American Journal of Jurisprudence

Volume 32 | Issue 1 Article 8

1-1-1987

On a General Theory of Interpretation: The Betti-Gadamer Dispute in Legal HermeneuticsGeorge Wright

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Recommended CitationWright, George (1987) "On a General Theory of Interpretation: The Betti-Gadamer Dispute in Legal Hermeneutics," American Journalof Jurisprudence: Vol. 32: Iss. 1, Article 8.Available at: http://scholarship.law.nd.edu/ajj/vol32/iss1/8

ON A GENERAL THEORY OF INTERPRETATION:THE BETTI-GADAMER DISPUTE IN

LEGAL HERMENEUTICS

GEORGE WRIGHT*

INTRODUCTION

SCHOLARS IN ITALY AND ELSEWHERE have long recognized the work ofEmilio Betti (1890-1968) as among the most successful in describingand orienting the insights and impulses associated with the study ofhermeneutics, the modern theory of interpretation.' A jurist by pro-fession, older brother of the more famous Ugo, Betti brought to thestudy of interpretation a thorough grounding in classical studies as wellas a deep commitment to the particular responsibility of legal practi-tioners in shaping the contours of social life through legal instrumen-talities. While his interests as a legal scholar ranged widely, fromCaesar's relations with the Roman Senate to the intricacies of Romanlaw to questions of international law,' it is the peculiar strength ofhis approach to have framed the specific concerns of legal interpreta-tion within the larger problematic of interpretation in general. Hereinlies the great promise of his work for legal researchers in this country,who are seeking only now to bring the method and insights ofhermeneutics to bear on the development of their discipline.,

* I would like to thank Professor Hubert Dreyfus, of the University of Califor-nia at Berkeley, for many helpful comments on an earlier draft of this article. I wouldalso like to thank my friend Jack A. Hiller, of the Valparaiso University School ofLaw, under whom I first read Heidegger. I have followed the convention of usingforms of the masculine pronoun when referring indifferently to men and women.

1. See for example the article of Niels Thulstrup, "An Observation ConcerningPast and Present Hermeneutics," 22 Orbis Litterarum (1967), pp. 24-44.

2. For a list of Betti's publications and a brief biography, see Chi'V Dizionariobiografico degli italiani d'oggi 78 (7th ed. 1961); also Vittorio Scialoja, "Scritti diEmilio Betti," 9 Bulletino dell'Istituto di diritto romano (1967), p. 309. Betti washonored in 1962 with a number of commemorative volumes, containing many articlesrelating to the present theme. See Studi in onore di Emilio Betti, voll. I-IV (1962);of particular interest are the articles by David Daube, Gerhard Funke, Alfred Heuss,Gunther Kandler, Theodor Litt, Gaetano Righi and Fritz Wagner. See also GiulianoCrif6, "Onoranze a Emilio Betti," 28 Studia et Documenta Historiae et Juris (1962),p. 520.

3. A number of recent events signal rising interest in legal hermeneutics, in par-ticular the symposium held in 1984 by the editors of the Southern California LawReview. The papers given then have since appeared in that publication, vol. 58, 1985,numbers I and 2.

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Because, in every aspect of their professional activity, lawyers workwith words, their understanding and use of language, their interpretivetechnique, is a constituent, even defining, aspect of how they pursuetheir craft and how they understand their responsibilities and interests.Betti's work in hermeneutics, along with two other recent approaches,represents a critical response to one highly influential view of language,which we may term interpretive positivism, an attitude signaled amongjurists by adherence to the adage "nec in lege, nec in iure," "if notin law, neither in right." Seeking to guarantee the autonomy of lawand of legally constituted officials as its interpreters, legal positivistshave characteristically stressed both the pedigree of a given legal pro-nouncement, that it has been issued by one in authority to do so, andthe peculiarity of the processes by which adequate cognition and ap-plication of the pronouncement are made, that the official "thinks likea lawyer" in using precedent and analogy.'

This interpretive stance is the methodological outcome of the viewthat law is a matter of rules, issued by one in authority, to be giveneffect only so far as the internal consistency of the system of rulespermits. Though recent decades -have seen attempts to import andlegitimate criteria for decision-making which lacked the requiredpedigree, e.g., principles of political philosophy, social goals and needs,political behavior, etc., their proponents have had only partial successand have at all times faced stiff opposition, both in theory and in prac-tice. At times, these attempts have failed because they only tentativelybroke with the culture and tradition of positivism which they criticized.5

4. See infra, footnote 86.5. A recent article by H. L. A. Hart on the rights thesis as developed by Ronald

Dworkin is an indication of the residual strength both of legal positivism and of itsmost clear-sighted proponent; see H. L. A. Hart, "Between Utility and Right," 79Columbia University Law Review (1979), p. 828. The terms of this debate have notmoved beyond the point at which knowledge of Thomas Hobbes' philosophy is rele-vant for the light its sheds on liberal social thought. For many, the metaphor of thesocial contract remains a compelling image of political association, both in its descrip-tion of a-social man and in its prescription of a social remedy. Although reasons ofhistory and language argue against the truth of this metaphor, if it is not to be aban-doned, and it seems that it is not, then we must understand it better, its origin inspecific historical contexts, the characteristic lines of its development, its insufficien-cies and distortions. Further, interest in Hobbes is likely to recur. The critique ofMarxism, carried on by Anglo-American scholars, must issue in a rejection of Locke,the labor theory of value and the language of individual rights. Indeed, Professor.Hart's article points out the failure of rights theorists to give more than a psychologyof rights, when what is needed is a philosophy of rights. Hobbes remains both thesingle greatest obstacle to the metaphysics required for such a philosophic groundingof rights and also the most likely resort in its absence, I hope soon to bring out abook-length treatment of Hobbes in his connections with Protestantism and medievalnominalism.

GEORGE WRIGHT 193

Betti sought to locate himself within the humanist tradition ofjurisprudence in relating law and legal thought both to its social originsand to its continuing social functions and responsibilities. 6 Followingthe teaching of Giambattista Vico (1668-1774),' Betti emphasized thatlaw, along with philosophy, history, economics,' art, and literature,is a specifically human achievement, differing in essence from thephenomena of nature and requiring appropriate interpretive techniquesfor adequate understanding. He used the term scienze morali to describetheir function as the moral, or human, sciences, the sciences of thespirit, rather than of nature, so called in imitation of the German termGeisteswissenschaften.

6. Several books and articles on humanist jurisprudence by Donald R. Kelleyhave yielded important results, in particular his Foundations of Modern HistoricalScholarship: Language, Law and History in the French Renaissance (1970). The workof Karl-Otto Apel is also very valuable for the humanist perspective in general, especiallyhis Die Idee der Sprache in der Tradition des Humanismus von Dante bis Vico (1963).

7. The literature on Giambattista Vico is too enormous to canvass here, but.Benedetto Croce's monograph, though criticized, remains seminal. See Benedetto Croce,The Philosophy of Giambattista Vico (translated by R. G. Collingwood 1913). KarlL6with's chapter on Vico in Meaning in History, pp. 115-36 (Eng. trans. 1949), ishelpful. Gustavo Costa's essays in Cultura and the Giornale critico dellafilosofia italianaare especially valuable for those who know Italian, as is the volume Omaggio a Vico,which appeared in 1968. In the chapter I have cited, L6with says of Vico's master-piece The New.Science: [It] appeared in its first edition in 1725 and in its completeform in 1730 and was again revised in 1744, four years before Montesquieu's L'Espritdes lois, ten years before Voltaire's Essay, a hundred years before Schelling's Philosophyof Mythology and Religion, and almost two centuries before it was rediscovered andrecognized as the most original advance toward a philosophy of history. It is the fruitof a lifelong search into the depth of historical humanity. It anticipates not only fun-damental ideas of Herder and Hegel, Dilthey and Spengler, but also the more par-ticular discoveries of Roman history by Niebuhr and Mommsen, the theory of Homerby Wolf, the interpretation of mythology by Bachofen, the reconstruction of ancientlife through etymology by Grimm, the historical understanding of laws by Savigny,of the ancient city and of feudalism by Fustel de Coulanges, and of the class strugglesby Marx and Sorel; at 115. No discussion of law and history can omit considerationof Vico and his theory of mythopoiesis. I have used the revised translation of thethird edition-of the New Science, brought out by Thomas Goddard Bergin and MaxHarold Fisch in 1968, as well as the three-volume Italian edition, published in paper-back by Giulio Einaudi in 1976, edited by Fausto Nicolini, with a bibliography cur-rent to around 1956.

8. Betti's inclusion of economics among the moral sciences may surprise theAmerican reader. Few researchers aspire so patently to achieve the scientific idealsof classical Newtonian physics as do American economists, with their statistics, modelsand hermetic language. But not all practitioners of the dismal science, and certainlynot its best research, may be so described; the. names of Galbraith, Hirschman andCipolla, to cite some modern authors, may be given as important counter-examples.

9. We owe the term Geisteswissenschaften to the German translator of John StuartMill's Logic, where, in a supplement to that work, Mill outlines the possibilities ofapplying inductive logic to the human sciences. Mill sets out to secure the truth ofthe human sciences by showing that the inductive method, basic to experimental science,

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Although the human sciences pursue varying cognitive goals and havedifferent terrains, they are united, according to Betti, in having acommon interest and a common method, the interpretation of one sub-jectivity by another on the basis of the objectivity present in an exter-nal object. For in the object of interpretation is traced the history ofa thought or feeling, some evidence of the vital experience of a fellowhuman being. This is the interpreter attempts to re-construct out ofhis own experience and understanding, not arbitrarily or capriciouslybut consistently with the autonomy and inner coherence resident inthe object to be interpreted and in accord with his own interpretivetechnique, his "dogmatic." "Two things are thus held in opposition:one, the subjectivity that is inseparable from the spontaneity ofunderstanding; the second, the objectivity, or otherness, so to speak,of the sense which interpretation seeks to elicit from the object. Fromthis necessary tension flows the whole dialectic of the interpretive pro-cess. Upon it, one may construct a general theory of interpretation,which, in allowing critical reflection upon that process, can providean account of its ends and methods. This theory is hermeneutics."' °

Betti follows Vico in emphasizing the spiritual connection of historicalartifacts, like law and the sense of right, with their producers and in-terpreters as the basis of knowledge in the human sciences. For theexpression of human creativity in intelligible and characteristic formwas Vico's evident truth, which he asserted in the face of the criticalphilosophy of the great French thinker and mathematician Ren6Descartes (1596-1650), for whom no thesis could be valid unless provenby a precise demonstration from original, underived independent prin-ciples. In seeking mathematical clarity, Descartes had hoped to sur-mount the traditions in which he had been raised in order to lay anew, unshakable foundation for philosophy and thereby avoid its beset-ting confusions and contradictions.

Descartes' re-direction of philosophic/scientific inquiry took thedeductive closure of mathematical knowledge as its criterion of truth,

is alone valid also in the human sciences. For human science too, according to Mill,is concerned to establish similarities, regularities and conformities to a law which wouldmake it possible to predict individual processes and phenomena. Such an understand-ing of 'science' makes historical understanding quite impossible, and against it onemust insist upon the fact that historical research does not endeavor to grasp the con-crete phenomenon as an instance *of a general rule. See infra, footnote II, and Hans-Georg Gadamer, Truth and Method (Eng. trans. 1975), p. 6. This work of Gadameris fundamental for any discussion of interpretation in law that seeks to move beyondthe craft techniques of given lawyers.

10. See infra, pp. 78-9.

GEORGE WRIGHT

united with systematic doubt as the means of arriving at statementswhose universality, clarity, and self-evidence were indubitable, as inthe famous cogito ergo sum." But, as Grassi notes, "If the problemof philosophy is identical with that of rational knowledge, if thisknowledge in its turn consists of tracing back our assertions to a "firsttruth," then emotive elements and with them the influence of images,of fantasy, of rhetoric play no role whatsoever in this rational pro-cess. They even appear as elements which interfere with the rationalprocess."II

The adoption of Descartes' cognitive paradigm foreclosed recourseto affective knowledge, gained in particular situations by the evidenceof the senses, through demeanor, image, metaphor, gesture, impas-sioned speech, rhythm, etc.'" The changeable fortunes and passionsof men, with their modulations of the particular, the contingent, theexemplary, the affective, the seeming-true and the heuristic, could no

11'. On Descartes, see Croce, The Philosophy of Giambattista Vico (1913), pp.1-20. Eighteenth-century figures like Voltaire, Locke, and Hume came to admire historyas a source of the most probable knowledge and most universal moral certainties.Possessed of a skeptical distrust of absolute certainty, they appealed to experiencein the search for truth and value against the esprit de systume of the seventeenth-century philosophers, with their passion for mathematical and abstract truth. TheEnlightenment ideal was that the historian, as a proper philosophe, should recognizehis craft's probabilistic character, adopt a secular theory of motivation, chronologyand causation, and aspire to a view of the human record that transcended his ownnationality and interests; see Thomas J. Schlereth, The Cosmopolitan Ideal in Enlighten-ment Thought: Its Form and Function in the Ideas of Franklin, Hume, Voltaire,1694-1790 (1977), pp. 64-65. The author of the Penstes diverses, Pierre Bayle, whosefree thought was a spur to Vico's genius, proclaimed that the historian "ought tobe attentive only to the interests of truth, to which he ought to sacrifice resentmentof injuries, memory of favors received, even love of country. He should forget thathe belongs to any country, that he has been raised in any particular faith, that heowes his fortune to this or that person, that these are his parents or those are hisfriends;" quoted in Roland Stromberg, An Intellectual History of Modern Europe(1966), pp. 96-97. Hume was not displeased to be abused by the violent of both parties.Thus the historical interest of these figures was related to their empirical interest inthe facts of nature, for history was to serve as the empirical store house of a universal"science of morals," the great project of enlightened moral thought, pursued by allthe major Enlightenment historians, Hume, Montesquieu, Gibbon, Raynal, and Robert-son, as well as enlightened philosophers. On the failure of the Enlightenment'project,see Alasdair Maclntyre's highly influential study, After Virtue (1981).

12. Ernesto Grassi, Rhetoric as Philosophy: The Humanist Tradition (1980), p. 37.13. Use of the word paradigm recognizes a debt to Thomas S. Kuhn's The Struc-

ture of Scientific Revolutions (2d ed., enlarged 1970). Part of the story he tells thereconcerns a type of historiology in the natural sciences, namely, the construction ofa historical narrative of problems moving inexorably toward solution. Legal researchersare familiar with similar histories, organized in terms of "tort law," "contract law,""property law," etc., all working themselves clear as means of facilitating specificProupings of relationships and exchanges. This way of thinking about legal history

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longer be the basis of knowledge, which since Aristotle had been takento be the grasp of a conformity. Rhetoric and history both, insofaras they undertook the study of the probable rather than the necessary,were degraded and lost their former philosophic importance. Whateverclever rules and maxims they might contain for beautiful speech andaction, the best, if not the only method to convince and act correctlyremained submission to the severity of logical proof, which might leadto truth.'

As students of English letters are well aware, Descartes' hostilityto rhetoric and metaphoric expression found a parallel in England.Indeed, it was a conversation partner of Descartes, Thomas Hobbes(1588-1679), who first brought a new, flat style of philosophic writingto literary perfection in English; his Leviathan of 1651 emulates Milton'sprose in defining and carrying out a consistent program of verbal ex-pression, the one florid and conceited, the other spare and unadorned."It was Hobbes who professedly eschewed the use of metaphor as anexpository tool,' 6 although his figures of the bird in its own errors

is revealing for what it implies about those who devised it, but its adequacy as a con-struct for all periods and situations, even our own, is not an uninterpreted primitive.Indeed, the "history of problems" is a form of historiography that distorts more thanit clarifies; see Gadamer, Truth and Method, pp. 305-41. On the division of law intovarious branches, cf. Martin Heidegger, Being and Time H362-3. (1 have used andslightly modified the translation of Being and Time by John Macquarrie and EdwardRobinson of 1962 and have followed the convention of citing to the pagination ofthe later German editions, signified by an "H".) Herbert Butterfield, in his The WhigInterpretation of History (1965), describes "the tendency in many historians to writeon the side of Protestants and Whigs, to praise revolutions provided they have beensuccessful, to emphasize certain principles of progress in the past and to produce astory which is the ratification if not the glorification of the present. This whig versionof the course of history is associated with certain methods of historical organizationand inference-certain fallacies to which all history is liable, unless it be historicalresearch. The examination of these raises problems concerning the relations betweenhistorical research and what is known as general history; concerning the nature ofa historical transition and of what might be called the historical process; and alsoconcerning the limits of history as a study, and particularly the attempts of the whigwriters to gain from it a finality that it cannot give;" at v-vi.

14. Ernesto Grassi, Rhetoric as Philosophy: The Humanist Tradition (1980), pp.71-72.

15. Basil Willey's The Seventeenth Century Background (1942), pp. 93-118, is usefulfor a consideration of Hobbes' literary connections, but caution must be urged asto his interpretation of Hobbes' political philosophy. Giorgio Sorgi's article, "La prob-lematica lettura di Thomas Hobbes," 57 Rivista internazionale difilosofia del diritto(1980), p. 325, provides an excellent bibliography of some recent work on Hobbeswritten in English, French, German and Italian.

16. See Leviathan 101ff. of C. B. Macpherson's edition of 1968. See also TedCohen, "Metaphor and the Cultivation of Intimacy," On Metaphor (1979), pp. 1-10;originally published in volume 5, issue I of Critical Inquiry, (1978).

GEORGE WRIGHT

belimed," the scarecrow of Aristotelian thought,'" even the great con-ceit of Leviathan itself,' 9 are the single most memorable features ofhis great book. And it was Hobbes who so sharply criticized the moralreasoning of ancient and medieval thinkers by denying the existenceof a summum bonum, or highest good, shared by all men as the goalof their moral action. 20

Hobbes has a claim on the attention of modern lawyers. Like him,many recent Anglo-American philosophers and jurists have shownunrelenting hostility to the use of rhetoric and metaphor in discursiveargument and have similarly tended to reject metaphysics, the theoryof values and ethics as devoid of philosophic content and expressivemerely of sentiment." Despite what contemporaries thought of him,despite his disputes with Matthew Hale, the great legal scholar andLord Chief Justice," Hobbes' influence today is surely greater thanHale's or Coke's or Seldon's, for, in him, there first appeared the view

17. Leviathan, p. 105.18. Leviathan, p. 691.19. On Leviathan as metaphor, see Carl Schmitt, Der Leviathan in der Staatslehre

des Th. Hobbes (1938), and Michael Oakeshott's "Introduction" to his edition ofLeviathan of 1962.

20. Hobbes discusses the summum bonum in this way: [T]he felicity of this lifeconsisteth not in the repose of a mind satisfied. For there is no such finis ultimus(utmost aim) nor summum bonum (greatest good), as is spoken of in the books ofthe old moral philosophers. Nor can a man any more live whose desires are at anend than he whose senses and imaginations are at a stand; Leviathan, p. 160. In addi-tion to Hobbes' usual criticism of Aristotle, there is a clear reference here to thescholastic tradition of moral philosophy, especially the thought of St. Thomas Aquinas,and Hobbes elsewhere confesses his inability to understand Thomas' important ideaof the nunc stans, the eternally present, as a description of the divine life. Thoughsome have seen in this Hobbes' desire to eradicate religious ideas from politicalphilosophy, it is rather an inclination to thematize another set of ideas, deriving notfrom the categories of rest, self-sufficiency and satisfaction, but from those of mo-tion, action and change. Hobbes is not alone in pursuing this conviction as to God'snature; see Michael J. Buckley, S.J., Motion and Motion's God: Thematic Variationsin Aristotle, Cicero, Newton and Hegel (1971). Despite stylistic considerations, I havegiven numerous quotations in the text and footnotes so that the reader's efforts ininterpreting the passages will lead him back to the texts themselves and he may becomean interlocutor in a conversation about modern thought that is deep and meaningful.

21. The work of Alfred Jules Ayer may be cited in this connection, especially hisLanguage, Truth and Logic (2d ed. undated), with the unfortunate blast at Heidegger,pp. 43-4. On this strain in Anglo-American thought, see Maclntyre, After Virtue (1981).In contrast to Professor Ayer, Heidegger detaches the question of personal existencefrom the empiricist scheme, so that continuity of experience is not projected as a prob-lem but is taken as given phenomenologically. The Christian socialist theologian PaulTillich has written on personality in "The Idea and the Ideal of Personality," TheProtestant Era (1957), pp. 115-135.

22. On this dispute, see Richard Curtis, "Hobbes and Hale: Sovereignty and theCommon Law" (1985; unpublished mansucript, deposited in the Boalt Hall Library).

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that the institution of rules by one in authority is of the essence ofjustice, as if only to prescribe the occasion and manner of makingand following commands is to meet the criteria of their fairness:

To the care of the sovereign belongs the making of good laws. Butwhat is a good law? By a good law, I mean not a just law, forno law can be unjust. The law is made by the sovereign power, andall that is done by such power is warranted and owned by everyone of the people; and that which every man will have so, no mancan say is unjust. It is in the laws of a commonwealth as in thelaws of gaming: whatsoever the gamesters all agree on is injusticeto none of them. A good law is that which is needful for the goodof the people and withal perspicuous."

This extreme concentration of questions of justice upon the figureof the sovereign was a function of Hobbes' desire to render thepossibilities of political action amenable to rigorous description andprediction. For he believed he could count out all the possible com-binations of political life, reckon up the passions of men and therebygain mastery over life's vicissitudes, as the philosophers had failed todo. In Hobbes' sovereign were concentrated all the powers he thoughtsufficient to assure any political association enduring peace and stability.Thus, while this political project was conceived and carried out fromwithin Hobbes' understanding of his own quite particular historicalcircumstances, its end result was to be non-historical and exact in thesame way in which geometry lacks history and indeterminacy. It wasto be a mechanical science of society, the terms of which are familiarto us today from modern social science, having changed little sinceHobbes described them in De Cive and Leviathan."

But Hobbes had less success than some modern thinkers in suggestingthat laws and justice were related like rules for gaming, and he soonran afoul of the religious and political beliefs of many of his contem-poraries, chief among whom was the Bishop of Derry, John Bramhall.Hobbes and Bramhall conducted an extended war of words over thefreedom of the will," Bramhall asserting it upon moral, religious and

23. Leviathan, p. 388.24. See De Cive Epistola dedicatoria, pp. 73-84, in the admirable critical edition

of the late Howard Warrender (1983), and Leviathan, chapter 26; cf. Jerry Weinberger,"Hobbes's Doctrine of Method," 69 American Political Science Review (1975), pp.1336-53. My own interest in Hobbes stems from Roberto Mangabeira Unger's treat-ment of liberal thought in his seminal work Knowledge and Politics (1975).

25. This logomachy caught the attention of the poet T. S. Eliot, who championedBramhall, hailing him as a giant battling a pygmy! See Eliot, Selected Essays (3d ed.1951), pp. 355, 359.

GEORGE WRIGHT

political grounds, Hobbes similarly denying it. Indeed, Hobbes' responseto the bishop recalls the resoluteness of Luther before the Diet: "Whatuse soever be made of truth, yet truth is truth; and now the questionis not what is fit to be preached, but what is true."'"

Apart from its moral repugnance and religious offense, Bramhallalso saw in Hobbes' determinism a political disadvantage. "Statepolicy," he remarked, "which is wholly involved in matter and cir-cumstances of time and place and persons is not at all like arithmeticand geometry, which are altogether abstracted from matter, but muchmore like tennis play. . . . There is no room for liberty in arithmeticand geometry."" Bramhall, in arguing for indeterminacy in politics,failed to come to grips with the central point in Hobbes'. analysis,namely, that politics seems random because we cannot yet calculatethe variables accurately enough. But according to Hobbes, the studyof human nature is in principle no different from that of meteorology,imperfect only because our knowledge has been rudimentary but capablein theory of mathematical exactness. The bishops's failure to under-stand the necessity with which his own actions occurred showed mere-ly a lack of knowledge:

A wooden top that is lashed by the boys, and runs about sometimesto one wall, sometimes to another, sometimes spinning, sometimeshitting men on the shins, if it were sensible of its owm motion, wouldthink it proceeded from its own will, unless it felt what lashed it.And is a man any wiser, when he runs to one place for a benefice,to another for a bargain, and troubles the world with writing errorsand requiring answers, because he thinks he doth it without othercause than his own will, and seeth not what are the lashings thatcause his will?2 '

Bramhall, who was a quite conventional figure, vigorous, newly rich,and a defender of the church's interest in Ireland, earned Hobbes' en-mity in part for views which Hobbes had encountered before and duringthe Civil Wars, when many Englishmen claimed a right of private in-terpretation of law in its relation to Scripture:

26. Quoted in Leopold Damrosch, "Hobbes as Reformation Theologian: Implica-tions of the Free-Will Controversy," 40 Journal of the History of Ideas (1979), pp.339-52, 344. On Luther's statement before the emperor, see James MacKinnon, Lutherand the Reformation, vol. 2 (1962), p. 302.

27. Quoted in John Bowle, Hobbes and His Critics (1951), p. 120; see also SamuelMintz, The Hunting of Leviathan (1962).

28. Hobbes, The Questions Concerning Liberty, Necessity, and Chance, 5 EnglishWorks, p. 55.

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[My Lord of Derry] further says that "just laws are the ordinancesof right reason;" which is an error that hath cost many thousandsof men their lives. Was there ever a King, that made a law whichin right reason had been better unmade? And shall those lawstherefore not be obeyed? Shall we rather rebel? I think not, thoughI am not so great a divine as he.?9

Hobbes thus joined Descartes in denigrating rhetoric and the claimsof traditional moral and political philosophy. In launching his thorough-going attack on the doctrine of right reason and its cognate virtue,prudence, the sagacious and particularized application of rules througha faculty of judgment containing an internal rule of decorum,3" Hobbessought to sever the link of rhetoric and prudence, the distinguishingfeature of the Aristotelian rhetorical tradition and its long sequel inRoman, medieval, and Humanist jurisprudence. In this way, he pur-posed to obviate reliance on the conscience, on right reason andprudence and on the use of the passions to bring about civic virtuein favor of a geometry of politics and law.'

All these transgressions against the tradition found their vindicatorin a solitary, Neapolitan professor of rhetoric. Vico objected toenlightened science for its failure adequately to grasp the nature ofcontingent human affairs, for "from the probable, there arises naturalcommon sense, which is the norm of all practical intelligence (pruden-tial) and hence also of eloquence. For orators have more difficultywith a true state of affairs which does not seem probable than witha false one making a plausible impression."" Common sense, knowledgeof the way things are in fact among men and the rights of truth itselfthus militated against Cartesian science.

Vico accordingly sought to found a new science of historical investiga-tion, whose truth might be prior to and superior to that of mathematical-ly constructed Cartesian science and its critical principle of systematicdoubt. Vico discovered his fundamentum inconcussum, the unshakencornerstone of his science, in the imagination, the human capacity toorder things spontaneously in classes by a speculative grasp of a situa-tion under the force of strong emotion. Rather than study later,"enlightened" forms of rationality, Vico considered the witness of

29. Quoted in Leopold Damrosch, "Hobbes as Reformation Theologian: Implica-tions of the Free-Will Controversy," 40 Journal of the History of Ideas (1979), p. 344.

30. See Marjorie O'Rourke Boyle, Rhetoric and Reform: Erasmus' Civil Disputewith Luther (1983), and Victoria Kahn, Rhetoric, Prudence, and Scepticism in theRenaissance, "Hobbes: A Rhetoric of Logic" (1985), pp. 152-81.

31. Ibid.32. Quoted in Grassi, Rhetoric as Philosophy: The humanist tradition, 'Rhetoric

and Philosophy," (1980), pp. 18-34.

GEORGE WRIGHT

primitive artifacts, in which the original traces of spontaneous creativeproductivity, mythopoiesis, were more readily seen:

But in the night of thick darkness enveloping the earliest antiquity,so remote from ourselves, there shines the eternal and never failinglight of a truth beyond all doubt: that the world of civil societyhas certainly been made by men, and that its principles are thereforeto be found within the modifications of our own human mind."

His epistemological principle derived from the creative activity relatingthe maker to his product. Vico extended his idea of creativity evento the relation of a reader to his masterpiece, The New Science:

Our Science therefore comes to describe at the same time an idealeternal history traversed in time by the history of every nation inits rise, development, maturity, decline and fall. Indeed we makebold to affirm that he who meditates this Science narrates to himselfthis ideal eternal history so far as he makes it for himself by that.proof "it had, has and will have to be." For the first indubitableprinciple posited above is that this world of nations has certainlybeen made by men, and its guise must therefore be found withinthe modifications of our own human mind. And history. cannot bemore certain than when he who creates the things also narratesthem.",

Vico wondered that philosophers should have given their attentionto a world they did not create and therefore could not know:

Whoever reflects on this cannot but marvel that the philosophersshould have bent all their energies to the study of the world of nature,which, since God made it, He alone knows; [and] that they shouldhave neglected the study of the world of nations, or civil world,which, since men had made it, men could come to know. Now, asgeometry, when it constructs the world of quantity out of itselements, or contemplates that world, is creating it for itself, justso does our Science [create for itself the world of nations], but witha reality greater by just so much as the institutions having to dowith human affairs are more real than points, lines, surfaces andfigures are. 3

The primacy accorded mathematical proofs by Descartes and Hobbesis thus discounted by Vico on the basis of their createdness. Wedemonstrate mathematics because we create their truth. If we coulddemonstrate the physical world, we would be creating it.",

33. New Science, § 33!.34. New Science, § 349.35. New Science, § 331.36. See Croce, The Philosophy of Giambattista Vico (1913), pp. 7-9. Croce goes

on to give this summary of an early. stage in Vico's development: The Platonism,agnosticism or mysticism of Vico is in the fullest sense of the word original, because

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Vico re-appropriated the language of mathematics in this way as-yetother institution, among those of law, art, philosophy, etc., all pro-ducts and witnesses to human creativity.

Apel has called Vico the culminating point of the humanist tradi-tion, that long line of literary scholars and thinkers who have actedas the residual legatees of classical civilization." But he is also thepresumptive forebear, often dimly recognized,38 of succeeding genera-

it forms the accompaniment of doctrines not only not inferior to the average of con-temporary thought, but greatly in advance of it.

The first of these doctrines is the theory of knowledge as the conversion of thetrue with the created, Vico's substitute for the otiose criterion of the clear and distinctperception. Though this criterion represents for Vico an ideal unattainable to man,it yet does not bring with it an exact definition of the condition and character ofknowledge, the identity of thought and being, without which knowledge is inconceivable.

The second is the revelation of the nature of mathematics as unique among theforms of human knowledge in origin, rigorous because arbitrary, wonderful but unfitto rule over and transform the rest of our knowledge.

Finally, the third doctrine is the vindication of the world of intuition, empiricalknowledge, probability, and authority, all those forms of experience which intellec-tualism ignored or denied.

In these points Vico the agnostic, the Platonist, the mystic, was neither agnosticnor mystic nor Platonist. He achieved a threefold advance upon Descartes, and uponall these three heads criticized him conclusively; pp. 18-9.

37. Despite current hostility to humanism, its importance cannot be doubted, solong as it is seen that classical civilization retains its priority in Western thought. Itis possible for a lawyer to sue in tort and not know of the existence of Thomas Hobbes,as I have seen, but, unless ignorance is prized, it is hardly desirable that this shouldbe so. How much less desirable it is not to know of Heraclitus and Parmenides, whosefundamental thinking framed the whole development of Greek thought, from Platoon, and therefore of all subsequent thought in the West. The legacy of the classicalpast and the continuing normativity of its literature, art and thought was raised asa problem during the seventeenth-century debate known as the querelle des ancienset des modernes, when writers in the court of the Sun King self-confidently set outto rival the excellences of the past in introducing a new classical period of literature.While the debate began as a literary quarrel, its outcome led to the historical awarenessthat ultimately limited the exemplary status of the classical world. Many modern authors,chief among whom was Leo Strauss, the outstanding political philosopher, have deploredthe effects of historical awareness on our present capacities to discern such elementarydistinctions as that between right and wrong. Strauss' impressive teaching and scholarlywork were aimed at establishing the theoretical standpoint from which the classicalauthors could be understood in their clear rightness as exemplars and models. In hisattempt to raise a naive historicism above its meager and stultifying historical condi-tions, primarily through study of the classics, he is surely right, though more mustbe said. See Gadamer, "Hermeneutics and Historicism," Truth and Method, pp. 460-91,esp. 482 ff., and Gadamer, "Gadamer on Strauss: An Interview," 12 Interpretation(1984), p. 1.

38. For a description of Vico's links to later figures, see Thomas Bergin's andMax Fisch's "Introduction" to their translation of Vico's Autobiography (Eng. trans.1944).

GEORGE WRIGHT

tions of scholars, especially in the disciplines of history, law and,theology, who developed similar ideas. 9

Betti claims a share in that patrimony, as will appear from the essayhere translated, and, having given this brief consideration of the idealbackground of his thought, we may now increase our understandingof his approach by contrasting it with two others, both very powerful-ly developed and similarly opposed to interpretive positivism, one, theschool of the new rhetoric, represented by the Belgian Chaim Perelman,and the other, the hermeneutic movement of Martin Heidegger, RudolfBultmann, and Hans-Georg Gadamer.

The background of hostility we have traced in Hobbes and especial-ly Descartes provides an important stimulus to Professor Perelman'swork. For his philosophic activity is characterized by a profound andconstant desire to undo the history of ideas by winning back moralreasoning and moral suasion to the field of philosophy itself. The chieferror he reprehends in modern thinkers is to have imported a conceptof proof into the field of human conduct that is unduly restrictive."'For, while it is a matter neither of logical necessity nor empirical obser-vation, moral reasoning nonetheless characteristically involves a pro-cess of argumentation and evaluation as the means of proposing andjustifying a given course of action, to oneself as well as to others. Ratherthan reject such argumentation as mere pseudo-propositions in the styleof some modern philosophers, Perelman has sought to expand the no-tion of proof to include it within a theory of reasoned persuasion."

39. See Erich Auerbach, "Vico's Contribution to Literary Criticism," StudiaPhilologica et Litteraria in Honorem L. Spitzer edd. A. G. Hatcher et K. L. Selig(1958), pp. 31-37.

40. Chaim Perelman and L. Obrechts-Tyteca, The New Rhetoric. A Treatise onArgumentation (Eng. trans. by John Wilkinson and Purcell Weaver 1969, 1971), p. 4.

41. Chaim Perelman, "De la preuve en philosophie," Rhtorique'et Philosophie(1952), p. 122. H. L. A. Hart ends his "Introduction" to Perelman's The Idea ofJustice and the Problems of Argument in this way: [Professor Perelman] has illuminatingcriticisms to make both of the Cartesian theory of knowledge resting on the criterionof self-evidence and of empiricist theories which conceive knowledge as a structureat the base of which is an indubitable experience of sense-given data. Both of these,in M. Perelman's view, share a common error, and have generated misconceptionsof the role of language and methodology of the sciences, and a misleading contrastbetween knowledge and opinion. In this part of his work M. Perelman has reached,by an independent route, conclusions similar to those of contemporary Englishphilosophers who have also been critical of both the rationalsim and empiricism ofthe past. Many English readers therefore will certainly be now disposed to agree withM. Perelman's dictum that "reasoning is infinitely more varied than anything to befound in the manual of iogic or of scientific methodology," but they cannot fail tobe instructed by the range of novel and important considerations which M. Perelmanurges in its support; p. xi.

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While moral action may not be based on reasons that compel com-pliance through evident necessity, it does proceed with reference tonorms and values which may make one course of action more justifiableand desirable than some other.

Perelman thus seeks to extend the notion of proof precisely in orderto present as rational all those dialectical and rhetorical arguments,employed in defense of any possible thesis or position. 2 Action maythen be justified consistently on the basis of a logic not of the truebut of the preferable, a logic of moral decision in which adherenceis sought not through a simple submission to evidence or logical necessitybut through the dialectic of judgment itself, the process of arrivingat a decision freely taken. The "new rhetoric" is thus a logic of thosereasonings, or conventions, which move us to action and justify ourconduct without determining it;' 3 it allows us liberty of decision withoutrendering our choices absurd or irrational. The possibility of justifica-tion of action on the basis of this logic becomes for Perelman the prin-ciple through which morality may enter again into the domain ofphilosophy."

Both Betti and Perelman reject the mechanical world-picture andits ideal of science and logic as a means of understanding humanbehavior. But Betti does not share the project of enlarging the notionof proof, and indeed it may introduce a dichotomy between speciesof reasoning that for him would be illicit. For, in distinguishingargumentative proof from formal proof, Perelman has sought to vin-dicate freedom of action as if the choice to attempt to speak rationallyand correctly were not itself an exercise of freedom, as if there couldbe any model of rationality external to the sphere of liberty. Proposi-tions are said to hold necessarily only if they accord with rubricsoperative Within a freely chosen set of principles and procedures. Ifthe store from which such principles are chosen were limited, then thepremise and direction of Perelman's work might be justified. But suchdoes not seem to be the case. Perhaps only within the "artificial in-telligence" community do researchers hope to articulate a completeformalization of the mental processes involved in thought and action,'"

42. Perelman, "Libert6 et raisonnement," op. cit., p. 47.43. Perelman and Obrechts-Tyteca, op. cit., pp. 2-3. It is quite possible that the

tendency of Professor Perelman's work is to project a logic of conventions or ofcustoms, whose eventual outcome would be the absorption, of traditional logic intoitself. See Maria Grazia de Cristofaro Sandrini, "Logica e morale nel pensiero filosoficodi Perelman," 24 Rivista critica di storia della filosofia (1969), p. 439, footnote 23.

44. Sandrini, art. cit., p. 446.45. See Hubert Dreyfus, What Computers Can't Do: The Limits of Artificial In-

telligence (rev. ed. 1979).

GEORGE WRIGHT

and, in the light of the work of Wittgenstein on the one hand andGodel on the other, this effort is doubtful in the extreme. The con-trast Perelman draws between formal and argumentative proof thusseems to pass over the requirements of liberty and responsibility generallyrecognized by workers in all sciences, exact as well as human.

While Betti resists efforts to interpret human behavior within thecategories offered by the mechanical world-picture,"' he does not seekto attenuate the rigor of one branch of knowledge to accommodatewhat is essential in another. Rather, he retains the requisites ofknowledge as common to both the natural and moral sciences whiledistinguishing them on the basis of their differing objects and inter-pretive procedures. In the essay which follows, he sets out to specifythe object of the human sciences with rigor and to show how thecategory of spirit is both fundamental in the human sciences andunknown in the natural sciences.

It is over the question of interpretation itself that Betti's disagree-ment with Gadamer and Heidegger may be said to arise. His differenceswith Gadamer became explicit over the years of his theoretical activ-ity, and, as he mentions in the present essay, they concern the keyrelation of interpretation and understanding."'

For Betti, understanding follows upon interpretation; it is the possi-ble outcome of a process which operates upon the representative formsit takes as its objects in strict conformity with general hermeneuticcanons. These representative forms are marks of human personality;they signal the spontaneity of human experience, i.e., spirit, concretizedin enduring manifestations. According to Betti, the objectivity of theseforms and of our approach to them guarantees our capacity to knowthe human spirit that gave them utterance. He thus joins a long lineof thinkers for whom the objectivity of interpretive criteria and methodassures the correctness of understanding as the interpretative outcome.While historical and normative inquiry may require the use of inter-pretive canons different from those used in studying nature, the out-comes in both research fields need not differ as to their certainty andcorrectness. Knowledge is taken here primarily on the model of intui-tion, the sheer beholding of what is present, of what is given immediatelyto one's gaze. In contrast to the natural sciences, what is beheld in

46. Betti's opposition to mechanical metaphors in legal thought is demonstratedin his treatment of conflict of law problems in international law; see infra, pp. 98-101.See Martin Heidegger's essays "The Question Concerning Technology" and "The Ageof the World Picture" in the volume The Question Concerning Technology and OtherEssays (Eng. trans. 1977), pp. 3-35, 115-54.

47. See infra, p. 76, footnote 4.

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the moral sciences is language, present in speech, in conduct, and intexts, as the object of interpretation; for Betti, it is through the objec-tive forms of language that one subject encounters a second.

Implicit in interpretation, according to Betti, is the possibility of deter-mining both what the experience was that has been given enduring formand the success with which the representation of that experience hasbeen made. The interpreter may distinguish the work of spontaneouscreation from that of reflexive elaboration and can gauge the adequacywith which the given concrete form reflects the antecedent experience."A key interpretive category for Betti is thus the state of mind of thecreator of the representative form to be interpreted, and a central in-quiry is how well the creator has expressed his thought in the objecthe has produced.

These interpretive possibilities may seem appropriate to works ofart, but not to law. And the element of subjectivity, that is, the con-sideration of the state of mind of a given author, may bear peculiarlythe mark of the artistic and of aesthetic consciousness. But such aresponse would obscure both the nature of the material upon whichthe lawyer exerts himself, namely, words, and some of his most com-mon, well recognized interpretive problems. In dealing with legislativeenactments, legal researchers are familiar with the question of legislativeintent, which is so important in determining whether or to what extentcase law has been superseded or merely codified by statute. Contractlaw, on one view, rests on a subjective "meeting of the minds." Giv-ing words their appropriate sense, according to their archaic, currentor technical meaning, is an important part of legal interpretation, em-bodied for instance in the "common meaning rule." And the concernto find appropriate cases to illustrate a given legal precept, exclusiveof particularities of time and place, bespeaks the practitioner's abilityto weigh factors in a given case history and reach a conclusion as tothe origin and purview of a legal rule. In all these instances, the ques-tions of intent and success in expression figure centrally, and it wouldbe a mistake to dismiss them as peripheral to law. It is much morelikely that abilities in these areas are integral to the lawyer's craft, whichis nothing if not a linguistic technique, a characteristic way of workingwith words and their possible truth."9

48. See infra, p. 86.49. This linguistic technique, the "dogmatic" of the lawyer, is of course historically

variable. The aspirations for clarity, precision, persuasive power, etc., of one groupof lawyers differ from those of another. See infra, p. 85.

GEORGE WRIGHT

According to Betti, changed circumstances require changes in law..But to change law, to adapt it, however important this is to one seek-ing to apply a norm, is hardly the concern of the historian. Thus itis a key feature of Betti's analysis that, after an adequate account ofa rule or principle has been given, the task of the legal historian issaid to diverge from that of the contemporary practitioner, who musttake the further step of bringing a present exigency within the scopeof the given legal directive, so that a norm for action may be given.This he does on the basis of his perception of the social circumstancesin which he himself participates with others:

Confronted with the very same law, a contemporary jurist with nor-mative interests differs in outlook and goals from a later jurist withhistorical interests. The desire to derive maxims of conduct froma law in force is different from the desire to gain a historical under-standing of it. So also, the orientation of their investigations is dif-ferent. To contemporaries, the relevant norms present themselvesas vital relations among interests in conflict. For them, a summarysketch may suffice to represent the complete outline of a legal in-stitution. But this is not sufficient for the jurist-historian. He lacksthe immediate intuition of life they presuppose. He must completethe gaps he finds in past law with material drawn from otherhistorical sources. In compensation, there stretches before him theulterior course of the historical development, viewed from the van-tage point of his library. From here, he encompasses things whichthe jurists of the time could neither see nor presage." °

Implicit here are the assumptions that contemporaries share an im-mediacy of understanding of their times that enables them to findcommon ground upon which to reach accord and that it is on the basisof this spiritual community, given to coevals, or, in the case of thehistorian, reconstituted by painstaking research, that interpretation pro-ceeds. The key is that to understand means primarily for people tounderstand something about one another; in this we see the centralityof Betti's idea of spirit, which refers here to the dynamic-creative natureof man's personal and communal life and is only secondarily a religiousterm. Understanding is agreement or harmony with another person orset of persons. These assumptions and the interpretive tasks theyprescribe are not in the least peculiar to Betti; indeed, they underliea good deal of current American legal thought, evidenced for instanceby the interest in arbitration as a means of dispute settlement.

Gadamer denies both that a divergence in goal and orientationnecessarily occurs between the historian and the practitioner and that

50. See infra, p. 88.

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any extra step is either needed or indeed taken by the practitioner aslegal researcher; in the language of traditional hermeneutics, this isto deny that understanding (subtilitas intelligendi), interpretation (sub-tilitas explicandi), and application (subtilitas applicand) are separablemoments of the interpretative process." With Heidegger, Gadamerpostulates a prior understanding as the basis of interpretation and locatesthe work of the interpreter within the circle of this fore-understandingof his text. Implicit in the task the interpreter sets himself, understand-ing is not for Gadamer the outcome of interpretation as for Betti; ratherboth processes are concomitant, insofar as they can be distinguishedat all.

Traditional hermeneutics had taken as its paradigmatic instance ofunderstanding the circularity of wholes and parts: the part, a chapterof a novel, for instance, cannot be known apart from its place in thewhole novel, but the novel can be known only from its chapters, thatis, from its parts. We understand on this view only when the circlesof whole and parts are co-extensive, when the parts are wholly con-tained within our knowledge of the whole and vice versa; to knowis to grasp a meaning as self-contained, as it is in itself, as sheer objec-tive presence, the foundation of Betti's approach. The traditional viewof interpretation thus postulated the unity of the work to be inter-preted, just as lawyers postulate the unity of a code or the body ofcommon law."

51. See Truth and Method, p. 274; see also Niels Thulstrup, "An Observationconcerning Past and Present Hermeneutics," 22 Orbis Litterarum (1967), pp. 24-44, 35.

52. This expectation of unity in the given text stems from the fact that traditionalhermeneutics developed along two paths, one, theological hermeneutics, from thereformers' defense of their own understanding of the canon of Scripture against theattack of the Tridentine theologians; and the other, literary critical hermeneutics, asa tool of the humanist claim to revive the body of classical literature. Traditionalhermeneutics claimed to reveal the original meaning of texts of both traditions, theBible and humanistic literature, by specialized techniques, such as form criticism andsource criticism. The nature of -humanist culture restricted the number of its effective,participants, so that hermeneutics gained its importance for a broad audience largelywithin the Protestant churches, as an aid to the. proclamation of the Word throughpreaching. Here, univocation remained the defining commitment in Protestantism'sattempt to know the one true meaning of Scripture, in conscious opposition to theinterpretative techniques accepted in medieval Roman Catholic tradition. Thus, forexample, the Lutheran explicator, Flacius, says: It was no little obstacle to the clarityof Scripture and to the truth and purity of Christian doctrine, that practically all thewriters and fathers in their interpretations and explications of sacred writings treatedthem as if they were a miscellaneous collection of sentiments, and not as an artisticunity conforming to correct principles of composition. In sacred scripture, as in worksof literature, the true'meaning depends on the context, on the purpose of the workas a whole, and on the organic relations which unite the parts as members are united

GEORGE WRIGHT

Gadamer departs from the traditional paradigm by thematizing acircularity not within the parts and whole of the work to be interpretedbut within it and the approach of its interpreter. The hermeneutic prob-lem lies in the fact that the premises of interpretation are always alreadygiven in some attitude of the interpreter to the object to be interpreted.In this sense, application is always part of the interpretative task, notmerely for the practitioner but for the historian as well, for under-standing always involves the application of the meaning elicited by in-terpretation. All reading involves application, so that a person readinga text, be he judge, historian, or literary critic, is himself part of themeaning he apprehends, just as historical research is itself alwayshistorical."I

In Truth and Method, Gadamer has argued that because the sameinterpretive problem precedes and grounds all historical research, thelegal historian's approach to a law is indistinguishable from that ofthe practitioner:

The very universality of the hermeneutic problem precedes every kindof interest in history, because it is concerned with what is alwaysfundamental to the historical question. And what is historicalresearch without the historical question? .... [A]pplication is anelement of understanding itself. If, in this connection, I put the legalhistorian and the practicing lawyer on the same level, I do not denythat the former has exclusively a "contemplative," and the othera practical, task. Yet application is involved in the activities of both.How could the legal meaning of a law be different for either? Itis true that, for example, the judge has the practical task of passingjudgment, and many considerations of legal politics may enter in,which the legal historian (with the same law before him) does notconsider. But does that make their legal understanding of the lawany different? The judge's decision, which has a practical effect onlife, aims at being a correct and never arbitrary application of thelaw; hence it must rely on a "correct" interpretation, which necessar-ily includes the mediation between history and the present in theact of understanding itself."

With Gadamer, we may reason that, as a present concern, the given

in one body; quoted in Norman 0. Brown's classic, Love's Body (1966), p. 194. Adecisive step in the development of biblical hermeneutics was taken in the eighteenthcentury when interpretation focused on an individual book of the Bible as the relevantwhole, rather than on the canon of books received from the early church; on thisdevelopment, whose importance can scarcely be overestimated, see the impressive workof Henning Graf Reventlow, The Authority of the Bible and the Rise of the ModernWorld (Eng. trans. 1985).

53. Truth and Method, p. 292.54. Truth and Method, p. xx.

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law can be either as it was when first pronounced or it can be dif-ferent. If it has continued unchanged over the years, then, in research-ing its original formulation, the historian learns all there is to knowabout the law, which is as much as the contemporary practitioner needsto know. If it has changed, to know what it is at present is to knowit in the history of its changes, agiin the same task required of thepractitioner. Both researchers must determine whether the lawy theyare studying has changed or remained the same as they find it now.No further step is needed since to know the law is necessarily to knowit in the continuity of its history, which is to know it in its presentcurrency; whenever a law is known, it is known as it effectively is,whether it is in force or not. Unless the practitioner means to legislateor is somehow deflected from the proper course of legal cognition,no adaptation to present circumstances, as a discreet step of applica-tion in the process of interpretation, is required. That a researcher'sinterest in a law is solely historical does not free him from the necessityof both discarding inappropriate pre-conceptions from the present andunderstanding the law in ways that make sense in the present:

Must [the legal historian] not then do exactly the same as the judgedoes, i.e., distinguish between the original meaning of the text ofthe law and the legal meaning which he automatically accepts nowin the present? The hermeneutical situation of both the historianand the jurist seems to me to be the same in that when faced withany text, we have an immediate expectation of meaning. There canbe no such thing as a direct approach to the historical object thatwould objectively reveal its historical value. The historian has toundertake the same task of reflection as the jurist."

Nor is the identity of task between practitioner and historian at allunique to legal researchers; rather, it is an integral part of the workof all students in the sciences of the spirit:

[Tihere is always contained in historical understanding the idea thatthe tradition reaching us speaks into the present and must beunderstood in this mediation-indeed, as this mediation. Legalhermeneutics is, then, in reality no special case but is, on the con-trary, fitted to restore the full scope of the hermeneutical problemand so to retrieve the former unity of hermeneutics, in which thejurist and theologian meet the student of the humanities. 6

55. Truth and Method, p. 292.56. Truth and Method, p. 293. See also Professor Gadamer's article, "On the

Scope and Function of Hermeneutical Reflection," 8 Continuum (1970), pp. 77-95,and the collection of articles, Reason in the Age of Science (Eng. trans. and introduc-tion by Frederick G. Lawrence 1982). The meeting Gadamer envisions between students

GEORGE WRIGHT

Gadamer agrees with Betti then that, in every case, legal analysis,normative or historical, proceeds on the basis of a present understand-ing and interest, but he disputes Betti's claim that the practitioner,as opposed to the historian, must self-consciously move the law whosehistory he has learned into intimate contact with present concerns uponthe basis of the knowledge of a spiritual communion he shares withhis contemporaries. If this second step is necessary, then perhaps someerror in legal cognition has occurred. For Gadamer, the fact that alaw has remained in force and is to be enforced in no way changesthe character of the task set for the legal researcher, either as historianor practitioner; in either role, he seeks historical understanding of alaw in an appropriate way, i.e., as a law.

Understanding this specific difference dividing the two thinkers allowsus to deepen our sense of the underlying problems. For the root issuein their disagreement is Betti's desire to retain the objectivity of theobject of interpretation in the face of Martin Heidegger's powerfulrethinking of the ground and relation of subject and object. AndGadamer's specific theme, the circularity of interpreter and the objectof his interpretation, rests on Heidegger's description of human ex-istence in general as being in the world. Indeed the circularity of inter-preter and text is a special case of a broader problematic, the characterof human existence, or Dasein, in Heidegger's term, as the groundof intuition and intention.

We shall pursue our consideration of the Betti-Gadamer dispute firstin its connections with the paradigm of knowledge as perspective-lessbeholding. Then we shall turn to Heidegger's and Gadamer's criticismof Vico's theory of mythopoiesis, the production of the conditions ofsocial life. We shall reveal that, despite his intentions, Vico carriedout and deepened the ideal of knowledge adumbrated by Descartesand Hobbes.

of law and of the humanities has not yet occurred in American law schools, wherethe spirit of empty and misinformed vocationalism reigns. Students, fearful for theirgrade point averages and transcripts, hesitate to take courses in legal thought andhistory for reasons justified in conscience by no law professor. Professors, desirousof satisfying student demands, formulate policies aimed at effectuating student choiceswhose shortsightedness and puerility they refuse to educate. The results of this tendencyto make legal education transparent to some imagined job market are bad in all cases,enervation of the mind and shrinkage of the status interests of the profession. Althougheducators in law schools are not accustomed to look there for guidance and insight,divinity schools, whose object is the training of the very practical men and womenof the clergy of churches and synagogues, have been able to retain a very large andlively sphere of learning and scholarly competence, as well as the ideal of service andprofessional dedication. See infra, footnote 90.

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Against Descartes and, by implication, the metaphysical tradition,Heidegger teaches that human existence is always already situated under-standingly in the world, in the manifold of its concerns. Dasein is inthe world as such; the world is not purchased in some movement frominnocence to experience or discovered through clearer perception orrevealed by an act of faith. Dasein is being in the world and is sounderstandingly, in a way that is constitutive of its being.

For Descartes it is quite different. Descartes describes the basic on-tological characteristic of the world as the extension in space of substanceas res extensa. Extension in length, breadth, and thickness thus makesup the real being of that corporeal substance (res corporea) which wecall the world. All other attributes of the corporeal thing, its color,weight, and hardness, can be taken away from it, and it can still re-main what it is. Indeed, these attributes are taken as modes of thatextension whose fundamental characteristic is that it perdures, remainswhat it is through changes. Distinguishing extension from its attributesand equating extension with the substance of the corporeal thing,Descartes emphasizes that substance as such, that is, the being of anentity as substance, is in and for itself inaccessible, in that its meaningis self-evident."

Heidegger objects to this account of substance. He notes thatDescartes plays upon an equivocation between the being of an entityas substance, or substantiality, and the entity itself, as a substance.Because substantiality cannot be perceived, the possibility of a pureproblematic of being is renounced in principle. And in this way anunderstanding of substance is developed from the standpoint of par-ticular entities rather than of being itself; indeed, an understandingof being is systematically excluded in that it is held to be self-evident:

Thus the ontological grounds for defining the "world" as res extensahave been made plain: they lie in the idea of substantiality, whichnot only remains unclarified in the meaning of its being, but getspassed off as something incapable of clarification, and getsrepresented indirectly by way of whatever substantial propertybelongs most pre-eminently to the particular substance. Moreover,in this way of defining "substance" through some substantial entity,

57. Being and Time, H89-102. The literature on Heidegger is too vast to survey,but Thomas Sheehan's collection of articles in Heidegger The Man and the Thinker(1981), would be a good place to start, especially Jacques Taminiaux's piece and FatherRichardson's essay, discussing the Kehre, as well as Michael Murray's Heidegger andModern Philosophy: Critical Essays (1978), in particular Richard Rorty's essay. L6with's"Heidegger: Problem and Background of Existentialism," Nature, History, and Ex-istentialism (Eng. trans. by Arnold Levison 1966), pp. 30-50, is quite helpful.

GEORGE WRIGHT

lies the reason why the term "substance" is used in two ways. Whatis here intended is substantiality; and it gets understood in termsof a characteristic of substance-a characteristic which is itself anentity."

Mathematics is peculiarly suited for this concept of substance as thatwhich remains through changes:

Mathematical knowledge is regarded by Descartes as the one man-ner of apprehending entities which can give assurance that their be-ing has been securely grasped. If anything measures up in its ownkind of being to the being that is accessible in mathematicalknowledge, then it is in the authentic sense. Such entities are thosewhich always are what they are. Accordingly, that which can beshown to have the character of something that constantly remains(as remanens capax mutationum), makes up the real being of thoseentities of the world which get experienced. That which enduringlyremains, really is. This is the sort of thing which mathematics knows.That which is accessible in an entity through mathematics, makesup its being. Thus the being of the "world" is, as it were, dictatedto it in terms of a definite idea of being which lies veiled in theconcept of substantiality, and in terms of the idea of a knowledgeby which such entities are cognized.s9

Descartes thus prescribes for the world its real being, rather thanletting the entities within the world present the kind of being theymanifest. And he does so on the basis of an uncritically accepted under-standing of substance as that which is constantly present at hand, merelythere, perduring through change. Mathematics is thus not the originbut a complement of the idea of substantiality that dominates histhought. In this, Descartes is a faithful representative of the traditionin that this relation of mathematics and substance was present at thebeginning of metaphysics in Plato."

58. Being and Time, H94.59. Being and Time, H95-6.60. The terms presence at hand and present at hand substitute in Being and Time

for what traditional philosophy knows as existentia. They signal Heidegger's desireto distinguish Dasein (existence, or ek-sistence) from other entities not of Dasein'sspecial character as the being whose being is at issue; see Being and Time, § 9. Itis Heidegger's belief that a shift occurs in Plato from an understanding of truth asthe unconcealedness of being to the correctness of assertions about beings and thatthis shift is the hallmark of metaphysical thinking, the "thing-ontology," the ontologyof the present at hand, which controls even Descartes' and Kant's thought; see infra,footnote 61. With it, the question of method, as the means of assuring such correct-ness, assumes an overriding and disproportionate importance. Michael Dummett, ina recent talk at Berkeley, has pointed out that statements can be undeniably true eventhough no method can be devised to certify their truth. Thus, for example, it is quitetrue that a certain number of people occupied a given room at a given time even

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Heidegger faults not only Descartes' understanding of the world asres extensa but also his robbing human sensory experience of allrelatedness to being:

The idea of being as permanent presence at hand not only givesDescartes a motive for identifying entities within the world with worldin general, and for providing so extreme a definition of their being;it also keeps him from bringing Dasein's way of behaving into viewin a manner which is ontologically appropriate. But thus the roadis completely blocked to seeing the founded character of all sensoryand intellective awareness, and to understanding these as possibilitiesof being in the world. On the contrary he takes the being of "Dasein"(to whose basic constitution being in the world belongs) in. the verysame way as he takes the being of the res extensa-namely, assubstance.

6'

In response to the metaphysical tradition of substance taken overby Descartes, Heidegger sets out to show how Dasein is disclosive ofboth of the world and of being itself.

Dasein encounters things that surround it primarily as things whichserve this or that purpose, and not as pure things or the objects ofmathematical study. For Dasein, the world is not constituted primor-dially as a grid of Cartesian coordinates, whose truth surpasses anyother. Rather the world is a field of areas of repulsion and attraction,paths of access, zones of activity and repose, a give and take of atten-tion, grounded beforehand in mood and attunement. Human interestthus orders experiences into places and regions, specific concretionsof greater or lesser complexity, requiring more or less resort to explicitreasoning of the sort Hobbes envisioned, the weighing and countingout of possibilities that is typical not of the master of a field but ofa tyro, at least for the m6st part. For, as Dreyfus says, "In our ownperceptual world, we are all master players. Objects are already locatedand recognized in a general way in terms of the characteristics of the

determined. On the relation of presence at hand to the Platonic and Aristotelian no-tions of (idea), (energeia), and (ousia), see Werner Marx, Heidegger and the Tradition(translated by Theodore Kisiel and Murray Green 1971). In general, I have not glossedHeidegger's special vocabulary as it appears in the quotations.

61. Being and Time, H98. Heidegger later gives this summary: Descartes has nar-rowed down the question of the world to that of things of nature [Naturdinglichkeit]as those entities within the world which are proximally accessible. He has confirmedthe opinion that to know an entity in what is supposedly the most rigorous onticalmanner is our only possible access to the primary being of the entity which suchknowledge reveals. But at the same time we must have the insight to see that in princi-ple the 'roundings-out' of the thing-ontology also operate on the same dogmatic basisas that which Descartes has adopted; at H100.

GEORGE WRIGHT

field they are in before we zero in on them and concern ourselves withtheir details. It is only because our interests are not objects in our ex-perience that they can play this fundamental role of organizing ourexperience into meaningful patterns or regions. ' 62 Human existenceis thus always already in a world, with entities it understands primor-dially, out of its concern for itself:

In dealing with what is environmentally ready to hand by interpretingit circumspectively, we "see" it as a table, a door, a carriage, ora bridge; but what we have thus interpreted need not necessarilybe also taken apart by making an assertion which definitelycharacterizes it. Any mere pre-predicative seeing of the ready to handis, in itself, something which already understands and interprets.But does not the absence of such an "as" make up the merenessof any pure perception of something? Wherever we see with thiskind of sight, we already do so understandingly and interpretative-ly. In the mere encountering of something, it is understood in termsof a totality of involvements; and such seeing hides in itself the ex-plicitness of the assignment-relations ... which belong to that total-ity .

3

If what we encounter in the world is always already understood fromwithin a totality of involvements, is mere "seeing" equal to mere percep-tion, prior to our assignment of meaning, so that what I see is sensedata, only later given the meaning "door" or "house"?

This would be a misunderstanding of the specific way in which in-terpretation functions as disclosure. In interpreting, we do not, soto speak, throw a "signification" over some naked thing which ispresent at hand, we do not stick a value on it; but when somethingwithin the world is encountered as such, the thing in question alreadyhas an environment which is disclosed in our understanding of the

62. Dreyfus, What Computers Can't Do: The Limits of Artificial Intelligence (rev.ed. 1979), p. 274.

63. Being and Time, H149 (emphasis added). For the "readiness to hand" of equip-ment and our "circumspective" manner of dealing with it, see Being and Time, H69.A common assertion is that lawyers have no particular cognitive standpoint; on thisview, law resembles a Cartesian science. Betti says that the training a lawyer receives.gives him his legal (in)sight; on this view, law is a learned discipline. For Gadamer,as for Heidegger, technique vanishes when most itself. Law for them would seem tobe a habitual attitude or mood into which one enters; with Gadamer, we might callit a prejudice. Each of these possibilities, law as science, as discipline or as prejudice,is rife with implications for legal education and practice, and perhaps the only viewthat is inconsistent with the development of insight into interpretation in law is thatone which prevents an examination of its methods, their historical origins and develop-ment. On the question of method in law, see Wolfgang Fikentscher's most impressivefive-volume work, Methoden des Recht (1975-77).

215 •

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world, and this involvement is one which gets laid out by interpreta-tion.6"

Interpretation is thus the working out of a prior understanding:

The projecting of the understanding has its own possibility-thatof developing itself. This development of the understanding we call"interpretation." In it the understanding appropriate understandinglythat which is understood by it. In interpretation, understanding doesnot become something different. It becomes itself. Such interpreta-tion is grounded existentially in understanding; the latter does notarise from the former. Nor is interpretation the acquiring of inform-ation about what is understood; it is rather the working out ofpossibilities projected in understanding."'

Interpretation makes clear that all understanding is primarily artic-ulated according to the structure of "something as something."

That which is disclosed in understanding-that which isunderstood-is already accessible in such a way that its "as which"can be made to stand out explicitly. The "as" makes up the struc-ture of the explicitness of something that is understood. It constitutesthe interpretation.'

6

Because interpretation always operates in a field of interest, whatis interpreted, insofar as it constitutes some aspect of that field, is takenup from within that interest and the expectations it structures:

The ready to hand is always understood in terms of a totality ofinvolvements. This totality need not be grasped explicitly by athematic interpretation. Even if it has undergone such an interpreta-tion, it recedes into an understanding that does not stand out fromthe background. And this is the very mode in which it is the essen-tial foundation for everyday circumspective interpretation. In everycase, this interpretation is grounded in something we have inadvance-in a fore-having. As the appropriation of understanding,the interpretation operates in being towards a totality of involvementswhich is already understood-a being which understands. Whensomething is understood but is still veiled, it becomes unveiled byan act of appropriation, and this is always done under the guidanceof a point of view, which fixes that with regard to which what isunderstood is to be interpreted. In every case, interpretation isgrounded in something we see in advance-in a fore-sight. This fore-sight "takes the first cue" out of what has been taken into our fore-having, and it does so with a view to a definite way in which this

64. Being and Time, H150.65. Being and Time, H148.66. Being and Time, H149.

GEORGE WRIGHT

can be interpreted. Anything understood which is held in our fore-having and towards which we set our sights foresightedly, becomesconceptualizable through interpretation. In such an interpretation,the wya in which the entity we are interpreting is to be conceivedcan be drawn from the entity itself, or the interpretation can forcethe entity into concepts to which it is opposed in its manner of be-ing. In either case, the interpretation has already decided for adefinite way of conceiving it, either with finality or with reserva-tions; it is grounded in something we grasp in advance-in afore-conception.

An interpretation is thus never a presuppositionless apprehendingof something presented to us, and it is a derivative form of interpreta-tion that sees things "free" of the structure of interpretation, that is,apart from that as which they are given primordially to us. To seethings is inevitably to see them as something; the "as-structure" is givenprimordially to Dasein as an aspect of its manner of being. Interpreta-tion as discourse, as the articulation of intelligibility, represents thepossibility of speech, of vocalization, of speech acts. As such, it precedesall predicative and thematic expression and is co-eval with understand-ing and with states of mind as constitutive elements of Dasein. 6

1 Allthat is seen is given in a context structured by the interest we projectas entities whose essence it is to project, in the anticipations and ex-pectations we bring to bear prior to conscious elaboration of specificcontents, prior even to explicit reasoning and assertion. Our point ofview fixes beforehand, prior to analysis, calculation, and assertion,that in regard to which interpretation proceeds.

In insisting on the priority of understanding over assertion and judg-ment, Heidegger has sought to give an account of our dealing withthings that is more phenomenologically accurate than the Cartesianparadigm of sheer beholding. He realized that an entity is most whatit is for us not when viewed apart from the perspective of human con-cerns but precisely from within those concerns, when it disappears asobjective presence and is wholly taken up in our concernful dealings

67. Ibid.68. On the as-structure, see Rodolphe Gasch6, "Quasi-Metaphoricity and the Ques-

tion of Being," Hermeneutics and Deconstruction edd. Hugh J. Silverman and Donlhde (1985), pp. 166-90, Gasch6's discussion treats Heidegger's consideration of theanalogy of being, the doctrine of Plato and Aristotle, whose importance Heideggercame to realize through Brentano's work. On Heidegger's treatment of the questionof Dasein's relation to truth and the possibility of falsification, which so angered Ayer,see Being and Time, §§ 44 and p. 62, and Gasch6, art. cit., pp. 173-5; but cf. Gadamer,"Plato and Heidegger," The Question of Being: East-West Perspectives, ed. MervynSprung (1978), pp. 45-53, 52-3. On metaphor, see infra, footnote 87.

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with it. For example, my pen is most what it is, a writing implement,when, in writing, I have forgotten it in the desire to copy down athought. My understanding of it as a pen is there, as I write, as some-thing I grasp from within my understanding of it as a pen and of myselfas one who writes and thinks. But its objective marks, its color, size,and shape, and my observation of them disappear, retreat back intomy primordial understanding of the pen, as it fulfills its purpose inthe context of my concern for my own possibilities.

Heidegger's insight as to items of equipment like a pen pertains equallyto tools in general, including methods and methodologies. Indeed, itis Heidegger's view that the philosophic tradition itself, beginning withthe Socrates of the Platonic dialogues, has aspired to a thinking thatwould be a species of calculation, a method for revealing things asobjects open to contemplation and manipulation. This is especially clearin Hobbes, who says, "When a man reasons; he does nothing elsebut conceive a sum total from. addition of parcels, for REASON...is nothing but reckoning." 69 The ultimate outcome of calculating thoughtis technology, according to Heidegger, and a diminished understand-ing of our essence as human beings and our capacity for orderly behaviorwithout recourse to rules. For, to the extent that philosophy has ac-cepted this determination as a method of securing correctness, as ithas since Plato, it has thought away from its origin as openness tobeing in the logos.

Even human concerns stand revealed in Socratic dialogue so as tohold them in contemplation and bring them under control. AgainDreyfus: "Socrates was dedicated to trying to make his and other peo-ple's commitments explicit so that they could be compared, evaluatedand justified. But it is a fundamental and strange characteristic of ourlives that insofar as we turn our most personal concerns into objects,which we can study and choose, they no longer have a grip on us.They no longer organize a field of significant possibilities in terms of

69. Leviathan, pp. 110-11; Hobbes states: These operations [of addition and sub-traction) are not incident to numbers only, but to all manner of things that can beadded together and taken one out of another. For as arithmetricians teach to addand subtract in numbers, so the geometricians teach the same in lines, figures (solidand superficial), angles, proportions, times, degrees of swiftness, force, power and

.the like; the logicians teach the same in consequences of words, adding together twonames to make an affirmation and two affirmations to make a syllogism, and manysyllogisms to make a demonstration, and from the sum, or conclusion of a syllogism,they subtract one proposition to find the other. Writers of politics add together pac-tions [i.e., contracts] to find men's duties; and lawyers, laws and facts to find whatis right and wrong in the actions of private men; p. 110.

GEORGE WRIGHT

which we act but become just one more possibility we can choose orreject. Philosophers thus finally arrived at the nihilism of Nietzscheand Sartre in which personal concerns are thought of as a table ofvalues which are arbitrarily chosen and can be equally arbitrarily aban-doned or transvalued. According to Nietzsche, 'The great man is nec-essarily a sceptic. . . . Freedom from any kind of conviction is partof the strength of his will'."'"

Heidegger's attempt to ask the question of being in a more originalway than that opened in metaphysics pertains in the highest measureto that entity for which to be at all is an evident and constant concern,that is, to man. Man can surpass and transcend every being and askabout being as such, as he does in philosophy, because he is the onlybeing which, in being, shows that it is concerned with being. Man isthus open for its possible comprehension. Man has the privilege ofbeing in such a way that he is both thrust upon himself as a self andyet also owns his own being. Human existence is thus not a fixed andsteady quality, such as beheld in traditional philosophy;" it is a con-stant, unremitting possibility. Far from exhausting itself in calculationand analysis, our understanding is open necessarily to the most trivialand most fundamental questioning of ourselves, of our situation inthe world and of being.

Consistently with Heidegger's project of asking the question of be-ing, human understanding is taken up in Being and Time existentially,as a theme grasped from within the cocnerns in which we find ourselves,in connection With our comportment towards beings and being. In thiscomportment, which is distinct from the mere objectivity of inert things,are disclosed both what we are and how we are in any given instant.The existential analytic Heidegger conducts reveals that the essenceofhuman being is possibility. "[P]ossibility ... is th emost primordialand ultimate positive way in which Dasein is characterized ontolog-ically."" Dasein is determined by its comportment to those possibilitieswhich are its own because it is in every case what it can be." Precisely

70. Dreyfus, What Computers Can't Do: The Limits of Artificial Intelligence (rev.ed. 1979), p. 275.

71. Cf. Being and Time, H98 and § 31. On the concept of "founding," see Beingand Time, § 13 and H207ff.

72. Being and Time, H251. We may follow Professors Dreyfus and Rabinow indefining an analytic as the attempt to discover the a priori conditions that make possi-ble any analysis, with its concern with discoverable algorithms of formation (rules)and atomic elements (facts), operative within any given discipline; see Dreyfus andRabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (1982), p. 56.

73. Both Heidegger and Gadamer recognize an echo in their thought of Hegel'sdictum, what is real is rational and what is rational is real. Many factors should prompt

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from within that concern in which Dasein finds itself, Dasein is itselfas concern and in the way it can be.

Dasein's primordial comportment toward its own possibilities is thusnever a mere given; rather, it always has the character of somethingopen, something provisional, something incomplete. One way to saythis is that Dasein, as the entity that remembers and anticipates, pro-jects itself as a self into a world of concerns it understands but doesnot at first know and does not plan:

[Als thrown, Dasein is thrown into the kind of being which we call"projecting." Projecting has nothing to do with comporting oneselftowards a plan that has been thought out, and in accordance withwhich Dasein arranges its being. On the contrary, any Dasein has,as Dasein, already projected itself; and as long as it is, it is project-ing. As long as it is, Dasein has understood itself and always willunderstand itself from possibilities. 4

Just because Dasein is always. thrown, it never precedes itself andthus never comes to a primordial understanding of itself except as thepossibilities in which it finds itself:

Furthermore, the character of understanding as projection is suchthat the understanding does not grasp thematically that upon whichit projects-that is to say, possibilities. Grasping it in such a man-ner would take away from what is projected its very character asa possibility, and would reduce it to the given contents which wehave in mind; whereas projection, in throwing, throws before itself

American scholars to forgo the usual knee-jerk reaction with which this dictum isuncomprehendingly met, that is, the usual condemnations of "rationalism," "Prus-sian iron laws," "dogmatism" and other self-congratulatory relativist shibboleths; seefor example Reinhold Niebuhr's "Introduction" to the volume On Religion (1957),p. xiii-x. Note.what Edward A. Purcell, Jr., says in The Crisis of Democratic Theory:Scientific Naturalism and the Problem of Value (1973): By identifying ideology withabstract, a priori rationalism and comprehensive, authoritarian systems of thought,the relativist theory blinded itself to the fact that the theory itself-pragmatic, em-piricist, pluralistic-had in fact become an ideology. The general assumptions of politicaldebate in America-unreflective, easily manipulable, and biased toward corporatepower-also represented an ideology. Given the ideological blindness of the first, itwas no surprise that it became a sophisticated version of the second.

The broad desire of many intellectuals to defend naturalism had led them to linkit with the existing institutions of American society, while belief in the scientific natureof their theory obscured its partisan function. The relativist theory, with its prescriptive-descriptive ambiguity, provided the logical passageway that allowed the normative con-cept of America to Walk in and take over most of academic social and political thought.It also helped explain why so many scholars-themselves intelligent, honest, humaneand democratic-could accept an ideology that in fact served to justify a quite im-perfect status quo; p. 272.

74. Being and Time, H 145.

GEORGE WRIGHT

the possibility as possibility, and lets it be as such. As projecting,understanding is. the kind of being of Dasein in which it is itspossibilities as possibilities."

In projecting, Dasein projects its possibilities as possibilities, not asmere availabilities or as quantifiable units, severed from the manifoldof its concern. It does not create them or invent them but lets thembe as they are, possibilities.

How does this analysis of understanding as projection affect the her-meneutic question raised in Betti's exchange with Gadamer over inter-pretation in law? Heidegger notes that traditional philosophy has gen-erally taken the sense of sight, vision, as its paradigm for knowledge,whether it considered the nature of ideas or of physical things. Intui-tion, in the sense of "clear-sightedness," has served as the model ofall knowledge, Heidegger says; to know a thing is to see it clearly anddistinctly. In Being and Time, Heidegger uses "sight" generally to denoteany way of access to beings and being:

"Seeing" does not mean just perceiving with the bodily eyes, butneither does it mean pure nonsensory awareness of something pre-sent at hand in its presence at hand. In giving existential significanceto "sight," we have merely drawn upon the peculiar feature of see-ing, that it lets entities which are accessible to it be encounteredunconcealedly in themselves. Of course, every "sense" does this with-in that domain of discovery which is genuinely its own. But fromthe beginning onwards the tradition of philosophy has been orientedprimarily towards "seeing" as a way of access to entities and tobeing. To keep the connection with the tradition, we may formalize"sight" and "seeing" enough to obtain therewith a universal termfor characterizing any access to entities or to being, as access ingeneral.6

Heidegger then develops the notion of sight (Sicht) to include anumber of modes of comportment toward beings: circumspection (Urn-sicht), that sight with which Dasein, in its dealings with techniquesand tools and equipment, holds the totality of its tasks in view; andconsiderateness (Rucksicht) and forebearance (Nachsicht), those modesof seeing which serve a similar function in Dasein's solicitous dealingswith others. He then grounds all these ways of comporting ourselvestoward things and other people in the understanding, as he has describedit, that is, as projection:

75. Being and Time, H145.76. Being and Time, H147.

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By showing how all sight is grounded primarily in understanding,we have deprived pure intuition of its priority, which correspondsnoetically to the priority of the present at hand in traditional ontol-ogy. "Intuition" and "thinking" are both derivatives of understand-ing, and already rather remote ones. Even the phenomenological"intuition of essences" is grounded in existential understanding. Wecan decide about this kind of seeing only if we have obtained ex-plicit conceptions of being and of the structure of being, such asonly phenomena in the phenomenological sense can become."

Intuition, the sheer and steady perception of some self-containedmeaning, is deprived of its priority. That long tradition of thinkersfor whom the ideal of knowledge has been sight, intuition, fromAquinas, to Descartes, Leibniz, Kant, to Hegel and to Betti, is calledinto question in the project traced in Being and Time. Knowledge, asthe sheer beholding of what is present, of what is merely there on handpresent to one's gaze, is rejected as noetic paradigm in favor of anattitude in which absence is constitutive, as when my pen is absentthough most itself as my writing implement. Primordially, as an itemof equipment, my pen is not there characteristically in a self-containedobjectivity. It is drawn beyond itself in my use into the manifold ofmy concerns by which it is essentially determined. It is elsewhere, with-drawn into itself, inconspicuous, in favor of the work for which itis now employed. Drawn back into itself, drawn forth beyond itself-modes of absence, which serve to determine the being characteric oftechniques and tools. 8 In this way, the ontology of sheer objectivepresence, which grounds Betti's hermeneutic and guarantees the cor-rectness of its results, seems to be dissolved into the play of absenceand presence.

This is not to say that one interpretation is as good as any other."All interpretation must comport with the manner of being shown bythe entity to be interpreted and may either be forced, as Heidegger

77. Being and Time, H 147. Funk and Wagnall's New Standard Dictionary (1950),gives this definition of intuition: 2. an immediate knowledge, or envisagement of anobject, truth, or principle, whether of a physical, rational, artistic or ethical nature;a conception derived by analogy from the act and result of clear and concentratedvision; p. 1287. The "intuition of essences" was an interpretive possibility openedup in the work of Heidegger's teacher, Edmund Husserl.

78. 1 have found John Sallis' article, "Into the Clearing," in Sheehan's collectionof essays, Heidegger The Man and the Thinker (1981), pp. 107-16, quite helpful inthis connection.

79. Nothing would be farther from Heidegger's or Gadamer's (or Betti's) inten-tion than that we take their thought as warrant for arbitrary, prejudicial, "free" in-terpretation. The one thing Gadamer does not give in Truth and Method is a defenseof prejudicial interpretation.

GEORGE WRIGHT

has said, or accurate.8 0 But the noetic priority of rectilinear, calculative,assertoric thought, the piecemeal counting out, that moves Hobbes-like by discreet steps, is discounted in Heidegger's thought and withit the claim of the exact sciences to give a knowledge more truthfulthan that of the human sciences:

Any interpretation which is to contribute to understanding mustalready have understood what is to be interpreted. This is a factthat has always been remarked, even if only in the area of thederivative ways of understanding and interpretation, such asphilological interpretation. The latter belongs within the range ofscientific knowledge. Such knowledge demands the rigor of ademonstration to provide grounds for it. In a scientific proof, wemay not presuppose what it is our task to provide grounds for. Butif interpretation must in any case already operate in that which isunderstood, and if it must draw its nurture from this, how is tobring any scientific results to maturity without moving in a circle,especially if, moreover, the understanding which is presupposed stilloperates within our common information about man and the world?Yet according to the most elementary rules of logic, this circle isa circulus vitiosus. If that be so, however, the business ofhistoriological interpretation is excluded a priori from the domainof rigorous knowledge. Insofar as the fact of this circle in under-standing is not-eliminated, historiology must then be resigned to lessrigorous possibilities of knowing. Historiology is permitted to com-pensate for this defect to some extent through the "spiritualsignificance" of its "objects." But even in the opinion of thehistorian himself, it would admittedly be more ideal if the circle couldbe avoided and if there remained the hope of creating some timea historiology which would be as independent of the standpoint ofthe observer as our knowledge of nature is supposed to be.

But if we see this circle as a vicious one and look out for ways ofavoiding it, even if we just "sense" it as in an inevitable imperfec-tion, then the act of understanding has been misunderstood fromthe ground up. . . . What is decisive is not to get out of the circlebut to come into it in the right way. This circle of understandingis not an orbit in which any random kind of knowledge may move;it is the expression of the existential fore-structure of Dasein itself.It is not to be reduced to the level of a vicious circle, or even ofa circle that is merely tolerated. In the circle is hidden a positivepossibility of the most primordial kind of knowing. To be sure, wegenuinely take hold of this possibility only when, in our interpreta-tion, we have understood that our first, last and constant task isnever to allow our fore-havng, fore-sight, and fore-conception tobe presented to us by fancies and popular conceptions, but rather

80. See supra, pp. 26-7, footnote 67.

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to make the scientific theme secure by working out these fore-structures in terms of the things themselves. Because understanding,in accordance with its existential meaning, is Dasein's own poten-tiality for being, the ontological presuppositions of historiologicalknowledge transcend in principle the rigor held in the most exactsciences. Mathematics is not more rigorous than historiology, bynarrower, because the existential foundations relevant for it lie withina narrower range."

What is decisive is not to get out of the circle but to come into itin the right way. Dasein is circular in essence, according to Heidegger,because its essence, as understanding which interprets, is always anissue for itself:

The "circle" is understanding belongs to the structure of meaning,and the latter phenomenon is rooted in the existential constitutionof Dasein-that is, in the understanding which interprets. An entityfor which, as being in the world, its being is itself an issue, has,ontologically, a circular structure."2

Thought proceeds in a circle because it is of the essence of humanbeing. What is essential limits and binds; it also grounds and makespossible. Dasein is the entity for which being is an issue. This mannerof being makes possible the possibility of no longer being:8

Death is a possibility of being which Dasein itself has to take overin each case. With death, Dasein stands before itself in its ownmostpotentiality for being. This is a possibility in which the issue isnothing less that Dasein's being in the world. Its death is the possibil-ity of no longer being able to be there. If Dasein stands before itself

81. Being and Time, H152-3.82. Being and Time, HI53.83. Theodor Adorno, in his The Jargon of Authenticity, gained a polemical ad-

vantage over Heidegger by failing to make the distinction Heidegger draws betweendeath and "demise," which is the cessation of life that men undergo in common withother forms of plants and animals. Death is a constant possibility for human existencealong; it is the horizon within which Dasein alone has meaning. This is hardly a newidea. Indeed, death has been a central philosophic and theological category for cen-turies; Plato says that to philosophize is like practicing to die. It is thus hardly thepreserve of Hegel and Heidegger, as Karl Popper makes it out in what he now describesas his contribution to the war effort, The Open Society and Its Enemies. Cf.Kierkegaard's statement, in Concluding Unscientific Postscript (Eng. trans. 1941): Tohave been young, and then to grow older, and finally to die is a very mediocre formof human existence; this merit belongs to every animal. But the unification of thedifferent stages of life in simultaneity is the task set for human beings; at 311. Itmust be stressed that, in emphasizing the centrality of death and guilt in human ex-istence, the Heidegger of Being and Time sought in no way to invalidate or refutethe Christian symbols of eternal life and sin, as though this were possible; see Beingand Time, HI80 and H496, footnote ii.

GEORGE WRIGHT

as this possibility, it has been fully assigned to its ownmost poten-tiality for being. When it stands before itself in this way, all its rela-tions to any other Dasein have been undone. This ownmost non-relational possibility is at the same time the uttermost one.

As potentiality for being, Dasein cannot outstrip the possibility fordeath. Death is the possibility of the absolute impossibility of Da-sein. Thus death reveals itself as that possibility which is one'sownmost, which is nonrelational, and which is not to beoutstripped....

Dasein does not proximally and for the most part have any explicitor even any theoretical knowledge of the fact that it has beendelivered over to its death, and that death belongs to being in theworld. Thrownness into death reveals itself to Dasein in a moreprimordial and impressive manner in that state of mind which wehave called anxiety. . . . This anxiety is not an accidental or ran-dom mood of "weakness" in some individual; but, as a basic stateof mind of Dasein, it amounts to the disclosedness of the fact thatDasein exists as thrown being towards its end."4

Dasein is finite in essence; human being is grounded in its finitude.If an interpretation of human existence is to comport with the mannerof being human, then finitude, the understanding Dasein has throughanxiety of the possibility of no longer being, must figure as a constit-uent element not only in the interpretive outcome but throughout theinterpretive process. It is for its failure to take account of finitudethat Gadamer, following Heidegger, disputes Vico's theory ofmythopoiesis, the production of myth as the ground of interpretationand understanding. Thisis the second of the broader problems underly-ing the Betti-Gadamer dispute.

We may recal that both Descartes and Vico theorized some aspectof the alternation of subject and object: in Descartes, it was their separa-tion; in Vico, it was the mode of considering their reunion. Vico reactedto Cartesian doubt and the certainty of mathematical knowledge ofnature by stressing the epistemological primacy of the man-madehistorical world: man makes the civil world and can therefore knowit. Implicit then in Vico's response to Descartes is the confidence thathistory can be transcended absolutely, that, if researchers rid themselvesof enlightened prejudices, the true data of historical being can be re-vealed. Also, because of his belief in the sublimity and superior wisdomof the primaeval age of myth, the primitive and the unreflective ac-quired in Vico a priority of truth over the perfection of reflective in-

84. Being and Time, H250.

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sight and clarity of expression that his Enlightenment opponentsemulated.

Like Vico, Gadamer and Heidegger offer a critique of Descartes'aspiration for a mathematical knowledge from without, a knowledgeindependent of the perspective of the observer. But unlike Vico, theydo not aspire to the ideal eternal verity of a science of the civil world,the world of nations. For implicit in Vico's project they find the sameunhistorical substratum uncritically accepted by Descartes, namely, theidea of unlimited extension, in Vico's case, into the past.8" In this,they see an attitude that is merely the mirror image of the errors ofthe Enlightenment:

[T]he presupposition of a mysterious darkness in which there wasa mythical collective consciousness that preceded all thought is justas dogmatic and abstract as that of a state of perfection achievedby a total enlightenment or that of absolute knowledge. Primaevalwisdom is only the counter-image of "primaeval stupidity."" 6

85. Truth and Method, pp. 196, 200, 203-4, 245, 336, 406.86. Truth and Method, p. 243. Note how David Donaldson reflects the romantic

view of metaphor and of the role of its interpreter: Metaphor is the dreamworld oflanguage, and, like all dreamwork, its interpretation reflects as much on the inter-preter as on the originator. The interpretation of dreams requires collaboration be-tween a dreamer and a waker, even if they be the same person; and the act of inter-pretation is itself a work of the imagination. So too understanding is as much a creativeendeavor as making a metaphor, and as little guided by rules; David Donaldson, "WhatMetaphors Mean," On Metaphor (1979), pp. 29-46, originally published in volume5, issue 1 of Critical Inquiry, (1978)). Compare Gadamer on metaphor: Just as speechimplies the use of pre-established words which have their universal meaning, thereis at the same time a constant process of concept formation by means of which thelife of a language develops.

The logical schema of induction and abstraction is very misleading here, as inlinguistic consciousness there is no explicit reflection on what is common to differentthings, nor does the use of words in their universal meaning regard what they designateas a case that is subsumed under a universal. The universality of the genus and theclassificatory formation of concepts are far removed from the linguistic consciousness.Even disregarding all formal similarities that have nothing to do with the generic con-cept, if a person transfers an expression from one thing to the other, he has in mindsomething that is common to both of them, but this need not be in any sense genericuniversality. He is following, rather, his widening experience, which see similarities,whether of the appearance of the object, or of its significance for us. It is the geniusof linguistic consciousness to be able to give expression to these similarities. This isits fundamental metaphorical nature, and it is important to see that it is the prejudiceof a theory of logic that is alien to language if the metaphorical use of a word isregarded as not its real sense; Truth and Method (footnote omitted), pp. 388-89. WhileI have chosen to highlight Betti's and Gadamer's differences, it is also quite clearthat there are profound similarities in approach and understanding, and Gadamer isquite clear that his own work does not "disprove" Betti's. See Truth and Method,"Hermeneutics and Historicism," pp. 460-91.

GEORGE WRIGHT

The root of this alternation between Vico and his enlightened op-ponents is their shared assumption that progress in knowledge can beachieved if a method is followed that frees the researcher from prejud-ice, fromt he fore-conceptions that cloud vision. In Descartes, this isthe method of systematic doubt; in Vico, it is historical recapitulation,whereby the original act of creative production is repeated imagina-tively by the researcher, as when a reader recapitulates the thoughtof an author. But, according to Heidegger and Gadamer, prejudice,as a fore-structure of projective understanding, is constitutive of Da-sein. All understanding for them involves prejudice insofar as it con-sists of a fore-conception. This insight indeed gives the problem ofhermeneutics its thrust. For by its light:

it appears that historicism, despite its critique of rationalism andof natural law philosophy, is based on the modern enlightenmentand unknowingly shares its prejudices.. And there is one prejudiceof the enlightenment that is essential to it: the fundamental prejudiceof the enlightenment is the prejudice against prejudice itself, whichdeprives tradition of its power."7

The results of this prejudice against prejudice may be seen in itscorrosive effects upon the authority of tradition. In the passage whichfollows, Gadamer discusses the authority of the Bible, the chief docu-ment against which enlightened thinkers focused their critical attacks:

It is the general tendency of the enlightenment not to accept anyauthority and to decide everything before the judgment seat ofreason. Thus the written tradition of scripture, like any otherhistorical document, cannot claim any absolute validity, but the poss-ible truth of the tradition depends on the creditibility that is assignedto it by reason. It is not tradition, but reason that constitutes theultimate source of all authority. What is written down is notnecessarily true. We have superior knowledge: This is the maximwith which the modern enlightenment approaches tradition and whichultimately leads it to undertake historical research. It makes the tradi-tion as much an object of criticism as do the natural sciences theevidence of the senses. This does not necessarily mean that the 'pre-judice against prejudice' was everywhere taken to the extreme con-sequences of free thinking and atheism, as in England and France.On the contrary, the German enlightenment recognized the "trueprejudices" of the Christian religion. Since the human intellect wastoo weak to manage without prejudices it is at least fortunate to.have been educated with true prejudices.'"

87. Truth and Method, pp. 239-40.88. Truth and Method, pp. 241-2.

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Despite the romantic rejection of the Enlightenment for its failureadequately to deal with the data of human life, romanticism itself endsin enlightenment, for it gives birth to historical science and drawseverything, even the thought of one's contemporaries, into the orbitof historicism.

The basic discrediting of all prejudices, which unites the experimentalemphasis of the new natural sciences with the enlightenment, becomesin the historical enlightenment, universal and radical.

This is the point at which the attempt to arrive at an historicalhermeneutics has to start its critique. The overcoming of all prejud-ices, this global demand of the enlightenment, will prove itself aprejudice, the removal of which opens the way to an appropriateunderstanding of our finitude, which dominates not only our human-ity, but also our historical consciousness.' 9

Any true interpretation comports with the entity to be interpreted.Dasein, whose essence is understanding which interprets, is finite, bothin being and in understanding. It is thus a falsification if interpreta-tion proceeds on the hypothesis of unlimited, absolute knowledge, andyields an account of human existence as some unlimited entity, notsubject to the constraints of its manner of being. Historical in essence,human existence is subject to the understanding that is possible in anygiven time, even though clarity as to what that understanding is can-not be achieved; rather, we can know it in the same way my pen isknown, as an alternation of presence and absence, giving itself andwithdrawing at the same time. As human existence is limited, so ishuman understanding limited. It is thus a falsification to claim thatthe future is wholly open to our projects, or that the past is whollyopen to our historical understanding, so that history is wholly subjectto our control. In fact, Gadamer says, history does not belong to us,but we belong to it, to the traditions that shape us and predisposeour understanding and even make understanding possible:

Does the fact that one is set within various traditions mean reallyand primarily that one is subject to prejudices and limited in one'sfreedom? Is not rather all human existence, even the freest, limitedand qualified in various ways? If this is true, then the idea of anabsolute reason is impossible for historical humanity. Reason existsfor us only in concrete, historical terms, i.e., it is not its own master,but remains constantly dependent on the given circumstances in whichit operates."0

89. Truth and Method, p. 244.90. Truth and Method, p. 245. Professor Robert W. Gordon's article, "Historicism

in Legal Scholarship," 90 Yale Law Journal (1981), p. 1017, contains a number of

GEORGE WRIGHT

Historical being is itself historical, subject to the constraints of thetemporal horizon within which it is situated. The possibility of historicalknowledge thus bears within itself the disproof of our ability to realizethat undoubted clarity, that irrefutable creative grasp of subject andobject that is the basis of Vico's historical consciousness. The roman-

interesting points, but its main argument, that recovery of past political languagesmay make the past irrelevant to contemporary legal concerns, or even that historicalresearch is-always a threat to legal scholarship, shows a failure to reflect adequatelyupon the relation of law and history. Legal science cannot proceed on the basis ofits own view of history; there can be no separate "legal" historiology. Yet law mustbe historical; this is the sense of Maitland's statement that the lawyer who is not or-thodox is no lawyer. What for Professor Gordon signals the impossibility of inter-pretation, namely, that a text may be alien to us and different from our expectations,is in fact the premise of interpretation. Similarly, a historical argument, such as thatmade by Professor Duncan Kennedy in his highly influential article on Blackstone,"The Structure of Blackstone's Commentaries," 28 Buffalo Law Review (1979), pp.205, 270, must be accurate, or the thrust of the argument miscarries. Although itis a distinction often forced upon us, scholarly research about a historical figure can-not be good as legal or political theory and bad as history. What the theorist thematizeseither happened or it did not, and, if it did not, then his theory has no ground inhistory, though it may have much else to recommend it. Thus I believe it is a tellingcriticism of Professor Kennedy's larger argument as to Blackstone's apologetic pur-pose that he has mis-identified his subject's political allegiance; cf. Thomas GardenBarnes, "Notes from the*Editors," in his edition of Blackstone's Commentaries onthe Laws of England, books 1-4 (undated). For a bibliography of writings of thosesharing the perspective of the Critical Legal Studies movement, see Duncan Kennedyand Karl E. Klare, "A Bibliography of Critical Legal Studies," 94 Yale Law Review(1984), p. 461. Note what Phillip E. Johnson says in his article, "Do You SincerelyWant to be Radical?," 36 Stanford Law Review (1984), p. 247: If one parent of Criticallegal scholarship is the Critical Theory of European Marxist sociology, the other parentis the American Legal Realism of 50 years ago, with its insight that formalistic legalreasoning inevitably conceals subjective value choices; p. 252. The terms in which boththe CLS movement and this criticism are developed, for example, the language ofvalue and choice, subjectivity, sincerity as an ideal of personality, formalism, conceal-ment and revelation as strategies of interpretation, the pursuit of interpretativeprimitives, a critical stance over against authority, etc., all mark their source in there-presentational thought of the metaphysical tradition which is the starting-point ofHeidegger's existential analytic. Neither the CLS critique nor this criticism of CLSovercomes the hiatus between law and its dogmatic expression and elaboration thatlegal realism brought about as part of its critical strategy. Neither gets around thesubject-object impasse, the one because it emulates Marxist praxis, the other becauseit seeks objectivity. Consider Betti's point that one's interpretive practice is itself ahistorical outcome, which arises naturally from the necessity of synthesis and intelligibil-ity present in law; see infra, pp. 89-90 and 93. Consider also what Gadamer says:To interpret the law's will or the promises of God is clearly not a form of domination,but of service. They are interpretations-which includes application-in the serviceof what is considered valid. Our thesis is that historical hermeneutics also has a taskof application to perform, because it too serves the validity of meaning, in that itexplicitly and consciously bridges the gap in time that separates the interpreter fromthe text and overcomes the alienation of meaning that the text has undergone; Truthand Method, p. 278.

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tic theory of society and history is thus the fulfillment of the thoughtof the Enlightenment. Precisely because the romantic theory ofmythopoiesis is merely the obsverse of enlightened classicism, bothperiods, the romantic and the classical, give evidence of a failure tounderstand the tradition of Western culture, so that it is reconstructedon principles different from those according to which it has power.Heidegger and Gadamer thus measure their distance not only fromHobbes and Descartes but also from Vico and his heirs.

Heidegger, Gadamer, and the theologian Rudolf Bultmann seek toavoid the alternation of classicism and romanticism, of "myth" and"reason," by attempting to think the thinking that precedes both thedivision of subject and object and also their reunion by way of humanproductivity. This is a theme in Heidegger's Letter on Humanism, writ-ten in 1946, in response to an essay of Sartre describing "existentialism"as a humanism.

Sartre had written that existence precedes essence. Tillich tells howhis brilliant aphorism had flashed across people's minds, illuminatinghis interpretation of Heidegger and defining it as the dire, absurdistirruption that has only recently fallen from public attention. Sartrehad taken Plato's assertion that essence precedes existence and merelyreversed it, to great effect.

But the reversal of a metaphysical statement remains a metaphysicalstatement. Heidegger's response in the Letter was no less aphoristicthan Sartre's, though more neologistic: man's essence is his ek-sistence,the manner of being whereby he stands out, ek-sists, into the truthof what is." This is the question driving Heidegger's thought, the essen-tial relation of man to being within being's relation to the essence ofman, the question of being, and the manner of human existence.

Heidegger faults Sartre for his acceptance of the traditional viewthat thought is in some essential way a making, a production, a repre-sentation, either of thoughts or of actions, in theory or practice. ForSartre, thought is a process whereby meaning, even the meaning ofone's life, is posited courageously on the basis of a conscious, if ab-surd, decision. But fabrication, even self-fabrication, is merely the self-

91. Heidegger, "Letter on Humanism," Basic Writings: From Being and Time(1927) to The Task of Thinking (1964) ed. David Farrell Krell, pp. 204-9 (1977); cY.Being and Time, § 9. Gadamer makes the same point: [Understanding] is ... theoriginal form of the realization of [Dasein], which is being in the world. Before anydifferentiation of understanding into the different directions of pragmatic or theoreticalinterest, understanding is [Dasein]'s mode of being, in that it is potentiality for beingand 'possibility'. . . . Understanding is the original character of human life itself; Truthand Method, p. 230.

GEORGE WRIGHT

assertion of a subjectivity, which represents objects for contemplationor manipulation. Sartre had not overcome the metaphysical tradition.

What is true of self-fabrication is true also of the fabrication ofvalues. For Heidegger, it is not the creating and choosing of values,or even their criticism, clarification, or destruction, that is or assuresthe undoubted ground or presupposition of human understanding:

To think against "values" is not to maintain that everything inter-preted as a "value"-"culture," "art," "science," "human dign-ity," "world," and "God"-is valueless. Rather, it is importantfinally to realize that precisely through the characterization of soem-thing as a "value" what is so valued is robbed of its worth. Thatis to say, by the assessment of something as a value what is valuedis admitted only as an object for man's estimation. But what a thingis in its being is not exhausted by its being an object, particularlywhen objectivity takes the form of value. Every valuing, even whenit values positively, is a subjectivizing. It does not let things be.Rather valuing lets beings be valid-solely as the objects of its do-ing. The bizarre effort to prove the objectivity of values does notknow what it is doing. When one proclaims "God" as the altogether"highest value," this is a degradation of God's essence. Here aselsewhere thinking in values is the greatest blasphemy imaginableagainst being. To think against values therefore does not mean tobeat the drum for the valuelessness and nullity of beings. It meansrather to bring the lighting of the truth of being before thinking,as against subjectivizing beings into mere objects. 2

Both the production and the destruction of values, unless more issaid, remain within the subjectivism of the metaphysical tradition."

92. "Letter on Humanism," p. 228. Although talk about values is widespread amongacademics and becoming endemic among lawyers, countercurrents are also noticeable,not only among opponents of the neo-Kantians, but also among followers of Comteand Durkheim, as well as certain legal positivists. On Comte, see Gilson, The Unityof Philosophical Experience, pp. 248-70, 277-80 (1937), and Voegelin, From Enlighten-ment to Revolution (1975), pp. 136-59. Heidegger criticized the theory of values, oraxiology, as it has come to be known, also in his Introduction to Metaphysics, pp.166-67 (Eng. trans. 1961), a difficult but important piece; see also Felice Battaglia'sexcellent Heidegger e la filosofia dei valori (1967). Richard Stith, in his article, "TowardFreedom from Value," 24 Catholic Lawyer (1979), pp. 333-60, rejects the talk aboutvalues in the context of abortion. Like Heidegger, Stith insists that to assign a valueto any entity, especially another person, is already to fail to some extent to recognizethat entity's givenness and uniqueness, to split it in some way from its presence. Thereis nothing particularly extraordinary about relations in which values do not figure.There are people with whom our lives are fatefully intertwined, for good or ill. Theyare not discovered by looking for a comparison; they simply exist for us in a fateful way.

93. The destruction of values in favor of value-neutrality by American behavioristswas prepared in part by the terms of their defense by American pragmatists. If whatis interesting about a phenomenon is only its results, then there is little need, apartfrom convenience, to understand the phenomenon, its manner of being, and considerable

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What then is relation of theory and practice to thought which pondersthe truth of being as ek-sistence?

[Sluch thinking is neither theoretical nor practical. It comes to passbefore this distinction. Such thinking is, insofar as it is, recollectionof being and nothing else. Belonging to being, because thrown bybeing into the preservation of its truth and claimed for such preserva-tion, it thinks being. Such thinking has no result. It has no effect.It satisfies its essence in that it is. But it is by saying its matter.Historically, only one saying belongs to the matter of thinking, theone that is in each case appropriate to its matter. Its materialrelevance is essentially higher than the validity of the sciences becauseit is freer. For it lets being be."'

and what direction can jurists take from Heidegger's thought?

Only so far as man, ek-sisting into the truth of being, belongs tobeing can there come from being the assignment of those directionsthat must become law and rule for man. The Greek to assign isnemein. Nomos is not only law but more originally the assignmentcontained in the dispensation of being. Only the assignment is capableof dispatching man into being. Otherwise all law remains merelysomething fabricated by human reason. More essential than insti-tuting rules is that man find the way to his abode in the truth of

reason, for simplicity's sake, to understand the results as if there were no phenomenon.Behaviorism obviates analysis of the background practices within which institutionsarise and develop, have, retain and lose meaning. To have noticed, for example, theways in which the United States Supreme Court behaves like an administrative agencyis not to recognize that result as an indication of the failure of an institution to fulfilla set of expectations, if- it is, much less to prescribe a remedy. Both pragmatism andbehaviorism accepted what Edward. Purcell has called the normative concept of America,that is, the view that the American historical development has general validity as anideal of political and social life; see supra, footnote 73. Pragmatism, as the "philosophyof the American way of life," did so explicitly, obliging its proponents to remainopen to criticism and the possibility of growth. Its vision of social life was also condi-tioned by its intellectual origins; Dewey's pragmatism was in some large part derivedfrom Hegel. See Herbert W. Schneider, A History of American Philosophy passim(2d ed. 1963), and Wayne A. R. Leys, "Dewey's Social, Political and LegalPhilosophy," Jo Ann Boydston, Guide to the Works of John Dewey (1970), p. 131.Behaviorists do not presuppose a background in a reflective philosophy, such as Deweyhad. Thus their defense of the normative concept of America has been implicit andtheir understanding of American legal and political institutions uncritical. Though in-formative, their research is not self-executing, even as systems maintenance; it assumesand addresses an audience and a political context, whose meaning and purposes areinaccessible as such in principle. Thus it is difficult to see how behaviorism can beuseful in answering the questions legal and political thinkers have historically posedsince behaviorists themselves do not admit asking these questions. It is peculiarly aview of politics that refuses to recognize itself in its own results. Cf. Leo Strauss,Natural Right and History (1953), pp. 1-8.

94. "Letter on Humanism,"'p. 236.

GEORGE WRIGHT

being. This abode first yields the experience of something we canhold on to. "Hold" in our language means "protective heed." Beingis the protective heed that holds man in his ek-sistent essence tothe truth of such protective heed-in such a way that it houses ek-sistence in language; Thus language is at, once the house of beingand the home of human beings. Only because language is the homeof the essence of man can historical mankind and human' beingsriot be at home in their language, so that for them language becomesa more container for their sundry preoccupations."

This appears to give rather little guidance, but it may be enough.For despite his difficult language, despite the range and complexityof his problems, and despite his immense output of books and articles,Heidegger's re-appropriation of the tradition has had an enormous ef-fect in the other human sciences, in. philosophy, theology, in literarystudies, and in the social sciences. Indeed, his thought is the most influ-ential, his philosophic project, the most truly, thought-provoking, ofour era. And while his impact upon American legal researchers hasso far been slight, negligible, some points suggest themselves for furtherdevelopment.

One is the recent debate over constitutional interpretation, that is,over whether judges must determine and follow the original intent ofthe Founding Fathers. 96 As usual, the participants in this debate framedthe issues in the most harshly disparate fashion, as a set of antinomies,whose necessary propositions were mutually inconsistent. And thepolemical tone of the exchanges was unfortunately rather high. Butsurely no one who wishes to accord the authority of the legal traditionits force and power can deny that constitutional interpretation consistentwith the Constitution is possible, that is, that the document can beunderstood in its continuity with the present, as the mediation of thepast and present. To deny this possibility precipitates a line of questionswhose answers can only be preposterous and perhaps dangerous: whendid it become impossible to interpret the Constitution; why did thishappen; could it have been avoided; what are the new principles whichserve the functions reserved for the Constitution; does some translationlanguage operate between this new set of constitutional principles andthe Constitution itself; who knows it; how does one learn it.

On the other side, no one who wishes to avoid the subjectivism ofhistoricism will rest content with the view that the Framers' originalintent is the constitutional interpreter's proper focus. Is it necessary

/

95. "Letter on Humanism," pp. 238-9.96. Cf. Alexander M. Bickel's The Supreme Court and the Idea of Progress (1970).

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to focus on intent at all? Is this approach itself not the reflection ofa failure properly to conceive the currency the Constitution retains inour political life? Is it not preferable to seek an adequate understand-ing of the doctument itself, from within the context of the traditionof constitutionalism that speaks in and through the Framers into ourown times, rather than attempt some guess as to the subjective statesof mind? This is certainly in historical enquiry, but any approach, anyinterpretation of and by an entity whose essence is historical, mustalso be historical by necessity; otherwise, it fails to comport with themanner of human existence. Future researchers may arrive at a keenerunderstanding of the historical sources within which the Constitutionspeaks and gathers meaning. Recognizing this in no way detracts fromthe dignity and seriousness of the work at hand but only bespeaks afair recognition of the partiality of our understanding and of the open-ness of human affairs to the future.

A second way in which Heidegger's thought may become effectiveis in bringing into clearer focus the realist thesis that the processesof private law are means of gathering useful, social knowledge, onthe basis of which judges may reform the law. Legal realism is familiaras a critical philosophy of law, scientific, empirical, methodical,manipulative, cynical as to tradition, seeking to interpose a standardof reason between tradition and its dogmatic expression and elabora-tion and claiming superior knowledge and a certain method; suspiciousof authority, it gives reasons of utility and clarity for the specific politicaldirectives it wishes to carry out.

It is pecular that the judge's opinion in a case should have beentaken over from the law schools as the archetypal expression of lawin realist jurisprudence. Few undertakings rival the modern lawsuit forits capacity to draw participants out of their own quite real concernsinto the rigid typicality of the re-presentational concepts taken overin various ways from philosophy and applied in the law of evidence,procedure, fault, duty, etc." Whatever is not mediated through theseconcepts simply is not there; it does not appear. A truth is hiddenhere, namely, that immediacy is not a necessary condition of publiclife. But is is naive to think that opinions and cases yield unimpeachableevidence of the law or that they teach all the legal researchers needknow. Rather, it seems that they may be data only for those who do

97. See, for example, my article, "Stoic Midwives at the Birth of Jurisprudence,"28 American Journal of Jurisprudence (1983), p. 169. To emphasize the indebtednessof law and lawyers to the philosophic tradition is not to deny that the relationshiphas been reciprocal, as shown by a number of interesting examples.

GEORGE WRIGHT

not know legal concepts or for those who do not use them merely asdata. This often remarked contradiction, that legal realism relies ona tradition of legal thought it itself can neither replace nor sustain,lends credence to the hypothesis that the movement was aimed at thefederal judicary, as an incitement to get and use power.

This hypothesis is also borne out by the predominance of essentiallybiographical explanation of judicial action. Realist historiographyremembers those who changed rather than sustained the law and reveresthose who did so surreptiously. Indeed it is as biography that judicialdecisions are often explained; this accounts for the importance ofchambers gossip. It is as though what actually determined the outcomeof cases were some peculiarity in the lives of the actors, as individualsor in concert, rather than the most accurate reading of the law. Andmotivating the biographical understanding of law is the aesthetics ofgenius, the romantic idea of creativity which we have seen proposedin quite different circumstances by Vico: The judge has a vision andis creative, and he creates out of the depth of his experience. But,whether divulged in an opinion or not, biography, particularly in thearticulated, self-reflective form required of judges, is not primary; init, history is inevitably a private affair, merely an instance of somelarger, internal scheme, abstracted from the concerns which determineand animate both the interests of the participants and the prejudicesof the judge himself. Again, the focus of subjectivity that is the hallmarkof realist jurisprudence is a distorting mirror.

Thus it is not surprising that, despite professed intentions, realistjurisprudence reinforced and even necessitated an oracular interpreta-tion of judges' activity. For, if thescience of law is essentially predic-tive, rather than prescriptive, then a utopia of the future must replacethe mediation of the past and present as the judge's chief concern.This is true despite claims of a superior knowledge and a certain method.If social science yields a knowledge superior to that embedded in thetradition, the choice to employ it rests nonetheless with the personalconvictions of the judge. And in the absence of data which, it mightbe claimed, demystified and clarified the outcomes of cases better thanlegal reasoning, the judge, disabused of his prejudices regarding thelegal tradition, must feel all the more required to develop a utopianvision as the ground of this decision-making.

Now, if it is true that, to the extent that projects become objectsof conscious reflection, they lose their power to move, then we mayexpect that the elaborated utopian visions of realist judges may losetheir power to move. There are indications of this failure in the areasof abortion, capital punishment, the dminished capacity defense, alter-

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native lifestyles, and defendants' rights. And citizens may refuse toconfirm a judge whose personal, articulated vision is seen to differmarkedly from their own, both when theirs is implicit and inarticulateand when it is developed self-consciously in the representative conceptscountervailing those adopted by the individual judge. In these restraintswhich the tradition exercises and gives effect we may see the limitsof the critical understanding that underlies realist jurisprudence.' 8

It may be useful to consider another question linked to the moraldimension of law. It is true that the judge's decision, as a judgmentmade by a legally constituted official, presumptively binds the con-science? This is taken generally as one way in which moral concernsbecome active in the law, and some notions of morality and some usesof the term conscience support this understanding of the effect of thejudge's role and action.

But with Heidegger we may seek a deeper, that is, more primordial,meaning than those whose origin was determined first in the schoolof Plato, with its separation of the moral from the logical and thephysical. Heidegger describes conscience in ontological terms; that is,he seeks to show how the phenomenon of having a conscience is a

98. See Preble Stolz, Judging Judges: The Investigation of Rose Bird and theCalifornia Supreme Court (1981). Professor Stolz notes: The combination of the in-evitability of political decisions, the constant threat of superior power, and the absenceof a theory that legitimates the judicial role would seem to put the justices in an intol-erably tenuous position. But that has been true since John Marshall. Americans havecome over the years to believe deeply that judges have a useful if limited role in theirgovernance. The key word is "limited." . . . Most judges have not been great, butnearly all share a belief that confidence in judicial power can best be cultivated bystaying close to the ideal of the moderate middle that judges are professionals whocare deeply about impartiality and who see themselves as neutral interpreters of policiesprincipally declared through the political arms of government. . . . Recognizing thatjudicial power is always threatened by some exercise of majoritarian power is debilitatingonly if the justices believe they have a mandate to govern by virtue of their office ...If the court has no program beyond fair process and if its fundamental principle isto do its best to understand, articulate and promote the policy preferences of others,then judicial power should endure despite the ambiguities in the justices' high office;p. 427. Whatever the specific direction one may take from Professor Stolz' account,this statement recapitulates some key aspects of realist jurisprudence: the inability todevelop a political/historical understanding of adjudication (judicial review) and hencethe separation of law, as an essentially regulative sphere, subject to judicial oversight,from politics, as a heteronomous area of arbitrary (policy) preferences; a descriptionof judicial behavior in terms of power, together with a defnse of judicial power asguarantor of minority preferences by means of the language of rights; recommenda-tion of impartiality and craftsmanship as aspects of a "confidence"-building strategyfor retaining judicial power, as well as a psychological analysis of factors promotingor impeding judicial "performance." Professor Stolz writes of and to a judiciary formedin the image of interest-group liberalism and subject to its prejudices.

GEORGE WRIGHT

testimony to some essential aspect of the relation of being and humanexistence:

The ontological analysis of conscience on which we are thus em-barking is prior to any description and classification of experienceof conscience, and likewise lies outside of any biological "explanation"of this phenomenon (which would mean its dissolution). But it isno less distant from a theological exegesis of conscience or any em-ployment of this phenomenon for proofs of God or for establishingan "immediate" consciousness of God.

. . . As a phenomenon of Dasein, conscience is not just a fact whichoccurs and is occasionally present at hand. It "is" only in Dasein'skind of being, and it makes itself known as a fact only with facticalexistence and in it. The demand that an "inductive empirical proof"should be given for the "factuality" of conscience and for thelegitimacy of its "voice," rests upon an ontological perversion ofthe phenomenon. This perversion however is one that is shared byevery "superior" criticism in which conscience is taken as somethingjust occurring from time to time rather than as a "universallyestablished and ascertainable fact." Among such proofs and counter-proofs, the fact of conscience cannot present itself at all. This isno lack in it, but merely a sign by which we can recognize it asontologically of a different kind from what is environmentally presentat hand.

Conscience gives us "something" to understand; it discloses. Bycharacterizing this phenomenon formally in this way, we findourselves enjoined to take it back into the disclosedness of Dasein.This disclosedness, as a basic state of that entity which we ourselvesare, is constituted by state of mind, understanding, falling anddiscourse. If we analyze conscience more penetratingly, it is revealedas a call. Calling is a mode of discourse. The call of conscience hasthe character of an appeal to Dasein by calling it to its ownmostpotentiality for being its self; and this is done by way of summoningit to its ownmost being guilty. 9"

"Falling" is a term we have not encountered so far. It is a stateof mind, a mood. Mood is a primordial attestation of the essentialrelation of human existence to being. It is not a content, a belief, anawareness. It is rather an attunement, a specific, unavoidable part ofthe way Dasein is:

Factically, Dasein can, should and must, through knowledge andwill, become master of its moods; in certain possible ways of ex-isting, this may signify a priority of volition and cognition. Onlywe must not be misled by this into denying that ontologically mood

99. Being and Time, H269.

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is a primordial kind of being for Dasein, in which Dasein is disclosedto itself prior to all cognition and volition, and beyond their rangeof disclosure. And furthermore, when we master a mood, we doso by way of a countermood; we are never free of moods.'00

Fallenness, as a mood, is the continual attestation of Dasein's wayof being for the most part; in general Dasein is in an everyday kindof way. It is attuned to what is in the world in an average, conformingmanner:

Idle talk, curiosity and ambiguity characterize the way in which,in an everyday manner, Dasein is its "there"-the disclosedness ofbeing in the world. As definite existential characteristics, these arenot present at hand in Dasein but help to make up its being. Inthese and in the way they are interconnected in their being, thereis revealed a basic kind of being which belongs to everydayness; wecall this the "falling" of Dasein.

This term does not express any negative evaluation, but is used tosignify that Dasein is proximally and for the most part alongsidethe "world" of its concern. This "absorption in . . ." has mostlythe character of being lost in the publicness of the "they." Daseinhas, in the first instance, fallen away from itself as an authenticpotentiality for being its self, and has fallen into the world. "Fallen-ness" into the world means an absorption in being with one another,insofar as the latter is guided by idle talk, curiosity and ambiguity... On no account however do the "inauthentic" and "non-authentic" signify "really not" as if in this mode of being Daseinwere altogether to lose its being . . . Not being its self functionsas a positive possibility of that entity, which, in its essential con-cern, is absorbed in the world. This kind of not-being has to beconceived as that kind of being which is closest to Dasein and inwhich Dasein maintains itself for the most part.

So neither must we take the fallenness of Dasein as a "fall" froma purer and higher "primal status." Not only do we lack any ex-perience of this ontically, but ontologically we lack any possibilitiesor clues for interpreting it.' 0 '

Conscience is a call; it summons Dasein from its lostness in the publicself, the self that is average, conforming, forgetful of itself, fallen.Conscience is thus the call of Dasein to Dasein and is in every casemy own conscience, calling me in an uncanny way to be myself:

The call does not report events; it calls without uttering anything.The call discourses in the uncanny mode of keeping silent. And it

100. Being and Time, H136.101. Being and Time, H175.

GEORGE WRIGHT

does this only because, in calling the one to whom the appeal ismade, it does not call him into the public idle talk of the "they,"

but calls him back from this into the reticence of his existent poten-tiality for being. When the caller reaches him to whom the appealis made, it does so with a cold assurance which is uncanny but byno means obvious. Wherein lies the basis for this assurance if notin the fact that when Dasein has been individualized down to itselfin its uncanniness, it is for itself something that cannot be mistakenfor anything else? What is it that so radically deprives Dasein ofthe possibility of misunderstanding itself by any sort of alibi andfailing to recognize itself, if not the forsakenness with which it hasbeen abandoned to itself?' 2

Dasein is at the same time both the caller of conscience and the oneto whom the appeal of conscience is made; the caller is Dasein, whichin its thrownness, in its already being in, is anxious about its poten-tiality for being. Dasein, falling into the anonymity of the public self,calls itself back in the appeal of the conscience to be itself. The callof conscience, the retrieval of Dasein from projects taken over in anaverage way, reveals that the entity that has a conscience is, in thevery basis of its being, care.

On the basis of the radical mine-ness that Dasein displays in havinga conscience, Heidegger disputes the claim of the public conscienceto be a universally binding, objective norm:

But this "public conscience"-what else is it than the voice of the"they"? A "world-conscience" is a dubious fabrication, and Daseincan come to this only because conscience, in its basis and essence,is in each case mine-not only in the sense that in each case theappeal is to one's ownmost potentiality for being, but because thecall comes from that entity which in each case I am myself.' 3

There is reason to doubt then that the judge's decision presumptive-

102. Being and time, H277.103. Being and Time, H278. Paul Tillich derived many important insights from

Heidegger, and he drew directly on Heidegger's views of the conscience in describingwhat he called the transmoral conscience; see Tillich, "The Transmoral Conscience,"The Protestant Era (1957), pp. 136-49, and Morality and Beyond (1963). He definesit in this way: A conscience may be "transmoral" which judges not in obedience toa moral law but according to the participation in a reality which transcends the sphereof moral commands. A transmoral conscience does not deny the moral-realm, butit is driven beyond it by the unbearable tensions of the sphere of law; The ProtestantEra, p. 145. Tillich wrote with conscious reference to the seminal work of AndersNygren, the Bishop of Lund, Agape and Eros (translated by Philip S. Watson 1969);see John M. Rist, "Some Interpretations of Agape and Eros," The Philosophy andTheology of Anders Nygren ed. Charles W. Kegley (1970), pp. 156-73. At issue isthe question of whether, law, in specific historical manifestations or in its essence,is not a form of estrangement. I hope to take up this theme again at greater length.

240 THE AMERICAN JOURNAL OF JURISPRUDENCE (1987)

ly binds my conscience, however much, it determines my actions, oreven that, as an assertion' based on a derivative, representational modeof understanding, it can bind my conscience. For what having a con-science reveals is a guilt that is prior to the morally good and evil.Indeed it is because Dasein, whose being is care, is guilty as such thatmoral categories have their validity:

Not only can entities whose being is care load themselves with fac-tical guilt, but they are guilty in the very basis of their being; andthis being-guilty is what provides, above all, the ontological condi-tion for Dasein's ability to come to owe anything in factically ex-isting. This essential being guilty is equiprimordially the existentialcondition for the possibility of the "morally" good and for thatof the "morally" evil-that is, for morality in general and for thepossible forms which this may take factically. The primordial "be-ing guilty" cannot be defined by morality, since morality alreadypresupposes it for itself."'

But if the judge's decision does not presumptively bind my conscience,neither do I:

Indeed the call is precisely something which we ourselves have neitherplanned nor prepared for nor voluntarily performed, nor have weever done so. "It" calls, against our expectations and even againstour will. On the other hand, the call undoubtedly does not comefrom someone who is with me in the world. The cali comes fromme and yet from beyond and over me."'

Hearing the call of the conscience does not mean loading oneselfup with guilt about failures and omissions. It means being guiltyauthentically-guilty in the way Dasein is:

Hearing the appeal correctly is thus tantamount to having anunderstanding of oneself in one's ownmost potentiality for being-that is, to projecting oneself upon one's ownmost authentic poten-tiality for becoming guilty. When Dasein understandingly lets itselfbe called forth to this possibility, this includes its becoming free forthe call-its readiness for the potentiality of getting appealed to.In understanding the call, Dasein is in thrall to its ownmost poten-tiality of existence. It has chosen itself.

In so choosing, Dasein makes possible its ownmost being guilty. Thecommon sense of the "they" knows only the satisfying ofmanipulable rules and public norms and the failure to satisfy them.It reckons up infractions of them and tries to balance them off.It has slunk away from its ownmost being guilty so as to be able

104. Being and Time, H286.105. Being and Time, H275.

GEORGE WRIGHT

to talk more loudly about making "mistakes". But in the appeal,the they-self gets called to the ownmost being guilty of the self.Understanding the call is choosing; but it is not a choosing of con-science, which as such cannot be chosen. What is chosen is havinga conscience as being free for one's ownmost being guilty."Understanding the appeal" means "wanting to have a con-science." 106

But are we not justified in faulting an understanding of the con-science that fails to take account of the common, basic forms of thephenomenon, that is, the bad and good conscience, that which reprovesand warns?

We miss a "positive" content in that which is called, because weexpect to be told something currently useful about assuredpossibilities of "taking action" which are available and calculable.This expectation has its basis within the horizon of that way of in-terpreting which belongs to common-sense concern-a way of inter-preting which forces Dasein's existence to be subsumed under theidea of a business procedure that can be regulated. Such expecta-tions (and in part these tacitly underlie even the demand for amaterial ethic of value as contrasted with one that is "merely" for-mal) are of course disappointed with the conscience. The call of con-science fails to give any such "practical" injunctions, solely becauseit summons Dasein to existence, to its ownmost potentiality for be-ing its self . . . The call discloses nothing which could be eitherpositive or negative as something with which we can concernourselves; for what it has in view is a being which is ontologicallyquite different-namely, existence.'°'

At this point, Heidegger's existential analysis circles back upon itselfin that conscience, in revealing that Dasein is guilty as such, revealsan essential incompleteness that is nonetheless the basis and necessarycondition of projective understanding:

Dasein's being is care. It comprises in itself facticity (thrownness),existence (projection), and falling. As being, Dasein is somethingthat has been thrown; it has been brought into its "there," but notof its own accord. As being, it has taken the definite form of apotentiality for being which has heard itself and has devoted itselfto itself, but not as itself. As existent, it never comes back behindits thrownness in such a way that it might first release this "thatit is and has to be" from its being its self and lead it into the "there."Thrownness however does not lie behind it as some event which hashappened to Dasein, which has factually befallen and fallen loose

106. Being and Time, H287-8.107. Being and Time, H294. Heidegger is criticizing here not only neo-Kantian ethics

but Max Scheler's as well.

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from Dasein again; on the contrary, as long as Dasein is, Dasein,as care, is constantly its "that it is." To this entity it has beendelivered over, and as such it can exist solely as the entity whichit is; and as this entity to which it has been thus delivered over,it is, in its existing, the basis of its potentiality for being. Althoughit has not laid that basis itself, it reposes in the weight of it, whichis made manifest to it as a burden by Dasein's mood.

And how is Dasein this thrown basis? Only in that it projects itselfupon possibilities into which it has been thrown. The self, whichas such has to lay the basis for itself, can never get that basis intoits power; and yet, as existing, it must take over being a basis. Tobe its own thrown basis is that potentiality for being which is theissue for care.

In being a basis-that is, in existing as thrown-Dasein constantlylags behind its possibilities. It is never existent before its basis, butonly from it and as this basis. Thus "being a basis" means neverto have power over one's ownmost being from the ground up. This"not" belongs to the existential meaning of "thrownness." It itself,being a basis, is a nullity of itself. "Nullity" does not signify anythinglike not being present at hand or not subsisting; what one has inview here is rather a "not" which is constitutive for this being ofDasein-its thrownness. The character of this "not" as a "not"may be defined existentially: in being its self, Dasein is, as a self,the entity that has been thrown. It has been released from its basis,not through itself but to itself, so as to be as this basis. Dasein isnot itself the basis of its being, inasmuch as this basis first arisesfrom its own projection; rather, being its self, it is the being of itsbasis. This basis is never anything but the basis for an entity whosebeing has to take over being a basis."' 8

Thus conscience is a constituent element in human existence thattestifies to our finitude, to our being toward an end, as a constantpossibility. This theme is taken up by Gadamer, as I have emphasized,and it makes possible and grounds an interpretation of human existenceas finite in being as in understanding.

I have translated the esssay by Betti that follows because I wantto introduce American legal researchers to the Betti-Gadamer disputeand its underlying problems. Much of the fundamental work ofGadamer has been translated; none of Betti's equally praised writingshas appeared, to my knowledge, in English."0 9 And Betti's approach,

108. Being and Time, H284-5.109. 1 have obtained the rights to translate Betti's hermeneutic manifesto, "Zur

Grundlegung einer allgemeinen Auslegungslehre," which first appeared in the Festschrift

GEORGE WRIGHT

despite Gadamer's strictures, is likely more accessible to those of usin America who are both influenced by realism and disabused of itsscientism. Both men are vastly learned, powerful writers and thinkers,bringing a particularly large vision to bear on questions that have yetto be asked among us with equal comprehension or breadth. Theyunderstand legal interpretation in the frame of a general account ofunderstanding. With them, American legal researchers can learn to repre-sent the characteristic achievements of their discipline to those outsidethe circle of professional education. With them, we can begin to traceclearer lines of influence and insight between law and other interpretivedisciplines. With them, we may move beyond the preoccupation withthe conveniences and exigencies of the courtroom, the law office, thelaw school, the legislature and the police station, toward the discoursethat unites these institutions with other centers of power in our in-tellectual, political and social lives.

fir Ernst Rabel, published by J. C. b. Mohr (Paul Siebeck), Tijbingen. The questionBetti and Gadamer dispute as to the roles of the historian and the practitioner hasbeen considered by the great English scholar of the common law F.W. Maitland, inhis essay "Why the History of English Law is not written," The Collected Papersof Frederick William Maitland ed. H. A. L. Fisher, vol. 1, (1911), pp. 480-87, 491.