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In Copyright


This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all practical purposes as public and social rather than private and psychological. Lieber synthesized these views in his own account of legal interpretation as the hermeneutic perpetuation of institutions. He regarded lawmaking as the intentional enactment of public language rather than the enactment of intended meanings, while acknowledging that language was an historical artifact that changed meaning over time. Similarly, he regarded the effort to control future interpreters through detailed rulemaking as futile, and substituted an ethic of fidelity to institutions for an ethic of fidelity to text or original intent.

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Cardozo Law Review

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