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The Nature of Legal InterpretationWhat Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy$
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Brian G. Slocum

Print publication date: 2017

Print ISBN-13: 9780226445021

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226445168.001.0001

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Getting Over the Originalist Fixation

Getting Over the Originalist Fixation

Chapter:
(p.156) Chapter Seven Getting Over the Originalist Fixation
Source:
The Nature of Legal Interpretation
Author(s):

Francis J. Mootz III

Publisher:
University of Chicago Press
DOI:10.7208/chicago/9780226445168.003.0007

The Fixation Thesis propounded by the new originalists is false. The practice of understanding in all its various manifestations is intransigently hermeneutical, despite the conceptually complex efforts of theorists to insulate highly selective legal practices (constitutional litigation at the Supreme Court level) from the destabilizing risk of hermeneutical activity. To put the matter bluntly, the legal order is too important for social survival to be led astray by palliative theorizing. The hermeneutics of legal practice reveals a great deal about our nature as hermeneutical beings because the legal system cannot afford the luxury of a conceptual fixation. By neglecting the ontology of human understanding, legal theorists permit the new originalist program to get off the ground with an intuitive appeal to a “fixed” meaning. Later efforts to argue on behalf of a “living constitution” will wilt in the face of the constraint principle: who can successfully argue against the comforting fantasy of judges who discern objective meaning without having to make judgments? Gadamer’s ontological account of hermeneutical activity and meaning derails the new originalist program at the outset, refusing to grant the seemingly minor concession of the Fixation Thesis.

Keywords:   hermeneutics, constitutional interpretation, Gadamer, legal interpretation, originalism

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