The Theory Debates of the 1980s: A Retrospective

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Stanley Fish

What were the debates in the 1980s about? In general, they were about the nature of interpretation, especially, though not exclusively, legal interpretation, and they were driven by three questions: 

• ·        What if anything constrains interpretation?
• ·        What is the source of these constraints—the text, rules, authorial intention, the moral foundation of the law, the structure and conventions of practice, divinely revealed truths?
• ·        In order to have constraints must you first have a theory? If so, what kind of theory—linguistic, formalist, economic natural law, pragmatist, feminist, postmodernist, realist?

And who were the participants? Owen Fiss, Sandy Levinson, Ronald Dworkin, Stanley Fish, Gerry Graff, Walter Michaels, all of whom glance sideways at Judge Posner; each with a connection to literature and the liberal arts, each a Jew of a certain age. 

These main figures were engaged in a dance-like series of encounters in which temporary alliances and oppositions gave way to new oppositions and new alliances. 

In the background of these debates is a picture of the scene of interpretation that is either being affirmed, or challenged, or declared completely false. 

• ·         A free-standing independent text that has a meaning
• ·         A free-standing independent interpreter whose job it is to decode the meaning
• ·         Some method or theory that serves as a bridge between, and a constraint on, (1) and (2). 

Constraint is necessary because, it was said, interpreters will always be tempted to substitute their own meanings for the meaning the text contains. Texts in their turn are inherently ambiguous, capable of being read in many ways, and, because ambiguous, a possible ally of the willful interpreter. Just as an interpreter must be prevented from going his/her own self-serving way, so must a text be prevented from releasing all the meanings that could possibly be assigned to it. 

The question then is how exactly do you do that, and the answer Sanford Levinson gave in 1982 is that you can’t. For years he reports, he organized his course on constitutional interpretation around the question “Did the court get it right,” a question that required for an answer “the development of a full set of principles and methods of correct interpretation”. Now however he is less and less confident that “this is a sensible enterprise”; he has become convinced by reading Rorty, Bloom, Kuhn, and Fish that the reader not the text controls because language is “unavoidably ambiguous”; and that in turn means that “meaning is created rather than discovered” and as a result nothing can prevent the interpreter from doing what Richard Rorty says he will always do; beat the text into a shape that will best serve his own purposes.

Almost everyone took issue with Levinson, including those (like me) he cited for support. The key point was made immediately by Graff in the same issue of the Texas Law Review. “Meaning”, Graff insisted, “is an affair of the use of words and sentences, not words and sentences considered as things in themselves which, somehow, bear meanings within them”. No word or sentence, he continued “means anything determinate until it is used in a specific speech situation by somebody.” 

I offered an even stronger version of Graff’s point: There are no words or sentences in themselves existing in some abstract space waiting to be inserted into a particular situation; when you encounter a word or a sentence it is always and already domesticated—shorn of the polysemy that is either its glory or its liability; the supposed radical ambiguity of language has already been tamed. Levinson, I said, mistake words as dictionary entries—as items bearing any number of meanings none of which has yet been selected by an intentional agent—for words that are actually being employed in the making of an assertion. 

What this means is that one of the entities in need of constraint in the interpretive scene as Levinson imagines it is already constrained. There is no free-standing independent text bursting with multiple meanings that must be rendered manageable by method; and therefore there is no need of method. Moreover by the same reasoning there are no free-standing independent interpreters whose wayward impulses must be curbed by method. Any interpreter, whether of a legal or literary or historical or anthropological text is situated within one of those disciplines, sees through its eyes and thinks through its concepts. He or she is already tethered to and constrained by the internalized set of norms and priorities that come along with membership in a well-developed practice. The lawyer or literary critic or historian never enters the disciplinary space and asks, “well, what do I do now?” Being embedded in a practice means is that you always know what to do and that the requisite knowledge—the know-how, the ropes—is something you carry with you—no, within you—written on the fleshly tables of your heart to the point where your perception and thought are naturally its extension. 

As you can see, this argument, which I had begun to make in the early 70’s solves the crisis of interpretation by denying that there is one, by declaring that the free-standing polysemous text and the free-standing standing interpreter, exercising a will to power, don’t exist, and therefore don’t have be brought together by a free-standing independent method. So when Levinson says that the problem of interpretation is incapable of resolution because its politics and power all the way down, I say there is no problem, which doesn’t mean that the path of interpretation is always clear and easily negotiated; but that the difficulties are the ordinary empirical ones and not the deeply theoretical difficulties with which Levinson begins. And of course if there is no problem, there is, as I have already said, no need for a solution. 

Is at this point that I wheel and turn in the direction of two other formidable interlocutors, Owen Fiss and Ronald Dworkin, both of whom think there is a problem because both assume something like the picture of interpretation assumed by Levinson in which interpretive proliferations calls out for a constraint. Without a constraint, Fiss declares, nothing will stop the slide toward nihilism. 

Fiss’ candidate for constraint is what he calls disciplining rules—a ‘set of rules that specifies weight and relevance”. So in Fiss’ account the interpreter who asks herself “What do I do now?” has an answer: hold fast to and apply the rules, some of which Fiss lists 

• ·         The judge must stand independent of the interest of the adversary parties
• ·         The judge must listen to grievances he might otherwise prefer not to hear
• ·         The judge must assume…responsibility for his decision
• ·         The judge must justify his decision in terms that are universalizable 

But it would be difficult—no impossible—to imagine a judge who needed to be reminded or remind himself of these “rules”, since the behaviors the rules enjoin are necessary and constitutive ingredients of what being a judge entails. The judge who is not the tablet on which those rules are inscribed has lost his hold on what it means to be a judge, and has become something else. The disciplining that Fiss assigns to his rules is already going on the moment a man or woman steps into the judge’s role. The rules don’t govern the practice from the outside; they inhabit the practice as its inside. Fiss thinks judges (and other interpreters) are in need of constraints; I would say that they are structures of constraint and need only to go on in their already constrained way. 

I gave the same response to Ronald Dworkin’s concern that judicial interpretive practice be informed and undergirded by the right moral/political theory. Like Fiss, Dworkin begins with the desire that judges “not read their own convictions into the Constitution” He see this danger as one pole to be avoided; the other is the pole of textual literalism or as he calls it “conventionalism”, the idea that a “right or a responsibility flows from past decrees” and “is explicit within them”. So on the one hand there is the Scylla of “discrete judgments” made by interpreters who feel no obligation to maintain “consistency with the past”, and the Charybdis of adhering to a text simply because it is on the books and with no concern for its moral content. I reject, said Dworkin, both “finding the law just there in history” and “making it up wholesale in accordance with what you think it should be. 

Dworkin opts for “something different” from both these alternatives, and that something he variously calls “articulate consistency”, “law as integrity”, “law as a chain novel” and the “moral reading of the law”. Under any of these designations, the obligation of judges is to “regard themselves as partners with other officials, past and future, who together elaborate a coherent institutional morality and they must take care to see that what they contribute fits with the rest”, in the sense of continuing the story law is cumulatively telling; the judge who does that will be doing his part in making the whole of the law “the best it can be”. It follows, says Dworkin, that “legal reasoning “must bring to bear…a vast network of principles” that are at once the content of law and the force impelling it forward. “You cannot think about the correct answer to the questions of law unless you have thought through and are ready to work through...an over-arching theoretical system”. Being in possession of such a theory is what guarantees that interpreter/judges will be acting responsibly rather than acting either mechanically or willfully. 

Dworkin’s account drew from me a version of the same question I addressed to Fiss. Would it be possible for a judge not to think of himself as embedded in a network of legal principles as embodied in legal history; not actively think so as a willful resolve, but think so unreflectively by virtue of the role he or she occupies? The question can be sharpened by listening to a sentence from the classic essay, “Hard Cases”. “If a judge accepts the settled practices of his legal system—its distinct constitutive and regulative rules—then he must …accept some general political theory that justifies these practices.” What could possibly be meant by the word “accept” in this sentence? Could one reject the settled practices of the profession and the moral vision informing them and in any meaningful sense be a judge? Does a judge wake up in the morning and decide whether he will today accept those practices? Of course he could decide to give it all up, throw in the towel, but so long as he doesn’t do that, the weight and guidance of those practices will not be something he could be without (in two senses of that word). I’m not saying that one couldn’t or shouldn’t articulate the principles informing legal practice, but that they are at work always in the actions of practitioners, even the actions of practitioners who have never had a systematic theoretical thought in their lives. The formal articulation of the theory of a practice is not a prerequisite for engaging in it. Theory is a special—and optional—project. Theory comes after, not before, the interpretive act. 

In their responses to my arguments, Fiss and Dworkin made the same point –that what I leave out and devalue are the moments of reflection, of stepping back from the task at hand and taking the longer view of the enterprise. I do not however either deny or trivialize such moments. I only insist that they are practice specific; that is, they occur within the practice and not in a special realm above it. If by reflection you mean thinking about what you’re doing and speculating as to what case or category or precedent might aid your doing of it, I am all for it. What I deny (both as a strategy and a possibility) is reflection as a separate free-standing act with no institutional content and with abstract ambitions. What I deny is the relevance to legal practice—or any other—of philosophy. When Dworkin speaks approvingly of the Herculean judge who strives to “build a gigantic over-arching theory good for all seasons”, he articulates a vision of the judge as a companion of George Eliot’s Causabon—someone who just likes to build systems, the bigger the better. Building systems is fine if you like that kind of thing, but practice can do very well without it. 

It is in my insistence on the sufficiency of practice that I make common cause with Judge Posner who consistently argues against over-arching theories, elaborate legal formalisms, edifices of principle. He searches for a key to the interpretive kingdom and reports that “no keys were found”. What he does find is the practical reasoning characteristic of the common law—“a vast grab bag that includes anecdotes, introspections, imagination, common sense, empathy, …motives, speaker’s authority, metaphor, analogies, precedent, custom”—all the bits and pieces out of which jurists fashion their opinions. 

Needless to say, I find this congenial as an account of the way law’s business gets done. Law is not a theoretical enterprise, even though shards of theory turn up in it and are often met with more respect than they merit. Basically, legal practice and legal interpretation are empirical activities in which an enormous variety of things are put into play, including occasionally theoretical formulations or as I call them “theory talk”—in the effort to be persuasive to the relevant audiences. 

There is nothing more general to say. 

Where Posner and I part company is the question of whether anything follows from the fact that there is nothing more general to say. He thinks or at least used to think that something does follow, that a pragmatic/empirical description of the law and its operations calls for an empirical, pragmatic method, one that, in Posner’s terms, helps us in the “struggle against metaphysical entities”. But you can’t make a method out an anti-methodical argument. It is one thing to affirm the truth of trial and error, pragmatic experimentation and opportunism against rival, normative accounts of the law; it is another to make that affirmation into a new norm, into a program that promises to do things better. That is to make the mistake of confusing pragmatism as a truth we are all living out (whether we are theorists or anti theorists) with pragmatism as a truth we could live by. If pragmatism as a description of the law is correct, it cannot without contradiction be the banner we march under. If “pragmatically” is the answer to the question “how do we go about making decisions and fashioning interpretations?” that hit-and-miss-trial-and-error process cannot be the basis of an imperative like “act pragmatically”. How else could we act? The fact that everything that goes on goes on in a contingent fashion does not lead to or even make intelligible a resolution to be contingent. Contingency is something that befalls us as situated beings, not something we intentionally perform. It cannot be made into a new abstract guide especially since the unavailability of abstract guides is pragmatism’s key assertion. “Be ye contingent” is an incoherent imperative. Indeed, knowing that contingency is what impels the process forward doesn’t make you any better at it; and not knowing that contingency is what impels the process forward won’t make you any worse at it (again because contingency is something we necessarily experience, not something we self-consciously and aggressively enact or fail to enact); your ability to make do with the resources at hand is independent of the truth or falsity of your epistemological account of the practice you are engaged in; that skill could well be yours even if you remained, as Dworkin did, a hard core theorist. 

This brings me to a final point and another possible difference between me and Judge Posner. The flip side of the mistake of thinking that metaphysical entities govern practice is the mistake of thinking that metaphysical entities must be eliminated from practice. But while metaphysical entities do not and could not do the work claimed for them by formalists and theorists (the work of generating correct, determinate outcomes), they do do the absolutely essential work of enabling the law to perform its task, which is to stand between us and the contingency out of which its own structures are fashioned. Those structures are the metaphysical entities legal realists and their successors have been urging us to discard since the early 20th century. But if we were to follow their council and get rid of law’s normative vocabulary because it was a rhetorical creation resting on nothing firmer than its own elaboration, the result would not be a purified law, but no law. Those who say that that the law is not a distinctive thing are right if by distinctive they mean a natural kind. Law is exactly what realists, postmodernists, feminists, critical race theorists (and others) say it is: is an artificial construct supported by nothing more foundational than the concepts and categories it invents and sets in motion. But that is precisely why the artifice must be maintained and constantly shored up: sweep it all away—no more legal definitions, no more concepts that correspond to nothing in the world, no more challengeable and malleable distinctions, no more rules that are breached as a matter of principle—and everything these fragile fabulations make possible will be lost. The sheer rhetoricity of law’s machinery is the strongest argument for maintaining it in all its fictional glory; if nothing grounds it, it cannot survive the dismantling of its surface props. 

Nor will the law be bettered by turning it over to another enterprise. Judge Posner has been known to say that the law should be a “method of social engineering”; but making the law into an appendage of some other project by jettisoning the vocabulary (again, admittedly artificial and self-referring) that declares its wholly confected distinctiveness is not the way to save it , but the way to lose it. So, in what might seem to be a paradox but is not, what is waiting for us at the end of the anti-formalist road—the road we travel down when we deconstruct law’s claims of objectivity and universality—is formalism; not the a priori formalism of a foundationalist epistemology where the foundations are always there waiting to be discovered and clung to, but the formalism of the enabling fictions (embodied in a conceptual apparatus) in the absence of which the word “law” would refer to nothing at all. It is only if law rested on some perdurable, objective foundation that the paring away of its institutional surfaces would do no harm; the foundation would remain what it is even without the surface features that adorn but do not constitute it. If, however, the law is foundation-less, the removal of its surfaces would be the removal of everything. 

Stanley Fish is Professor of Law at Florida International University College of Law and a Visiting Professor at the University of Texas School of Law. You can contact him at fishs@fiu.edu.