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Hermeneutics and Tradition: the Role of the Past in Jurisprudence and Theology

Published online by Cambridge University Press:  10 June 2011

Linell E. Cady
Arizona State University


The current disarray within the field of theology is readily apparent to anyone having even a cursory acquaintance with the issues and problems that have generated the most intense discussions during the past decade. Although substantive issues continue to elicit divergent perspectives, problems of method have increasingly come to the fore in theological discussion. The historical roots of this methodological crisis in theology have been long in the making. Whether one calls it the “eclipse of biblical narrative” with Hans Frei, the collapse of the “house of authority” as Edward Farley does, or the emergence of “theology as imaginative construction” as Gordon Kaufman does, theology is experiencing a radical revolution in the criteria and warrants which characterize persuasive argumentation. Put briefly, there is a growing sentiment that theology can no longer invoke authorities to buttress its claims but must make its case in a public forum without privileged warrants. Appeals to Scripture, tradition, or institutional decrees lack the sanction once accorded them.

Research Article
Copyright © President and Fellows of Harvard College 1986

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1 These depictions of contemporary theology can be found in the following: Frei, Hans, The Eclipse of the Biblical World View (New Haven: Yale University Press, 1974)Google Scholar; Farley, Edward, Ecclesial Reflection: An Anatomy of Theological Method (Philadelphia: Fortress, 1982)Google Scholar; Kaufman, Gordon, An Essay on Theological Method (Missoula: Scholars Press, 1975)Google Scholar; and idem, The Theological Imagination: Constructing the Concept of God (Philadelphia: Westminster, 1981).Google Scholar

2 See, e.g., the following: Harvey, Van, The Historian and the Believer (New York: Macmillan, 1966)Google Scholar; Tracy, David, The Analogical Imagination (New York: Crossroad, 1981)Google Scholar; Stout, Jeffrey, The Flight from Authority (Notre Dame: University of Notre Dame Press, 1981)Google Scholar; Maclntyre, Alisdair, After Virtue (Notre Dame: University of Notre Dame Press, 1981)Google Scholar; Taylor, Mark, Erring (Chicago: University of Chicago Press, 1984).Google Scholar

3 See esp. Harvey, Historian and Believer, and Stout, Flight.

4 This observation has been made, for instance, by Laurence J. O'Connell and William F. May in their discussions about the relationship between the fields of religious studies and theology. See O'Connell, , “Religious Studies, Theology, and the Humanities Curriculum,” JAAR 52 (1984) 731–37Google Scholar; May, “Why Theology and Religious Studies Need Each Other,” JAAR 52 (1984) 748–57.Google Scholar Also recognizing this as a key factor in religious studies’ suspicion of theology, Schubert Ogden argues it is only a problem when allied with theology's conventional self-understanding. That is, if theology is understood to employ special criteria of truth and to presuppose the belief of the theologian, then its focus on a single tradition does render it incompatible with current standards of critical reflection. If theology alters its conventional self-definition, by refusing to employ special criteria or demanding prior belief, as Ogden argues it should, then its study of a single tradition should not invalidate it in the eyes of the academy. See Ogden, , “Theology and Religious Studies: Their Difference and the Difference It Makes,” JAAR 46 (1978) 317.Google Scholar For an extended discussion of the relationship between religious studies and theology, see Cahill, P. Joseph, Mended Speech: The Crisis of Religious Studies and Theology (New York: Crossroad, 1982).Google Scholar

5 Gadamer, Hans-Georg, Truth and Method (New York: Seabury, 1975) 264.Google Scholar

6 ibid., 274–76.

7 ibid., 292.

8 I am indebted to Professor Jeffrie Murphy of Arizona State University for bringing Dworkin's hermeneutical studies in jurisprudence to my attention.

9 The typology which Dworkin elaborates performs more than a descriptive function in his writings. By clarifying the primary types of judicial reasoning, he hopes to expose their relative merits. My purpose in this essay is similar in that I am interested in more than simply identifying theological approaches. I hope to highlight some of the strengths and/or limitations of each type.

10 Dworkin, Ronald A., “‘Natural’ Law Revisited,” University of Florida Law Review 34 (1982) 178–80.Google Scholar

11 ibid., 173; Dworkin, Ronald, “Law As Interpretation,” Critical Inquiry 9 (1982) 195–96.CrossRefGoogle Scholar

12 Dworkin, “Law as Interpretation,” 199.

13 Dworkin, “Law Revisited,” 165–66.

14 ibid., 168.

15 Dworkin elaborates upon this illustration in both “Law as Interpretation,” 192–93 and “Law Revisited,” 166–68.

16 Dworkin, “Law Revisited,” 160.

17 ibid., 172.

18 Dworkin, “Law as Interpretation,” 196; idem, “Law Revisited,” 186.

19 Dworkin, “Law Revisited,” 181.

20 ibid., 187–88.

21 ibid., 182–83.

22 For the sake of clarity I will use Dworkin's labels to designate theological methods even though theologians do not use such labels themselves. Indeed the lack of corresponding labels in theology suggests a certain unclarity about alternate ways in which the past can function in theological argumentation.

23 Recent feminist works which treat methodological issues in depth include Ruether, Rosemary, Sexism and God-talk: Toward a Feminist Theology (Boston: Beacon, 1983)Google Scholar; Fiorenza, Elisabeth Schüssler, In Memory of Her: A Feminist Theological Reconstruction of Christian Origins (New York: Crossroad, 1983)Google Scholar; and idem, Bread Not Stone: The Challenge of Feminist Biblical Interpretation (Boston: Beacon, 1985).Google Scholar

24 The criticisms which Dworkin raises about the positivistic assumptions of this method are, of course, equally relevant to its theological version. The assumption that past authorities can be mechanically understood and followed, apart from our personal horizons, is deceiving.

25 Given the number of books (see nn. 1 and 2, e.g.) and articles attacking this form of argumentation, I am not going to reiterate here what has been said well before. My purpose in this article is, rather, to distinguish the traditional mode of theologizing from other types which appropriate the past in different ways. I am especially concerned to distinguish this classical form of argumentation from what Dworkin calls the naturalist form.

26 The Roman Catholic Church, for instance, has offered this argument in its “Declaration on the Question of Admission of Women to the Ministerial Priesthood” (Vatican City, 15 October 1976)Google Scholar cited in Ruether, Sexism and God-talk, 275.

27 Mollenkott, Virginia, “Women and the Bible,” in Gerald Anderson and Thomas Stransky, eds., Mission Trends No. 4: Liberation Theologies (New York: Paulist, 1979) 222.Google Scholar

28 ibid., 226.

29 Ruether, Sexism and God-talk, 24.

30 Although both Ruether and Mollenkott argue according to the naturalist theory of interpretation they do not entirely share the same rationale for their approaches. Ruether's appropriation of the past is based upon the need “to assure oneself that one is not mad or duped” or, expressed more positively, the need “to situation oneself meaningfully in history” (Sexism and God-talk, 18). By making the distinction between what in Scripture is for an age and what is for all time, Mollenkott comes close to the conventionalist rationale for basing one's position on the past. That is, she writes as though the Bible is authoritative and hence must inevitably contain truths for all time. Despite this assumption, however, her self-conscious procedure in interpreting the Bible falls within the naturalist framework. The different rationales for their respective uses of the past suggest that these three hermeneutical types exist along a continuum, a point which will become clearer below.

31 ibid., 23.

32 Although Schüssler Fiorenza raises some very important criticisms of Ruether's focus on the biblical text, her label of “neo-orthodoxy” is somewhat misleading. It suggests that Ruether construes the Bible as God's word, a position which her statements cited in the above note do not corroborate.

33 Schüssler Fiorenza, In Memory of Her, 56.

34 ibid., 41.

35 While there appears little justification for using strong rights talk, in a moral not a legal sense, in relation to the maintenance of religious traditions, there is a sense in which people have some claim to the preservation of their religious worlds. To be utterly indifferent as a theologian to continuity in religious beliefs and practices is to ignore an important factor in the well-being of persons and communities. However, the claim which religious believers have for continuity must be weighed against the demand for theological and moral truth. Naturalism attempts to balance these two demands whereas instrumentalism places very little weight upon the former, the need for continuity.

36 See, e.g., the following works by a philosopher, sociologist, and anthropologist, respectively: Goodman, Nelson, Ways of Worldmaking (Indianapolis: Hackett, 1978)Google Scholar; Berger, Peter, The Sacred Canopy: Elements of a Sociological Theory of Religion (Garden City: Doubleday/Anchor, 1969)Google Scholar; Geertz, Clifford, The Interpretation of Cultures (New York: Basic Books, 1973).Google Scholar For a discussion of this issue in relationship to religious experience, see Proudfoot, Wayne, Religious Experience (Los Angeles: University of California Press, 1985).Google Scholar

37 For the development of this point, see esp. Geertz, Interpretation of Cultures, 89–90.

38 Theology, therefore, can be distinguished from phenomenological and historical studies in religion by virtue of its constructive aim, to develop more adequate religious visions, not by virtue of any special pleading or the faith of the theologian.

39 For a similar argument from the perspective of theology, see Ogden, “Theology and Religious Studies.”

40 Consider Daly's constructive work or Taylor's deconstructive a/theology, for instance.

41 Tracy, Analogical Imagination, 172.

42 It is impossible for me to explore these questions within the boundaries of this essay. For a critical discussion of this issue see Smith, Jonathan Z., Map Is Not Territory: Studies in the History of Religions (SJLA 23; Leiden: Brill, 1978)Google ScholarPubMed and Proudfoot, Religious Experience.

43 In The Interpretation of Otherness: Literature, Religion, and the American Imagination (New York: Oxford University Press, 1979)Google Scholar Giles Gunn persuasively demonstrates the way in which literature can powerfully alter our visions of reality; see esp. 126–74.

44 See Geertz, Interpretation of Cultures, 109–12 and Berger, Sacred Canopy, 29–39.

45 One of the disanalogies between the areas of judicial law and theology involves the respective institutional role of the judge or theologian. The judge is hired by society to decide cases within the boundaries of the law, variously understood. We would not think that a judge were fulfilling the job requirements if he or she paid no regard to legal precedents. Although all theologians are affected by institutional pressures, ranging from course enrollments to publishing marketability, they do not fulfill an institutional role analogous to that of the judge. Insofar as the theologian is not hired to loyally interpret an existing order, as is a judge, she or he has greater freedom in relationship to past precedents. This increased freedom confers greater legitimacy to instrumentalism in theology than in jurisprudence. Some institutional settings of the theologian may approximate the institutional role of the judge, however. If, for instance, a theologian were employed by a denominational institution with the expectation that the theologian speak from and to that community, the instrumentalist approach would be less appropriate. For a very informative discussion of the various publics with which theology deals, see Tracy's Analogical Imagination, esp. chaps. 1 and 2.

46 Gadamer, Truth and Method, 245–49.

47 Tracy, Analogical Imagination, 100.

48 My primary aim in this essay is to defend naturalism, rather than to deny the legitimacy of instrumentalism. The very argument which supports naturalism, however, reveals the limitations, if not illegitimacy, of the instrumentalist approach.

49 See, e.g., Daly, Mary, Beyond God the Father: Toward a Philosophy of Women's Liberation (Boston: Beacon, 1973)Google Scholar; idem, Gyn/Ecology: The Metaethics of Radical Feminism (Boston: Beacon, 1978)Google Scholar; idem, Pure Lust: Elemental Feminist Theology (Boston: Beacon, 1984)Google Scholar; and Christ, Carol P., “Why Women Need the Goddess,” in Christ, Carol P. and Plaskow, Judith, eds., Womenspirit Rising (San Francisco: Harper & Row, 1979).Google Scholar

50 Ruether and Schüssler Fiorenza argue persuasively that it is sheer romanticism to abandon the reformation of a tradition in favor of discovering or creating alternative traditions. Insofar as the political, social, and religious realms remain patriarchal, women must modify these realities and reclaim the center, rather than locate “salvation” at the periphery of patriarchy, where Daly's sisterhood lies. Although this argument does not preclude the legitimacy of an instrumentalist hermeneutic, it does provide further grounds for pursuing the naturalistic alternative.

51 Perhaps conventionalism may be an exception. Dworkin's history of legal interpretation is a fascinating and seemingly devastating attack on the methodological rationale of conventionalism. His studies in legal history corroborate similar criticisms made against the theological version of this methodological approach.

52 Ruether, Sexism and God-talk, 16–18.