Jack Balkin, Yale Law School; Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence (original) (raw)

Instead of seeing legal coherence as a preexisting feature of an object apprehended by a subject, we should view legal understanding as something that the legal subject brings to the legal object she comprehends. Because the legal subject is herself socially constructed, we must consider how her social construction leads her to understand the legal system or its parts as possessing or lacking coherence. The goal of this approach is not to replace all inquiries about the legal object with those about the legal subject; it is rather to see the subject and object of legal interpretation as equal partners in the constitution of the legal system. We must pay greater attention to the legal subject now only because we have paid it so little attention before.