Postgraduate Research

INTERPRETATION

Interpretation is at the heart of law's methodology. The work of the lawyer or judge is fundamentally to interpret the law. This presents both an opportunity and a challenge to anyone wanting to apply interpretive methods in interdisciplinary legal research. It is an opportunity because we can expect lawyers to understand interpretation, and to be familiar with this as an accepted methodology. It is a challenge because in interdisciplinary work we may need to interpret material in non-legal ways.

For instance, to interpret a judicial decision from a literary or semiotic point of view involves reading it 'against the grain', that is, for meanings which are not the ones which a lawyer of judge is normally expected to find in it. We may look at how the judge's language, narrative structure or depiction of the facts point to other meanings or use substituted meanings to reach a particular conclusion. [1]

This presents several problems. Firstly, law students and lawyers have learned to read law for its 'legal' meaning: getting to know which way the grain runs and reading with it. A second problem concerns the limits of interpretation. This is a bit like the problem of relativism: if there is not one correct interpretation, does that mean 'anything goes', and that there can be hundreds of interpretations, each equally valid? [2]

People well skilled in legal interpretation may see alternative interpretations as an error or even a threat or a nonsense. However, there are some helpful analytical tools available.

Hermeneutics simply means 'interpretation'. It arose in Germany in the nineteenth century as a humanistic study aiming to draw attention to the way we understand meaningful communications: we understand people's words or actions in a cultural - even empathetic - way (Verstehen) which is not available to natural scientists. This is an advantage of cultural analysis, as well as posing the threat of contested interpretations. Several of the readings on this website [3] refer to Paul Ricoeur's distinction between a hermeneutics of tradition and one of suspicion. Legal interpretation is one of tradition, whereas Marx's unmasking of ideology as a smokescreen for real, economic interests, is an early example of a hermeneutics of suspicion.

Reading

Mautner, Thomas (ed.) Penguin Dictionary of Philosophy. 'Hermeneutics'. pp 248-249.

Communications research. One tradition of hermeneutic research which has been applied with good effect by criminologists is media analysis. We can read newspapers or television 'against the grain' just as we can judicial decisions. In the 'natural mode' of reading newspapers we have learnt to find out what news is in them, or perhaps we seek other forms of entertainment. These skills are comparable to those of reading a decision for the facts, the ratio and the outcome. But we may also read 'behind' the obvious meanings for alternative ones which are being suggested. What is the editorial style encouraging us to think about a particular event? Why have words like 'boat people' been chosen instead of 'refugees'? These methods have been used very effectively in analysis of political and legal responses to crime such as 'moral panics'. [4]

Each of these ways of reading a text, whether a judicial decision or a newspaper, involves interpreting its meaning in the light of particular cultural conventions. We know the meaning of a word by reference to a number of personal (individual) or cultural (shared) associations. The interpretive matrix in which a word or concept is embedded may shift according to the culture. This may be a professional culture like the law or it may be a local, ethnic or national culture. This is why our students need to learn how to read a judgment, and why we have particular difficulty reading a foreign newspaper when we first arrive in a country, even if we know the language quite well. I want to suggest at this stage that culture is central to the problem we find ourselves in when faced with numerous alternative interpretations: meanings proliferate through cultural associations. I also hope to show that an analysis of culture will contribute to solving the problem of infinite interpretation. By clarifying the cultural context we are working in, it becomes possible to choose among alternative or competing interpretations. The simplest example of this is to say that if we are in a class in some area of substantive law, such as contracts, then the context for our interpretations is defined for us. Moving outside that classroom, other interpretations are still possible. And those interpretations may be classified or preferred according to the purposes of our research or the cultural context we are working in.

Reading

  • Deacon, David, Michael Pickering, Peter Golding, and Graham Murdock. Researching Communications: A Practical Guide to Methods in Media and Cultural Analysis. London: Arnold, 1999. Chapter 7, 'Analysing Texts'.

For further discussion related to specific research contexts, see

NOTES

1. See for example Threadgold, Terry. "Re-Writing Law as Post-Modern Fiction: The Poetics of Child Abuse." In The Happy Couple: Law and Literature, edited by J. N. Turner and P. Williams, 322-341. Sydney: Federation Press, 1994; Weisberg, R. Poethics. New York: Columbia University Press, 1992. return to text

2. See Eco, Umberto. The Limits of Interpretation. Edited by Thomas A. Seboek, Advances in Semiotics. Bloomington: Indiana University Press, 1994; Eco, Umberto, Richard Rorty, Jonathan Culler, and Christine Brooke-Rose. Interpretation and Overinterpretation. Cambridge: Cambridge University Press, 1992. return to text

3 Other readings referring to hermeneutics of tradition and suspicion: Danziger, Marie. “Policy Analysis Postmodernized: Some Political and Pedagogical Ramifications.” Policy Studies Journal 23, no. 3 (1995): 435-450. Toulmin, Stephen. “Concluding Methodological Reflections: Elitism and democracy among the sciences.” In Beyond Theory : Changing organizations through participation, edited by Stephen Toulmin and Björn Gustavsen. Amsterdam: John Benjamins, 1996. return to text

4. Hall, Stuart, Chas Critcher, Tony Jefferson, John Clarke, and Brian Roberts. Policing the Crisis: Mugging, the State and Law and Order. Basingstoke, Hampshire: Macmillan, 1978. For an Australian application of these methods in criminology see Russell Hogg and David Brown. Rethinking Law and Order. Annandale, NSW: Pluto Press Australia, 1998. return to text

Last reviewed: 25 October, 2011