Abstract
This article will appear as part of a Symposium on "Nietzsche and Legal Theory" to be published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory. Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At the other end of the spectrum, Nietzsche's perspectival hermeneutics is seemingly nothing but thoroughgoing critique, to the point of collapsing into irrationalism under certain postmodern readings. This article develops a critical hermeneutics by demonstrating that philosophical hermeneutics can accommodate Nietzschean critique. I set the stage for the paper by recounting Allan Hutchinson's Nietzschean-inspired claim that radical critique in the tradition of the critical legal studies movement provides a necessary antidote to Gadamer's hermeneutical conventionalism, and then I provide an overview of Nietzsche's hermeneutical philosophy in terms of his naturalism and perspectivism. In the heart of the article I draw connections between Nietzsche and Gadamer by comparing perspectivism and fusion of horizons, their treatment of rhetoric and aesthetics, and their investigation of the critical power of tradition. I then develop the connections between these two thinkers through a close and critical reading of Gianni Vattimo's "weak thought," and conclude the article with a consideration of Supreme Court jurisprudence on the legal status of gays and lesbians in contemporary society. Arguing that the Supreme Court opinions fail on hermeneutical grounds, I suggest that Nietzschean critique helps to supplement our understanding of legal practice and also provides helpful insights to legal theorists.
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