1. Pelikan, Jaroslav, Interpreting the Bible & the Constitution (Yale U. Press 2004)CrossRefGoogle Scholar.

2. I endorse Nietzsche's famous “dangerous maybe” as expressing a willingness to break from bivalent thinking and embrace the realm of rhetorical engagement that deals only with probabilities. Mootz, Francis J. III, Nietzschean Critique and Philosophical Hermeneutics, 24 Cardozo L. Rev. 967 (2003)Google Scholar. Nietzsche criticizes philosophers for being unwilling to recognize that truth is deeply connected to deception, and he insists on asking the dangerous question: is the value of truth

insidiously related, tied to, and involved with these wicked, seemingly opposite things—maybe even one with them in essence. Maybe!

But who has the will to concern himself with such dangerous maybes? For that, one really has to wait for the advent of a new species of philosopher, such as have somehow another converse taste and propensity from those we have known so far—philosophers of the “dangerous maybe” in every sense.

Nietzsche, Friedrich, Beyond Good and Evil, ¶2 at 10–11 (Kaufmann, Walter trans., Vintage Books 1966)Google Scholar.

3. Garver, Eugene, Aristotle's Rhetoric: An Art of Character 183 (U. Chi. Press 1994):Google Scholar

To rule on the basis of the law alone is a character flaw. Aristotle condemns the man who stands on his rights in demanding an ethically excessive sort of precision concerning justice in the distribution of goods… Similarly here. To argue on the basis of reason alone is a character flaw, a failure of éthos, and therefore a failure to persuade. Excessive precision is in both cases unethical because it takes something which should be within the range of praxis and judgment and makes it into a subject for more precise, scientific determination.

4. Infra nn. 35-41, and accompanying text.

5. My review essay highlights a particular theme emerging from Pelikan's work. For a more general review essay, see Kalscheur, Gregory L. S.J., Christian Scripture and American Scripture: An Instructive Analogy, 21 J. L. & Relig. 101–142 (2005-2006)CrossRefGoogle Scholar.

6. Pelikan's book was first delivered as four talks at the Yale Law School in 2003 under the joint auspices of the Law School and the Divinity School, which were then prepared for publication.

7. Pelikan, supra n. 1, at 38. In a wonderful example, he cites me passage from scripture in which Jesus says “[s]earch the [s]criptures,” noting that it is ambiguous whether this is a divine imperative that girds literalist biblical exegesis or whether it is an indictment of those so busy reading holy texts that they don't look to the face of God. Id. at 42.

8. Id. at 55-56.

9. Id. at 115.

10. Id. at 122.

11. Id. at 76-114.

12. Id. at 119-149.

13. Id. at 124 (quoting Newman, John Henry, An Essay on the Development of Christian Doctrine 171 (U. Notre Dame Press 1969)Google Scholar (originally published 1878).

14. Id. at 123.

15. Id. at 125.

16. Id.

17. Id. at 133.

18. Id. at 134-137. Pervasive racism in America has shaped the constitutional doctrines announced in Plessy, Korematsu and Brown, Pelikan writes, and so the task is to determine if the assimilation of such external principles are valid or invalid in light of the developing textual tradition. Id. at 136-137.

19. Id. at 137-140. Pelikan suggests that Marbury v. Madison succeeds by presenting its conclusions as the logical deductions of constitutionalism itself, such that one cannot reject the Marbury development of tradition without rejecting the constitutional structure itself. Id. at 140.

20. Id. at 140-142. Thus, Brown v. Bd. of Educ. is offered by the Court as the fulfillment of anticipations stretching back to the Bill of Rights and the Fourteenth Amendment, although these anticipations were certainly “vague and isolated.” Id. at 142.

21. Id. at 143-146.

22. Id. at 146 (quoting Newman's 1878 rev. ed.).

23. Id. at 149.

24. Id.

25. The following synopsis of Gadamer's philosophy is best explained in detail in his magnum opus, Gadamer, Hans-Georg, Truth and Method (Weisnsheimer, Joel & Marshall, Donald G. rev. & trans., 2d rev. ed. Crossroad Publg. 1989)Google Scholar. For my application of these themes to legal theory, see Mootz, Francis J. III, Rhetorical Knowledge in Legal Practice and Critical Legal Theory (U. Ala. Press 2006)Google Scholar.

26. Gadamer, supra n. 25, at 190.

27. Id. at 266-267.

28. Heidegger emphasizes that to see viciousness in the hermeneutical circle of historical understanding “and to look for ways to avoid it, even to ‘feel’ that it is an inevitable imperfection, is to misunderstand understanding from the ground up.… What is decisive is not to get out of the circle, but to get in it in the right way.” Heidegger, Martin, Being and Time 143 (Stambaugh, Joan trans., SUNY Press 1996)Google Scholar (p. 153, 7th German ed. 1953).

29. Gadamer discusses this problem in broader terms by discussing the role of experience in the development of moral-practical wisdom. A person can't make an ethical choice without having practical wisdom, but practical wisdom can't be cultivated except by making ethical choices. Following Aristotle, Gadamer argues that this situation highlights the centrality of experience as the means by which this hermeneutical circle of decision and action is enacted. Gadamer, supra n. 25, at 346-362.

30. Paul Ricoeur famously mediated the Gadamer-Habermas dispute, arguing in a charitable and responsible fashion that Gadamer's hermeneutics tended to discount the possibility and role of critique. See Ricoeur, Paul, Hermeneutics and the Critique of Ideology, in From Text to Action: Essays in Hermeneutics, II (Thompson, John B. trans., Northwestern U. Press 1991)Google Scholar. Ricoeur seeks to secure faith against the suspicions of modernity and the naivite of tradition.

31. See Mootz, Francis J. III, The Quest to Reprogram Cultural Software: A Hermeneutical Response to Jack Balkin's Theory of Ideology and Critique, 76 Chi-Kent L. Rev. 945, 977–989 (2000)Google Scholar (arguing that Gadamer's philosophy is profitably read in this manner through the work of P. Christopher Smith and Calvin Schrag).

32. Gadamer, supra n. 25, at 306-307.

33. Gadamer emphasizes that it is the willingness to engage a text, fueled by a belief that the text has something to offer, that generates critical distance. Gadamer equates a text with a conversation partner, and so the following quote applies equally to a reader who seeks to interpret a text.

Who has not had the experience—especially before the other whom we want to persuade—of how the reasons that one had for one's own view, and even the reasons that speak against one's own view rush into words. The mere presence of the other before whom we stand helps us to break up our own bias and narrowness, even before he opens his mouth to make a reply. That which becomes a dialogical experience for us here is not limited to the sphere of arguments and counterarguments the exchange and unification of which may be the end meaning of every confrontation. Rather, as the experiences that have been described indicate, there is something else in this experience, namely, a potentiality for being other [Andersseins] that lies beyond every coming to agreement about what is common.

Gadamer, Hans-Georg, Text and Interpretation, in Dialogue and Deconstruction: The Gadamer-Derrida Encounter 21, 26 (Michelfelder, Diane P. & Palmer, Richard E. eds., Schmidt, Dennis J. & Palmer, Richard E. trans., SUNY Press 1989)Google Scholar.

34. After completing this essay, I discovered that George Taylor has made a very similar argument about the implications of Paul Ricoeur's critical hermeneutics. See Taylor, George H., Derrick Bell's Narratives as Parables (unpublished manuscript on file with author, to be published in 31 N.Y.U. Rev. L. & Soc. Change (forthcoming 2006))Google Scholar. In the course of arguing that Derrick Bell's narratives should be regarded as parables rather than analogies, Taylor considers Ricoeur's famous discussion of die dynamic interplay between symbolic religious meaning and the need to interpret this meaning without draining the symbol of its complexity and opacity, stating:

How does this tension between symbol and thought or the metaphoric and the speculative operate? Ricoeur's answer is unabashed. The relationship is circular: “We must understand in order to believe, but we must believe in order to understand.” We must believe in order to understand: the interpreter will never come near to what a text says unless he or she lives “in the aura of the meaning that is sought.” The interpreter need not necessarily “believe-with,” share the faith of the home community or the individual author, but “reading and interpretations through imagination and sympathy [are] the minimum condition for access to the meaning of the[] texts.” In two senses we must also understand in order to believe. We must decipher the poetic meaning by interpretation, and we must apply interpretive tools—such as textual criticism, historical criticism, and literary criticism—so that we may hear again, so that we may hear what the text is trying to say.

Does the interpretive circle permit critique? Yes. The circle is not viciously circular—autologous, simply self-confirming—but alive and dynamic. More broadly, Ricoeur differentiates die elements of understanding as comprised of both understanding—the sympadietic regard for meaning—and explanation—analytic inquiry. Understanding is mediated by explanation.

Id. at 36-37 (quoting Ricoeur, Paul, The Symbolism of Evil 351 (Buchanan, Emerson trans., Beacon Press 1969Google Scholar) and Ricoeur, Paul, The Nuptial Metaphor, in LaCocque, Andre & Ricoeur, Paul, Thinking Biblically xvii (Pellauer, David trans., U. Chi. Press 1998)Google Scholar).

35. I contend that Vattimo helps to show how we might read Gadamer and Nietzsche together productively, and reject Vattimo's overly sharp distinction between his hermeneutical philosophy of “weak thought” rooted in Nietzsche and the later Heidegger, and Gadamer's philosophical hermeneutics rooted in both the early and later Heidegger. Mootz, supra n. 2, at 1017-1026.

36. Vattimo suggests that demythification “has finally turned against itself,” and “the untenability of scientistic and historicist rationalism—both of which repudiated the very possibility of religion—has been widely accepted as a given in our culture.” Vattimo, Gianni, Belief 29 (d'Isanto, Luca & Webb, David trans., Stanford U. Press 1999)Google Scholar. As Vattimo's translator summarizes,

Nietzsche's nihilism opens, paradoxically, the way to the recovery of the divine in our culture. The disappearance of the moral-metaphysical God (the foundation principle of metaphysics), then, may signify that the divine source may announce itself in the drift of interpretation.

Luca d'Isanto, Introduction, in Vattimo, Id. at 1, 16-17.

On a personal level, Vattimo argues that he was attracted to the philosophies of Heidegger and Nietzsche precisely because they spoke to a Christian substrate that remained part of him even while becoming disaffected under the conditions of modernity.

In short: I have begun to take Christianity seriously again because I have constructed a philosophy inspired by Nietzsche and Heidegger, and have interpreted my experience in the contemporary world in the light of it; yet in all probability I constructed my philosophy with a preference for these authors precisely because I started with the Christian inheritance, which I have now found again, though, in reality, I had never abandoned it.

Vattimo, Belief, supra, at 33.

37. Vattimo, Gianni, The Trace of the Trace, in Religion 79–94 (Derrida, Jacques & Vattimo, Gianni eds., Webb, David trans., Stanford U. Press 1996)Google Scholar. Vattimo writes:

Perhaps not by its essential nature, but de facto,… religion comes to be experienced as a return. In religion, something that we had thought irrevocably forgotten is made present again, a dormant trace is reawakened, a wound re-opened, the repressed returns, and what we took to be an Uberwindung (overcoming, realization and thus a setting aside) is no more than a Verwindung, a long convalescence that has once again come to terms with the indelible trace of its sickness.

Id. at 79.

38. Vattimo, supra n. 36, at 70.

39. This frequent theme in Vattimo's work is perhaps most succinctly stated in Vattimo, Gianni, Beyond Interpretation: The Meaning of Hermeneutics for Philosophy 109 (Webb, David trans., Stanford U. Press 1997)Google Scholar.

40. Vattimo's “weak thought” represents a return to the wisdom of rhetoric now that the project of metaphysical thinking has dissembled. Vattimo's “project of nihilism is to unmask all systems of reason as systems of persuasion, and to show that logic—the very basis of rational metaphysical thought—is in fact only a kind of rhetoric.” Snyder, Jon R., Translator's Introduction, in Vattimo, Gianni, The End of Modernity: Nihilism and Hermeneutics in Postmodern Culture vi, xii (Snyder, Jon R. trans., Johns Hopkins U. Press 1988)Google Scholar. Vattimo makes clear that his rejection of metaphysical truth, Truth with a capital “T,” does not mean that we cannot experience truth in a manner that is subject to interpretation, debate and persuasion. He describes his philosophy as “a way, however ‘weak,’ of experiencing truth, not as an object which can be appropriated and transmitted, but as a horizon and a background upon which we may move with care.” Vattimo, End of Modernity, supra, at 13.

41. D'Isanto, Introduction, supra n. 36, at 13-14.

42. After writing this essay, I came across Steven Smith's intriguing paper, Hollow Men? Law and the Declension of Belief. Steven Smith, Hollow Men? Law and the Declension of Belief (U. San Diego Legal Studies Research Paper No. 06-03, Feb. 2005) (available for download from Social Science Research Network, http://ssrn.com/abstact=672681). Smith argues that belief is the defining feature of our humanity.

We are creatures oriented to truth, and yet… in our mortal, finite, fallen condition, our grasp of truth is tenuous. For the most part, we walk by faith seeing through a glass darkly, believing as well and as truly as we can: that seems to be our distinctive fate and our special glory. And what we most essentially are—as individuals, as societies—is to a significant extent determined by what we centrally believe.

Id. at 3. Smith bemoans the declension of belief, in which notions of belief and truth are downgraded to pragmatically useful fictions in a world in which we no longer see anything beyond or behind positive law, Id. at 9-13, and he examines how actual legal practice subverts this intellectualized declension, Id. at 19-23. Smith aligns himself with a Christian hermeneutics that would have substantial critical bite, uncovering the necessity and role of belief in law.

43. Spong, John Shelby, Why Christianity Must Change or Die: A Bishop Speaks to Believers in Exile 20 (Harper 1998)Google Scholar.