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Michel Rosenfeld - Just Interpretations: Law Between Ethics and Politics (Philosophy, Social Theory and the Rule of Law , No 4)

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In pluralistic societies that lack common ethical, social, and political values, legal interpretation is constantly under siege. Just interpretationsthat is, interpretations that reflect a shared vision of justicemay become just interpretations in the sense of mere interpretations, rooted in the orientations and interests of different groups. Confronting this crisis in legal interpretation, Just Interpretations offers a critical appraisal of the principal theoretical trends in contemporary American and European jurisprudence and proposes an alternative approach. Michel Rosenfelds critique focuses on neoformalism, pragmatism, discourse theory, and legal autopoiesis, and includes discussions of such authors as Habermas, Rorty, Posner, Luhmann, Dworkin, Fish, and Weinrib. To overcome the drawbacks of these theories, Rosenfeld elaborates a theory of comprehensive pluralism, based on a substantive vision of pluralism. This approach, building on the insights of deconstruction, turns the fact of pluralism into a guiding normative imperative. Just Interpretations will attract the attention of constitutional scholars, political scientists, and critical theorists, and will also address an interdisciplinary audience interested in texts, interpretations, and postmodern concerns with justice.

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Just Interpretations: Law Between Ethics and Politics (Philosophy, Social Theory and the Rule of Law , No 4)

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Page i
Just Interpretations
Page ii
PHILOSOPHY, SOCIAL THEORY, AND THE RULE OF LAW
General Editors
Andrew Arato, Seyla Benhabib, Ferenc Fehr, William Forbath, Agnes
Heller, Arthur Jacobson, and Michel Rosenfeld
1. William Rehg, Insight and Solidarity:
A Study in the Discourse Ethics of Jrgen Habermas
2. Alan Brudner, The Unity of the Common Law:
Studies in Hegelian Jurisprudence
3. Peter Goodrich, Oedipus Lex:
Psychoanalysis, History, Law
4. Michel Rosenfeld, Just Interpretations:
Law between Ethics and Politics
Page iii
Just Interpretations
Law between Ethics and Politics
Michel Rosenfeld
Page iv University of California Press Berkeley and Los Angeles California - photo 2
Page iv
University of California Press
Berkeley and Los Angeles, California
University of California Press
London, England
Copyright 1998 by The Regents of the University of California
Library of Congress Cataloging-in-Publication Data
Rosenfeld, Michel, 1948
Just interpretations : law between ethics and politics / Michel
Rosenfeld.
p. cm. (Philosophy, social theory, and the rule of law ;
4)
Includes bibliographical references and index.
ISBN 0-520-21097-2 (cloth : alk. paper)
1. LawInterpretation and construction. 2. Law and ethics.
3. Law and politics. 4. LawPhilosophy. I. Title. II. Series.
K290.R67 1998
340'.112dc21 97-8384
CIP
Printed in the United States of America
1 2 3 4 5 6 7 8 9
The paper used in this publication meets the minimum requirements of American National Standard for Information SciencesPermanence of Paper for Printed Library Materials, ANSI Z39.48-1984 Picture 3
Page v
For Susan
Page vii
CONTENTS
Acknowledgments
xi
Introduction
1
Part One
The Demand for Just Interpretations
11
1. Deconstruction and Legal Interpretation, or the Uses of Derrida in the Face of an American Crisis
13
Picture 4
I. Deconstruction and the Crisis in Legal Interpretation
13
Picture 5
II. Deconstruction and the Relationship between Law and Politics
17
2. The Temptations of the New Legal Formalism: From the Bare Formalism of Fish to the Aristotelo-Kantian Formalism of Weinrib
33
Picture 6
I. The Bare Formalism of Fish
34
Picture 7
II. The Aristotelo-Kantian Formalism of Weinrib
45
3. Just Interpretations? Law, Violence, and the Paradox of Justice
55
Picture 8
I. The Paradox of Justice and the Inevitability of Violence
56
Picture 9
II. Reconstructing the Links between the Forms and Domains of Justice in Light of Its Impossibility
62
Picture 10
III. Justice, Violence, and the Necessity of Just Interpretations
83
Part Two
Justice and the End of Interpretation
87
4. Justice Confined: Luhmann's Turn to Autopoiesis and Self-Referential Legal Interpretation
89
Picture 11
I. Justice According to Law, Justice against Law, and Autopoiesis
89
Picture 12
II. Law and the Breakdown of the Unity of Justice Beyond Law
95

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