Theorizing Disagreement: Reconceiving the Relationship Between Law and Politics (original) (raw)
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The Politics of Statutory Interpretation: The Hayekian Foundations of Justice Scalia's Jurisprudence
Hastings Constitutional Law Quarterly (Forthcoming 2015)
Over the years, Justice Scalia’s approach to statutory interpretation has generated both controversy and analysis. Yet while scholars have debated various aspects such as textualism, originalism, the use of dictionaries and so on, there has been no comprehensive account that seeks to harmonize these diverse strands into one, seamless web of overall justification. With the 2012 publication of Reading Law, Justice Scalia’s composite account of the canons of statutory interpretation, the need is now even more acute. This article aims to do just that. It argues that careful attention to Justice Scalia’s judicial and extra-judicial writings reveals that underlying all the rules, canons and principles is a particular, normative vision of the rule of law and formal equality, values that he considers paramount and guiding. Furthermore, at an even deeper level, these values are derived from a vision of the good society that was most famously – and completely – articulated by the conservative 20th century philosopher, Friedrich Hayek. Concrete interpretive techniques, such as Justice Scalia’s use of dictionaries, his antipathy towards legislative history, his approach to precedent – are ultimately derived, via the rule of law, from foundational values that are pervasively and inescapably normative and political. Thus, the intellectual success of his interpretive account depends ultimately on how convincing and persuasive we – his interlocutors – find his philosophical foundations. The broader point is that any clash between philosophies of statutory interpretation, in the final analysis, is a clash between norms; and it is only by interrogating those underlying norms can we fully understand – and thus, defend or critique, as the case may be – the statutory interpretation accounts of judges and scholars.
Textualism, Constitutionalism, and the Interpretation of Federal Statutes
Wm. & Mary L. Rev., 1990
I. THE CONTEMPORARY CONTROVERSY OVER STATUTORY INTERPRETATION Academic ferment concerning "interpretatIon" has clearly reached the "heady brew" stage. And, with partIcular reference to statutory interpretatIon, commentators have recently staked out positions representing most of the major currents and crosscurrents of legal scholarship. As with most topics that become "hot" in the law journals, there is thunder on the right,l lightnIng on the left,2 as well as attempts to do more than muddle In the middle. s Yet, whether commentators emphaSIZe the potentially chaotic or self-interested nature of legislation,4 the internally contradictory or radically subjective nature of norms,5 or the
"Same As It Ever Was: Rethinking the Politics of Legal Interpretation."
1989
This article, which places the development of the "law-and-interpretation" or "legal hermeneutics" school of legal scholarship in historical and political context, is meant to serve as an accessible introduction to the literature on legal hermeneutics. The author situates the law-and-interpretation debate in the context of intellectual developments in the humanities and social sciences, and points out some of its empirical and theoretical limitations. While a great deal of the literature on legal hermeneutics either ignores the politics of interpretation or deals with it superficially, claiming it to be outside of the scope of inquiry of those interested in the field of legal study, the author suggests that politics is in fact constitutive of the very act of interpretation.
E. T.: The Extra-Textual in Constitutional Interpretation
1984
In reviewing laws for constitutionality, should our judges confine themselves to determining whether these laws conflict with norms derived from the written Constitution? Or may they also enforce principles of liberty and justice when the normative content of those principles is not to be found within the four corners of our founding document?" I In two oft-cited articles Professor Thomas C. Grey has answered these questions, contending that judges who appeal to sources beyond the written document are acting as the framers wished. The implications of this conclusion are potentially far-reaching. For if Grey is right, then freewheeling judicial review can be justified even by reference to that most conservative of constitutional standards: the framers' intentions. Who then will take seriously the case for principled judicial restraint? Grey claims that the natural rights tradition of the 18th century created a reservoir of legally binding principles that could be drawn upon by judges as an unwritten constitution, supplementary to the written one. Rejecting this approach, some scholars have argued that the natural rights tradition is (and was originally perceived to be) irrelevant to constitutional interpretation.2 This article defends an intermediate position: that the written Constitution was meant to embody the natural rights commitments of the framers, and that therefore judicial appeals to "higher law," for example, are not justifiable to the extent that they lead to a distinction between written and unwritten constitutions. From this perspective the positivists are correct in their insistence upon the exclusive authority of the written document, but fundamentally misguided in their understanding of the nature of this docu
Four Fragments on Doing Legal History, or Thinking with and against Willard Hurst
2021
What does it mean to know law-to understand legal sources-as existing in historical time? That is the question, or rather, my question. Not how to mine a legal archive to make social or cultural or political or economic generalizations about a historical moment or an era. Not how to find the origins of the legal present, the power or failure of a regulation, or any number of other questions that historians and others today pose about law. Here my concerns are epistemological and jurisprudential. When I as a historian identify something as law, and when I find myself seduced by a legal source-by a trial transcript, a lawyer's brief, a judicial opinion, a passage in a treatise, a letter or memoir of a litigant, a justification for a statute, or an interpretation of that statute-what is it that I am seduced by? I have only glimmers of answers for the questions that consume me.
1999
Several legal theorists have recently explored the idea that constitutional law has a canon, a set of greatly authoritative texts that above all others shape the nature and development of constitutional law. In a piece published earlier this year in the Harvard Law Review, Jack Balkin and Sanford Levinson enter that discussion and argue that the constitutional canon has heretofore laid too much emphasis on court cases in general and on opinions of the Supreme Court in particular. In the course of their argument, they cite an earlier study of constitutional law casebooks currently in use to show that certain cases are, by consensus, indispensable to a knowledge of constitutional law. In parallel to the function that anthologies of literature perform in fields like English, Balkin and Levinson note, casebooks play a large role in the construction of the constitutional canon. According to the study they cite, ten Supreme Court cases appear in every one of the eleven major casebooks inc...
Textualism and legal interpretation: the canons of legal interpretation of Antonin Scalia
Jogtudományi Közlöny
In the age of written law, in the last two hundred years of Western legal development, the meaning of the written text of legal norms was the starting point for any jurist to research the case-specific meaning of the law of a particular country and to make judgments, etc., based on the case. However, the extent to which this text is decisive for the legal decision of a case varies greatly, depending on the legal view of the jurist who applies the written law to the case. Indeed, the abstract text of the law contains only the most important facts, and cases always appear to the jurist applying the law with many, many details, and depending on the weight he attaches to these details - or whether he considers some of them together with the facts corresponding to the law in question - he may attach different meanings to them and even apply his judgment of a particular case to other legal provisions. Similarly, if one uses a general principle of law or a category of legal doctrine to assess the facts of the case and considers the guidelines of the legislation in light of it, one may in turn take the assessment of the case in different directions. Similarly, when the underlying statutory text is considered together with previous supreme court jurisprudence, the text may be given a different meaning than when it is considered alone. Finally, there is also the possibility that the judge will include fundamental constitutional rights in his or her assessment of the case and attempt to interpret the text of the statutory provision in question in light of those rights. Thus, the question arises to what extent, in addition to the primary importance of the statutory text, the latter is to be regarded as determinative for the case decision and when one can go beyond the text and draw on the decisional power of the other legal layers and include the context of legal principles and legal doctrinal categories as well as previous higher court jurisprudence and the requirements of fundamental rights in the legal decision. In my own earlier work, I mainly analyzed the possible implications of the different legal layers in interpreting the law and tried to show the role of the different legal layers in interpreting the law in the prevailing legal view in some European and North American countries, but I did not analyze the exact scope of the law while pointing out the primacy of the textual level (Pokol 2001). Perhaps the most important contemporary proponent of the textualist view of law, U.S. Supreme Court Justice Antonin Scalia, has published a new book, "Reading Law. The Interpetation of Legal Texts" (Thomson and West 2012), and it provides an opportunity to analyze in more detail the role of the textual level of law in interpreting law at different levels of law. Scalia's co-author on this book, as on an earlier one published in 2008, is his young colleague Bryan A. Garner, a linguist and legal linguist. Thomson and West Edition. 2008.) Since this book is essentially just a continuation of a particular version of textualism that Scalia had developed over many years, I identify with him in the positions he takes in this book, and for simplicity's sake I interpret the book below as his ideas.