This post concerns an old and much-cited legal chestnut that I have come to think might be more profound (and more tied to “law and religion”) than first appears. It is also a bleg — a request for help from anyone out there with some expertise in medieval law or medieval Latin, or both.
William Blackstone, in his discussion of statutory interpretation in his Commentaries (first published 1765-69), refers to
the Bolognian law, mentioned by Puffendorf [sic], which enacted “that whoever drew blood in the streets should be punished with the utmost severity,” [and] was held after long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
The point here, of course, is that words should not be read literally if that would give them “a very absurd signification.”
Blackstone’s source, Samuel von Pufendorf, discusses this “case” in his “Law of Nature and Nations,” first published in 1672, and Pufendorf in turn cites a 1516 digest of legal arguments by Nicholas Everhard (aka Everardi, Everts, and several other names). Pufendorf, for example, adds that the defendant “was in no little peril because it was added in the statute that the words should be taken exactly and without any interpretation.” Everhard leaves out that tidbit, but does spin out the legal argument at greater length, and emphasizes that punishing the healer would be “absurd and inhuman,” not merely “absurd.”
Now, my intuition tells me that there’s more to this odd tale than meets the modern eye. Read more
Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I’m afraid. The review reflects on the nature and value of the canons of textual interpretation–the book’s primary focus. Indeed, it might have been better if the canons had been the book’s exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which–notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter–the canons create something like a linguistic tradition for lawyers. Here is a fragment:
Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .
Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.