Mark Washofsky

How does this approach to rationality apply to law? It begins by envisioning law as a community of interpretation and practice. As I have noted, legal theorists of widely divergent political views have rejected foundationalism, the notion that legal reasoning is a value free, neutral method that stands apart from the practice of law in order to render an objective critique of the work and writings of legal actors. Legal reasoning is rather embedded within the practices and the culture of specific legal communities; it is the name we give to the cluster of techniques, conventions, and traditions that describe what lawyers do and thus comprise the craft of law."® This turn in jurisprudential thought draws heavily upon numerous and diverse sources: the writings of the pragmatic philosophers," Ludwig Wittgenstein, "” and the scholars identified with philosophical hermeneutics''* and in the contemporary“recovery of rhetoric.” It is committed to the proposition that law is a social practice or, to put it differently, a language, a set of texts and of ways of arguing about their meaning that is the vernacular of a particular legal community. 2’ To understand law in this way allows one to concede that legal truth is, when tested against the standard of objective, philosophical certainty, radically indeterminate. Good arguments can usually be made for either side of a contested point of law, so that a firm and sure perception of“truth” is well-nigh unattainable.’ Thus, while jurists might well approach their work on the faith that there does exist“one right answer” to any particular legal question, that answer cannot be identified with anything approaching absolute certainty.'* Yet the very nature of law as a language or social practice preserves it from the acids of indeterminacy and radical skepticism. Legal decision may well involve choices among alternatives, but lawyers and judges are not free to rule arbitrarily, to impose any choice they wish. The choice may not be determined by the law’s rules and principles; it is directed, nonetheless, by the fact that lawyers and judges make that choice as lawyers and judges. This means, first and foremost, that they approach the work of interpretation in a communal way, as