Tuesday, July 24, 2012

Reading Law: The Interpretation Of Legal Texts, by Scalia and Garner

I started out just recommending this book's Introduction, free as a sample on Kindle, as a good argument for, quite compelling really, what's known as Textualism.

What follows from the Introduction is an elaboration of quite a few canons of construction (including talking about construction as construing, which judges should be doing, and construction as building, which judges shouldn't be doing) which I thought I would take a pass on.

I however started reading them and find their elaboration fascinating and instructive, full of case examples of the "fair reading" theory of Textualism, based primarily on a narrow conception of judges' constrained role in a democracy of interpreting and applying law and not making law.

For example, who truly understands what Originalism is? I, in the end, didn't, though I thought I did.

It's a canon of semantic interpretation under the broader theory of Textualism. It calls for legal words to have the meanings they had when the law was enacted. It distinguishes between the fixed meaning of the law and its evolving application to new conditions. It takes a strong and persuasive view against the idea of the "living constitution," which I did not understand well enough, though I thought I did.

This canon seems unobjectionable to me. What's the argument against it, I wonder?

For non lawyers, at a minimum the Introduction is a great civics lesson. And for people who think about literature the defence of Textualism provides a robust defence of the virtues of the New Criticism.

For any teachers, the Introduction would be a terrific thought piece for senior high school students taking history, philosophy, civics or law courses.

It's well written too with good brief case examples. It's accessible to anyone interested and thoughtful, agree with its arguments or not.

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