ABSTRACT

Dworkin, "Law as Interpretation,” 6 o Texas Law Review 5 2 7 ( 1 9 8 2 ). Id. at 5 2 8 . Id. at 5 4 2 - 4 3 . Fish, Is There a Text in This Class? ( 1 9 8 0 ). Dworkin, supra note 1 , at 5 4 1 - 4 2 (footnote omitted). Dworkin makes a similar but not exactly parallel point when he acknowl­ edges that the first novelist will have the responsibility of "interpreting the genre in which he sets out to write.” Id. at 5 4 1 n.6 . Id. at 5 4 2 - 4 3 (emphasis in original). Id. at 5 4 4 . Id. I am not saying that the present-day case comes first and the history then follows, but that they emerge together in the context of an effort to see them as related embodiments of some legal principle. Indeed, a case could not even be seen as a case if it were not from the very first regarded as an item in a judicial field and therefore as the embodiment of some or other principle. This does not mean, however, that it is to judicial principles that we must look for the anchoring ground of interpretation, for judicial principles cannot be separated from the history to which they give form; one can no more think of a judicial principle apart from a chain of cases than one can think of a chain of cases apart from a judicial principle. No one of the entities that makes up judicial reasoning exists independently, neither the present-day case, nor the chain of which it is to be the con­ tinuation, nor the principle of which they are both to be the realizations. Dworkin, supra note 1 , at 5 3 2 . Ian Fleming, Goldfinger ( 1 9 5 9 ). One hardly knows where to begin, perhaps simply with the title of David Grossvogel’s study, Mystery and Its Fictions: From Oedipus to Agatha Christie ( 1 9 7 9 ). The title of Dennis Porter’s The Fur suit o f Crime: Art and Ideology in Detective Fiction ( 1 9 8 1 ) suggests a scope and a thesis somewhat less grand, but Porter does find Christie "working in the tradi­ tion of Poe, Collins, and Doyle,” id. at 1 3 7 , and he devotes some very seri­ ous pages to a stylistic analysis of the first paragraph of her first novel in the context of V. N. Voloshinov’s Marxism and the Philosophy o f Language ( 1 9 7 3 ). Christie is taken no less seriously by Stephen Knight in Form and Ideology in Crime Fiction ( 1 9 8 0 ). Knight speaks without any self-conscious­ ness of Christie as a "major writer” and analyzes her "art” in terms that might well be applied to, say, Henry James: "The rigidity of the time and place structure emphasizes the obscurity of the thematic shape, challenges us all the more urgently to decide it. The dual structure enacts the central drama of the novel, a threat to order that only careful observation can re­ solve,” id. at 1 2 6 . Knight’s book, like Porter’s, is replete with references to Lacan, Jameson, Machery, Marx, Freud, and Barthes, and bears all the marks of sophisticated academic criticism. See also in a similarly academic mode, R. Champigny, What Will Have Happened: A Philosophical and

tween “common-law” cases and cases where there is a statute, at least inso­ far as it is a distinction between cases whose interpretation is straightfor­ ward and cases that must be referred to the background of an institutional history. In cases where there is a statute for a judge to look at, he must still look at it, and his look will be as interpretive-as informed by the prac­ tices and conventions that define the enterprise-as it would be in a com­ mon-law case. That is, a statute no more announces its own meaning than does the case to which it is to be applied, and therefore cases where statutes figure are no more or less grounded than cases where no statute exists. In either circumstance one must interpret from the beginning and in either circumstance one’s interpretation will be at once constrained and enabled by a general and assumed understanding of the goals, purposes, concerns, and procedures of the enterprise. See on these and related points two essays by Kenneth Abraham: “Three Fallacies of Interpretation: A Comment on Precedent and Judicial Decision,” 2 3 Arizona Law Review 7 7 1 ( 1 9 8 1 ); and “Statutory Interpretation and Literary Theory: Some Common Concerns of an Unlikely Pair,” 3 2 Rutgers Law Review 6 7 6 ( 1 9 7 9 ).