Chicago-Kent Law Review Volume 76 Issue 2 Symposium on Philosophical Article 7 Hermeneutics and Critical Legal Theory December 2000 Gadamer, Heidegger, and the Social Dimensions of Language: Reflections on the Critical otentialP of Hermeneutical Philosophy Ingrid Scheibler Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Ingrid Scheibler, Gadamer, Heidegger, and the Social Dimensions of Language: Reflections on the Critical Potential of Hermeneutical Philosophy, 76 Chi.-Kent L. Rev. 853 (2000). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol76/iss2/7 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. GADAMER, HEIDEGGER, AND THE SOCIAL DIMENSIONS OF LANGUAGE: REFLECTIONS ON THE CRITICAL POTENTIAL OF HERMENEUTICAL PHILOSOPHY INGRID SCHEIBLER* INTRODUCTION In the English-speaking world, the work of Hans-Georg Gadamer has been influential in philosophy and the social sciences since his debate with German social theorist Jurgen Habermas in the late 1960s and early 1970s. More recently, Gadamer's insights into the hermeneutical dimension of human existence have been considered and developed in a range of areas, from literary criticism to debates in legal theory. This is not surprising, given that his hermeneutical philosophy anticipates many concerns central to recent developments of deconstruction and postmodern criticism, which have impacted the humanities and legal studies generally, as well as the development, following "legal realism," of what has become known as the Critical Legal Studies movement ("CLS").1 We also see Gadamer's work taken up in debates explored by political theory and legal studies concerning both the nature and role of rhetoric in legal argumentation, 2 and the nature of justice. Perhaps most notable among hermeneutical approaches to issues of justice is Georgia Warnke's Justice and Interpretation.3 Warnke * Assistant Professor of Philosophy, Boston College. 1. For an account of recent developments, see William W. Fisher III, The Development of Modem American Legal Theory and the Judicial Interpretation of the Bill of Rights, in A CULTURE OF RIGHTS 266, 267-89 (Michael J. Lacey & Knud Haakonssen eds., 1991); ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (1st ed. 1986). For a more general discussion, oriented to the critique of liberalism in different strains of the CLS movement, see CORNEL WEST, KEEPING FAITH: PHILOSOPHY AND RACE IN AMERICA 195- 250 (1993). For a discussion of Habermas's engagement with the CLS movement, see DAVID M. RASMUSSEN, READING HABERMAS 56-93 (1990). 2. For an excellent account linking the rhetorical dimension of knowledge with legal argumentation and the possibility of reasoning about justice, which draws on Gadamer's and Chaim Perelman's work, see Francis J. Mootz III, Rhetorical Knowledge in Legal Practice and Theory, 6 S. CAL. INTERDISC. L.J., 491,492-610 (1998). 3. See GEORGIA WARNKE, JUSTICE AND INTERPRETATION (1992) [hereinafter WARNKE, JUSTICE]. For discussions linking hermeneutics and justice, see also Fred Dallmayr, Hermeneutics and Justice, David Couzens Hoy, Legal Hermeneutics: Recent Debates, and CHICAGO-KENT LAW REVIEW [Vol. 76:853 addresses one of the central problems for modern political theory, of responding effectively to charges of subjectivism, or conventionalism, in recognizing that principles of justice are always rooted in specific cultural contexts and traditions. Given this situation, the challenge is to develop a concept of justice and an account of the nature of political discourse and the means for rationally justifying competing and divergent interpretations, which supplies a critical and normative dimension. 4 The question of interpretation is central to disputes over principles of justice reflecting, Warnke says, "differences either over which institutional arrangements comply with a given society's public political culture or over what the public political culture itself means."5 She is interested in developing interpretive guidelines, which she locates in the hermeneutic insight into the unity of meaning of parts and whole. She sees a criterion for interpretation in, among other views she considers, Gadamer's account of the "anticipation of completeness. '6 Further, she finds illuminating Gadamer's con- nection of a criterion of coherence, with another criterion, the "educative" function of a given interpretation. For Gadamer, Warnke writes, [T]he point of any serious attempt to understand the meaning of a text or text analogue must be to achieve a better understanding of the issues and questions with which we are concerned.... [W]e must suppose that the texts or text analogues we are studying can be not only internally coherent but also illuminating, that they can educate us over some subject matter, answer a question we have or clarify some issue.7 Gadamer's work, then, provides insight for a hermeneutic political theory which conceives our conceptions of justice as "constrained interpretations of our democratic traditions, institutions, and practice" and which recognizes that no interpretation of these has Georgia Warnke, Walzer, Rawls, and Gadamer: Hermeneutics and Political Theory, in FESTIVALS OF INTERPRETATION: ESSAYS ON HANs-GEORG GADAMER'S WORK (Kathleen Wright ed., 1990). 4. Warnke likens this problem of a hermeneutic political theory with the diversity of interpretations encountered in the humanities. She locates the more pressing need for agreement in the political domain, where she says, "we must be able to agree on shared social meanings so that we can agree on the principles, actions and practices that are appropriate to them." WARNKE, JUSTICE, supra note 3, at 62. 5. Id. at 131. 6. Id. at 129. 7. Id. Warnke supplements Gadamer's approach with a version of Habermas's proceduralist critical theory to address the existence of social forces that distort practical dialogue and hinder the educative function of conversation. I address the issue of the criterion of "education" below. 2000] GADAMER, HEIDEGGER,SOCIAL DIMENSIONS OF LANGUAGE 855 exclusivity. Rather, there is a fundamental recognition that "we 8 might learn from others." Warnke's appropriation of Gadamer, then, seeks to provide normative guidelines for what happens in the everyday context of public debate about contested moral and political issues-for example, abortion or affirmative action.9 Further, this everyday context of public debate is conceived as one where ongoing interpretation and deliberation among a healthy divergence and disagreement of views, and not a homogenizing consensus, is the source of political legitimation. 10 Though Gadamer's view may need to be supplemented with criteria for assessing the educative function of different interpretations, his hermeneutical philosophy provides a normative dimension for interpretative situations in public, political discourse. This is one of the central and most fruitful aspects of his work. I single out Warnke's efforts because my interest in Gadamer shares with Warnke a commitment to drawing out the critical potential of this aspect of Gadamer's hermeneutical philosophy. I examine his views of language and tradition, connected with his concept of dialogue or conversation, to show that they offer important critical insights. Gadamer offers a model for thinking the position of human beings in the world, at once rooted in a finite and historical situation-the condition of belonging to the contexts of tradition and language-yet not conceiving this context as inherently limiting. Rather, given the centrality of and injunction for dialogue with what is other, other traditions and points of view, Gadamer's concept of the engagement of hermeneutical understanding conceives it as ongoing and critically motivated dialogue between particular and divergent points of view. That Gadamer's hermeneutical philosophy has this critical and political potential comes into relief most sharply by examining the specifically social dimensions of language in his work. In examining these, I will look at an issue central to Gadamer's work: his view of linguistically mediated tradition. The critical and 8. Id. at 131. 9. Warnke also extends her appropriation of Gadamer and Habermas to further develop an account of the role of interpretation in public political debate in GEORGIA WARNKE, LEGITIMATE DIFFERENCES: INTERPRETATION IN THE ABORTION CONTROVERSY AND OTHER PUBLIC DEBATES (1999). 10. Warnke takes up this issue specifically in relation to Alasdair MacIntyre's work. See WARNKE, JUSTICE, supra note 3, at 116-17. CHICAGO-KENT LAW REVIEW [Vol. 76:853 political potential of the social dimensions of language come into relief most strongly here. Despite the fact that Gadamer's work can be so productively used to illuminate efforts to provide normative guidelines vital to fostering an open democratic society, his work, however, continues to elicit charges of conservatism and traditionalism." Such readings suggest that, in Gadamer's view, tradition and justice are antithetical. Some of these charges stem from Gadamer's debate in the 1960s and early 1970s with Jirgen Habermas, focusing on the conservative character of Gadamer's work in the face of the interests