'Ugly American Hermeneutics' by Francis Mootz III in 10(3)
Nevada Law Journal (2010) 587-606
argues that -
American legal hermeneutics isn’t just homely, it is ugly. Downright ugly. Butt ugly. Ugly to the bone. The desuetude of American hermeneutics is highlighted in high-definition technicolor every time the United States Senate undertakes to confirm a new Justice to the Supreme Court. In the recent hearings leading to the confirmation of Justice Sotomayor we had to endure innumerable idiocies as some Senators seized upon various statements by Judge Sotomayor regarding how her background as a poor, working class Latina might have informed her work as an appellate judge.
Mootz asks
whether American legal hermeneutics is "ugly" and is practiced by "ugly Americans". The pejorative cast of this terminology is obvious and intentional, but it is also ambiguous and multi-layered. In this Essay I unfold these various dimensions of ugly American hermeneutics and suggest that — ugly though we may be — American scholars still can make some important contributions to the worldwide conversation regarding legal hermeneutics. It is our plain-faced pragmatism, perhaps, that is the source of our contribution even as it casts us (sometimes unfairly) as the ugly Americans.
In discussing judicial conformation processes he comments that -
The most embarrassing part of the spectacle, though, occurs when the nominee kowtows to this absurd conception of judging and reaffirms that she will judge in accordance with the law, as if the law can be determined and understood before the adjudicative act. Judge Sotomayor was less the automaton than most, but she quickly established her bona fides in the heart of her opening statement.In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.
At moments like these, one can only echo Colonel Kurtz: "The horror! The horror!"
This is ugly American legal hermeneutics at its most base, of course, as it occurs in a staged political forum where the substance of the slogans tossed around by the participants is less important than their symbolic resonance. I begin with the profane image of confirmation proceedings, though, because it calls forth the fantasies that gird the American legal system. Like a dream elicited on the psychoanalyst’s couch, the confirmation hearings reveal the psychology that claims to justify much of everyday practice, even if most sophisticated participants — removed from the glare of the television cameras and lights — would admit that such fantastic accounts lack any descriptive integrity.
The core of the fantasy underlying American legal practice is the claimed ability to separate “the law” from “the application of law in practice.” The law is abiding, certain, and pre-determined through democratic processes. The application of law in particular cases is rigorously attendant to the law such that, even if the application is not wholly deductive in character, it is still highly constrained by the law. This fantasy is often equated with the ideal of the "rule of law", and so preserving this legal imaginary becomes a matter of utmost importance in preserving the legitimacy of the legal system. By repeating the fantasy and holding the United States up to the world as an exemplary legal community precisely because we embrace this fantasy, American legal hermeneutics generates puzzlement among legal scholars schooled in the continental tradition. American legal hermeneutics is ugly because it is a loud and garish proclamation of American exceptionalism, paired with an anti-intellectualism that seeks to insulate our fantastic legal imaginary from serious inquiry, never mind rigorous critique.
Mootz concludes that -
If beauty is only skin-deep, so is ugliness. The redemptive features of American hermeneutics are found in legal practice, which is never successfully subjugated by the fantastic — in the full sense of that word — accounts provided by theorists. Looking past the superficial theoretical dressing, American legal hermeneutics is vibrant and sophisticated. Although American hermeneutical scholars generally are untutored in, and dismissive of, the relevance of Heidegger,
Gadamer, Ricoeur, or Derrida to legal hermeneutics, this situation does not amount to a complete embarrassment. Ugly American hermeneutics provides a healthy dose of skepticism about the utility of embracing sophisticated philosophies simply for the sake of the sophistication; Parisian fashion, after all, is not designed for everyday wear. The theoretical simplicity of American hermeneutics is a bracing corrective to the tendencies toward the mystical, baroque, and paranoid that often lurk within the European traditions. Ugliness has its virtues.
At the same time, there is a possibility of drawing from more sophisticated hermeneutical traditions without sacrificing the pragmatism and practice-oriented perspective that defines the American legacy of written constitutionalism and common law adjudication. In my work I have read Gadamer’s philosophical hermeneutics as radicalizing Heidegger’s fundamental ontology by taking a “turn” toward dialogue rather than following Heidegger’s “turn” to poetry and the ineffable language of the Gods. This jurisprudential framework is also used by Bill Eskridge in his work on statutory interpretation, and provides a sophisticated extension of Francis Lieber’s pathbreaking efforts in the early years of the American Republic. There is no need to choose between plainfaced pragmatic practices and sophisticated theorizing. Rooting sophisticated hermeneutical theory in the practices at hand is itself a hermeneutical theory, and it is precisely at this juncture that the conversation between scholars from Brazil and the United States might be most productive.
