One of my favorite movies of all time is Being There—Jerzy Kosinsky’s great spoof with, for me, a serious message. Peter Sellers plays Chance the gardener, who morphs into Chauncey Gardiner through a mishearing. Tossed out of his employer’s home into a world he had never experienced, his encounter with it produce a series of misadventures that eventually have his name whispered as a potential presidential candidate. He simply advances through his new outside life by being there, doing his own innocent thing. But it’s the interpretations to his simplistic comments by the several other characters in the film that propels him along his journey. They turn his utterances into statements bursting with meaning but meanings arising entirely out of their consciousness with little or no connection to what Chauncey is actually saying. Chauncey’s conversation is limited to his cloistered life experience, but because it is so general and vacuous, the listeners keep providing profundity to his sayings.
The point of starting this post with this reference to the film is to highlight the importance of presence to meaning. Looked at from afar by an objective observer, human experience is nothing more than a series of events, unfolding over time. All the observer can do is describe the action in categorical language—a telling about what is going on, but not why. Why questions are available only to the players in the scene being observed. Only they are able to attach meaning to what is going on. One film critic gets this, writing, “But consider: All of what Chauncey is is what others perceive him to be. By contrast, Chance, the simple gardener, before he’s been grabbed by the political machine, is only what he is.”
The film is a serious comedy, largely due to the superb acting, especially that of Peter Sellers, who plays Chance the gardener. It is also an allegory about the limits of textualism as a tool for jurisprudential interpretation, or exegesis in general. Nothing I read suggests the filmmakers intended to create its allegorical aspect, but there it is. Chance utters a series of sentences that reflect his immediate involvement in whatever is going on. They make sense to him because they reflect his own life experience. They may or may not have the same sense to a viewer of the film who gets to “know” Chance by watching the film from the start and can interpret what he says through a lens shaped by their knowledge of who he is.
But the other characters in the film lack any knowledge of Chance’s background and life experience, that is, they have no sense of the context from which Chance constructs what he says. They are the essence of textualists, that is. interpreters of texts or utterances, who lack the same context as the authors or speakers. The stark difference in the backgrounds of Chance and the people he comes into contact with accentuates this feature of interpretation to the point of being comical. But is this situation any different from the way some of the Justices on the Supreme Court use their interpretation of the Constitution to construct their opinions. I think not except it does not lead to comedy, but, perhaps, to its opposite, tragedy.
Originalism is much the same thing, a presumption that the meaning of the utterances of a bunch of old white men hundreds years ago in a world very different for that we inhabit today means the same thing for us today. Being there is critical to understand the meaning of an utterance. The same words take on different meaning depending on the different contexts of those speaking (writing) and those listening (reading). To the extent that the meanings given to the text by both writer and reader are more or less the same is purely coincidental. Trying to create the context of the present by examining the history of the time the utterance was made suffers from the same limitation. The objective world of the past may contain objects and events we think we understand what they mean, but again whatever meaning we ascribe to these events and objects can only come through the context of the present world, Interpreters must be there to get it straight.
Originalism or textualism is useful for those who want to impose their own meanings on texts because they can find almost anything they want by imagining what was going on. But imagination always is shaped by the context of the one imagining and is subject to the same contextual limitations. Aristotle had much to say about the differences in the way humans perceive what they encounter, including objects like texts, written or oral. Importantly, he saw these ways of thinking about whatever was being perceived as virtues, that is, good ways to think. Thought has an ethical aspect for him.
In Book VI of his Nicomachean Ethics, Aristotle discusses three forms of “knowledge.” They are technê, epistêmê, and phronêsis. Epistêmê relates to that which is necessary, the kind of knowledge about the essence of things in Plato’s sense of eternal forms as expressing the nature of permanent phenomena. In today’s world, epistêmê is, more or less, what is called scientific knowledge. Technê is often translated as craft, and deals with things that could be otherwise, that is coming out of choice, not necessity. Since all artifacts are inherently objects that human chose to create, the knowledge needed for this task is technology, the modern form of the word. It pertains to a form of rationality, a way of thinking associated with making (poiêsis).
Phronêsis is the most important of the three in the context of this blog post because it is associated with doing (praxis). Jurisprudence is the way that laws that govern human behavior are to be interpreted in a practical sense—how the words translate into action, or what they mean as regarding how they produce a right or just outcome. The Roman equivalent is prudentia, and the modern form is “wisdom.” Critically, this form of knowledge is used in the present to interpret rules/laws that were created in the past. The word, jurisprudence, combines the Latin words for “about right” and “wisdom.”
So how should jurists come to the correct answers about the meaning of a text as right in the current world. It is important to understand what the text might have meant at the time it was produced in order to place it in its proper context among similar rules/laws. To do this, interpreters must use a form of epistêmê, thinking about the text so as to discover its essence, that part which is unchanging. Textualism or originalism is a legalistic term for epistêmê. But the process cannot stop there because rules/laws exist to control action in the present.
Some form of wisdom (phronêsis) is the right way to come up with the interpretation, according to Aristotle and many others. A relevant definition of jurisprudence is “[t]he science of juridical law; the knowledge of the laws, customs, and rights of men in a state or community, necessary for the due administration of justice. (Meriam-Webster)” The last few words apply to jurists in action. It should be clear that justice is not absolute, but depends critically on the context—specifically on the contemporary context of the action in question, not the context pertinent to the time when the law was written.
I am not a jurist nor a specialist in exegesis, the interpretation of texts, but do have a thought about how the process might go. One possibility is some form of Hegelian dialectic. The thesis would be a textualistic (epistêmê) rendering of the statute; the antithesis would result by thinking about the same language via a wise or prudential (phronêsis) framework.The two would be combined (synthesis) to render an interpretation fitting and just in the present, not past, context.
There is no guarantee that this way of jurisprudence would produce what might be considered just because what is considered right by one may not be considered right by another, but it would clearly be more likely to adhere to some set of generally accepted ethical standards of the present. We no longer apply the same kinds of punishment that is considered to be cruel or unusual because they do not fit the modern context of criminal justice. But a purely textualistic/origunalistic reading of the laws where this term first appeared would have to argue that they remain the right way to go.
This is nothing new. Aristotle knew that the ethical outcome of thought depended on the kind of thinking that was applied to it. We talk about looking for wise judges, often using Solomon as an example. Also, we now know that there are distinct cognitive difference about these three ways of thinking about phenomena for which we are seeking some form of meaning. Epistêmê corresponds to processes that take place primarily in the left hemisphere and uses knowledge from the past, largely excluding input from the right hemisphere which is the brain’s connection to the present.
Technê, with its emphasis on creating something to be used in the present, uses some combination of both hemisphere with the left still in charge. We know that the objects that result from technê do not always produce the desired outcomes and may, also, generate significant unanticipated outcomes. Phronêsis, alternately, is strongly dependent on the right hemisphere because it pertains to the rightness of actions that will take place in the present. Imagination (right hemisphere) is going be very important as wisdom is always judged by the outcome of some utterance, not by the utterance, per se. Now, having noted these three forms of thinking, I must emphasize that these descriptions of the relationship of the two hemispheres are quite generalized. In action, the two always interact in more complicated ways, but the character of the outcomes reflect which side has dominated. So much for textualism and originalism. (I wish.)
As a closing note, the confirmation process of Justice Sonia Sotomayer raised the issue of the appropriateness of empathy to jurisprudence. President Obama and Sotomayer both raised the issue by claims of its importance to the judicial process. Critics from the right disagreed, arguing, among other things, that empathy was a form of reverse racism and clouded the objectiveness of judges. Perhaps at the level of lower trial courts, but not at the appellate level, particularly the Supreme Court. Empathy is a feature of the right hemisphere’s ability to connect to the immediate world, par excellence. Without such an ability to empathize, judges cannot develop the wisdom necessary to render opinions that reflect the current context. The objections to considering empathy in vetting candidates for the Court are of a piece with the emphasis on textualism. Both are contrary to the basic purpose of the Court: to produce justice.