Attentive Reading: A South African Example of Law in Context
Authors: Kris Franklin and Sarah E. Chinn
Perhaps the time has finally come to acknowledge the usually
subterranean battles in legal work over the deployment of historical and social
context in law. Lawyers, judges, and legal scholars are always implicitly asking:
what are we allowed to consider when we do legal analysis? How should we
read and understand law? For too long, revanchist forces have succeeded in
claiming ground to characterize the relevance (or, more often, irrelevance) of
structural inequality and oppression in law. But tides can always turn.
Ongoing and continually active debates about textualism, Chevron
deference, the role of science and expertise, and so forth make plain what
has always been contested in legal interpretation: where do the boundaries of
factual context reside, and what can/should readers focus on when reading
and understanding legal texts? In many ways such questions remain perennial ones
precisely because they defy easy resolution. We certainly cannot hope to settle them
in one interdisciplinary essay. We can, however, note that queries about
interpretive methodology are not trivial, and they are not neutral. Indeed,
they go to the very heart of what it means to think about law. And
consequently, what it means to think about our societies, and ourselves.