Textualism is now the Court’s lingua franca. In response, some have proposed a “progressive textualism,” defined by the use of traditional textualist methods to reach politically progressive results. This Article explores a different kind of “progressive textualism.” Rather than starting with the desired policy outcome—politically progressive or conservative—we begin from one of modern textualism’s central values: A commitment to “democratic” interpretation. As Justice Barrett argues, this commitment views textualists as “agents of the people” who “approach language (...) from the perspective of an ordinary English speaker.” Textualists thereby claim to promote democracy by interpreting law consistently with what it communicates to the ordinary public. However, recent empirical studies reveal discrepancies between textualist interpretive commitments and how ordinary people understand legal texts. These discrepancies undermine claims that textualists’ methodology is committed to democratic interpretation. -/- A textualism centered on democratic interpretation would be methodologically more progressive if it centered facts rather than fictions about how ordinary people interpret language. It would recognize that people understand legal language in light of linguistic “(co)text” and “(con)text,” and sometimes nonliterally; they often understand ambiguous terms in law to have legal, not ordinary, meanings; and their understanding of law is informed by its apparent purpose and sometimes by interpretive rules that are conventionally justified on normative grounds. In contrast, current textualism is often methodologically regressive, crafting a fictional “ordinary person” more closely connected to ideological policy goals than facts about ordinary language comprehension. (shrink)

This essay enacts a particular instance of the challenge post-structuralism poses to the study of history. In simpler, language, it concerns the difference that point of view makes when people are giving account of events, whether at first or second hand. The problem is that if all accounts of events are determined through and through by the observer’s frame of reference, then one will never know, in any given case, what really happened.I encountered this problem in concrete terms while preparing (...) to teach a course in colonial American literature. I’d set out to learn what I could about the Puritans’ relations with American Indians. All I wanted was a general idea of what had happened between the English settlers and the natives in seventeenth-century New England; post-structuralism and its dilemmas were the furthest things from my mind. I began, more or less automatically, with Perry Miller, who hardly mentions the Indians at all, then proceeded to the work of historians who had dealt exclusively with the European-Indian encounter. At first, it was a question of deciding which of these authors to believe, for it quickly became apparent that there was no unanimity on the subject. As I read one, however, I discovered that the problem was more complicated than deciding whose version of events was correct. Some of the conflicting accounts were not simply contradictory, they were completely incommensurable, in that their assumptions about what counted as a valid approach to the subject, and what the subject itself was, diverged in fundamental ways. Faced with an array of mutually irreconcilable points of view, points of view which determined what was being discussed as well as the terms of the discussion, I decided to turn to primary sources for clarification, only to discover that the primary sources reproduced the problem all over again. I found myself, in other words, in an epistemological quandary, not only unable to decide among conflicting versions of events but also unable to believe that any such decision could, in principle, be made. It was a moral quandary as well. Knowledge of what really happened when the Europeans and the Indians first met seemed particularly important, since the result of that encounter was virtual genocide. This was the kind of past “mistake” which, presumably, we studied history in order to avoid repeating. If studying history couldn’t put us in touch with actual events and their causes, then what was to prevent such atrocities from happening again? Jane Tompkins is professor of English at Duke University. She is the author of Sensational Designs: The Cultural Work of American Fiction, 1790-1860 and editor of Reader-Response Criticism: From Formalism to Post-Structuralism . Her current work concerns the construction of male identity in American popular culture. (shrink)

A cross-cultural survey experiment revealed a dominant tendency to rely on a rule’s letter over its spirit when deciding which behaviors violate the rule. This tendency varied markedly across (k = 15) countries, owing to variation in the impact of moral appraisals on judgments of rule violation. Compared with laypeople, legal experts were more inclined to disregard their moral evaluations of the acts altogether and consequently exhibited stronger textualist tendencies. Finally, we evaluated a plausible mechanism for the emergence of (...) class='Hi'>textualism: in a two-player coordination game, incentives to coordinate in the absence of communication reinforced participants’ adherence to rules’ literal meaning. Together, these studies (total n = 5,794) help clarify the origins and allure of textualism, especially in the law. Within heterogeneous communities in which members diverge in their moral appraisals involving a rule’s purpose, the rule’s literal meaning provides a clear focal point—an identifiable point of agreement enabling coordinated interpretation among citizens, lawmakers, and judges. (shrink)

A cross-cultural survey experiment revealed a widespread tendency to rely on a rule’s letter over its spirit when deciding which acts violate the rule. This tendency’s strength varied markedly across (k = 15) field sites, owing to cultural variation in the impact of moral appraisals on judgments of rule violation. Compared to laypeople, legal experts were more inclined to disregard their moral evaluations of the acts altogether, and consequently exhibited more pronounced textualist tendencies. Finally, we evaluated a plausible mechanism for (...) the emergence of textualism: In a two-player coordination game, incentives to coordinate in the absence of communication reinforced participants’ adherence to rules’ literal meaning. Together, these studies (Ntotal = 5495) help clarify the origins and allure of textualism, especially in the law. Within heterogeneous communities in which members diverge in their moral appraisals involving a rule’s purpose, the rule’s literal meaning provides a clear focal point—an easily identifiable point of agreement enabling coordinated interpretation among citizens, lawmakers and judges. (shrink)

My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013).) -/- The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the (...) theory of “Constitutional Textualism”—or just plain “Textualism”—which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) -/- While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-due-process) movement, his Originalism has received far more attention than his Textualism. Since Judge Robert Bork first introduced Originalism to the general public during his Supreme Court nomination hearings in 1987, this theory has ignited passions on all sides and effectively re-framed the entire debate about how to interpret the Constitution. Constitutional scholars, left and right, now define themselves as either for or against Originalism. Meanwhile, Textualism has merely retreated into the background. -/- Part of the reason for this disparate treatment is that many who reject Originalism still consider themselves to be Textualists. They agree with Justice Scalia (and Judge Bork) that the text is all-important. They disagree, however, that its meaning was fixed for eternity at ratification. Instead, they maintain that either the meaning of the text or applications of this meaning to new cases can change as society changes. -/- In this Article, I bring Textualism out of Originalism’s shadow and into broad daylight. I argue that once we dig just a little deeper into the proposition that all of the meaning in the Constitution inheres in its words, we find that this theory simply cannot work. In order to interpret the nation’s foundational document, we must resort to assumptions that it does not explicitly state. (Indeed, even Textualism itself is a theory that the Constitution does not explicitly endorse.) And the notion that “extra-textual” assumptions necessarily inform our interpretations of the Constitution poses a direct and insurmountable threat to Textualism. -/- The Constitution actually requires each judge, when faced with a case concerning the right to privacy, not merely to consider the text but also to anticipate and evaluate the moral, social, and political consequences of both possible decisions before choosing between them. While this position may initially sound counterintuitive, it turns out to be a much more realistic theory of constitutional interpretation than Textualism (and Originalism). -/- I ultimately conclude that, contrary to Justice Scalia, the Constitution most certainly does protect a right to privacy. For what it’s worth, the Obergefell majority agree with me (and oppose Justice Scalia). I aim to show exactly why they are correct. (shrink)

In the last century there were philosophers who argued that nothing exists but ideas. In our century there are people who write as if there were nothing but texts. These people, whom I shall call “textualists,” include for example, the so-called Yale school of literary criticism centering around Harold Bloom, Geoffrey Hartmann, and Paul De Man, “post-structuralist” French thinkers like Jacques Derrida and Michel Foucault, historians like Hayden White, and social scientists like Paul Rabinow. Some of these people take their (...) point of departure from Heidegger, but usually the influence of philosophers is relatively remote. The center of gravity of the intellectual movement in which these people figure is not philosophy, but literary criticism. In this paper I want to discuss some similarities and differences between this movement and nineteenth-century idealism. (shrink)

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic (...) framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions. (shrink)

Name der Zeitschrift: Der Islam Jahrgang: 93 Heft: 2 Seiten: 603-609.

Nazariyat, Journal for the History of Islamic Philosophy and Sciences, issued twice a year in English and Turkish (Nazariyat İslam Felsefe ve Bilim Tarihi Araştırmaları Dergisi), is a refereed international journal. It publishes original studies, critical editions of classical texts and book reviews on Islamic philosophy, kalām, theoretical aspects of Sufism and the history of sciences. The goal of Nazariyat is to contribute to the discovery, examination and reinterpretation of the theoretical traditions in the history of Islamic thought, by giving (...) special attention to the post-classical period of it. **ISSN: 2148-8088 E-ISBN: 2547-9415**. (shrink)

Law is a main source of justice in a democratic society, and as such it must send clear and unequivocal messages to its addressees. Therefore, the question of the meaning in the legal vocabulary does not lose its relevance and universality. The present study examines the question of the linguistic significance of legal norms in legal vocabulary, applying an interdisciplinary approach. Joining the thesis that the legislation can be considered as an expression of the legally significant will of the rule-making (...) authority, the legal provisions will be presented as an intentional act. In search of the most appropriate explanatory method, two kinds of theories will be applied in parallel: Paul Grice's theory of linguistic meaning, on the one hand, and some theories with both textualist and intentionalist orientation, on the other. Subsequently, the communicative maxims proposed by Grice will be related to selected normative requirements related to the language of the normative acts. (shrink)

This article works out the main characteristics of `practice theory', a type of social theory which has been sketched by such authors as Bourdieu, Giddens, Taylor, late Foucault and others. Practice theory is presented as a conceptual alternative to other forms of social and cultural theory, above all to culturalist mentalism, textualism and intersubjectivism. The article shows how practice theory and the three other cultural-theoretical vocabularies differ in their localization of the social and in their conceptualization of the body, (...) mind, things, knowledge, discourse, structure/process and the agent. (shrink)

Thinking through the body: educating for the humanities -- The body as background -- Self-knowledge and its discontents: from Socrates to somaesthetics -- Muscle memory and the somaesthetic pathologies of everyday life -- Somaesthetics in the philosophy classroom: a practical approach -- Somaesthetics and the limits of aesthetics -- Somaesthetics and Burke's sublime -- Pragmatism and cultural politics: from textualism to somaesthetics -- Body consciousness and performance -- Somaesthetics and architecture: a critical option -- Photography as performative process -- (...) Asian ars erotica and the question of sexual aesthetics -- Philosophy as awakened life : everyday aesthetics of embodiment in American transcendentalism and Japanese Zen practice -- Somatic style. (shrink)

Today’s textualist Supreme Court draws a bright line between essential “linguistic” interpretive canons and suspect “substantive” canons. This Article’s thesis is that the venerable linguistic/substantive dichotomy is false. We present the first empirical study of whether ordinary people (N = 1,520) understand rules in line with some of law’s substantive canons. The study supports that some substantive canons represent valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactivity is usually justified by values like (...) fairness, but it also best reflects ordinary readers’ default understanding of rules’ meanings. -/- In an age of textualism, this argument has direct practical implications. Interpreters committed to the ordinary reader should reconsider whether rules that have been traditionally described as “substantive canons” might also be linguistic ones. The article’s analysis also puts pressure on textualists to better justify their recent embrace of purely substantive canons, like the new “major questions” canon. Most broadly, the Article makes progress on a longstanding philosophical debate about facts and values in interpretation. Beyond the exclusively linguistic canons and the exclusively substantive canons, there is an important but overlooked category: The linguistic and substantive canons. (shrink)

The rise of foundational dualism and the eclipse of the body -- "Body am I entirely, and nothing else": non-reductive materialism and the struggle against dualism -- Toward a materialist phenomenology of religion -- The phenomenology of embodiment and the study of religion -- Religious bodies as social artifacts -- Holding social constructionism in check: the recovery of the active, lived body -- A cultural neurophenomenology of religion: enter the embodied mind -- The eclipse of practice: textualism at large (...) -- "Ceci n'est pas un texte": from textualism to practice -- Expanding the conversation on emplaced religion -- Mobility, networks, and ecology. (shrink)

This article deals with the material presence of the past and the recent call in the human sciences for a " things." This renewed interest in things signals a rejection of constructivism and textualism and the longing for what is "real," where "regaining" the object is conceived as a means for re-establishing contact with reality. In the context of this turn, we might wish to reconsider the status of relics of the past and their function in mediating relations between (...) the organic and the inorganic, between people and things, and among various kinds of things themselves for reconceptualizing the study of the past. I argue that the future will depend on whether and how various scholars interested in the past manage to modify their understanding of the material remnants of the past, that is, things as well as human, animal, and plant remains. In discussing this problem I will refer to Martin Heidegger's distinction between an object and a thing, to Bruno Latour's idea of the agency of things and object-oriented democracy, and to Don Ihde's material hermeneutics. To illustrate my argument I will focus on some examples of the ambivalent status of the disappeared person in Argentina, which resists the oppositional structure of present versus absent. In this context, the disappeared body is a paradigm of the past itself, which is both continuous with the present and discontinuous from it, which simultaneously is and is not. Since there are no adequate terms to analyze the "contradictory" or anomalous status of the present-absent dichotomy, I look for them outside the binary oppositions conventionally used to conceptualize the present-absent relationship in our thinking about the past. for this purpose I employ Algirdas Julien Greimas's semiotic square. (shrink)

Berkhofer ranges through a vast archive of recent writings by a broad range of authors. He explicates the opposing paradigms and their corresponding dilemmas by presenting in dialogue form the positions of modernists and postmodernists, formalists and deconstructionists, textualists and contextualists.

Prescriptive rules guide human behavior across various domains of community life, including law, morality, and etiquette. What, specifically, are rules in the eyes of their subjects, i.e., those who are expected to abide by them? Over the last sixty years, theorists in the philosophy of law have offered a useful framework with which to consider this question. Some, following H. L. A. Hart, argue that a rule’s text at least sometimes suffices to determine whether the rule itself covers a case. (...) Others, in the spirit of Lon Fuller, believe that there is no way to understand a rule without invoking its purpose — the benevolent ends which it is meant to advance. In this paper we ask whether people associate rules with their textual formulation or their underlying purpose. We find that both text and purpose guide people’s reasoning about the scope of a rule. Overall, a rule’s text more strongly contributed to rule infraction decisions than did its purpose. The balance of these considerations, however, varied across experimental conditions: In conditions favoring a spontaneous judgment, rule interpretation was affected by moral purposes, whereas analytic conditions resulted in a greater adherence to textual interpretations. In sum, our findings suggest that the philosophical debate between textualism and purposivism partly reflects two broader approaches to normative reasoning that vary within and across individuals. Keywords: , the concept of law, rules, legal psychology, Hart, Fuller. (shrink)

According to commentators like Rosalind Krauss, Briony Fer, Caroline Jones, and Michael Fried, Clement Greenberg’s formalist/positivist device of “medium-specificity” debars errant affective aesthetic experiences that are embodied; despite significant differences in how these theorists arrive at this conclusion, one shared point of emphasis is Greenberg’s inheriting Kant’s disinterested conception of pleasure in reflective judgments of beauty. Offering a textualist review of Kant’s Analytic of the Beautiful, I seek to demonstrate that neither Greenberg, nor Greenberg’s critics, are correct in their account (...) of Kant’s judgments of beauty.1 Specifically, I argue that Greenberg conflates Kant’s conception of judgments of free beauty (pulchritudo vaga) with merely adherent beauty (pulchritudo adhaerens). In formulating a rejoinder to Greenberg and the misplacement of Greenberg as a Kantian, and following Diarmuid Costello, I hope to save a path for a Kantian aesthetics of the present, much in the spirit of other broadly Kantian art historians and philosophers of art/aesthetics (e.g., Thierry de Duve, Paul Guyer, Ido Geiger, etc.). (shrink)

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this (...) common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation. (shrink)

Contextualism is a quite popular research program nowadays. In essence, the contextualist holds that the truth conditions of knowledge attributing and of knowledge denying sentences vary in accordance with the context in which the sentences are uttered. This theory is positively motivated by its capability of best explaining certain intuitions we have about knowledge attributions and knowledge denials. In this paper, I will argue that this positive motivation isn't as compelling as the contextualists think it to be. This I will (...) do by construing a so-called ‘warranted assertability maneuver’ against contextualism which shows that, with respect to knowledge attributing and denying sentences, the con-textualist has confused a variance in warranted assertability conditions for a variance in truth conditions. (shrink)

In his attempt to redirect philosophy, Rorty recruits some allies to his cause. The present paper contains a critical discussion of his attempt to interpret heidegger and davidson as holding an "above battle" position in the realism/anti-Realism controversy. Although neither heidegger nor davidson fit into the regular mold of either position, Neither does rorty's nietzschean portrait of heidegger nor his pragmatist one of davidson do justice to those two philosophers but, Rather, Betray the "textualist's" hand.

Richard Rorty has made popular the postmodern capitulation of philosophy in favour of literature. For him, the traditional efforts of philosophers and scientists to go more beyond o nearer language in search of the truth outside time, contingency and chance, have failed. Therefore, he proposes a postphilosophical culture in which a role of a new cultural tendency is assumed by poets and novelists. In view of all this, in this article, I reconstruct the fundamental hypothesis wich justifies that capitulation –the (...) textualism– and I put forward epistemological reasons which show up its inssufficient and inadequate nature. (shrink)

This essay reconsiders the haphazard arrangement of Donne's first printed collection of poems in relation to an elegy written for Donne by one Thomas Browne, published for the first and only time in that same volume. The earliest recorded response we have to Donne's verse considered as a complete body of work, Browne's elegy thematizes the readerly tendency to interpret this textual body in the light of "subjective" notions of "proper" desire. Through a close reading of Browne's poem, in which (...) I contextualize his key image of the bad reader as a "circumciser" within the theological and medical discourses of the period, I argue that Browne's response to Donne's text is at once instructively prescient -- providing a useful allegory of reading for the contemporary critic -- and also helpful in situating Donne at the cusp of a historical transformation between "medieval" and "early modern" conceptions of the sexual and the spiritual.IThe structural organization of John Donne's first printed book of poetry makes no obvious sense. Published posthumously in 1633, the collection eschews even the basic generic distinctions so familiar to Donne's modern audience: "Songs and Sonnets," "Satires," "Verse Letters," and "Divine Poems" . Several readers over the years have commented upon the disorderly configuration of Donne's 1633 text; and most recently, Leah Marcus has provided a detailed analysis of the collection in Unediting The Renaissance, itself an ambitious attempt to combine the traditional skills of textual bibliography with the insights of poststructuralist theory. Among other things, Marcus asserts that the very layout and internal composition of Donne's first collection constitute graphic evidence for the ultimate impossibility of "fixing" him within any reductively binary scheme. Indeed, for Marcus, the version of Donne projected by the 1633 Poems confirms not only her deconstructivist principles but also her aesthetic taste more generally. In her words, the collection is a striking melange of sacred and secular that refuses to separate John Donne from Jack. Verse epistles . . . jostle up against scurrilous amatory verses and evocations of human decay in a rough gallimaufry of mingled passions that projects a John Donne very like the Donne most of us value, a Donne for whom the sacred and secular are so closely entwined as to be inseparable.This reading would probably not be considered controversial in most quarters, and I too am in agreement with the main points of Marcus's argument, insofar as they go. However, I want to pause for a moment over one of the more undeveloped aspects of Marcus's interpretation, encoded in her use of the phrase "most of us." As the context makes clear, by "most of us" Marcus means a rather small band of nonreligious or liberal, professionalized, twentieth-century readers. Of course, Marcus is perfectly justified in assuming that her audience will be drawn from exactly this narrow demographic , but at the same time it must also be admitted that "most of us" therefore only refers to the tiniest portion of Donne's actual historical readership. Given that Marcus is performing an analysis of Donne's 1633 Poems, then, one obvious question emerges from her account: How might readers in 1633 have responded to the collection's juxtaposition of the religious with the secular? What might its disorganization have signified for them?One possible answer to this question has been suggested by Arthur F. Marotti, perhaps the most influential of Donne's textualist critics. In Manuscript, Print, and the English Renaissance Lyric, Marotti suggests, against Marcus, that Donne's first editors deliberately delay the readerly encounter with Donne's more earthly lyrics by burying them toward the back of the book. In other words, according to Marotti, the appearance of random disorganization that Marcus values is actually an intentional blind -- the result of a conscious attempt to "protect the reputation of Dean Donne from moral taint."However, this ingenious theory is not without flaws. For example, we are required to accept Marotti's contention. (shrink)

The general aim of this paper is to establish the plausibility of a postfoundational intentionalism. Its specific aim is to respond to criticisms of my work made by Vivienne Brown in a paper "On Some Problems with Weak Intentionalism for Intellectual History." Postfoundationalism is often associated with a new textualism according to which there is no outside to the text. In contrast, I suggest that postfoundationalists can legitimate our postulating intentions, actions, and other historical objects outside of the text. (...) They can do so by reference to, first, philosophical commitments to general classes of objects, and, second, inference to the best explanation with respect to particular objects belonging to such classes. This postfoundational intentionalism sets up a suitable context within which to address Brown's more specific questions. (shrink)

Materialism is at once the most general of concepts, capable of gesturing to anything that seems either foundational or physicalist, and yet is also one of the most rhetorical of gestures: operating as a way of reducing, criticising or ‘‘exorcising’’ forms of idealism and ideology. Derrida's early, supposedly ‘‘textualist’’ works appear to endorse a materiality of the letter (including syntax, grammar, trace and writing) while the later works focus on matter as split between that which is posited and that which (...) will always appear as a receding ground. It is more important than ever that materialism not be accepted too readily as a way of overcoming a supposedly linguistic or textualist Derrida in order that Derrida might be smuggled into the contemporary heaven of naturalism and physicalism. On the contrary, it is the dispersed, inhuman and inorganic materiality beyond bodies, physis and substance that offers itself for genuinely deconstructive thinking. (shrink)

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski, between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism, I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary proceedings and legal texts. (...) I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski. I argue that contextualism is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker ;. I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s textualism and contextualism. (shrink)

Originally published in 2003, this article presents one of the first attempts to provide a systematic summary of the new concept of cultural technique. It is, in essence, an extended checklist aimed at overcoming the textualist bias of traditional cultural theory by highlighting what is elided by this bias. On the one hand, to speak of cultural techniques redirects our attention to material and physical practices that all too often assume the shape of inconspicuous quotidian practices resistant to accustomed investigations (...) of meaning. On the other hand, cultural techniques also comprise sign systems such as musical notation or arithmetical formulas located outside the domain of the hegemony of alphabetical literacy. The rise of the latter in particular is indebted to the impact of the digital – both as a domain of technology and a source of theoretical reorientation. Together, these aspects require a paradigmatic change that challenges and supersedes the traditional ‘discursivism’ of cultural theory. (shrink)

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation (...) of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role. (shrink)

Ankersmit's articulation of a postmodern theory of history takes seriously both the strengths of traditional historicism and the right of historians to decide what makes sense for disciplinary practice. That makes him an exemplary interlocutor. Ankersmit proposes a theory of historical "representation" which radicalizes the narrative approach to historiography along the lines of poststructuralist textualism. Against this postmodernism but invoking some of his own arguments, I defend the traditional historicist position. I formulate criticisms of the theory of reference entailed (...) in his notion of "narrative substance," of his master analogy of historiography with modern painting, and finally of his characterization of historical hermeneutics. In each case I find him guilty of the hyperbole which he himself cautions against. While it is true that historical narratives cannot be taken to be transparent, in taking them to be opaque Ankersmit puts himself in an untenable position. Finally, Ankersmit seeks to buttress his theoretical case by an interpretation of the new cultural historical texts of authors like Davis and Ginzburg. While this is a concreteness heartily to be welcomed in philosophers of history, I cannot find his construction of this new school's work plausible. (shrink)

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates. (...) -/- Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law. -/- The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop. (shrink)

Whether deconstruction is relevant to environmental philosophy, and if so, in what ways and with what transformations, has been subject to considerable debate in recent years. I will begin by discussing some reservations regarding deconstruction’s relevance to environmental thought, and argue that they stem from an older misreading of Derrida’s work in particular as hostile to the natural sciences, and as a cultural textualism of relevance only to the interiority of a traditional canon, but unable to reach the materiality (...) of the outside environment. This attempt at refutation will permit a better understanding of the deconstructive argument for what has been called an ‘originary environmentality’ of life. On this basis, I seek to argue that deconstruction tends to be most promising to environmental questions when it shows responses to the call, not primarily for a new ethics, but for far-ranging analyses of our conception of politics. The reason for this lies in the overall deconstructive goal of exposing political and legal sovereignty, including its modern democratic understanding, to what I will elaborate as contextual or environmental finitude. (shrink)

Machiavelli, Hobbes, and Locke each sought a new foundation for political order. This book serves as a reader's companion to Machiavelli’s The Prince, Hobbes’s Leviathan, and Locke’s Second Treatise written for graduate students and scholars seeking a fuller understanding of these classic texts. How do these philosophers respond to perennial questions such as why anyone is ever obligated to obey a government and whether there are any limits to such an obligation. In this book, Bookman begins by sorting out the (...) hermeneutical controversy between textualists and contextualists, offers a chapter-by-chapter commentary on the texts punctuated by questions for the reader’s reflection, and finally suggests a firmer foundation for a theory of political obligation than Hobbes’s and Locke’s consent theories. Also included are bibliographical essays keyed to select bibliographies, providing readers with a wide-ranging, critical review of the secondary literature. Intended to be read alongside the primary work, the work is a full intellectual, critical, and bibliographical history, as well as a fresh examination of three classic texts in political theory and philosophy. (shrink)

This book offers a detailed account of the importance of psychoanalysis in Derrida's thought. Based on close readings of texts from the whole of his career, including less well-known and previously unpublished material, it sheds new light on the crucial role of psychoanalysis in shaping Derrida's response to a number of key questions. These questions range from the psyche's relationship to technology to the role of fiction and metaphor in scientific discourse, from the relationship between memory and the archive to (...) the status of the political in deconstruction. Focusing on Freud but proposing new readings of texts by Lacan, Torok and Abraham, Laplanche and Pontalis, amongst other seminal figures in contemporary French thought, the book argues that Derrida's writings on psychoanalysis can also provide an important bridge between deconstruction and the recent materialist turn in the humanities. Challenging a still prevalent 'textualist' reading of Derrida's work, it explores the ongoing contribution of deconstruction and psychoanalysis to pressing issues in critical thought today, from the localizing models of the neurosciences and the omnipresence of digital technology to the politics of affect in an age of terror. (shrink)

Courts purport to abandon ordinary meaning only when words in a statute accommodate more than one meaning; to look to surrounding words, legislative history, and then public policy considerations, only if those previous efforts fail. The canon of statutory construction, “a word is known by its associates,” generally means nearest associates, or near as possible. An analogous language philosophy principle counsels increasing search radius only as needed. Dimensional extension advances the sequence to broader domains of information. Such incrementalist restrictions should (...) require consistent justification of each broadening step by the inadequacy of preceding steps. But courts don’t do this, and shouldn’t. This essay references the legal debate between “textualists” and non-textualists and its philosophical parallel between minimalists and pragmatists. It illustrates court departures from the incrementalist model, and concludes that when judges choose broad evidentiary contexts in seeking statutory meaning, they need no more justification than when they choose narrower ones. (shrink)

In this paper I discuss the commentaries and the criticism that my friends and colleagues have made to the theory of social objects that I put forward in my book Documentalità. Perché è necessario lasciar tracce. In particular, I have articulated my responses along the following main lines: realism; truth (and falsity); ontology vs. epistemology and facts vs. interpretations; textualism and writing; politics; intentionality; consciousness.

I find myself in a small quandary in addressing Cheryl Misak’s new book, The American Pragmatists. The fact is I like the book very much. It’s written in an open and sprightly way, scrupulous and immensely useful in joining (what I myself have come to distinguish as) “textualist” and “genealogical” elements (explication de texte and interpretive reconstruction), in fashioning an extremely plausible survey of the entire trajectory of American pragmatism from Chauncey Wright (please note) and C...