Critical Hermeneutics: The Intertwining of Explanation and Understanding as Exemplified in Legal Analysis

Understanding and explanation are often viewed as oppositional: understanding is considered a search for the meaning a text provides, while explanation employs a critical, analytic method that maintains a distance from the text it interrogates. This Article demonstrates that in legal interpretation, understanding and explanation are not opposed but inextricably interconnected. Drawing first on the work of Robert Bork and Justice Antonin Scalia, this Article shows how elements of critique are present even within forms of legal interpretation that seek to maintain fidelity to the "understanding" of authorial meaning. Second, it illuminates the converse, that theories drawn to methods of explanation—such as Judge Richard Posner's invocation of the social sciences—must contextualize this evidence within larger, debatable theories of interpretive understanding. Third, critical hermeneutics provides a means to recast the interrelation of understanding and explanation in its portrayal of the circular intertwining between explanatory part and interpretive whole. Critical hermeneutics offers a method that accommodates the critiques Judge Posner has launched against "top down" (deductive) and "bottom up" (inductive) methods. Finally, this Article recovers a sense of "law" that encompasses both understanding and explanation. As in theories of evolutionary biology, law need not be based primordially on determinative explanation but can integrate explanation within a larger appeal to narrative understanding.