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Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks from a German Point of View Author(s): Winfried Brugger Source: The American Journal of Comparative Law, Vol. 42, No. 2 (Spring, 1994), pp. 395-421Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/840752Accessed: 17-12-2015 18:17 UTC

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WINFRIED BRUGGER

Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks From a German

Point of View

A German lawyer who follows the modern discussion in Ameri- can constitutional law on what the governing theory of the Constitu- tion should be and how the Constitution is to be interpreted, receives two distinct and different impressions: (1) How different these dis- cussions are! But, (2) how familiar they seem to be! Differences in understanding the Constitution result, for example, from the fact that Germans view their Constitution more as a substantive charter of justice than do Americans, who traditionally pay more attention to the checks and balances aspect and the faimess of the political process. But common to both nations is the function of the written Con- stitution as the main pillar of political and legal legitimacy, as expressed in the Constitution's guiding principles regarding govem- mental processes and results. Differences also arise in the way in which the judicial function is seen: While both nations vest the final authority of constitutional interpretation in the highest judicial body (which, in Germany, is a separate constitutional court) and discuss the scope of legitimate judicial decision-making, this discussion is more heated and controversial in the United States.

What I intend to concentrate on here is my theory that the interpretive approach generally used in German jurisprudence can char- acterize and structure not only the main arguments in German constitutional theory and interpretation but also those in American constitutional jurisprudence. This is not to say that, on a closer look, one might not discern various important differences in the way these methods are used, and I do remark upon these differences. But the main purpose of the following remarks is to cover some of the com-

WINFRIED BRUGGER is Professor of Law, University of Heidelberg, Germany; 1991-92 Visiting Professor, Georgetown University Law Center. J.D. 1973, S.J.D. 1980, Uni- versity of Tubingen, Germany; LL.M. 1981, University of California at Berkeley.

These revised remarks form part of a talk, "Is There Something To Be Learned From German Constitutional Law?," which I gave at the Georgetown University Law Center, Harvard Law School, and at the University of Maryland School of Law during the spring semester of 1992. I would like to thank the discussion participants for their valuable criticism. I am also grateful for helpful comments by Anita L. Allen, Harold J. Berman, William A. Fletcher, James E. Herget, Donald P. Kommers, and Philip Selznick, and for editorial help by Cara Smith.

395



396 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 42

mon methodological ground and to demonstrate how the German and American approaches may successfully be linked together, so far as methods of interpretation, schools of jurisprudence, anthropology, and their relationships are concerned.

Section I presents the classic German canon of interpretation. Section II discusses variations on this standard and the ways in which its interpretive perspectives relate to prominent schools of jurisprudence; in it, I also propose criteria for the selection of methods of interpretation in hard cases. Section III concludes by exploring four anthropological perspectives which roughly equal the classic four interpretive perspectives, and argues for the relevance of these four perspectives in the process of interpretation.

I. THE CANON OF INTERPRETATION IN GERMAN LAW

The classic method of interpretation in Germany was established by the founder of the 'historical school of jurisprudence', Friedrich Carl von Savigny, in an 1840 treatise on Roman law. Savigny distin- guished, in modern parlance, textual, verbal or grammatical interpretation, systematic, structural or contextual interpretation, and historical interpretation.' Later on, a fourth perspective was added: teleological interpretation, which might also be termed purposive interpretation.2

In verbal or grammatical interpretation, philological methods are used to analyze the meaning of a particular word or sentence. In systematic interpretation, one attempts to clarify the meaning of a

1. See Friedrich Carl von Savigny, Das System des heutigen Romischen Rechts, vol. I, ? 33 (1840), especially at 213-14: "So mussen wir [in der Auslegung] vier Ele- mente unterscheiden: ein grammatisches, logisches, historisches und systematisches. Das grammatische Element der Auslegung hat zum Gegenstand das Wort, welches den Ubergang aus dem Denken des Gesetzgebers in unser Denken vermittelt. Es besteht daher in der Darlegung der von dem Gesetzgeber angewendeten Sprachgesetze. Das logische Element geht auf die Gliederung des Gedankens, also auf das logische Verhaltnis, in welchem die einzelnen Theile desselben zu einander stehen. Das historische Element hat zum Gegenstand den zur Zeit des gegebenen Gesetzes fur das vorliegende Rechtsverhaltnis bestimmten Zustand. In diesen Zu- stand sollte das Gesetz auf bestimmte Weise eingreifen, und die Art dieses Ein- greifens, das was dem Recht durch dieses Gesetz neu eingefugt worden ist, soll jenes Element zur Anschauung bringen. Das systematische Element endlich bezieht sich auf den inneren Zusammenhang, welcher alle Rechtsinstitute und Rechtsregeln zu einer gro3en Einheit verknupft . . .". Both the grammatical and logical analyses be- long to the textual inquiry. Savigny's canon was developed for civil law, not constitutional law. See id. at 2, 69.

2. For descriptions of these methods, see Friauf, "Techniques for the Interpreta- tion of Constitutions in German Law," in Proceedings of the Fifth International Sym- posium on Comparative Law 9, 11-13 (1968); Magiera, "The Interpretation of the Basic Law," in Main Principles of the German Basic Law 89, 91-93 (Christian Starck ed. 1983); Donald P. Kommers, The Constitutional Jurisprudence of the Federal Re- public of Germany 48-49 (1989); Konrad Hesse, Grundzuge des Verfassungsrechts der Bundesrepublik Deutschland ? 2 II 1 (16th ed. 1988); Winfried Brugger, Rundfunk- freiheit und Verfassungsinterpretation 4-10 (1991).



1994] LEGAL INTERPRETATION 397

legal provision by reading it in conjunction with other, related provisions of the same section, or title, of the legal text, or even other texts within or outside the given legal system; thus, this method relies upon the unity, or at least the consistency, of the legal world. In historical analysis, the interpreter attempts to identify what the foun- ders of a legal document wanted to regulate when they used certain words and sentences; here, both the specific and the general declarations of intent are of crucial importance. In teleological analysis, the historical will of the framers is devalued: Instead of being accorded critical emphasis as to what was then willed, their declarations of intent are only deemed indicative, not determinative, of the contemporaneous purpose of the legal provision or document. The same holds for the weight of textual and systematic interpretation in teleological analysis: These methods suggest an outcome or a certain range of outcomes, but the decisive point of reference is the interpreter's notion of a result that, according to the "independent function"3 or value of the pertinent legal provision, must be the correct one.

These four methods constitute the classic catalog of statutory interpretation in Germany. They also comprise the core of constitutional interpretation, as is evidenced by many cases decided by the Federal Constitutional Court4 (and, in the United States, by the

3. This expression taken from Justice Frankfurter's concurring opinion in Adam- son v. California, 332 U.S. 46, 67 (1947) aptly captures the main characteristic of teleological interpretation.

4. See the references in Magiera, supra n. 2, at 92 n.6; Hesse, supra n. 2; Brug- ger, supra n. 2, at 5, n.9; Friedrich Muller, Juristische Methodik 31-32 (4th ed. 1990). One illustrative formulation of the Federal Constitutional Court reads as follows: "Wahrend die 'subjektive' Theorie auf den historischen Willen des 'Gesetzgebers' = Gesetzesverfassers, auf dessen Motive in ihrem geschichtlichen Zusammenhang ab- stellt, ist nach der 'objektiven' Theorie, die in Rechtsprechung und Lehre immer starker Anerkennung gefunden hat, Gegenstand der Auslegung das Gesetz selbst, der im Gesetz objektivierte Wille des Gesetzgebers. 'Der Staat spricht nicht in den per- sonlichen Au,erungen der an der Entstehung des Gesetzes Beteiligten, sondern nur im Gesetz selbst. Der Wille des Gesetzgebers fallt zusammen mit dem Willen des Gesetzes' . . . Diesem Auslegungsziel dienen die Auslegung aus dem Wortlaut der Norm (grammatische Auslegung), aus ihrem Zusammenhang (systematische Aus- legung), aus ihrem Zweck (teleologische Auslegung) und aus den Gesetzesmaterialien und der Entstehungsgeschichte (historische Auslegung). Um den objektiven Willen des Gesetzgebers zu erfassen, sind alle diese Auslegungsmethoden erlaubt. Sie schliepen einander nicht aus, sondern erganzen sich gegenseitig. Das gilt auch fur die Heranziehung der Gesetzesmaterialien, soweit sie auf den objektiven Gesetzesinhalt schliepen lassen. Freilich sind die 'Vorarbeiten eines Gesetzes fur dessen Auslegung immer nur mit einer gewissen Zuruckhaltung, in der Regel blop unterstutzend, zu verwerten' . . . Sie durfen nicht dazu verleiten, die Vorstellungen der gesetzgebenden Instanzen dem objektiven Gesetzesinhalt gleichzusetzen . . . Der Wille des Gesetzgebers kann bei der Auslegung des Gesetzes nur insoweit berucksich- tigt werden, als er in dem Gesetz selbst einen hinreichend bestimmten Ausdruck gefunden hat. . .": Official Reports of the Federal Constitutional Court, vol. 11 (1960), 126, 129-30 [hereinafter 11 BVerfGE 126, 129-30 (1960)].




Supreme Court.)5 For many years, German scholars have debated whether constitutional interpretation differs qualitatively from statutory interpretation, and if so, what additional or different standards should apply to constitutional adjudication.

The prevailing view holds that the Constitution differs from statutes in that it is more political, more open-ended, and less complete.6 From that it follows, according to this view, that vague constitutional provisions cannot be 'construed' (ausgelegt) but must be 'actualized' (aktualisiert) or 'concretized' (konkretisiert); the difference being that a strict 'construction' reveals a solution already inherent in the text, whereas an 'actualization' or 'concretization' entails a dialectic process of creatively determining results in conformity with, but not de- terminable by, the Constitution. According to the most influential proponent of this view, Konrad Hesse, the goal of creating constitutional law while respecting the Constitution may be reached through adherence to five points of reference for constitutional interpretation, in addition to, and relativization of, the four classic methods of statutory interpretation: (1) Each interpretation must support the unity of the constitution. (2) In cases of tension or conflict, the principle of practical concordance (praktische Konkordanz) must be employed to harmonize conflicting provisions. (3) All governmental organs must respect the functional differentiation of the Constitution, that is, their respective tasks and powers in the separation of powers scheme. (4) Each interpretation must try to create an integrative effect with regard to both the various parties of a constitutional dispute as well as to social and political cohesion. (5) These points together lead to

5. See the analyses by Cass Sunstein, After the Rights Revolution, Reconceiving the Regulatory State 113-32 (1990) (discussing text, structure, purpose, history, and legal process); Fallon, "A Constructivist Coherence Theory of Constitutional Interpre- tation," 100 Harv. L. Rev. 1189, 1194-1209 (1987) (discussing arguments from text, framers' intent, constitutional theory, judicial precedent, and moral or policy values); Walter F. Murphy, James E. Fleming & William Harris, American Constitutional In- terpretation 291-301 (1986) (discussing verbal, historical, structural, doctrinal, prudential and purposive analyses); Philip Bobbitt, Constitutional Interpretation 12-13 (1991) (describing historical, textual, structural, doctrinal, ethical, and prudential modes of analyses). The classic four German criteria cover all these elements if one assumes that 'judicial doctrine' is an upshot of the four criteria, as developed and applied to specific cases or areas of law, and if one further stipulates a broad understanding of purpose that covers all overarching goals or values a legal provision or document in fact serves or is supposed to serve. Among such goals could easily fall procedural, moral, social, political and prudential values or theories. Respect for judicial precedent is not a formally binding guideline for judicial interpretation in Ger- many, because in a code law system, judicial decisions serve only as gloss on the law which is to be found in the rules and principles of the governing legal texts. In fact, however, all courts, including the Federal Constitutional Court, strive to adhere to precedent, as do American courts.

6. See Magiera, supra n. 2, at 92.




the legitimating function of the Constitution: Each interpretation shall attempt to optimize all the aforementioned elements.7

These five additional characteristics of constitutional interpretation are widely accepted and used by both scholars and judges. There is, in my view, little doubt in legal scholarship of the usefulness of categorical differentiation in general and this analysis of constitutional interpretation in particular. However, I doubt whether the pe- culiarities of the German Constitution are in fact so substantial as to not only permit but compel one to devise a special theory of constitutional interpretation.

Not only constitutions, but statutes as well can be hotly disputed, and in the German setting one may plausibly argue that the Consti- tution elicits a greater consensus than some legislative acts. Not only do constitutions comprise open-ended principles, but so do other legal texts-in referring, for example, to various standards of public interest or reasonableness. Not only are constitutions incomplete, in the sense that they do not regulate every problem in detail, but so are statutes, and the extent to which constitutions are even less complete depends upon the specific question to answer. There are sections in the German Constitution which are more specific than some passages of legislative enactments. Finally, whether-or to what extent-an interpretation reveals something hidden in the language or based upon the creativity of the interpreter, is a question leading up to complex problems of literary theory and construction that transcend the distinction between statutory and constitutional law.8

Even if one assumes that the dissimilarities between the Ger- man Constitution and German legislation in general are so substantial as to create a qualitative difference between these two kinds of legal texts, one can argue that the additional methods of constitutional interpretation proposed by Konrad Hesse form a part of or can be viewed as an annex to the classic canon of statutory interpretation, especially the systematic and teleological perspectives: (1) It is the goal of systematic, respectively structural or contextual interpretation to clarify the meaning of a rule by reference to other related

7. See Hesse, supra n. 2, ? 2 III 2. Konrad Hesse is a highly influential former justice of the Federal Constitutional Court and a leading scholar in constitutional law. Another prominent scholar and Justice addressing the special character of constitutional interpretation is Bockenforde, "Grundrechtstheorie und Grundrechtsinter- pretation," 1974 Neue Juristische Wochenschrift 1529; same, "Methoden der Verfassungsinterpretation," 1976 Neue Juristische Wochenschrift 2089. Bock- enforde's approach is used in Magiera's exposition of constitutional interpretation, supra n. 2, at 94-98. I cannot discuss here the wide array of positions surrounding constitutional theory and interpretation in Germany. For overviews of these works, see Hesse and Bockenforde, id., and Kommers, supra n. 2, ch. 2; Brugger, "Elemente verfassungsliberaler Grundrechtstheorie," 1987 Juristenzeitung 633.

8. See The Politics of Interpretation (W.J.T. Mitchell ed. 1983); McIntosh, "A Po- etic for Law: Constitutional Theory as Metaphor," 30 How. L.J. 647 (1987); Interpret- ing Law and Literature (Sanford Levinson & Steven Mailloux eds. 1988).




provisions, but this reference presupposes the unity or consistency of the legal order and implies (2) that if tensions arise, they may be alle- viated by a reasonable accommodation of the pertinent provisions. (4) If one of the overarching aims of the legal system is the integration of the political community, then teleological interpretation clearly permits inclusion of this goal. Within the same approach it is also possible and perfectly reasonable to advocate the view that in order to (5) further the normative force of the legal text at hand, one must attempt to optimize all the aforementioned points. The only reference point remaining, then, is (3) adherence to the functional differentiation of the Constitution-meaning that judges should adjudi- cate, while legislators should adopt and administrators execute the law. This point, admittedly, plays a stronger role in constitutional adjudication than in statutory interpretation, but in the process of the former, respect for separation of powers concerns falls clearly under the auspices of a contextual analysis of the text of the Constitution.

All of this suggests that, although it is possible to create particular methods of constitutional interpretation, we are not compelled to do so. Whether or not it is desirable may depend on the specific problem at hand. At any rate, for present purposes nothing is lost by ad- hering to the classic canon of interpretation as a method of both statutory and constitutional interpretation. What rules, then, does the German doctrine propose with regard to the use of the four interpretive methods? Legal scholars support various methods of ranking, but the standard generally relied upon by both scholars and judges does not amount to much more than the following precept: When interpreting a provision, make use of all methods.9 The result may then be: All methods achieve the same result; the case is therefore easily resolved. Or, the methods may point to different results; the case is therefore difficult to settle. Which rule should one follow in a hard case? There exists no detailed rule which would be universally acknowledged and adhered to in German jurisprudence, but two precepts are widely accepted:

First, each interpretation must respect the outer bounds of grammatical analysis. For example, if the constitutionality of a legal provision is in doubt, the judge should construe it in a way compatible with the constitutional command; however, this is not a license to

9. This rule was already stated by Savigny, supra n. 1, at 215: "Es sind also nicht vier Arten der Auslegung, unter denen man nach Geschmack und Belieben wahlen konnte, sondern es sind verschiedene Thatigkeiten, die vereinigt werden mussen, wenn die Auslegung gelingen soll. Nur wird freylich bald die eine, bald die andere wichtiger seyn und sichtbarer hervortreten, so da,B nur die stete Richtung der Aufmerksamkeit nach allen diesen Seiten unerlalilich ist, wenngleich in vielen einzelnen Fallen die ausdruckliche Erwahnung eines jeden dieser Elemente als un- nutz und schwerfallig unterlassen werden kann, ohne Gefahr fur die Grundlichkeit der Auslegung."




manipulate the ordinary meaning of the language.'0 Yet, with a closer look, one can identify decisions in which the courts have used systematic and teleological arguments in order to disregard the word- ing of a rule; usually these are instances in which the result reached by textual analysis is considered by the judges to be irrational or unjust."l

Second, more importance must be placed on the 'objective' textual, systematic, and teleological methods than on the 'subjective' historical method.12 Historical analysis, indeed, generally serves only as a secondary, supplementary way of clarifying a rule's meaning. But in some cases, courts place great emphasis on this type of argument, and it is the other methods which seem to be supplementary.13

The designation of the textual, systematic, and teleological analyses as objective is meant to express the view that the text of the provision is used as an independent starting point. Once a law is adopted, according to German understanding, it becomes an independent entity, and is supposed to regulate not only the present, but the future as well. What the adopters said is paramount to what they willed. Thus the provision cannot be bound by their declarations of intent. Independence, however, is too strong a characteriza- tion. It is more accurate to say that the subjective will of the adopters influences the meaning of the provision but does not totally determine it. Other aspects: the text itself, its legal context, and, especially, teleological arguments based on contemporaneous notions of rule-specific or overarching legal values, may legitimately be considered in order to affirm, broaden, or narrow the historical understanding of the reach of the provision.

There is some irony to this: In order to employ these objective methods of interpretation, one must use subjective judgment. With- out an individual assessment of how to devise, weigh, and relate textual, contextual, and teleological arguments, objective interpretation cannot be undertaken. On the other hand, it is possible, at least in some cases, to come up with a valid, objective elucidation of what the framers subjectively wanted to achieve.14 So, if one so desires, one might reverse traditional terminology.15

10. See Kommers, supra n. 2, at 58; Friauf, supra n. 2, at 13. 11. References in Magiera, supra n. 2, at 93-94; Muller, supra n. 4, at 35. 12. See 11 BVerfGE 126, 129-30 (1960), supra n. 4, and Friauf, supra n. 2, at 13. 13. References in Magiera, supra n. 2, at 94; Brugger, supra n. 2, at 6; Kommers,

supra n. 2, at 49. 14. Of course, in many instances problems abound as to the objectivity of discov-

ering original intent, as the American discussion shows. See, e.g., Fallon, supra n. 5, at 1198-99, 1209-17; Sunstein, supra n. 5, at 129-30; Murphy et al., supra n. 5, at 303-07.

15. The traditional terminology is discussed in Kaufmann & Hassemer, "Enacted Law and Judicial Decision in German Jurisprudential Thought," 19 U. Toronto L.J. 461, 465-66 (1969); Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland 124-25 (2nd ed. 1984).




II. LEGAL METHODS AND SCHOOLS OF JURISPRUDENCE

Apart from the terminological question, one basic fact emerges in every difficult case: The interpreter, in using the four methods of interpretation, faces problems of indeterminacy which may only be eliminated if there exists a universally accepted and detailed rule as to the use and hierarchy of the relevant methods. But such a specific rule is not available, only the aforementioned, rather weak precepts. Beyond that, scholars argue for and against particular hierarchies,16 and courts adhere to a fairly flexible and pragmatic course, weighing the importance of the interpretive perspectives according to which- ever line of argument seems the most convincing in a particular case or group of cases, or according to which musters a majority in the court.17

One way of analyzing and refining the prospect of interpretive choice is to differentiate, not between statutory and constitutional interpretation,18 but to demonstrate that within each of the four perspectives variations can and do arise:

16. The outline described here covers only the most basic blueprint of interpretation and does not exhaust the scholarly discussion in Germany. A very informative analysis of the German schools of interpretation and legal philosophy is the article "Enacted Law and Judicial Decision in German Jurisprudential Thought," supra n. 15. For a more recent treatment, see Karl Larenz, Methodenlehre der Rechtswissen- schaft (6th ed. 1991). As to the discussion in constitutional law and theory, see the citations supra n. 7.

17. The manner in which the German Federal Constitutional Court employs these methods of interpretation is characterized as "pragmatic, flexible, and un- dogmatic," Magiera, supra n. 2, at 93, and "rather vague and uncertain," Friauf, supra n. 2, at 14. See also Hesse, supra n. 2, ? 2 II 2, and Muller, supra n. 4, at 61.

18. Even if one adheres to the view that there exist additional methods of constitutional interpretation-see supra text following n. 10-the chances of a tension or conflict between these methods are not diminished.




TABLE 1: METHODS OF INTERPRETATION

Variations Schools of Jurisprudence

1. textual analysis (a) common usage textualism, formalism "what is said"

_ (b) legal usage positivism, originalism-

2. contextual analysis (a) legal context systematic, structural "what is said"

(b) social context legal realism

3. historical analysis (a) actual will interpretivism, intentionalism- "what was willed"

(b) enlightened will

4. teleological analysis (a) politics critical legal studies purposive (b) procedural fairness democracy & representation "what is intended" (c) substantive justice natural law & moral theory

(d) inclusion, nonsubordination- feminism, race theory (e) order, stability conservatism (f) ordered liberty communitarianism (g) choice maximization individualism (h) interest satisfaction utilitarianism (i) wealth maximization economic theory of law (j) expediency, practicality- pragmatism (k) other new theories

A textual analysis may focus upon both the ordinary meaning of a word or its legal/professional usage. Contextual analysis may refer to the legal context of a rule, or its social context, of which the interpreter forms a part. In a historical analysis of the will of the rule's adopters, one may strive to identify what their actual specific or abstract intentions were or what they might have been, had the adopters been aware of key facts and ideas known to us but not to them. Regarding teleological interpretation, one can distinguish widely dis- parate, overarching purposes of legal provisions, e.g., accommodating politics, reinforcing the democratic process, securing substantive justice, including all groups equally, supporting societal stability, recon- ciling individual choice and social forms, maximizing lifestyle choices, interest satisfaction, or economic wealth, respecting everything that works.19

19. Are these purposes an internal part of the pertinent legal text, or external goals? The answer depends upon the question of whether interpretation can be based only on what was specifically said/willed, or whether it can legitimately refer to values that the legal text perhaps only alludes to (e.g., in the preamble or in general clauses). I should repeat here a point addressed already in n. 5: The notion of teleological! purposive interpretation transcends the philosophical distinction of teleological ver-




This extensive (but not exhaustive) list of variations on the four interpretive perspectives captures many reference points that both scholars and courts employ when they expound the meaning of legal provisions in hard cases.20 The list of variations, however, does not contain more than that-an enumeration of the most important variations on the four classic perspectives, which can serve as an analytical tool in establishing which criteria courts and legal scholars do in fact use in the interpretive process. The list does not address the problem of their relations and respective weight to be given each mode of analysis.

Before I touch on these questions, however, I want to address an expansion of not only the basic but also the enlarged list of interpretive perspectives. Every one of the topics mentioned in the enlarged list of reference points identifies at least one core element2l of each of the most prominent legal philosophies in the United States:

Textualism concentrates on the common and legal usage of words and their legal context; it is sometimes also referred to as formalism. Interpretivism or intentionalism emphasizes the importance of the actual or enlightened will of the adopters of a rule. Textualism and interpretivism together are sometimes called originalism; they also comprise the core of positivism, insofar as 'law' is characterized by and confined to concrete legal provisions: that is, either specific rules or abstract principles as narrowed down by their

sus deontological theories; it covers both of these approaches in that every value aspect or functional consideration which either is or should be represented by a particular legal provision or text falls under this heading.

20. Again, this seems to me to be not only the case in Germany, but also in the American legal system. See Fallon, Sunstein, & Murphy et al., supra n. 5. The list of teleological variations is based on the modern American discussion, as is the list of schools of jurisprudence, see infra n. 22. A more elaborate discussion would have to address the differences between the German and American attitudes regarding the main variations of the four classic methods and legal philosophies in more detail. Here, I only mention some aspects in n. 22. In general, though, it is safe to say that these differences relate to terminology and normative emphasis, not to (or much less to) the analytical character and usefulness of the list developed here along American lines of argument.

21. In order to prove the following analysis, I would have to spend much time and use much space, and it is doubtful that I could persuade everyone. But I hope that many will agree, at least on the superficial level of citing catchwords, on the charac- terizations, especially in the light of my reservation that the respective catchword captures one core (and not all tenets) of these jurisprudential schools. I am fully aware that within every school I refer to, many variations exist. I also realize that every school integrates, to some extent, elements of the other approaches; indeed, one could identify some close allies. Most of these American schools are discussed in Win- fried Brugger, Grundrechte und Verfassungsgerichtsbarkeit in den Vereinigten Staaten von Amerika ?? 32-38 (1987); "Das Reich der Rechtszwecke. Zu Ronald Dworkins Rechtsphilosophie," in Dimensionen menschlicher Freiheit 109 (Heiner Bielefeldt, Winfried Brugger & Klaus Dicke eds. 1988); "Wertordnung und Recht- sdogmatik im amerikanischen Verfassungsrecht," in Rechtspositivismus und Wertbezug des Rechts 173 (Ralf Dreier ed. 1990); "Pluralismus und Menschenwurde im Werk von William James," in Recht und Wurde des Menschen 15 (Heiner Bielefeldt, Winfried Brugger & Klaus Dicke eds. 1992).




historical meaning. Legal realism concentrates on the real-life 'input' and 'output' of legal interpretation, be it the personal background of judges, the contribution of an interpretation to some desirable policy, or other social factors. The critical legal studies movement endorses a more sceptical, more radical, and more utopian form of legal realism: Behind every interpretive statement lurks political decisions; in a fragmented and divided society these value judgments generally amount to value impositions by the ruling class on minorities, as long as these minorities are not able to amend the use of language and the current institutional/political structure. If an interpreter under- scores the weight of arguments of justice, one moves in the direction of classic natural law theory or modern moral theories of justice. These often emphasize the problem of the fair distribution of burdens and benefits, but in feminist jurisprudence and race theory additional claims are brought forward: the inclusion of oppressed minorities on a basis of equal respect for their personal and cultural contributions to social life. The emphasis is different in models of democratic decisionmaking: Here it is not the fairness or inclusiveness of the result that is considered significant, but the quality of the democratic process itself, which legitimizes the respective outcome. Interest satisfaction and wealth maximization form the core of utilitarianism and the economic theory of law. Choice maximization is the guiding light of individualism, whereas social order and stability stand at the apex of conservatism. Communitarianism can be viewed as an attempt to accommodate both individualism and conservatism, in that both free choice and the cultural embeddedness of the individual are viewed as necessary for the human personality to flourish. American pragmatism is primarily concerned with discerning and supporting institutional and substantive arrangements that 'work', and they only work if they express the funded experience of a society.22

22. For Americans interested in the German schools of interpretation and legal philosophy, I mention some of the schools and their approximate American counter- parts. Positivism, formalism, and textualism form the main elements of the theories of Begriffsjurisprudenz and Hans Kelsen's Reine Rechtslehre. The Historische Rechtsschule of Savigny and others thematizes topics which in the United States would fall under the heading of conservatism or communitarianism. The main concerns of legal realism and critical legal studies are addressed in and were preceded by the German Freie Rechtsschule and the Interessenjurisprudenz. For proponents of the view that 'law is politics' it might prove enlightening to study Carl Schmitt's 1932 treatise Der Begriff des Politischen, an advocacy and radical application of the politicization of law: The Concept of the Political (George Schwab trans. 1976). The German Wertungsjurisprudenz comes close to American pragmatism and moral theory. Interpretivism does not have a close Gernan ally because historical interpretation in Germany has traditionally been seen only as a secondary source of interpretation, see supra n. 4. As regards other teleological aspects such as utilitarianism, individualism, or other overarching purposes of law, one would have to study the pertinent classic and modern literature in social and political theory. Most of these jurisprudential schools are described in Kaufmann & Hassemer, supra n. 15; W. Friedmann, Legal Theory (5th ed. 1967); Hendrik Jan Van Eikema Hommes, Major Trends in the History of Legal Philosophy (1979). See also Larenz, supra n. 16; The




If indeed these relationships exist between methods of interpretation and schools of jurisprudence, does this knowledge aid the interpreter confronted with a hard case? Or does this simply show that, apart from having a choice with regard to interpretive methods, one also has a choice in jurisprudential schools? Undeniably, choice plays a role both in the use of legal methods and in support for legal philosophies. But how great a choice exists, and what kind of discretion do we encounter in hard cases? The answers to these questions depend on the specific settings of the relevant cases and the degree of determinacy or indeterminacy of the pertinent rule(s). But general preconceptions will probably also play a role, as is evidenced by the widely diverging American views on the general degree of indeterminacy of the (which one specifically?) law.23

If one wishes to address this question in general terms, it is use- ful to distinguish three ideal-type modes of inquiry. (1) Is this choice in fact governed by the personal fiat of the interpreter? Should it be? Mainstream American and German legal thinkers would answer both the factual and the normative questions in the negative, but some deconstructivist scholars or radical adherents of critical legal studies may answer 'yes'.24 (2) Does there or should there exist some standard guiding interpretive choices which, although not determinative, might bestow direction and order upon this inquiry? The domi- nant view both in Germany and America would answer this question in the positive, and, in what follows, I shall support this stance by proposing two important sets of interpretive guidelines. (3) Could one even argue for a strict hierarchy of methods to guide interpretation in hard cases?

In referring to a strict or strong hierarchy of methods I include two types of theories: The former is the type in which either what is said, what historically was willed, or what now reasonably might be intended governs the outcome of the interpretation, and no accommodation of these perspectives is allowed; this one could call a privileged

Jurisprudence of Interests (M. Magdalena Schoch trans. & ed. 1948); Gerhard Casper, Juristischer Realismus und Politische Theorie im Amerikanischen Rechtsdenken 13- 14 (1967); Herget & Wallace, "The German Free Law Movement as the Source of American Legal Realism," 73 Va. L. Rev. 399 (1987).

23. See Kress, 'Legal Indeterminacy," 77 Cal. L. Rev. 283 (1989) (defending the claim that the indeterminacy of the law is no more than moderate, and rejecting critical legal scholars' arguments for radical indeterminacy); Sunstein, supra n. 5, at 144: "[T]he suggestion that statutory meaning is indeterminate is widely overstated."

24. See William Eskridge & Philip Frickey, Legislation. Statutes and the Crea- tion of Public Policy 327, 618 (1988): 'Many critical scholars . . . claim that all law, legislative as well as judicial, is ultimately arational, subjective, and political ... there is no way to evaluate and prefer the will of some over that over others"; "Decon- struction criticism might suggest that legal interpretation is wholly subjective." See also Kress, supra n. 23, at 302-20.




factor theory.25 The latter type opts for the binding force of conclusions drawn from the text, legal context, and history irrespective of the reasonableness of the case's substantive outcome-that is, the teleological perspective; this, of course, is a variant of the privileged factor type of theory. Some scholars argue for a strict hierarchy of methods,26 but until now, neither in Germany nor in the United States has any proposal been generally accepted. Some of the reasons for the failure to establish a strict canon of interpretation27 will become clear in the following discussion.

The first recommendation for the ordering of legal methods is based on the premise that any interpretation should take both the law and the real world seriously. It should make at least some sense in the world of legal purposes, principles, and rules, as well as in the world of social facts and ideals. From that it follows that we must begin with the legal text and context of the relevant provision. Both can indicate either a broad or narrow range of possible solutions. Within this more or less determinate range, one may then consider what the framers wanted to achieve and what the relevant provision(s) in light of contemporaneous legal values such as justice, effi- ciency, or some other relevant goal require(s).28 As Savigny has already noted, we must employ every method available. If we work in accordance with this maxim, we are not, however, assured of the ab- sence of conflict between these methods, and there exists no guaran- tee that subjective judgment will not be involved. Indeed, in every intricate case, conflict and subjectivity abound.

Nevertheless, admitting this does not imply that only personal predilections count or should count. The resolution of legal problems depends on several settings which affect the context and content of the opinion: The cultural and linguistic background will at least outline the outer bounds of what might be right and wrong and what

25. See Fallon, supra n. 5, at 1209-23 (discussing interpretivism and John H. Ely's theory of representation reinforcing); Bobbitt, supra n. 5, at 123: "Indeed much of the history of the theory of American constitutional interpretation is little more than the assertion of preferred modalities."

26. See Fallon, supra n. 25, and Muller, supra n. 4, at 248-64. It must be noted, however, that most of these theories allow for some accommodation of the dis- privileged factors, if need be.

27. The term 'canon' of interpretation is often held in disregard, in Germany as well as in the United States. This dislike is probably based on the widespread linkage of the word canon with a fornalistic approach to interpretation. As the text wants to make clear, there are different types of canons (flexible and inflexible ones, inclusion- ary and exclusionary ones) and also different ways of using them (in the discovery mode or the interpretive mode). For an enlightening analysis of the interpretive mode in contrast to the discovery path and the path of invention in moral philosophy, see Michael Walzer, Interpretation and Criticism ch. 1 (1987).

28. For a similar view, see Eskridge & Frickey, supra n. 24, at 616; Sunstein, supra n. 5, at 114; Fallon, supra n. 5, at 1244-46. As for the role of doctrine and precedent, see supra n. 5.




meanings can be given to the text of the relevant legal provision.29 The institutional setting (for example, jurisdiction, case or contro- versy, standing, decision by collegiate body, stare decisis) influences what and how the question is to be adjudicated. The personal background of the judges (their integrity and competence) can also function as an (admittedly rather abstract) check on 'bad' decisions. With regard to the methodological setting-the use of interpretive methods-some conclusions, at least in the negative, can safely be drawn: A judgment that is not based on the pertinent legal text and context is not a legal interpretation but a political decision. A judgment that makes sense only in the world of the law, but not in the real world, is an unsound judgment. And a judgment that is obviously unjust will not carry the full force of law to an unwilling population.30

These principal (but not exhaustive) points of reference3l create an array of legitimate judicial decisionmaking in which sometimes a variety of judgments may be made. The degree to which these criteria determine the outcome of a case is always contingent upon the facts of the matter, the area of law, and the respective social consensus or dissension with regard to a reasonable dispute settlement. Many social disputes are resolved by the parties themselves; others end up in court. Many cases are settled in court or adjudicated, and are not appealed; others are appealed to higher courts, and only these cases end up in casebooks.

Of greater significance, however, than the disputed question of the degree of consensus or dissension that exists in a modern society such as that of Germany or America, is another point: Each legal decision in a hard case requires an individual judgment. This, though, does not automatically entail arbitrariness, which would only be implied upon application of the all-or-nothing approach. If something is not totally rational, certain, or determined, it must then be

29. See Walzer, supra n. 27, at 21, 28. 30. See also Bobbitt, supra n. 5, at xv: "Some interpretations of ambiguous provi-

sions are flawed, e.g., will produce an unacceptable increase in judicial discretion (prudential); will leave politically weak groups at the mercy of the state (structural); will make liberty too fragile (ethical); will be insufficiently respectful of the claims of original intent (historical)"; and Llewellyn, "The Constitution as an Institution," 34 Col. L. Rev. 1, 4 (1934), criticizing judicial interpretations based on "inadequacy of description, and inadequacy of functioning."

31. For a broader list, see Karl Llewellyn, The Common Law Tradition. Deciding Appeals 19 et seq. (1960). Llewellyn cites under the title 'Major Steadying Factors in Our Appellate Courts' 14 reference points: (1) law-conditioned officials, (2) legal doctrine, (3) known doctrinal techniques, (4) responsibility for justice, (5) the tradition of one single right answer, (6) an opinion of the court, (7) a frozen record from below, (8) issues limited, sharpened, phrased, (9) adversary argument by counsel, (10) group decision, (11) judicial security and honesty, (12) a known bench, (13) the general pe- riod-style and its promise, and (14) professional judicial office. See also the summary provided by Fuller, "Reason and Fiat in Case Law," 59 Harv. L. Rev. 376, 379 (1946): "[A judge in real life] must move within a framework of statutes, precedents, accepted values and meanings, professional traditions, and customary ways of doing things."




absolutely irrational and indeterminate. This simplistic and mis- leading antagonism does not make sense in a liberal and pluralistic society, in which occasionally a broad range of normative judgments may be made by rational people,32 both in adopting and in interpreting legal provisions. In such a society, the basic line is the strong possibility of some dispute over the direction and the significance of both substantive and interpretive rules, and the relevant question therefore is: If rational people partially agree and partially disagree, what adequate procedures and arguments then exist to solve these problems in the best way possible?33

Viewed in this light, "critical pluralism is not the inevitable con- sequence in the interpretation of the 'open' text, if we understand that by determinate meaning, we are speaking probabilistically about that interpretation that is supported by the best evidence (that can reasonably be accounted for) which would resolve competing interpretations. For, determinacy is neither certainty nor propositional adequacy to facts. It is rather a matter of degree and a function of possible communal agreement about assessment procedures."34

Even if we assume that a judge does not act in good faith (but why should we assume this, if there is no concrete indication for bias? If one is a cynic, should one then not be a cynic with regard to oneself as well?), this does not necessarily lead to the mere imposition of his values on the parties. The judge is required to defend and justify his decision, using the aforementioned methods of interpretation, which, according to the circumstances of the case, should indicate what an acceptable judgment could look like. In other words, the institutional

32. It is a virtue, and not a failure, of a liberal society that it allows and constitutionally supports differing value judgments to be proclaimed and brought to bear in the political process. Hard cases in adjudication, then, can also be characterized as cases in which the governing legal provision allows for several plausible solutions, but these compete until one is selected as the binding, according to the relevant institutional, procedural, and substantive standards. Even after a binding judicial decision is handed down, the fight is not necessarily over-there may exist other bodies to which one may appeal.

33. For a critique of the all-or-nothing approach and an analysis of kinds and de- grees of consensus/dissension, see Brugger, "Freiheit der Meinung und Organisation der Meinungsfreiheit. Eine liberale Konzeption der geistigen Freiheiten des Art. 5 Absatz 1 und 2 GG," 1987 Europaische Grundrechte Zeitschrift 189, 192; "Der Kampf der Meinungen," in Neue Medien und Meinungsfreiheit im nationalen und internationalen Kontext 143, 148-50 (Johannes Schwartlander & Eibe Riedel eds. 1990); "Theorie und Verfassung des Pluralismus," 1990 Staatswissenschaften und Staat- spraxis 529, 537-42 (1990). The all-or-nothing approach is also implicitly criticized by Fallon, supra n. 5, at 1235-36; Sunstein, supra n. 5, at 145; Kress, supra n. 23, at 331- 34; Bobbitt, supra n. 5, at 33-34.

34. McIntosh, supra n. 8, at 669. See also Post, "Theories of Constitutional Inter- pretation," 30 Interpretations 13, 35 (1990): "[The] justification [of judicial decisions] flows not from logical compulsion but rather from the principled application of pertinent considerations. Constitutional adjudication, like all law, is in this way revealed as balanced on the human faculty of judgement. As in all human endeavor, pertinent considerations may be more or less compelling, and consequently the ability to exer- cise judgment more or less sustained."




and methodological 'context of justification' delimits the range of and transforms the personal 'context of discovery'.35 Thus, the interpreter and his product partake of a process which is both realistic and idealistic, in that its master ideal is to achieve results which make sense both in the real world and in the legal world.36

Gerhard Leibholz, an influential former Justice of the German Federal Constitutional Court, has expressed this master ideal of interpretation as follows:

If the world as it is, i.e., political reality, is left out of account by the law, the lawyer becomes detached from life, from reality, and so from the law itself. If the value of the legal rule is overlooked because of an uncritically extended theory of the normative force of fact, the choice in favour of the ever- changing forces behind constitutional reality destroys the dignity and authority of the law. It must be the task of the constitutional lawyer to reconcile rules of law and constitu-

35. As to this terminology borrowed from the philosophy of science, see Hans Reichenbach, Experience and Prediction 6-7 (1938); Dewey, "Logical Method and Law," 10 Corn. L. Rev. 17, 24 (1924); Golding, "A Note on Discovery and Justification in Science and Law," in Justification 124, 138 (J. Roland Pennock & John W. Chap- man eds. 1986): "Conclusions of law ... have to be supported by justifying reasons ... The reasons for the conclusion must . . . be acceptable to [the affected persons and groups] as legitimate grounds of decision . . . If values enter into a judicial justification, they do not do so as personal predilections. The values must have some purchase on the community to which they are addressed." See also Bobbitt, supra n. 5, at xvi, 23, 119, 184, and Murphy ct al., supra n. 5, at 13: "Judicial opinions share at least one element with presidential addresses and legislative speeches: none of them is basically an explanation of how the author arrived at a decision, though it may purport to be. Rather, each is a reasoned justification for a decision."

36. As an illustration of the all-or-nothing approach which uses the premise that only 'compelling' and not 'better' or 'worse' or even 'tenable' arguments could justify or objectify constitutional decisions, and the ensuing devaluation of the context ofjustifi- cation, I cite the conclusion of Mark Tushnet's book Red, White, and Blue 313 (1988): People usually "insist that the words of the Constitution are clear enough, when read as the framers understood them, to support a modest textualism or originalism. Or they think that there is enough consensus on what is morally valuable to justify a restrained reliance on moral philosophy. The difficulty with these positions is the sociological one: either the judges are not representative enough to generate a norma- tively compelling understanding of plain meaning, history, or consensus or the shared understandings, values, and the like are so obviously historically contingent that we cannot explain why anyone, legislator or judge, should have the final say on constitutional questions. Whenever someone invokes these moderate theoretical positions, we can be sure that he or she is about to explain why the values of a particular elite ought to imposed on people who are not part of the elite." Why should we only accept 'compelling' reasons in normative disputes? In a pluralistic society, there are rarely compelling arguments available, even if judges were representative or minorities composed the ruling class. And why should the fact of the cultural contingency of all value judgments (that is: the majority's and minorities' views) be so deadly for normative arguments? Both these premises are typical of all-or-nothing thinking: If not compelling, then arbitrary; if not rooted in some objective source of knowledge, then totally irrational. This leaves one only with the radical critical conclusion drawn by Carl Schmitt in his The Concept of the Political, supra n. 22, chs. 2-3: Politics is the power to define friend and enemy and to act accordingly. For a similar conclusion, see Post, supra n. 34, at 33.




tional reality in such a way that the existing dialectical conflict between rule and reality can be removed as far as possible by creative interpretation of the constitution without doing violence thereby either to reality in favour of the rule, or to the rule in favour of reality.37 Karl Llewellyn summarizes the same point as follows: Thus it is ABC stuff that our appellate courts are interested in and do feel a duty to the production of a result that satisfies, placed upon a ground which also satisfies. One can indicate this crudely as the presence of a felt duty to Justice, a felt duty to The Law, and a third felt duty to satisfy both of the first two at once, if that be possible.38 What exactly is the meaning of the interpretive master concept

of making sense both in and of the real world and the legal world?39 This ideal has complex connotations which should be addressed in greater detail than is possible here. But some core elements may be characterized as follows: The ideal of making sense in the legal world is consistency or legal coherence. The ideal of making sense in the real world possesses normative and factual dimensions which one may term, on the one hand, legitimacy or ethical coherence and, on the other hand, instrumental rationality or empirical coherence.40

Consistency or legal coherence entails that all provisions of the law-its purposes, principles, and rules-should form a bond of unity: of mutual coordination, accommodation, and clarification. At the very least, laws should avoid contradiction and excessive vague-

37. Leibholz, "Constitutional Law and Constitutional Reality," in Festschrift fur Karl Loewenstein 305, 308 (Henry Steele Commager et al., eds. 1971). See also Magiera, supra n. 2, at 98.

38. Llewellyn, supra n. 31, at 59. This master ideal has of course been expressed in many other theories. See, for example, Lon Fuller's conception of "Eunomics: The Theory of Good Order and Workable Social Arrangements," part I in Fuller, The Prin- ciples of Social Order (Kenneth I. Winston ed. 1981), or the Berkeley school of jurisprudence: Nonet, "For Jurisprudential Sociology," 10 Law and Society 525, 543-44 (1976).

39. Legal interpretation can be more or less governed by the relevant rules; depending on each case, a greater or lesser role is assigned to the interpreter. At one end of the spectrum exists the easy case in which everyone agrees that a certain rule covers the case and that this rule is specific and reasonable. In such a case one might say that the interpretation makes sense in the legal world. At the other end of the spectrum looms the hard case: either there is no relevant rule, or the application of the rule will result in an undesirable/unjust situation, or there are conflicting rules that are applicable. In this instance, a more active role for the interpreter is required; one must make sense of the legal world. The same problem arises with regard to making sense in/of the real world; that is, with regard to the supreme ideals of ethical and empirical coherence, as explained in the text.

40. Precise terminology is important, but the decisive factor is the meaning of these terms as explained in the text. I am aware that terminologies sometimes differ-at least partly, and that, according to one's definition, these three ideals can overlap.




ness, and judges should do their best to read the law as a "rational continuum"41 in order to promote clarity and consonance.42

This last, weaker claim is the more realistic in modern pluralistic societies, whose legal systems must integrate many different values, and where the democratic process usually is not compelled by a constitutional mandate to proceed consistently; furthermore, legisla- tures often evade their responsibility to take difficult (read: politically potentially damaging) decisions by intentionally using open-ended language that leaves the burden of decision-making on the judiciary. Still, if there is tension between conflicting legal provisions, it is essential to interpret them in a way that avoids inconsis- tency, and by arguments intelligible to the people;43 the same requirements hold for cases in which the courts substitute for the legislature.

One aspect of the law that supports its systemic, legal coherence is its hierarchy: Lower provisions must not contradict higher provisions, especially those within the Constitution.44 Another related de- vice is the doctrine of stare decisis and the strategy of distinguishing whose purpose it is to demonstrate that the court is moving within the confines of binding higher cases (unity), even though it does not follow their lead in this-distinguishable-case (avoidance of incon- sistency). Both doctrines-supremacy of the Constitution and stare decisis-also support the goal of interpreting the laws in an intelli- gent, understandable, and predictable way. In order to construe the laws as a rational continuum, open-ended purposes and principles on the constitutional/statutory level must be read in conjunction with the more concrete statutory or judicial rules that pertain to the respective purpose and principle and give it specificity and stability.

These last remarks indicate that consistency also possesses an institutional level. Not only must substantive rules and principles be interpreted in the best way possible as far as their commensurability is concerned; the same holds for legal provisions defining institu-

41. See Poe v. Ullman, 397 U.S. 497, 543 (1961) (Harlan, J., dissenting). 42. The ideal of consistency is expressed and refined, for example, in Lon L.

Fuller, The Morality of Law 63-70 (rev. ed. 1969). See also Post, supra n. 34, at 19; Kress, supra n. 23, at 322, 331-36.

43. Konrad Hesse's interpretive precept of praktische Konkordanz, supra n. 7, exactly expresses this requirement. One illustration: The German Constitution acknowledges the formative force of party politics in the German constitutional scheme in Art. 21. At the same time, the Constitution prescribes in Art. 38 ? 1 that the depu- ties of the German Diet "shall be representatives of the whole people, not bound by orders and instructions, and shall be subject only to their conscience." How can these two provisions be reconciled with regard to parties which want to discipline their members in the Diet? See the comments and cases in Kommers, supra n. 2, at 40-41, 52-55, 201-18.

44. See supra n. 10 as to verfassungskonforme Auslegung.




tional powers and procedures.45 Judicial interpretation is one aspect of determining the law which must be seen in the light of, and con- trasted with, the powers of the legislature, the executive, and the ad- ministration, to both adopt and interpret law. Each branch of government should develop and adhere to a conception of its respective powers that makes sense both in the legal world and the real world; a conception that corresponds to its functional capacities as well as to its constitutional mandate.

Legitimacy or ethical coherence refers to a convincing or at least plausible interpretation of the social and political values that are referred to in legal provisions. Using the teleological approach, we ask? "What purpose does and should a legal rule serve? How does this particular purpose fit into our governing ideals of social and political life? And how should these ideals shape the overall structure of the legal system as well as our understanding of its specific rules?" Here the overarching purposes and values of law and society merge.46

Again, I must emphasize that while each interpreter must depend on his or her judgment in concretizing these ideals, this does not reflect sophistry or arbitrariness. When all members of a society in- voke concepts such as justice, freedom, equality, or the like, then every member's interpretation is potentially one of many legitimate perspectives on these ideals; the perspectivist nature of judgment is constitutive and not detrimental to it. That is why a liberal society, which constitutionally acknowledges and protects the subjective tinge of all human judgments, strives, or at least should strive, to observe the greatest possible range of value judgments in the process of adopting and interpreting law.47

45. See, e.g., Ronald Dworkin's admonition that judges must heed not only the requirements of justice, but also the criteria of political fairness and procedural due process: Law's Empire 405 (1986). The latter elements emphasize the necessity of developing an appropriate understanding of the judge's work within the judicial hierarchy and in relation to other branches of government.

46. Probably the most prominent illustration of this type of reflection is Dworkin's advice to develop the best political theory underlying legal rules and principles in order to determine their meaning in hard cases. See, e.g., Dworkin, supra n. 45, at 255: 'Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community." See also Walzer, supra n. 27, at 29-30.

47. The perspectivist character of human judgment is a not a discovery of Marx- ism, Freudianism, or critical legal studies but forms already a constitutive and prominent part of liberalism. See, e.g., my analysis of Kant and Mill in Der Kampf der Meinungen, supra n. 33, at 146-47, 152-56, 160-63. Perspectivism also figures prominently in American pragmatism and Weberian interpretive sociology. See Brugger, 'Pluralismus und Menschenwurde im Werk von William James," supra n. 21; same, Menschenrechtsethos und Verantwortungspolitik. Max Webers Beitrag zur Analyse und Begrundung der Menschenrechte chs. 4, 5 (1980). On the basis of such a broad (but appropriate) understanding of liberalism, it seems clear to me that, if a legal system over a long time neglects or oppresses specific views, say of minorities such as




The ideal of an instrumental-rational or empirically coherent interpretive process requires at least informed fact-finding and the proper consideration of the scarcity of goods and of means-ends effi- ciency. I say 'proper consideration' because all these aspects should also (and arguably even primarily) be taken into account by the political process. Thus, the basic goals of social science, of utilitarianism, and of the economic analysis of law figure prominently under this heading.48

The two facets of this master ideal must eventually be reconciled as much as possible. A persuasive interpretation should strive for a reasonable accommodation of both external/societal and internal/jurisprudential values.49 Or, to put it slightly differently: Judicial interpretation should strive to integrate the ideals of systemic consistency, social congruence, and stability of doctrine over time.50

It is evident that I do not consider it judicious to design a strict canon for the use of these four methods and their variations; each merits consideration because textual and contextual arguments strive to make sense of the legal world, whereas historical and teleological arguments are based on what made sense then respectively what makes sense nowadays in the real world, and both perspectives count and have to be integrated as much as possible! If that is correct, however, one conclusion in the negative can safely be drawn: One should avoid concentrating on any particular one method or on any school of jurisprudence that focuses solely on the textual, contex-

women and disfavored racial groups, these minorities will and should take the liberalism of the legal system at its word and call for equal consideration of their views.

48. If one wants to cover the legislative process as well, the ideal of legal, ethical and empirical coherence would include the following points taken from Fuller, supra n. 42. ch. II: legality and economic calculation; generality of law; promulgation; avoidance of laws requiring the impossible; constancy of the law through time; and congruence between official action and declared rule. Some of these points overlap with the criteria mentioned in the text. Depending on the circumstances, the three ideals can support or weaken each other: A law requiring the impossible is neither efficient nor just. And a law not properly publicized cannot be expected to be effective or fair.

49. An excellent exposition of this idea is Philippe Nonet & Philip Selznick, Law and Society in Transition: Toward Responsive Law (1978). Nonet and Selznick develop a model of legal evolution from repressive law to autonomous law to responsive law. In the first stage, law is used, often oppressively, to secure stability. In the second stage, the legal system strives for independence and autonomy from the political arena, therefore insulating and protecting specifically legal values such as procedural fairness. In the third stage, the quest for substantive justice leads to a fuller integration of both the legal and the political systems and their respective strengths (and shortcomings). The master ideal proposed in the text is geared towards this integration while striving to protect the integrity of both processes. See also Dworkin's notion of law as geared toward inclusive integrity, supra n. 45, at 225-75, 400-13, and Murphy et al., supra n. 5, at 3.

50. For an exposition of these three ideals, see Melvin A. Eisenberg, The Nature of the Common Law 44-49 (1988). Eisenberg's discussion of his three standards over- laps with my ideals of legal, ethical and empirical coherence. Differences arise only with regard to terminology. Doctrinal stability in my ordering would form a part of the ideal of legal coherence.




tual, historical, or teleological perspective. This may seem a trivial criterion, but it is not without consequences. It leads to the critique of simplistic premises such as: 'law is (or should only be) politics', 'the law is (or should only be) in the books', 'law is (or should be) restricted to what historically was willed', law only reflects (or should only reflect) economic rationality', etc. Consequently, my advice may be stated thus: Let us adhere to some form of integration theory when applying methods of interpretation and assessing schools of jurisprudence.

III. LEGAL METHODS, SCHOOLS OF JURISPRUDENCE, AND THE FOUR

ANTHROPOLOGICAL PERSPECTIVES

My second recommendation for the ordering of legal methods is based on an analogy between the four interpretive perspectives and four equivalent anthropological perspectives which leads to the conclusion that legal interpretations, interpretations of the political community, and interpretations of the self share some crucial commonalities which have to be taken into account in any interpretive act. In order to set the stage for the analogy, I shall rephrase the way in which the interpretive process should be viewed.

Legal interpretation is the act of judging in a structured context. This structure stems from constitutional, statutory, and judicial pro- nouncements of law which, in each hard case, pose problems of indeterminacy. The starting point is the analysis of the relevant provision and its legal context. However, the interpretive result of this first step, in every hard case, must be affirmed or qualified-that is, broadened or narrowed-by taking additional reflective steps. These can be directed forward, backward, upward, and/or downward. Upward arguments rely upon either explicit or implicit constitutional ideals of the political community, such as 'justice for all.' Downward arguments are based on the perceived urgency of needs and interests. Or, to put it more crudely: Looking downward, what we want is what counts, while looking upwards, what we legitimately can and should expect or do is of greatest weight. These perspectives are intertwined with the backward and forward relationship of legal interpretation: The meaning of text and context always expresses past experiences of which the words themselves form a part; the past is constantly present in the meaning of the words. The past, however, does not necessarily determine and constrict their essence. Words possess open- ended significance; contemporary developments in the real or ideal world shape their past purport so that the traditional understanding of the word is affirmed, broadened or narrowed. These new speech conventions then in time become part of the modern 'tradition' of the words' meaning. This is the forward-looking perspective, in which




contemporary goals and purposes become primary roots of reference. These four perspectives are critical to legal interpretation.

Any random reading of American legal literature confirms this statement: "[I]n a going life-situation, fairness, rightness, minimum decency, injustice look not only back but forward as well, and so in- fuse themselves not only with past practice but with good practice, right practice, right guidance of practice, i.e., with felt net values in and for the type of situation, and with policy for legal rules."51 "IT]he only way to make complete sense of the Constitution is to understand it in light of what our best thinking shows Americans do and ought to stand for as a people-past, present, and future."52 "The essence of historical jurisprudence is not historicism but historicity, not a re- turn to the past but a recognition that law is an ongoing historical process, developing from the past into the future ... Of course, history alone-and especially national history alone-is as futile and as demonic as politics alone or morality alone. National ideals, community values, and the unwritten constitution cannot justify political arbitrariness or moral depravity. Indeed, history without political and moral philosophy is meaningless. Yet those philosophies without history are empty. In American jurisprudence the time is ripe to restore the historicity of law to its proper role alongside political principles of legal order and moral principles of legal justice."53

Supreme Court cases also present fertile ground upon which to argue for the importance of the four perspectives mentioned above. Particularly in the substantive due process area, disputes center around the question of whether choice maximization or ordered liberty should be the guiding contemporary standard for the reconstruc- tion of the traditional values of the American polity in the face of urgently felt and fought-for interests, such as procreative and sexual choice.54 One of the oft-quoted formulations here is Justice Harlan's dissent in Poe v. Ullman, advocating his approach to interpreting the due process clause in the Fourteenth Amendment:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best

51. Llewellyn, supra n. 31, at 60. 52. Sotririos A. Barber, On What the Constitution Means 9 (1984). 53. Berman, "Toward an Integrative Jurisprudence: Politics, Morality, History,"

76 Cal. L. Rev. 779, 795 (1988). Berman deplores the fact that in American jurisprudence the tenets of positivism and natural law have overshadowed the importance of the historical school of jurisprudence, as exemplified by Savigny and Story. See also Grant Gilmore, The Ages of American Law ch. 5 (1977): "On Looking Backward and Forward at the Same Time"; Sunstein, supra n. 5, at 126-27; Fallon, supra n. 5, at 1214, 1238, 1250-51; Dworkin, supra n. 45, at 227-28, 408-10, 413; Eskridge & Frickey, supra n. 24, at 616; McIntosh, supra n. 8, at 665-66; Post, supra n. 34, at 24, 28-29.

54. See the materials and analyses in Stone, Seidman, Sunstein & Tushnet, Con- stitutional Law 908-84 (2nd ed. 1991) and Winfried Brugger, Grundrechte und Verfassungsgerichtsbarkeit in den USA, supra n. 21, ?? 15-19, 37 III.




that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of or- ganized society. If the supplying of content of this Constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this coun- try, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.55 These four perspectives are critical not only to legal interpreta-

tion, but also to political decisions leading to the creation of law itself. The primary difference here is that legislative organs are bound only by the Constitution and constitutional law as expounded by the Supreme Court, whereas judges are bound also by every legislative enactment that does not violate constitutional law. Thus, the substantive amount of restriction by legal provisions is much higher for judges than it is for legislators. The body politic can look backward and/or forward in order to determine 'who we want to be'. In doing so, citizens and politicians must face the question of which ideals should be constitutive of their 'ideal self' as a nation, and how much importance should be awarded to them, as compared with interest politics, party politics, or the national interest in responding to demands made by the international community.

This idea has also been expressed in American jurisprudence, "[T]he fundamental difference between repressive and responsive law is what separates 'power politics', the raw conflict and accommodation of special interests, from 'high politics', the reasoned effort to realize an ideal of polity."56 "[A] constitution must include, though it need not do so in explicit terms, a political theory or a set of political theories. For a constitution's functions concern politics not merely in the earthy sense of shaping 'Who gets what, when, and how,' but also

55. 367 U.S. 497, 542 (1961) (Harlan, J. dissenting). See also id. at 544 and Jus- tice Frankfurter's concurring opinion in Joint Anti-Fascist Refugee Committee v. Mc- Grath, 341 U.S. 123, 162-63, 174 (1951): ['D]ue process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith we profess. Due process is not a mechanical instrument. It is not a yard- stick. It is a process"; 'While [due process] contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances."

56. Nonet & Selznick, supra n. 49, at 118.




TABLE 2: METHODS OF INTERPRETATION AND ANTHROPOLOGY: POLITICAL AND LEGAL LIFE

macro-justice, the common weal "the ideal community"

upward

backward: "the real community" forward: "who we history of present want to be." political & political decisions telos - purposes legal life judicial decisions

downward "the actual community"

pure interest politics raison d'6tat

in the more abstract sense of expressing a society's general aspirations and more specific goals, and how it may, consistently with those aspirations and goals, utilize its resources and distribute costs, benefits, rewards, and punishments among its members."57

Finally, this fourfold mooring of legal interpretation- textual and contextual analysis forming the crux of upward, downward, forward and backward arguments-is also characteristic of personal decisions; that is, interpretations of the self, based on 'readings' of our personality (the 'text') in the relevant social environment (the 'context'). Anthropology reveals that human action and reflection are not entirely determined by instinct;58 this is the working assumption of the legal system as a whole. With regard to the development of his personality, the individual generally can and must define himself as this or that distinct being; he must affirm or shape his factual needs and desires, while devoting attention to formulating some idea of 'who I want to be'. In the catchphrase of one of the earliest anthropol- ogists, Immanuel Kant: man must discipline, cultivate, civilize, and moralize his desires.59 This process of self-definition is accomplished

57. Murphy et al., supra n. 5, at 2. See also Bruce A. Ackerman, We the People 1: Foundations chs. 9, 10 (1991) (discussing the difference between normal politics and constitutional politics).

58. I refer only to one basic fact of anthropology which forms a generally uncon- tested element in every full-fledged anthropological theory. This fact is, e.g., presup- posed in H.L.A. Hart's empirical approach to natural law, The Concept of Law 189-95 (1961). For a survey of anthropological literature on this point, see Ernest Joachim Lampe, Grenzen des Rechtspositivismus 17-42 (1988).

59. See the excellent analysis of these Kantian ideas in Funke, "Kants Stichwort fur unsere Aufgabe: Disziplinieren, Kultivieren, Zivilisieren, Moralisieren," in 3 Akten des 4. Internationalen Kant-kongresses 1 (1975). For the consequences of this




in the same quadripartite direction of backward, forward, upward, and downward reflection:

TABLE 3: METHODS OF INTERPRETATION AND ANTHROPOLOGY: PERSONAL LIFE

virtue, macro-justice 'the ideal self"

upward

backward: "the real self' forward: "who I "where I present want to be" come from" personal decisions telos -- purposes history

downward "the actual self'

egoism

Each individual, in a difficult situation, is required to justify what he has done or wants to do, before himself or others. At this point, he must use words and ideas in order to persuade his audience that what is to be or has been done is right and justifiable, or at least excusable. Arguments brought forward can then refer to the traditional meaning of the standard guiding the action (backward), or what these words and ideas should mean in the face of legitimate future tasks (forward) or contemporary values (upward). Of course, it is always possible to use language in such a way that, while pretend- ing to espouse forward, upward, or backward perspectives, promotes only the interests of the individual (downward). That possibility can never completely be eliminated, but it does not carry decisive weight because the three other perspectives form the 'context of justification' for every such downward move to the 'context of discovery.60 On the other hand, the fulfilment of individual needs and interests should not be considered of lesser significance than the other perspectives. Indeed, the latter generally affirm the reasonableness of many of these natural or cultural inclinations toward various actions and benefits.61

approach to the philosophy of law, see Brugger, "Grundlinien der Kantischen Rechts- philosophie," 1991 Juristenzeitung 893.

60. See supra n. 35. 61. This insight is expressed in Hart's notion of limited altruism, supra n. 57, at

191-92, and in what Lampe calls negative natural law, supra n. 57, at 42-55, 198.




To restate this point in terms borrowed from the German-Ameri- can psychologist Karen Horney:62 When identifying one's self, one must define the traits of one's personality with regard to the 'ideal self' (upward) of one's education (backward) and the desires of one's natural strivings (downward), which constitute the 'actual self'. Since we all exist in a permanent state of flux and are moving forward, either by choice or by necessity (that is, by getting older, sick, or by having to deal with the decisions of others), we cannot define ourselves without considering the forward perspective: Who do I want to be or become? What Gestalt shall my personality develop?63 In answering and reanswering this question, we gradually shape our 'real self'.

Thus it becomes clear that these four perspectives lie at the core of personal and political as well as judicial decisions. I have already described the divergence between judicial and political decisions- the degree of being restricted by legal provisions is greater for judges than for legislators. Personal decisions differ from judicial ones in that no written text is available to interpret. There exists only an unwritten text, in the texture of one's identity. Consequently, the af- finity is not as close as that between judicial and political decisions. But to some extent the analogy still holds-in order to make sense in the real world, the 'real selves' must find expression in their representatives' political, legal, and judicial decisions. If this is indeed the case, then one may restate a point made earlier-persuasive, or at least defensible, judicial interpretations must take all four perspectives into account. They cannot be reduced to any single one of these perspectives, because all form the constitutive parts of the perception and definition of our personal, political, and legal identity.

In conclusion, I want to mention the limited character of my argument. My main emphasis is on the importance and interrelatedness of the four interpretive and anthropological perspectives.64 If each is significant and all form the fabric of the interpretive enter- prise, then we have identified, clarified, refined, and strengthened the basic methodological insight pronounced by Savigny: use all four methods.65 This premise may be termed a canon of interpretation, albeit a flexible one, geared toward the master ideal of an analysis that makes sense both in the real and the legal world.

62. See Karen Horney, Neurosis and Human Growth. The Struggle Toward Self- Realization 6-7, 13-18, 110-12, 155-58 (1991) (1950).

63. Fallon refers to this concept from the German Gestaltpsychologie, supra n. 5, at 1252.

64. For arguments analyzing the interrelatedness of the four methods of interpretation, see supra at the beginning of sec. III, and Fallon, supra n. 5, at 1230, 1238-39, 1243, 1248. See also Post, supra n. 34, at 26-27.

65. See supra nn. 1, 2, 9. It is worth recalling that Savigny had not yet included teleological arguments beyond the purposes envisioned by the framers of the legal texts in his canon of interpretation.




One clearly identifiable aspect of this canon is its repudiation of any methodology or philosophy of law based on a single one of the four perspectives, on the exclusion of the real world for internal ideals of the legal world, or on the trivialization of the legal world for the furtherance of 'good social causes' under the aegis of teleological interpretation.

My remarks do not exclude further elucidation on how the four perspectives in fact interact or should interact in the interest of the legitimacy of judicial interpretation, or whether the perspectives should be differentiated and weighted even further; indeed, they in- vite such clarification. It might well be, for example, that constitutional interpretation, statutory interpretation, interpretation in the administrative state, and interpretation of international treaties differ to some extent; if this is the case, then the respective sets of interpretive maxims must take that into account.66 With regard to the specifics of constitutional interpretation, for instance, one would have to discuss whether among the varied set of teleological arguments the courts should be entrusted with greater responsibility for arguments of justice as compared with the legislature, which should have a greater say in policy decisions.

Even if a strict hierarchy of methods could convincingly be intro- duced, however, I doubt whether such a hierarchy would move our courts to feel bound by it; that is, whether they would abandon the look at the substantive result of the case-the teleological perspective. Past experience (with constitutional courts at least) speaks against it, and whether this experience is expressive of acceptable forward or upward perspectives or of mere judicial coups d'etat, re- mains a disputed question. Thus it is fitting to end these reflections on modern disputes in jurisprudence with an old question posed by Chief Justice John Marshall in Marbury v. Madison: "In some cases ... the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?"67

66. See, e.g., the different canons of interpretation proposed by Sunstein, supra n. 5, at 235-38, and Dworkin, supra n. 45, chs. 8-10.

67. 5 U.S. (1 Cranch), 137, 179 (1803).



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