ABSTRACT
Stanley Fish argues that contemporary thinking about law, as with thinking across all disciplines, has fallen victim to what he calls ‘theory-hope’. In the end, all ‘the troubles and benefits of interpretive theory … disappear in the solvent of an enriched notion of practice’ (Fish 1989: ix). According to Fish, all that theory can ever hope to do is offer an after-the-fact explanation of already firmly held beliefs which function to allow and confirm within an ‘interpretive community’ those convictions which its rhetoric asserts. The reason that we are able to interpret a text is because we belong to an interpretive community which supplies us with a particular way of interpreting it. Moreover, because we can never escape our communities our readings of a text are always in this sense culturally constructed. So we can never know of each other whether we belong to the same interpretive community, for that would require that each act of communication itself be interpreted. Thus, what is important is how an utterance affects a hearer, not any question about locating the meaning that is assumed to reside within it. In this way, arguments appear intelligible and convincing. Fish’s response to Ronald Dworkin’s rendering of the process of constitu-
tional interpretation, the judicial use of precedent, demands mention here. According to Dworkin (1986), the interpretation of the constitution, and therefore the role of precedent in judicial decision-making, can be likened to the production of a serial or chain novel, in which judges take turns consecutively to add one chapter upon another. With the steady accumulation of chapters each subsequent writer’s freedom and choice in interpretation becomes increasingly constrained: the author of the last chapter is more constrained in relation to that task than her fellow authors, since she has to contribute her chapter under the accumulated burden of their chapters; the first author is unconstrained. For Fish, however, this understanding of what is going on is erroneous. A
reader’s approach to a text can never be completely subjective. On the contrary, an internalised understanding of language shared by native speakers generates normative constraints in respect of their experience with language. In this way, Fish’s argument questions Dworkin’s understanding of the role
and function of a doctrine of precedent. Indeed, for Fish, since all our attempts to gain access to the meaning of a text stumble on the fact that our interpretation is based upon the interpretive community of which we are a part, then a system of precedent cannot truly constrain judges; rather, constraints in judicial decision-making must arise out of the process of judging itself. Moreover, since all judges appear equally constrained, we are left with the question of whether, at any point in this process, there is really any text as such that awaits interpretation. According to Balter (2001: 384), ‘Fish’s theory of interpretive communities
provides valuable insight into the norms of the legal community’ and how the legal interpretive community ‘legitimizes a way of thinking about the law that is inculcated into its practitioners at each level of participation from law school through judgeship. Central to this socialization is the judicial opinion … studied by law students, read by lawyers, and written in respect to other opinions by judges’. In this manner, a judge ‘begin[s] the discourse with a particular case’ and ‘past cases are read in relation to the present circumstances’. While the legal community ‘expects that the present case will be understood in relation to the past, … the present case also moulds the past’. That is to say, a writer is free to manipulate a text on which her opinion is based, provided this manipulation can be justified within the bounds of the expectations of her interpretive community:
Interpreters are constrained by their tacit awareness of what is possible and not possible to do, what is and is not a reasonable thing to say, what will and will not be heard as evidence in a given enterprise; and it is within these same constraints that they see and bring others to see the shape of the documents to whose interpretation they are committed.
