The Interpreter, the Scientist, and the Analyst

Stanley Fish and Bernhard Schlink agree that there can be no rule for finding a correct legal interpretation. Each, however, offers a negative rule to recognize incorrect interpretations. Schlink asserts that incorrect interpretations can be eliminated through the scientific method of falsification. Fish claims that any interpretation not concerned with the author’s state of mind must be rejected. Unfortunately, Fish’s insistence on authorial intent could be read as downplaying the role of the interpreter. Although interpretation is objective in that it involves the examination of an object, it is not merely objective. Communication is collaboration; interpretation needs an interpreter. It is intersubjective. But interpretation cannot be relegated entirely to the intersubjective “symbolic” order where language and law is located. The symbolic can never be disentangled from the orders of the “imaginary” and the “real” that are its logical boundaries. Interpretation has a subjective aspect because it requires the creative act of the interpreter’s imagination. Schlink recognizes that a subjective moment of hypothesis formation is essential to interpretation but tries to distinguish it from a subsequent objective or intersubjective testing process. There is no rule that can disprove our legal interpretations. This is why judging is always a moral act.