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07/28/2020

Francis Joseph Mootz: At Play in the Fields of the Law
Michael Ramsey

Francis Joseph Mootz (University of the Pacific - McGeorge School of Law) has posted At Play in the Fields of the Law (The Philosophy of Play (Jeremy Sampson, ed., Vernon Press 2021, forthcoming) (17 pages) on SSRN.  Here is the abstract:

Hans-Georg Gadamer famously uses the metaphor of play to illustrate the ontological nature of understanding. Under his account, a reader seeking to understand a text brings her horizon of pre-understanding into dialogue with the unfolding effective-history of the text. The resulting to-and-fro, which exhibits “the logic of question and answer,” is playful in nature. Prejudgments are refined, amended or abandoned in the process. Gadamer concludes that the best experience of coming to understand is ordinary conversation, in which two participants learn through a ludic give-and-take.

Gadamer also argues that legal practice has exemplary significance for his philosophical hermeneutics, which would appear to mean that legal practice is an estimable instance of play in action – of playfulness. But, can we take this claim seriously? Would any person who has been caught up in the justice system regard law as “playful” and “conversational?” Sandy Levinson offers a witty retort: “As Chairman Mao pointed out, a revolution is not a tea party, and the massive disruption in lives that can be triggered by a legal case is not a conversation.” Robert Cover emphasizes the point more dramatically with one of the most noteworthy opening lines of a law review article: “Legal interpretation takes place in a field of pain and death.” In this chapter I reject the criticism that Gadamer fundamentally misunderstands the serious nature and effect of legal interpretation in his work and argue that legal practice does indeed exemplify his ontological claim that understanding results from being-at-play.

I unfold my argument in five parts. First, I provide a close reading of Gadamer’s account of play to explore the contours of this central metaphor. Second, I discuss how Gadamer situates the phenomenological experience of “being played” within a larger frame. Play is not just a random experience of giving oneself up to an amorphous playful exchange. Rather, it is structured such that the play is experienced as an event, often in a ritualistic frame. There is a seriousness about play to which we must attend. Third, I connect play to legal practice. Gadamer does not directly describe how legal interpretation is “playful,” and so it is necessary to recreate his implicit argument. Fourth, I develop the implications that Gadamer’s layered analysis of play, ritual and event holds for contemporary jurisprudential debates engendered by “new originalism,” which seeks to locate legal meaning as a fixed element of the past that is not amendable to contemporary playful interpretation. I argue that judgment is the heart of legal practice, and judgment is the product of play. Contemporary originalist theorists seek to impose the rigors of empirical science on legal meaning. This approach founders on ontological shoals, because legal practice is a structured play that is realized in discrete events that participate in ritualistic belonging.

Finally, I conclude that the ethic of play is much more demanding than one might assume. My claim that legal practice is playful by nature is a deeply serious assertion that has important ethical implications that extend far beyond a naive view of play as a frivolous indulgence. If we adopt Gadamer’s ontological argument, we must accept that our nature as interpretive beings implies an ethic of understanding, a challenging call of conscience to which we must respond. The ethic of lawyering well is intimately linked with the playful character of understanding. This is not a regrettable admission that legal practice is unconstrained. Quite the contrary, the ludic ethic of legal practice is the ground of the rule of law and therefore a critical foundation for social life.