Faculty Journal Articles and Book Chapters
Some Thoughts on Law and Interpretation
In Law and Truth, Dennis Patterson critiques the notion of interpretive universalism ― the idea that all understanding is a matter of interpretation. Interpretation has become a central focus of jurisprudence. According to this view, understanding a social practice -e.g., law ― is a matter of imposing an interpretation on that practice. According to Patterson, the leading advocates of interpretive universalism in law are Ronald Dworkin and Stanley Fish. For them, understanding law is not a practice; rather, legal truth is a product of a connection between language and a sublime explanatory device. Patterson argues that they are wrong because understanding and interpretation are distinct activities, and, thus, legal understanding cannot be identified with interpretation.
For Dworkin and Fish, understanding in law is a matter of interpretation. Patterson's central response to this claim is that all understanding is not interpretation. According to Patterson, understanding is not a matter of the application of an interpretive theory. Understanding is best explained as an ability. The criterion for understanding an utterance is not engagement in a process; rather, it is acting appropriately in response to the utterance. For example, one shows understanding of the request "Please pass the salt" by passing the salt or explaining why it is impossible to do so. Understanding is acting properly in response to the request. If the request is unclear, interpretation of the request may be necessary. Interpretation cannot be understanding. We engage in interpretation when our understanding of an utterance or sign is in question. Interpretation is an activity of clarification: interpretation begins when our conventional self-understandings break down.
According to Patterson, if all understanding were interpretation, then each interpretation would itself stand in need of interpretation, and so on, infinitely regressing to infinity. Given this, Patterson concludes that it is a mistake to assign interpretation a mediating role between utterances and the understanding of them.
In Law and Truth, Dennis Patterson has offered a vigorous critique of the notion that understanding in law is a matter of interpretation. In so doing, he is swimming against the tide of "the interpretive tum" in jurisprudence. In these comments, the author seeks to offer some reasons to question whether Patterson's critique is dispositive.