulnerability.

 
B.Coherence and Co-optation

Gadamer offers his ontological account of understanding as a theory of how understanding can be successful; agreement with the constructed object of interpretation is a means towards truth. Nevertheless, my interest is in the ideological component of understanding. Therefore I am as interested in how interpretation can go badly as in how it can go well. Here I part company with Gadamer, for his own theory shows how interpretation can be fraught with peril. Although I agree with his ontological explanation of understanding, I believe that it also demonstrates how particular problems of understanding occur.

There are two symmetrical ideological difficulties that flow from the ontological basis of understanding. The first stems from our historical and cultural situation. When we attempt to understand a text or any cultural artifact, we impose upon it a set of preconceptions that arise from our cultural and historical location as well as our own practical concerns.⁽¹¹³⁾ These “fore-understandings” or “prejudices,” as Gadamer calls them,⁽¹¹⁴⁾ are not merely subjective creations of the individual–we are not fully in control of the cultural tradition in which we live and that shapes our horizons of understanding.⁽¹¹⁵⁾ What we interpret therefore is always the text-as-we-understand-it, conditioned by our historical and cultural situation. We attempt to reach agreement between ourselves and the text-as-we-understand-it, but the latter is already the result of our own fore-understandings.⁽¹¹⁶⁾ Hence, Gadamer claims, “[u]nderstanding … is always the fusion of these horizons which we imagine to exist by themselves.”⁽¹¹⁷⁾

Understanding, then, is a negotiation between our own understandings and the object of understanding we construct from them. However, if both we and the constructed object of our interpretation reflect our fore-understandings and prejudices, agreement between ourselves and the text may be altogether too easy to reach. “Interpretation” will simply mean the reinforcement of existing prejudices already located in ourselves and in the constructed object of our contemplation.⁽¹¹⁸⁾ We will simply comprehend the interpreted object so that it is too easy to reach agreement with it. Our interpretation results in little more than the continuous reaffirmation of our existing beliefs and traditions. It is like attending a meeting of fellow ideologues where we are pleasantly surprised to discover that everyone agrees with us.

The second ideological difficulty stems from the vulnerability inherent in understanding–the way that the object of interpretation challenges us with its claims to truth. If understanding entails a quest for agreement with what we interpret, perhaps we will be seduced into agreeing with the wrong things. Understanding puts our norms and values at risk of change, but we have no guarantee that the change will not be for the worse. Our need to reach agreement may result only in our co-optation.⁽¹¹⁹⁾ This fear underlies our hesitation in acknowledging Gadamer’s claim that understanding is acceptance of a text’s claims to truth. Gadamer tells us that to risk understanding is to risk consensus, but to risk consensus is to risk complicity. Indeed, this possibility is chillingly suggested in the closing pages of Truth and Method:

[U]nderstanding is not playing, in the sense that the person understanding holds himself back playfully and withholds a committed attitude to the claim that is made upon him. The freedom of self-possession necessary to be able to withhold oneself in this way is not given here. . . . Someone who understands is already drawn into an event through which meaning asserts itself. . . . When we understand a text, what is meaningful in it charms us just as the beautiful charms us. It has asserted itself and charmed us before we can come to ourselves and be in a position to test the claim to meaning that it makes. . . . In understanding we are drawn into an event of truth and arrive, as it were, too late, if we want to know what we ought to believe.⁽¹²⁰⁾

Thus the existential account of understanding presents two symmetrical problems: that we will too easily conform the interpreted object to match our preexisting beliefs and that we will too easily tailor our beliefs to match the interpreted object. Let us call the first the problem of conformation and the second the problem of co-optation. If ontological hermeneutics reveals the existential basis of understanding, it equally demonstrates the kinds of errors and delusions that can result from the urge to understand. Its account of how interpretation is possible also demonstrates how the urge to interpret–the will to understand–may lead to conformation, collusion, or co-optation. Ontological hermeneutics unwittingly reveals to us the Faustian bargain of understanding, where we gain comprehension at the expense of a larger complacence and complicity.

If, as Gadamer claims, legal understanding is the paradigm of all understanding, these twin ideological effects are also effects in legal understanding. Thus, there is a danger that when we attempt to understand the law, either we will too easily find the law to conform to our own political and moral beliefs or too easily conform our own political and moral beliefs to those of the law as we understand it. Such ideological effects need not occur in every case of legal understanding. Nevertheless, we must be open to the possibility that they can occur and that they may deeply affect our judgments about legal coherence.

I have discussed the problem of hermeneutic conformation at length elsewhere;⁽¹²¹⁾ here I wish to note only how the problem throws a somewhat different light on the effects of ideology on legal decisionmaking. Accounts of judicial decisionmaking often assume the model of a “rogue” judge whose ideology tempts her to stray from the law and who must therefore be constrained by objective legal rules that prevent her from doing what she wants to do. However, if my account of legal understanding is correct, the problem may be quite different. The danger of hermeneutic conformation is that when (for example) a liberal judge looks at the law, she already sees liberal principles emanating from it and understands deviations from these principles as exceptional cases or simply mistakes. Such a judge is not actively inserting her own private policy preferences into the law; she simply sees the law as being that way.⁽¹²²⁾ The phenomenon of hermeneutic conformation explains why liberal and conservative judges can in good faith see quite different principles emanating from the same body of law. Both believe that they understand the point of legal doctrine and how best to continue it, but both come to different conclusions because the constructed object of interpretation–the law as they understand it–readily conforms to their respective beliefs. The law seems coherent to them because it readily matches their political and moral judgments.

Equally important is the problem of hermeneutic co-optation. Our need to make the law make sense so that we can apply it may lead to changes in our own beliefs that facilitate our conclusion that the law is coherent. In other words, the very activity of rational reconstruction may co-opt us in ways of which we are wholly unaware even if we still disagree with significant portions of settled doctrine. Rational reconstruction is not simply a game that places no demands on us, that leaves us untouched, that affects us only in ways we can put aside at will. If law is truly an interpretive practice and interpretation is ontological, we always risk change through our acts of legal interpretation.

As lawyers we learn and practice the skills of rationally reconstructing diverse groups of precedents and doctrines. It is surely possible that we can separate this act of creating coherence from our own well-considered judgments about a particular area of social regulation. Yet it is also possible that if we have no well-defined beliefs about a particular subject before we begin this process, we will find it easy enough to adopt the work of rational reconstruction for ourselves. The act of understanding requires us to risk complicity with what we understand. It would be miraculous indeed if such risks never came to fruition.

Perhaps the most obvious example of how hermeneutic co-optation might occur involves legal education. Law students come to the study of law with only the vaguest notions of the structure of the legal system and the content of legal norms; they are unlikely to have seriously considered possible conflicts of value between legal doctrines. Despite (or perhaps due to) their innocence, they also come with a presumption that they are to learn about a legal system that is basically coherent and just. Once engaged in the study of law, the law student accepts Gadamer’s argument for the anticipation of completion with a vengeance: she sees every experience of legal incoherence as her own fault and not the fault of the system of doctrine she studies. She assumes that the doctrines she learns must make sense and that all failures of comprehension are those of her own understanding. She blames herself, not the object of her study.

The law student, after all, has come to law school to understand law. Her social existence is wrapped up in the enterprise of understanding. Much rides on her ability to make sense of legal norms and to apply them both in the classroom and on examinations. Given these needs, she will turn all her efforts to the task of understanding the law and to forging an agreement between her own views and those of the constructed object of her understanding. She will strive to recognize not only the intelligibility of legal distinctions but also their claim to validity. Here the possibility of co-optation is very strong. If, as ontological hermeneutics tells us, understanding is a kind of vulnerability and receptivity, few are more vulnerable and receptive than the frightened first-year law student, whose goal is less to ask whether legal doctrines make sense than to grasp why they do so. If understanding is openness to the possibility that the law has greater authority about matters of social regulation than our own views, few are more open than the initiate in legal education, who seeks more to clarify legal authorities than to contest them. The act of learning the law creates great pressures on her to adopt the reason of the law as her own reason, simply because so much turns on her ability to apply the law and meet the requirements of professional credentialization.

The question of hermeneutic co-optation connects with our earlier discussion of cognitive dissonance. I argued previously that there was no reason to expect that the need to reduce cognitive dissonance would result in alteration of an individual’s beliefs and attitudes about legal coherence unless an individual had a stake in the coherence of the legal system or its parts. However, the act of rational reconstruction may itself create such a stake in the coherence of what we attempt to reconstruct. This is the unanticipated corollary of Ronald Dworkin’s well-known claim that disagreements about law are not semantic but interpretive because knowledge of law is interpretive.⁽¹²³⁾ If disagreements about law are interpretive, we may have a personal stake in our interpretations because our reconstruction of the law has produced an agreement between ourselves and the constructed object of interpretation. Our interpretations–which include our work at rational reconstruction–have become part of our beliefs, and our own sense of self-worth may depend upon their acceptance and success.

I noted earlier that compensating lawyers for taking positions contrary to their beliefs does not by itself produce a need to reduce cognitive dissonance. Hermeneutic co-optation suggests a more subtle explanation of the ideological pressures on lawyers. The problem is not so much that lawyers are paid to believe things; it is that they are paid to understand things. Lawyers must make sense of the law and argue for legal positions as the best continuation of legal materials. They are required, in other words, to reach a certain type of agreement between themselves and the object they study in order to make sense of the law and to persuade others. Such a task cannot leave their beliefs wholly unaffected. If I am asked to give an account of existing legal doctrine, even of doctrines I do not believe in, I often find that in the heat of argument, the position I am defending seems increasingly sensible to me. I become convinced of it precisely because it is necessary for me to make it coherent in order to defend it. In the classroom, one of the best ways to make students see the other side of an argument is to ask them to defend that position against another member of the class. Because they gain a momentary personal stake in arguing their position effectively, they will work to make the position they defend coherent, and thus they will begin to see the truth of the moral distinctions that the position draws.

The ontological account of understanding suggests that hermeneutic co-optation can exist in the absence of economic incentives for conformity of belief. Instead, changes in our beliefs may result from our desire to understand. This picture of legal understanding is quite alien to the traditional picture of the lawyer masterfully manipulating legal doctrines in order to achieve some set of preexisting goals. It argues instead that lawyers are shaped by as well as shape law, that they are changed by law as much as they seek to change it.

Although we may find the image of the clever lawyer manipulating the law distasteful to our beliefs about the rule of law, there is simultaneously something quite comforting in this picture. The clever lawyer seems to be in control of her interpretive situation. She chooses the arguments that she makes about the law; she employs legal doctrine to serve her chosen ends. The very idea of manipulation implies that she is distanced from the act of legal interpretation: legal argument is merely a game that she can begin or end at will, with no consequences for her beliefs, attitudes, or sense of self. This instrumentalist conception of law imagines that the law is a tool that can be picked up or put down at will, an inert element that is not part of us but one that we employ to serve our preexisting values and ends.

The comfort in this picture is the comfort of believing that we are in control of our beliefs and attitudes. Yet the picture of the masterful, manipulating lawyer is quite false. It is false not because of objective constraints in legal doctrines that prevent lawyers from doing what they seek to do, but because it relies on a picture of an individual who can stand apart from her acts of understanding and argument, who is not already affected, transformed, and on occasion even consumed by them. It is false because the tools of legal understanding are not like hammers or pliers that can be picked up or put down at will. Through acts of understanding, these tools have become part of us. They have become like our eyes and limbs, tools that we do not merely use but that also constitute us.

The illusion of legal instrumentalism is also its consolation–the belief that the tools of legal understanding remain separated from us when we engage in legal understanding, that we are unaffected, that we are free. Thus the vision of the rogue lawyer, like the rogue judge, comforts us because it preserves our belief in our hermeneutic autonomy. Our comfort in this belief is itself an ideological phenomenon worthy of study.

 
C.Legal Understanding as a Form of Power

I have emphasized the possibility of hermeneutic co-optation not because I believe that it occurs in all cases of legal understanding. It does not. I emphasize it because it illustrates a larger point. Legal understanding is not the passive reception of an inert object by a consciousness untouched by the act of understanding. Rather, legal understanding, like all understanding, affects our beliefs and our lives. It is something that we do to the object of interpretation, and something that the constructed object does to us. Our freedom from the object of interpretation is not unconditionally given. Understanding happens, and it happens to us. Hermeneutic co-optation is perhaps the most extreme case of this phenomenon, but even when there is no co-optation, understanding always changes us, however slightly. We become, to some degree, different individuals because of our acts of understanding. It is commonplace to say that our experiences have shaped us and changed us. I simply wish to add that legal understanding is such an experience. It is not merely the distanced recognition of a preexisting pattern or property. Legal understanding is the occasion for the power that legal ideas have over us.

The ontological account of legal understanding offers us a different account of ideological power. A recurring difficulty in theories of ideology has been to explain how ideas can have power over individuals.⁽¹²⁴⁾ The ontological theory of understanding shows how this is possible. Ideological power is a special case of the power that derives from the tools of understanding that we use to express our values and make sense of the social world. The power of ideology is precisely the power that the tools of our understanding have over us. We need tools of understanding to make sense of the world, but, like our limbs and eyes, these tools become part of us. Those who shape or control the tools of our understanding have a certain power over us because we are, to a large degree, the tools of our own understanding.⁽¹²⁵⁾

In this way understanding, and in particular legal understanding, makes every subject the locus of a certain type of power: the power that arises from the forms and limits of the tools of our understanding. These constitute what I earlier called “cultural software”–the modes and methods of understanding that become part of us and shape the way that we perceive the legal and social world. To understand is to employ existing tools of understanding to create new ones or adapt old ones and, in the process, to be changed. Hence it is to be the locus and the occasion of a certain form of hermeneutic power. The phenomenon I have called hermeneutic co-optation is merely an extreme case of this power, but it exists, if only to a minor degree, in every act of understanding.

The ontological basis of legal hermeneutics at last reveals its cratological⁽¹²⁶⁾ aspect–the connections between understanding and power. These connections have been virtually ignored by standard jurisprudential accounts despite jurisprudence’s recent turn to interpretation. Indeed, this turn is naive if it fails to grasp the connections between interpretation, understanding, and ideological power over the individual who understands the law.

This neglect is evident in Ronald Dworkin’s interpretive theory of law as integrity. Dworkin has emphasized the interpretive nature of legal knowledge while steadfastly refusing to consider the sociological and ideological implications of legal understanding, arguing that such analyses are “external” accounts that can have no effect on the proper internal perspective of legal understanding.⁽¹²⁷⁾ By ignoring the contribution of the subject to the nature of legal understanding, Dworkin’s theory neglects the twin difficulties of hermeneutic conformation and hermeneutic co-optation. In a previous work, I have stressed the problem of conformation: Dworkin does not account for the possibility that decisionmakers who believe in good faith that they are continuing and not altering the law may easily find that the law conforms to their own political beliefs because individuals with different political perspectives often see different principles emanating from the same legal doctrines.⁽¹²⁸⁾ Dworkin’s theory must, but cannot, distinguish good-faith subjective interpretation of the law from what he would dismiss as ideological bias. The difficulty is that both feel exactly the same to the individual interpreter of the law, who is the focus and ultimate arbiter of Dworkin’s internal perspective. The problem of conformation arises directly from Dworkin’s refusal to make the jurisprudential subject a subject of jurisprudence.

Now I would like to suggest that there is an equal and opposite difficulty for Dworkin–not the problem of hermeneutic conformation but that of co-optation. The difficulty is not that the law as we see it will too easily seem to match our political convictions, but that the pressure to reduce cognitive dissonance and the urge to make sense of legal norms may make it too easy for us to match our moral and political convictions to the law as we see it. The danger is not that we will fail to see the law as coherent, but that we will not fail in our attempt–that through our efforts to understand and our eagerness to make sense, we will too readily accept the similarities and the distinctions the law offers us as coherent. We will come to believe that the balances have all been struck rightly and that all doctrinal conflicts have disappeared.

Dworkin closes Law’s Empire with an optimistic recapitulation of the old saying that “the law works itself pure.”⁽¹²⁹⁾ Not surprisingly, this expression disguises the contributions of the subject of interpretation by ascribing an emerging purity to the object of interpretation–the law. To understand the ideological difficulty in Dworkin’s project, we might approach the matter from the standpoint of the subject: Does the law seem pure because it is pure or because we have become accustomed to its sullied colors? If we work the law pure, does not the law also work upon us, and in the process may not our very notions of purity themselves become impure? When we enter a room with a stench, a few minutes later our sensory apparatus normalizes itself, and we no longer notice the foulness entering our nostrils. Is this how the law works itself pure? If the subject is placed beyond scrutiny, how can we tell?

This defect in Dworkin’s account of legal understanding stems from its failure to grasp the cratological aspects of legal understanding–the power that legal understanding has over us. It fails to see legal understanding as the occasion for self-transformation.⁽¹³⁰⁾ It thus allows us to ignore the ways in which our social situation affects our understanding and our understanding affects the properties of the legal system we understand.

For me, this is the most troubling ideological aspect of a theory of interpretation that pretends that ideology is irrelevant to jurisprudence. In Law’s Empire, Dworkin claims that normative coherence–or his equivalent, law as integrity–is an essential element of legal interpretation that we must postulate to explain our considered beliefs about legal interpretation. He compares the requirement of normative coherence to Neptune, a planet whose existence astronomers postulated before they discovered it. “They knew that only another planet, whose orbit lay beyond those already recognized, could explain the behavior of the nearer planets.”⁽¹³¹⁾ Our demand that law appear principled to us, Dworkin argues, “suggest[s] another political ideal standing beside justice and fairness. Integrity is our Neptune.”⁽¹³²⁾

In astrology, Neptune has another meaning. It is the planet of self-deception.

VI. Conclusion: Politics, Personification, and the Preservation of Individual Coherence

I began this Article by suggesting that the coherence of law is ultimately based upon the coherence of the world and that the coherence of the world is ultimately based upon the coherence of our selves. We have seen repeatedly how the attribution of features of the self to the objects of legal understanding makes the contributions of our subjectivity to legal understanding invisible. Yet this projection has always served a further and more basic purpose: it preserves and protects the coherence of the individual subject. By continuously projecting questions of coherence away from the self and onto the object of legal understanding, we avoid considering the coherence and incoherence of individual beliefs. We assume instead a coherent self who remains untouched by and unconnected to any normative incoherences that surround her in politics or culture and who has not already internalized cultural norms that are the product of historical accumulation, conflict, and compromise. The most common approaches to legal coherence implicitly rely on and preserve the coherence of individual belief, although they do so in quite different ways.

Consider once again Ronald Dworkin’s approach to legal coherence. Dworkin argues that the law is coherent to the extent that it matches the beliefs of a single individual. In this strategy of “personification,”⁽¹³³⁾ the requirement of legal coherence is the requirement that the law, like an individual, “speak with one voice.”⁽¹³⁴⁾ Personification “attributes moral agency and responsibility” to the community; it “mean[s] that the community has its own principles it can itself honor or dishonor, that it can act in good or bad faith, with integrity or hypocritically, just as people can.”⁽¹³⁵⁾ Thus, the goal of legal interpretation is to see the law as the product of a single consciousness, and law may be criticized to the extent that it fails to match the coherence of a single individual’s beliefs.

In contrast to Dworkin’s approach is a claim made by many different scholars that legal coherence is impossible. It is made impossible because of “politics,” by which is meant the play of interest groups in legislative and administrative action, and the many changes in judicial personnel over time. For these authors, it is as absurd to think that this assemblage of forces–often working at cross-purposes to each other–would create a coherent moral system of policies, principles, and purposes, as it is to believe that shuffling a deck of cards repeatedly would put them in a coherent order. Thus, Nigel Simmonds argues that because of politics, legal principles are “blunt[ed].”⁽¹³⁶⁾ Andrew Altman contends that in a liberal society, law may not be amenable to rational reconstruction because liberal politics requires that the principles underlying law are always “truncated.”⁽¹³⁷⁾ And Joseph Raz suggests that “[if] the law is meant to be taken as a system based on authority, its content is to be determined by reference to the intentions of legal authorities and their reasons, and, therefore, given the vagaries of politics, including … judicial involvement in politics, there is no reason to expect the law to be coherent.”⁽¹³⁸⁾

At first glance these two approaches could not be more at odds. One emphasizes how law can be seen as coherent by analogy to a person’s beliefs, while the other denies the possibility of coherence because of the clash of personal wills involved in the creation of law. In fact, both employ a similar ideological strategy–both seek to demonstrate coherence or incoherence in the law through comparison or contrast with the beliefs of individuals, which are taken as the appropriate norm of coherence.

Dworkin, for example, bases his argument about the proper mode of legal interpretation on the metaphor of personification.⁽¹³⁹⁾Law is viewed correctly when we imagine it as the work of a single individual, and it is coherent to the extent that it may be compared to the beliefs of an individual. This argument assumes that individuals have coherent normative beliefs or that they may be justly criticized for lacking them. In the latter case, ought implies can: because we criticize individuals for acting arbitrarily or inconsistently, we assume that morally sensitive individuals can have coherent beliefs that they exemplify through their conduct. The morally sensitive individual, who is also the individual with coherent moral beliefs, is the model for the legal system.⁽¹⁴⁰⁾

What is interesting about this equation is not the analogy between individual belief and community norms but the assumption that the beliefs of morally sensitive individuals are an appropriate standard of normative coherence. If only the law could be as coherent as we ourselves are, Dworkin seems to be saying. Of course, in real life individuals are full of conflicts in their beliefs and attitudes. They manifest all sorts of contradictions and hypocrisies, and they usually engage in all sorts of strategies, conscious or otherwise, to reduce the resulting cognitive dissonance. Dworkin would surely respond that he is comparing the law to an ideal person, yet what is striking about his metaphor is that there seems to be no one who even comes close to this ideal. To be an individual is to be the seat of countless conflicting commitments, beliefs, attitudes, impulses, and desires that must be reconciled, balanced, and on occasion repressed as best one can. The morally coherent individual to whom the law is held up is a myth, a myth that projects incoherence, conflict, tension, and hypocrisy away from ourselves and onto an object that can safely be criticized for its failure to live up to what we ourselves could never obtain.

There is special irony in Dworkin’s adoption of Hercules as the infinitely wise, patient, and morally sensitive judge whose efforts make the law speak with one voice. Dworkin presumably chose Hercules because of the many labors he performed, which are akin to the labors of a judge to make the law normatively coherent. Yet in Greek mythology Herakles embarked on his labors as penance for an attack of madness in which he slaughtered his own children.⁽¹⁴¹⁾ It is therefore entirely fitting that Dworkin would choose a character who lost his mind through forces beyond his control as a model for human attempts to make the law coherent by mimicking the coherence of human beliefs. Herakles is an uncannily appropriate symbol of a human consciousness that is never fully in control of itself (Herakles’ madness was ordained by the gods) and that must do the best it can to make sense of its own conflicting elements and the world in which it finds itself. At the same time, Herakles is an equally apt symbol of a legal system that, like most people, must hide and suppress its many incoherences and conflicts of value and keep, as best it can, its many skeletons safely in the closet.

The unintended irony of Dworkin’s literary conceit presents, in a microcosm, the ideological strategy of his jurisprudential project: to employ individual consciousness as the model of coherent normative thought, thus preserving the sanctity and coherence of the legal subject by projecting its difficulties onto the object of its seemingly disinterested contemplation. In this way, the subject of legal understanding is removed from discussion except to serve as a model of propriety against which the law will be measured. Thus, to personify law is not, as some have suggested,⁽¹⁴²⁾ merely to disguise the incoherence of law; it is to disguise the potential incoherence of personal belief and the potential effects that the subject brings to the object of legal understanding. The personification of law is, in fact, a dual projection: it sustains the belief in our own coherence by projecting incoherence away from us so that our beliefs may serve as a standard for judging an object (the law) onto which we have already projected our own incoherences and internal conflicts.

The alternative perspective on coherence–that politics and the struggle of interest groups make legal coherence impossible–might at first seem radically different. Yet this view, no less than Dworkin’s, assumes that coherence or incoherence is a property of law revealed when law is understood from a single correct standpoint. Moreover, this position, no less than Dworkin’s, is premised on the insulation of the legal subject from jurisprudential scrutiny.

Viewing politics as the cause of legal incoherence involves its own form of projection. By blaming interest-group struggle for legal incoherence, we invite the possibility that but for politics, the law would be coherent. Moreover, we preserve belief in the coherence of the legal in those areas not deemed “political.” Thus, Joseph Raz, after arguing that politics makes global legal coherence impossible, nevertheless suggests that we “would expect [the law] to be coherent in bits–in areas relatively unaffected by continuous political struggles–and incoherent in others.”⁽¹⁴³⁾ “Perhaps,” Raz ventures, the law might be “coherent regarding the mental conditions of criminal liability, but not on the rights and wrongs of abortion.”⁽¹⁴⁴⁾

This way of thinking invokes a surprisingly simple set of structural homologies: a single mind is to a clash of wills as coherence is to incoherence, as law is to politics, as uncontroversial subjects are to controversial subjects, as consensus is to continuous political struggle, as nonpolitical parts of law are to political parts of law. Within this framework, law is coherent to the extent that it is free from politics, defined as pluralistic struggle over controversial issues like abortion. On the other hand, where issues are not controversial, where forces do not contend, the law is apolitical and can resemble the coherent beliefs we associate with a single individual.

This simple ideological framework has many far-reaching effects. It projects normative incoherence away from “uncontroversial law” and onto politics while simultaneously projecting normative coherence onto the absence of politics and what is deemed “uncontroversial law.” It associates lack of consensus with politics while viewing areas of wide agreement as relatively apolitical and hence the home of coherence. It thus identifies the presence and sources of incoherence with overt political conflicts while making invisible the potential normative incoherence in what is taken for granted or consistent with widely shared cultural practices. It reinforces the appearance of the nonideological in widely shared ideologies.

Above all, this framework projects the source of incoherence outward from individual beliefs onto conflicts between individuals or groups of individuals. By identifying the source of incoherence as conflict between individuals and their respective beliefs, we make invisible the possible incoherence stemming from conflicts within each individual among her beliefs. We thus preserve the coherence of individual belief by externalizing conflict away from the inner world of the self and projecting it onto the outer world of politics.

We now see how much Raz’s pessimism about legal coherence shares with Dworkin’s optimism. Accepting that the law is incoherent because of external political conflict may actually serve the larger ideological goal of supporting a view that our own individual beliefs are coherent. It protects the coherence of the self’s beliefs by projecting incoherence away from the self and onto the arena of political conflict.

The externalization of inner conflict onto the outside world is hardly limited to jurisprudential discussions. Indeed, many of our most common metaphors for internal conflict speak in terms of external or interpersonal conflict.⁽¹⁴⁵⁾ What is most important in the jurisprudential context is that this projection insulates the subject of understanding from jurisprudential scrutiny by implicitly adopting it as the norm of coherent belief and the relevant point of comparison. Just as with Dworkin’s rhetoric of personification, the beliefs of a morally sensitive individual are the model of coherence against which the incoherence produced by interpersonal political struggle may be compared. To speak this way implies that if the law were not the result of political struggle–if the law were produced by a single mind–it would be coherent because it would match the coherent beliefs of one individual. Posed against the image of warring factions writing their conflicting views into law is the image of the single lawmaker composing a coherent scheme of legal regulation. We thus discount the very real possibility that even if a single individual wrote the law by herself, it still might lack normative coherence because the source of unresolved moral tension may lie not in political struggle between individuals but in individual belief.⁽¹⁴⁶⁾

In offering this analysis I am not claiming that the clash of wills in a pluralist democracy does not contribute to normative incoherence. It surely does. My point is rather that such a claim conceals as much as it illuminates. It allows us to suppress recognition of the many internal compromises individuals make that are called principled behavior. Believing that incoherence is caused by politics, or by the clash of individuals in culture, allows us to forget the clash of conflicting values and desires within that bear the name of normalcy.

Thus, blaming normative incoherence on history or political struggle makes invisible the previous results of struggle already internalized within us. Recall that the subject who understands the law is always socially constructed. Our sense of the normal, the uncontroversial, of “what goes without saying,” is the result of an internalization of a culture and its norms; yet culture itself is always the product of previous clashes, conflicts, and compromises. Hence moral conflicts and tensions in our culture appear invisible to us precisely because they are the norm and exist as a norm for identifying the situations that could present an unacceptable conflict or compromise of principle. To take one example, conflicts between liberty and security or liberty and equality in American culture do not exist merely as the clash of opposed individuals or groups of individuals; they are also in the “cultural software”–the set of tools of understanding–that a culture bequeaths to the individuals who live within it. Conflicts of value may appear invisible to us to the extent that we accept a culture’s norms as our own. To the extent that we are aware of these conflicts, we may explain them in terms of a clash of individual wills rather than as a clash of warring values within ourselves.⁽¹⁴⁷⁾

In this way history and politics can be the sources of normative incoherence, but in a much more complicated way. Moral incoherence in individual belief may result from the internalization of cultural norms that are themselves the sedimentation of different historical practices. If culture is bricolage–the catch-as-catch-can assemblage and juxtaposition of tools of understanding accumulated over history–this bricolage resides in us as well as in the culture we inhabit. To exist in history is just to internalize the untidy mélange of conflicting traditions, values, and norms that constitutes historical consciousness. Thus, history and politics can be the cause of normative incoherence if we recognize that the relics of history and previous political struggle already exist within us. On the other hand, by blaming normative incoherence on politics or history conceptualized as events external to us, we make invisible history’s previous construction of our selves. We imagine ourselves to be the seat of rationality surrounded by an external world of unreason. We see history and culture without us but not within us. Once again, we imagine the self’s autonomy from the forces that make the self what it is.

In this Article I have tried to recover and reconsider what traditional jurisprudence has projected from the legal subject to the legal object–to reclaim the contributions of subjectivity to the nature of the law. Ironically, perhaps the greatest obstacle to this project has been the very question that jurisprudence has traditionally posed to itself: “What is the nature of law?” or, in another form, “What properties does the legal system have?” This question, seemingly so innocent and straightforward, already disguises many of the most fundamental features of that which it seeks to understand. It simultaneously conceals the legal subject’s location within a culture, her purposes in understanding, the political and moral beliefs she brings to interpretation, her psychological needs to make the law fit within her social world and her conception of self, and, above all, the cratological component of understanding–her vulnerability through interpretation and the effects that legal understanding has on her. That so much could be concealed in a basic jurisprudential question tells us as much about the ideological situation of jurisprudence as it does about the legal system. From a critical perspective jurisprudence must itself be a subject of jurisprudence; the construction of the questions that jurisprudence asks itself must also be on the table for analysis and discussion. If, as I have argued in this Article, these questions conceal as much as they reveal, if they presuppose a theory of subjectivity that is false and whose falsity is necessary to their continued centrality, we must be willing to jettison these questions and ask new ones in their stead. We can no longer remain content to imagine law’s nature exterior to us; we must search for the nature of the law within.

Notes

⁶⁹See J. Richard Eiser, Social Psychology: Attitudes, Cognition and Social Behaviour 90 (1986); Susan T. Fiske & Shelley E. Taylor, Social Cognition 467-68 (1991).

⁷⁰Eiser, supra note 69, at 90-92 (1986). For example, we can rationalize our continued smoking in the face of evidence that smoking is dangerous by emphasizing its benefits (it keeps our weight down), deemphasizing its disadvantages (telling ourselves that we will all die eventually anyway), or introducing other beliefs that preserve our self-image of rationality (I know that it’s bad for me, but it’s not my fault because I am addicted now and can’t stop). See Fiske & Taylor, supra note 69, at 468; see also Eiser,supra at 92; Christine McMaster & Christina Lee, Cognitive Dissonance in Tobacco Smokers, 16 Addictive Behaviors 349 (1991) (discussing various modes of dissonance reduction).

⁷¹Fiske & Taylor, supra note 69, at 468-69. Sometimes people may even engage in selective exposure to events; that is, they may expose themselves only to information that is consistent with their beliefs and behaviors and avoid situations where they might be confronted by information that would increase cognitive dissonance. Evidence for this method of dissonance reduction is mixed, and some psychologists doubt that people employ it. See Robert A. Wicklund & Jack W. Brehm, Perspectives on Cognitive Dissonance 189 (1976); Anthony G. Greenwald & David L. Ronis, Twenty Years of Cognitive Dissonance: Case Study of the Evolution of a Theory, 85 Psychol. Rev. 53, 54 (1978). More commonly, people’s life experiences reinforce their beliefs de facto because they may already “inhabit an environment that is already biased in favor of positions with which [they] already agree.”Fiske & Taylor, supra note 69, at 469. Nevertheless, “people tend to pick friends, magazines, and television shows that reinforce their own attitudes, and their attitudes, in turn, are reinforced by those agreeing others.” Id.

⁷²Eiser, supra note 69, at 93; Elliot Aronson, The Theory of Cognitive Dissonance: A Current Perspective, 4 Advances Experimental Soc. Psychol. 1, 16-17 (1969).

⁷³Joel Cooper & Russell H. Fazio, A New Look at Dissonance Theory, 17 Advances Experimental Soc. Psychol. 229, 258-59 (1984).

⁷⁴Jack W. Brehm & Arthur R. Cohen, Explorations in Cognitive Dissonance 9 (1962).

⁷⁵See Aronson, supra note 72; Robert F. Kidd & Leonard Berkowitz, Effect of Dissonance Arousal on Helpfulness, 33 J. Personality & Soc. Psychol. 613 (1976); Claude M. Steele & Thomas J. Liu, Dissonance Processes as Self-Affirmation, 45 J. Personality & Soc. Psychol. 5 (1983); Ruth Thibodeau & Elliot Aronson, Taking a Closer Look, Reasserting the Role of the Self-Concept in Dissonance Theory, 18 Personality & Soc. Psychol. Bull. 591 (1992). As it developed from Festinger’s original conception, cognitive dissonance theory has become “focused on cognitive changes occurring in the service of ego defense, or self-esteem maintenance, rather than in the interest of preserving psychological consistency.” Greenwald & Ronis, supra note 71, at 55.

⁷⁶See Aronson, supra note 72, at 27 (“[A]t the very heart of dissonance theory, where it makes its clearest and neatest prediction, we are not dealing with any two cognitions; rather, we are usually dealing with the self-concept and cognitions about some behavior. If dissonance exists it is because the individual’s behavior is inconsistent with his self-concept.”).

⁷⁷See id. at 25 (noting that recognition of inconsistent cognitions may not produce dissonance depending on underlying cognition or previous commitments of belief).

⁷⁸See Schlag, supra note 3, at 1219 (suggesting that Critical Legal Studies accounts of law may project contradiction onto the legal object, thereby shielding the critic from any possibility that her own thought might be internally conflicted).

⁷⁹Such views are consistent with the phenomenon of “belief in a just world.” Some social psychologists argue that people have both a tendency and a need to believe that they live in a world that is basically fair and just. People with just world beliefs are more likely to assume that existing social and political institutions are fair and admirable and that disadvantaged people are responsible for their own misfortunes. See Eiser, supra note 69, at 264-75; Adrian Furnham & Edward Procter, Belief in a Just World: Review and Critique of the Individual Difference Literature, 28 Brit. J. Soc. Psychol. 365 (1989). Just world beliefs allow individuals to justify the status quo to themselves even in very unjust societies. See Adrian Furnham, Just World Beliefs in an Unjust Society: A Cross-Cultural Comparison, 15 Eur. J. Soc. Psychol. 363 (1985) (comparing prevalence of just world beliefs in Great Britain and South Africa).

⁸⁰Individuals may also have a stake in the coherence of legal norms if the legal system represents authority and they have a strong stake in identifying with authority. Where the legal system becomes identified with general social authority, attacks on the coherence of legal norms may be interpreted as attacks on the society itself.

⁸¹See the discussion of hermeneutic co-optation infra Part V.B.

⁸²Roy F. Baumeister & Dianne M. Tice, Role of Self-Presentation and Choice in Cognitive Dissonance Under Forced Compliance: Necessary or Sufficient Causes?, 46 J. Personality & Soc. Psychol. 5, 12 (1984); Greenwald & Ronis, supra note 71, at 54-55. Thus, the need to reduce dissonance is greatest when a person’s commitments will have an adverse impact on herself or innocent parties for which she will be held responsible. Leonard Berkowitz, A Survey of Social Psychology 65 (1986); Cooper & Fazio,supra note 73. In one experiment, when subjects were asked to make a statement opposed to their beliefs which they knew might mislead and thus harm susceptible children, they were more likely to alter their opinions and adopt the views they had expressed in the statement. Michael F. Hoyt et al., Studies in Forced Compliance: Confluence of Choice and Consequence on Attitude Change, 23 J. Personality & Soc. Psychol. 205 (1972). On the other hand, in another experiment, when subjects were told that their statements might lead to harm to an undesirable person, they were less likely to change their attitudes to conform with what they had said. Berkowitz, supra, at 65-66; Joel Cooper et al., Mistreatment of an Esteemed Other as a Consequence Affecting Dissonance Reduction, 10 J. Experimental Soc. Psychol. 224 (1974). This suggests that one way to reduce cognitive dissonance might be to change our beliefs about whether persons adversely affected by our actions are really innocent or otherwise deserving.

⁸³In other words, the belief that one is not the sort of person who takes morally arbitrary actions or has inconsistent beliefs may be bolstered by a belief that one’s views or actions accord with settled law and that the law is basically fair and coherent.

⁸⁴Eiser, supra note 69, at 122; Cooper & Fazio, supra note 73, at 256.

⁸⁵Berkowitz, supra note 82, at 216; Eiser, supra note 69, at 94. In one classic experiment, Yale students were asked to write essays favoring repressive actions by the New Haven Police Department in stopping a student riot. Students who were paid less money came to believe in the truth of what they had written more than students given a greater sum. See Brehm & Cohen, supra note 74, at 73-78.

⁸⁶Eiser, supra note 69, at 94.

⁸⁷Another explanation for these results involves our perceptions of personal responsibility for our actions. Cognitive dissonance is greatest when we feel responsible for what we have done. Acting contrary to our beliefs for a small amount maximizes our apparent responsibility for the conduct; thus it produces the greatest motivation to alter our beliefs. See Barry R. Schlenker, Translating Actions into Attitudes: An Identity-Analytic Approach to the Explanation of Social Conduct, 15 Advances Experimental Soc. Psychol. 193, 225 (1982).

The classic forced compliance experiments assume that subjects believe that the payments they receive for counterattitudinal behavior are legitimate. On the other hand, if payments are seen as illegitimate, for example, because they are viewed as bribes or as disproportionately large, people may feel an increased responsibility for their actions, which may also lead to a need to alter attitudes to justify their actions to themselves. Id. at 225-27. Hence, there may be a curvilinear relationship between payment size and attitude adjustment; after a certain point, payments seem so disproportionately large that they raise the presumption of illegitimacy and raise anxieties about personal responsibility. Id. This suggests that lawyers who feel they are greatly overcompensated for their work or who believe that the payments being made to them might appear illegitimate are more likely to engage in strategies of dissonance reduction in order to justify their actions to themselves.

⁸⁸However, this may pose a less serious threat to self-conception. It is easier to acknowledge that the law does not match one’s own beliefs but is still coherent than it is to accept that the law matches one’s own beliefs and is incoherent.

⁸⁹Lawyers and judges do this as well, of course.

⁹⁰Of course, people may apply this assumption less stringently where the academic proposes a new statute or administrative regulation.

⁹¹Here I focus only on the power over the self created by one particular form of legal understanding–rational reconstruction. That is because my subject is legal coherence. I do not mean to suggest that power over the self does not occur through the various other forms of legal understanding. I believe that it does, but that question is beyond the scope of the present Article.

⁹²Gadamer, supra note 50, at 261. Gadamer’s reception in the American legal academy has been surprisingly slow. William Eskridge and Francis Mootz have been among the foremost exponents of his views. See generally William N. Eskridge, Jr. & Phillip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 Stan. L. Rev. 321 (1990); William N. Eskridge, Jr.,Gadamer/Statutory Interpretation, 90 Colum. L. Rev. 609 (1990); Francis J. Mootz, III, The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based on the Work of Gadamer, Habermas, and Ricoeur, 68 B.U. L. Rev. 523 (1988); Francis J. Mootz, III, Hermeneutics and the Rule of Law: Why the Obvious is Plausible (1992) (unpublished manuscript, on file with author).

⁹³Gadamer, supra note 50, at 274-95. Hence my earlier criticisms of Dworkin’s and other jurisprudential approaches apply equally to Gadamer’s failure to recognize the plurality of forms of cultural understanding and his attempt to view cultural understanding as a single process. See supra Part III.C. It follows that I am equally critical of Gadamer’s tendency to generalize about legal understanding per se; on this particular point his theory shares the same shortcomings as Dworkin’s.

⁹⁴Gadamer, supra note 50, at 261.

⁹⁵Id. at 291.

⁹⁶“[The] assumption of self-consistency … provides a standard for keeping or discarding individual interpretations of the text’s parts . . . . [I]f one denies that a given text is internally coherent from the start, one has no way of knowing whether its inconsistency is the fault of the text or one’s understanding of it.” Georgia Warnke, Gadamer: Hermeneutics, Tradition and Reason 83 (1987). Moreover, Gadamer argues, the ability to revise is necessary for understanding to be more than the reiteration of our own prejudices. We bring the prejudices and background assumptions of our cultural tradition to all understanding, and we “are not able to separate in advance the productive prejudices that make understanding possible from the prejudices that hinder understanding and lead to misunderstandings.” Gadamer, supra note 50, at 263. Thus, we must have a way of revising our understandings through interpretation, and we cannot do this without the assumption of coherence.

⁹⁷Gadamer, supra note 50, at 262.

⁹⁸Id.

⁹⁹Warnke, supra note 96, at 89.

¹⁰⁰See Dennis M. Patterson, The Poverty of Interpretive Universalism and the Reconstruction of Legal Theory, 71 Tex. L. 6Rev.(forthcoming 1993).

¹⁰¹See id.; Dennis M. Patterson, Law’s Pragmatism: Law as Practice & Narrative, 76 Va. L. Rev. 937 (1990) (arguing that to understand a legal doctrine is to understand its point, which is the same thing as knowing how to apply it).

¹⁰²This is in accord with the earlier discussion of rational reconstruction, see supra Parts II.C & III.D.1. There I argued that because the question of what is a bona fide moral principle depends on our preexisting political and moral commitments, individuals may disagree about whether the same body of doctrine is rationally reconstructible. Our experience of legal coherence inevitably depends upon the conception of actual justification we bring to legal understanding.

¹⁰³Gadamer, supra note 50, at 294 (“It is the work of interpretation to make the law concrete in each specific case, ie [sic] it is the work of application.”) (footnote omitted).

¹⁰⁴Id. at 277 (“[W]e have the task of redefining the hermeneutics of the human sciences in terms of legal and theological hermeneutics.”); id. at 289 (discussing “the exemplary significance of legal hermeneutics”); id. at 292 (“Legal hermeneutics is able to point out what the real procedure of the human sciences is. Here we have the model for the relationship between past and present that we are seeking.”); id. at 293 (“Legal hermeneutics is … no special case but is, on the contrary, fitted to restore the full scope of the hermeneutical problem and so to retrieve the former unity of hermeneutics.”). It is important to recognize, however, that this claim is motivated by Gadamer’s mistaken assumption that rational reconstruction by a judge is the central case of legal understanding. Although I have argued against that view in this Article, his insight into the process of rational reconstruction remains quite valuable.

¹⁰⁵Karl N. Llewellyn, The Common Law Tradition 121 (1960); see also Dennis M. Patterson, Law’s Practice, 90 Colum. L. Rev. 575, 591 (1990) (book review of Karl N. Llewellyn, The Case Law System in America (1989)) (“Both Wittgenstein and Llewellyn look at understanding as a gradual process of initiation. . . . [of finding] one’s feet in the enterprise.”).

¹⁰⁶The legal realist Herman Oliphant’s theory of stare decisis took precisely this approach. See Herman Oliphant, A Return to Stare Decisis, 14 A.B.A. J. 71 (1928). Oliphant argued that facts should be considered stimuli which produce a doctrinal result in a particular judge. The goal of legal studies was to record precisely which stimuli produced which results in a particular case; only then could one understand the practical meaning of legal doctrines. Oliphant’s theory was attacked both by opponents and sympathetic critics of Legal Realism on the grounds that one would also need to take into account a judge’s understanding of the doctrinal context and the purpose of legal doctrines in order to predict how a judge would be affected by factual “stimuli.” Hence, even Oliphant’s behaviorist model required understanding the point of legal norms from the perspective of the judge or legal decisionmaker. See, e.g., Morris R. Cohen, Justice Holmes and the Nature of Law, 31 Colum. L. Rev. 352, 366 (1931).

We can restate Cohen’s point in terms of our earlier discussion of the plurality of forms of legal understanding. Understanding the law for the purpose of prediction may require us to employ some aspects of rational reconstruction. These forms of understanding are mutually dependent as well as differentiated. Although Gadamer (and Dworkin) would see in this example proof that all legal understanding is ultimately parasitic on rational reconstruction, this example actually demonstrates the overlapping nature of the various forms of legal understanding.

¹⁰⁷Gadamer, supra note 50, at 262.

¹⁰⁸Id. at 273.

¹⁰⁹Id. at 272-73. Gadamer’s theory of interpretation is posed against an older conception of hermeneutics that at first seems intuitively more plausible. This view assumes that the purpose of interpretation is to try to understand the meaning of a text as an expression of the past or of an alien culture, but not to reach agreement with it. This conception is neutral with respect to truth; the meaning of the interpreted object does not depend upon its truth or falsity to us. Gadamer rejects this approach as offering only a half-measure towards real interpretation and real understanding. It is like having a conversation with someone only to get to know them but not to learn anything from them or reach any sort of agreement with them. Id. at 270. Indeed, he argues that there is a certain close-mindedness to this sort of hermeneutical inquiry: “By including from the beginning the other person’s standpoint in what he is saying to us, we are making our own standpoint safely unattainable.” Id. By limiting the focus of our inquiry, we do not allow the other person (or the text) to challenge our beliefs; we may even enjoy the superiority of believing that we are explaining the person’s beliefs or the text’s arguments as the effects of historical structures or social forces rather than as claims to truth with which we must grapple.

¹¹⁰Martin Heidegger, Being and Time 191-95 (John Macquarrie & Edward Robinson trans., 1962). Hence, this approach to hermeneutics is also called “ontological.” (Ontology is the study of being.) Like many philosophers in the Continental tradition, Gadamer and Heidegger believe that there is something special about human being, and the relationship between human existence (the human condition) and understanding is the subject of ontological hermeneutics.

¹¹¹Gadamer, supra note 50, at 266.

¹¹²Id. at 267-68.

¹¹³Id. at 270-73. The anticipation of completion is an example of such a prejudgment, one which Gadamer insists we always bring to a text. Id. at 261.

¹¹⁴Id. at 237, 240, 245-46, 261.

¹¹⁵Gadamer calls this phenomenon “effective-history.” See id. at 267-69. It is the force of history over those who belong to a tradition, “so that even in rejecting or reacting to [a tradition we] remain conditioned by it.” Warnke, supra note 96, at 79.

¹¹⁶Gadamer, supra note 50, at 263-64.

¹¹⁷Id. at 273. This is another way of saying that we cannot fully separate the subject of interpretation (the interpreter) from the object of interpretation (the text-as-we-understand-it).

¹¹⁸Because Gadamer does not seek a theory of ideological effects in understanding but a theory of how truth is achieved, this presents a problem for his theory of understanding and leads to the familiar charge that Gadamer’s account of understanding results in historical or cultural relativism. See, e.g., Thomas K. Seung, Structuralism and Hermeneutics 204-12 (1982). This is not a difficulty for my use of hermeneutical theory because I am specifically interested in how the ontological basis of understanding leads to particular ideological effects. Thus, I agree with Gadamer about the mechanisms of understanding but disagree about the consequences of these mechanisms.

¹¹⁹Once again, because Gadamer does not offer a theory of the varieties of ideological thinking but a theory of how true understanding is possible, the corresponding difficulty for his project is knowing when we must cease our efforts at understanding. Thus, when we read a text that advocates evil or unjust things, must we try to discover its truth to understand it? Does a proper understanding of Mein Kampf, for example, require us to acknowledge the possible truth of Aryan supremacy? See Warnke, supranote 96, at 90. Gadamer concedes that some texts will be so distant from our cultural horizon and our moral values that we can learn nothing from them; at most we can try to explain them as the product of historical forces or psychological causes. However, as Warnke points out, Gadamer does not tell us how to distinguish these texts from texts that can truly teach us something; he does not tell us when one is “supposed to give up the attempt to learn from one’s object [of interpretation].” Id. at 89. Thus, she asks, “Is there not a danger here that, if we do not simply misinterpret works so that they comply with our own beliefs, we will end up learning from truth-claims we ought long ago to have dismissed?” Id. at 89-90. Warnke’s criticism of Gadamer’s claims to true understanding leads directly to my concern with the problem of co-optation.

¹²⁰Gadamer, supra note 50, at 446. Gadamer might respond by distinguishing among the various forms of agreement we can have with a text. We can confront the possible truth of a text in several ways. The most obvious way is to accept what we read as true and adopt it as our own. But we need not do so. We may recognize that there are elements of the text that are true or partly true and others that we must reject. Yet confrontation with the text will compel us to develop counterarguments. In that case, we do not accept the text as true, but we have allowed the text to affect us nevertheless. When we critique another’s position, our critique is necessarily situated by the position we criticize. Thus, Gadamer might argue in a Hegelian manner that we may learn something from evil even when we reject it, for by having to confront what we reject, we incorporate that experience into our lives and thereby gain a greater wisdom. Our encounter with racist literature may lead us to a greater understanding of ethnic tensions and bring us to reassert our beliefs in racial and religious tolerance all the more strongly while understanding our position all the more deeply. If so, our understanding of ethnic equality will owe something to the analysis we find in racist literature. Because we confronted these arguments on their own terms, our encounter will be more than a disdainful explanation of a text by reference to historical forces or psychological motivation.

Sympathetic critics of Gadamer like Paul Ricoeur and Georgia Warnke have suggested just such a critical hermeneutic approach.Paul Ricoeur, Hermeneutics and the Human Sciences 89-100 (1981); Warnke, supra note 96, at 106. Unfortunately, Gadamer himself often appears to embrace the most co-optive features of interpretation as exemplified in the final paragraphs of Truth and Method quoted above. As Warnke notes, “Gadamer at times seems to suggest that the consensus with the object or the tradition is substantive in that it issues in just such a concrete agreement” between ourselves and the text we attempt to understand. Id. at 107-08. Under these circumstances, horizon fusion “mean[s] that there is no longer any difference between our position and that of the object; understanding involves finding a way to agree … and hence ignoring the possible necessity of criticizing the text or text-analogue under study.” Id. at 108.

¹²¹See Balkin, Ideology as Constraint, supra note 4; J.M. Balkin, Taking Ideology Seriously: Ronald Dworkin and the CLS Critique, 55 UMKC L. Rev. 392 (1987) [hereinafter Balkin, Taking Ideology Seriously].

¹²²Hence, it follows that the important jurisprudential problem is not explaining how law external to individual consciousness can be objective so that it can constrain the dreaded “rogue judge.” The problem is not the “rogue judge” who must be kept from inserting her private and personal prejudices into law. Rather, the problem is the sincere judge, who is destined to see the law according to her own ideological perceptions and beliefs. The difficulty is not one of unconstrained freedom but one of ideological determinism. This argument is made at greater length in Balkin, Ideology as Constraint, supra note 4.

¹²³Dworkin, supra note 8, at 87.

¹²⁴Cf. John B. Thompson, Studies in the Theory of Ideology 130-31 (1984) (noting that for various thinkers ideology “bears no intrinsic connection to the problem of domination” and arguing that the study of ideology must become the “study [of] the ways in which meaning (signification) serves to sustain relations of domination.”) (emphasis omitted).

¹²⁵I mean this in two different senses. Human beings are, in large part, their own “cultural software”–their modes of understanding make them who they are as individuals. Thus, the tools of our understanding constitute us as individuals. At the same time, we are “tools” of our understanding in the sense that our acts of understanding and the conditions of our understanding direct us in particular ways, revealing some possibilities while obscuring or foreclosing others.

¹²⁶By “cratology,” I mean the study of power in its various forms and usages. See J.G. Merquior, Foucault 108, 113-14 (1985) (defining cratology as the theory of power).

¹²⁷See supra note 10 and accompanying text.

¹²⁸See Balkin, Taking Ideology Seriously, supra note 121.

¹²⁹Dworkin, supra note 8, at 400.

¹³⁰This problem is symbolized by Dworkin’s ideal judge, Hercules. The problem is not that Hercules is all-knowing and infinitely patient. It is rather that his interpretive situation is not truly human–he is a dispassionate, distanced, static ideal of understanding, wholly unaffected by the act of legal interpretation. Missing from this account is the subject’s vulnerability to change through the hermeneutic encounter.

Ironically, the Greek mythological hero Herakles is a valuable corrective to Dworkin’s distortion. The mythological hero becomes the object of adoration because of an act of struggle through which he is transformed. The hero’s transformation represents and idealizes those facets of human life in which we are tested through trial and difficulty, undergo transformation through struggle and suffering, and come to understand our worthiness as individuals. Indeed, the importance of Herakles to the Greek and Roman world stemmed precisely from these features of his life; throughout the ancient world, hero cults of Herakles sprang up in which Herakles was portrayed as a Christ figure transformed by his labors, see G. Karl Galinsky, The Herakles Theme 4-6 (1972). On the hero cults of Herakles, see Lewis R. Farnell, Greek Hero Cults and Ideas of Immortality 95-174 (1921). On the central importance of the mythological hero’s struggle and transformation and its relation to conceptions of human life, see Joseph Campbell, The Hero with a Thousand Faces 30-38, 245-46 (2d ed. 1968).

A mythological hero like Herakles is a proper metaphor for legal understanding only if he undergoes change as the result of his encounter with the materials of the law. If, like Dworkin’s Hercules, he is not affected by the act of interpretation, his understanding is not truly a human one.

¹³¹Dworkin, supra note 8, at 183.

¹³²Id.

¹³³Id. at 167.

¹³⁴Id. at 165.

¹³⁵Id. at 168.

¹³⁶N.E. Simmonds, Bluntness and Bricolage, in Jurisprudence: Cambridge Essays 1, 12 (Hyman Gross & Ross Harrison eds., 1992).

¹³⁷Andrew Altman, Critical Legal Studies: A Liberal Critique 139, 145-47 (1990).

¹³⁸Raz, The Relevance of Coherence, supra note 13, at 295.

One of the most often quoted statements of this view is Roberto Unger’s. Unger argues that “it would be strange if the results of a coherent, richly developed normative theory were to coincide with a major portion of any extended branch of law.” For this to occur, Unger contends “[t]he many conflicts of interest and vision that lawmaking involves, fought out by countless minds and wills working at cross-purposes,” would have to represent “an immanent moral rationality whose message could be articulated by a single cohesive theory.” Unger accuses “the dominant legal theories” of believing in this possibility and hence attempting what he calls a “daring and implausible sanctification of the actual.” Roberto M. Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 563, 571 (1983). Given Unger’s basic agreement with the positions of three liberal legal theorists, he perhaps overstates the case. Indeed the goal of this Article is to question something that the critical legal theorist Unger appears to share with his liberal opponents– the view that legal incoherence is a solely a property of a legal object, as opposed to an effect produced by the object’s encounter with a particular form of legal subjectivity. See Schlag, supra note 3, at 1218.

¹³⁹See Costas Douzinas et al., Postmodern Jurisprudence: The Law of Texts in the Texts of Law 65-69 (1991).

¹⁴⁰As Dworkin puts it:

We want our neighbors to behave, in their day-to-day dealings with us, in the way we think right. But we know that people disagree to some extent about the right principles of behavior, so we distinguish that requirement from the different (and weaker) requirement that they act in important matters with integrity, that is, according to convictions that inform and shape their lives as a whole, rather than capriciously or whimsically. . . . Integrity becomes a political ideal when we make the same demand of the state or community taken to be a moral agent, when we insist that the state act on a single, coherent set of principles . . . . We assume, in both the individual and the political cases, that we can recognize other people’s acts as expressing a conception of fairness or justice or decency even when we do not endorse that conception ourselves.

Dworkin, supra note 8, at 166.

¹⁴¹See Robert Graves, 2 The Greek Myths 100-01 (1990).

¹⁴²See Douzinas et al., supra note 139, at 66-72.

¹⁴³Raz, The Relevance of Coherence, supra note 13, at 295.

¹⁴⁴Id. I assume that Raz would count as exceptional cases in which criminal liability for abortion would turn on questions of intention (e.g., mistake of fact about the viability of the fetus) so that “political” disputes about abortion might affect the interpretation of an otherwise “uncontroversial” area of law.

¹⁴⁵Thus, we say that ideas are warring in our heads, as if they were separate individuals who could engage in combat. The anthropomorphism of our ideas analogizes internal conflict to external struggle among individuals. Similarly, we speak of the demons inside us, or the conflict between our heart and our head, our reason and our appetites.

¹⁴⁶By identifying the causes of incoherence primarily with conflicts between individuals, we also tend to see individuals as the bearers of opposing principles (e.g., Reagan or Thatcher as standing for free markets) rather than understanding individual belief as a collection of conflicting principles that manifests itself differently in different contexts. As a result, we sometimes misunderstand individual political action, for individuals are likely to be more complicated than the political personas assigned to them would suggest.

¹⁴⁷See Bernard Williams, Moral Luck 72-73 (1981).