My Review of “Reading Law” by Justice Scalia and Bryan Garner

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.

Conference: Revelation and Interpretation: Legal Interpretation of Religious Texts, at NYU

For those who are able to make it, the Journal of Law, Religion and the State (a project of the Tikvah Center for Law & Jewish Civilization) is putting on its third annual conference at NYU, entitled, Revelation and Interpretation: Legal Interpretation of Religious Texts.  The conference will take place September 11-12.  The speakers come from all over the world and the subjects under discussion look really terrific.  More details here.  (Thanks to my good friend Ittai Bar-Siman-Tov for the pointer)

Levy, “Holy Scripture and the Quest for Authority at the End of the Middle Ages”

An absolutely wonderful looking book dealing with religion and political and legal authority round about the 15th century by Ian Christopher Levy (Providence College), Holy Scripture and the Quest for Authority at the End of the Middle Ages (Notre Dame 2012).  And note some very similar issues of textual interpretation which we see in our own day.  The publisher’s description follows.

All participants in late medieval debates recognized Holy Scripture as the principal authority in matters of Catholic doctrine. Popes, theologians, lawyers—all were bound by the divine truth it conveyed. Yet the church possessed no absolute means of determining the final authoritative meaning of the biblical text—hence the range of appeals to antiquity, to the papacy, and to councils, none of which were ultimately conclusive. Authority in the late medieval church was a vexing issue precisely because it was not resolved.

Ian Christopher Levy’s book focuses on the quest for such authority between 1370 and 1430, from John Wyclif to Thomas Netter, thereby encompassing the struggle over Holy Scripture waged between Wycliffites and Hussites on the one hand, and their British and Continental opponents on the other. Levy demonstrates that the Wycliffite/Hussite “heretics” and their opponents—the theologians William Woodford, Thomas Netter, and Jean Gerson—in fact shared a large and undisputed common ground. They held recognized licenses of expertise, venerated tradition, esteemed the church fathers, and embraced Holy Scripture as the ultimate authority in Christendom. What is more, they utilized similar hermeneutical strategies with regard to authorial intention, the literal sense, and the appeal to the fathers and holy doctors in order to open up the text. Yet it is precisely this commonality, according to Levy, that rendered the situation virtually intractable; he argues that the erroneous assumption persists today that Netter and Gerson spoke for “the church,” whereas Wyclif and Hus sought to destroy it.

Levy’s sophisticated study in historical theology, which reconsiders the paradigm of heresy and orthodoxy, offers a necessary adjustment in our view of church authority at the turn of the fifteenth century.

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

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Gross on Emergency Measures in Jewish Law

Oren Gross (U. of Minn. Law School) has posted Violating Divine Law: Emergency Measures in Jewish Law. The abstract follows.

Judaism is a thoroughly legal culture. Structured around the concept of mitzvot (commandments), Jewish law regulates both the public sphere of social and political interactions and the private sphere of human conduct. Jewish law is founded on a single source of legal authority, i.e., divine will as it is expressed in the Torah that was revealed to Moses at Sinai and transmitted down the generations. Yet, applying the Torah’s principles and rules to everyday life requires further decision-making in the processes of interpretation, application and administration of the law. Jewish law embraces the principle of human decision-making responsibility by recognizing the exclusive competence of halakhic authorities to determine the meaning of the Torah by way of interpretation and exegesis.While laws and regulations that are put in place by halakhic authorities without having a direct basis in the biblical text are binding they cannot contradict or overturn primary (divine) legislation. To the extent that they purport to do so, they would be “unconstitutional” and invalid.

Yet, the paper argues that this has not always been the case. The first argument is that dealing with such questions as could rules promulgated by the halakhic authorities go so far as to practically “overrule” the divinely ordained law of the Torah and could the sages permit or even command that which the Torah forbids, or prohibit that which under the Torah had been allowed, Jewish law has always given these questions a qualified affirmative answer despite the divine source of the Torah law. The second claim is that the legal basis for the sages’ ability to make emergency decisions and adopt emergency measures is not entirely clear. In fact, the paper argues that the ambiguity about the legal foundation of such radical authority or power is purposeful. While some halakhic authorities identify the source of their authority as present within the framework of the law, others seem to recognize that their actions had been lacking legal authority. Rather than invoking their widely-recognized broad interpretative powers and attempt to make the claim that their actions and decisions had been in accordance with the dictates of the Torah they accept, albeit tacitly, the need to act in contravention of the Torah.

Stanley Fish, Intentionalism, and Law Teaching

Stanley Fish has an interesting column about teaching law with specific reference to learning about constitutional law and the religion clauses.  He says much that I agree with and that picks up on at least some of the themes in his entertaining, Save the World on Your Own Time.

A small but, I think, important feature of the column is the emphasis on (his variety of) intentionalism or purposivism to understand legal doctrine.  He writes: 

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