This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?” The question implies an adversarial relationship between science and the humanities, or law-and-humanities. The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program). We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.
In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain. Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few. Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.
A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.” Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.
By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering. Science is indispensable to the humanities, and vice versa; the two work in concert. The findings in one influence the findings in the other. Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities. At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.
The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic. For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law. Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights. It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.
There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced. The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large. It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.




Antonin Scalia, Bryan A. Garner, Commentaries on American Law, Frank H. Easterbrook, H.L.A. Hart, James Kent, Lon L. Fuller, Oliver Wendell Holmes Jr., originalism, Reading Law, Stanley Fish, Textualism, The American Spectator, The Common Law, The Concept of Law, The Morality of Law
The Law is Above the Lawyers
In Arts & Letters, Book Reviews, Conservatism, Humanities, Jurisprudence, Law, Legal Research & Writing, Literary Theory & Criticism, The Supreme Court, Writing on October 3, 2012 at 8:45 amThis review appeared here in The American Spectator.
Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (Thomson West, 2012)
Do not let its girth fool you: Reading Law by U.S. Supreme Court Justice Antonin Scalia and legal writing guru Bryan A. Garner is an accessible and straightforward clarification of originalism and textualism.* A guide for the perplexed and a manual of sorts for judges, this book presents 57 canons of construction. Each canon is formatted as a rule — e.g., “When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent” — followed by a short explanation of the rule.
Frank H. Easterbrook, who provided the foreword to the book, submits that originalism is not about determining legislative intent, but construing legislative enactment. In other words, originalists interpret as strictly as possible the words of the particular text and do not look to the earlier maze of political compromises, equivocations, and platitudes that brought about the text. Each legislator has unique intent; projecting one person’s intent onto the whole legislative body generates a fiction of vast proportion.
That the process of enacting a law is so rigorous and convoluted suggests the importance of adhering closely to the express language of the law; legislators, after all, have taken into account the views of their constituents and advisors and have struggled with other legislators to reach a settlement that will please enough people to obtain a majority. A judge should trust that painstaking process and not overturn or disregard it.
Originalism involves what Stanley Fish, the eminent Milton scholar and literary critic turned law professor, has called “interpretive communities.” That is the very term Easterbrook employs to describe how judges should account for cultural and communal conventions at the time a text is produced: “Words don’t have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text’s adoption understood those words.”
To be sure, the original meaning of a text — what reasonable people living at the time and place of its adoption ordinarily would have understood it to mean — is never fully accessible. The meanings of old laws are particularly elusive. When a judge can no longer identify the context of a law by referring to dictionaries or legal treatises available when it was promulgated, then he should defer to the legislature to make the law clearer.
Judges should not impose their interpretative guesses onto the law and, hence, onto the people; nor should judges make new law on the mere supposition, however reasonable, that a text means something that it might not have meant when it was written. “Meaning” is itself a slippery signifier, and it is in some measure the aim of this book to simplify what is meant by “meaning.”
The book is not all about grammar, syntax, and punctuation. It has philosophical and political urgency. The authors propose that the legal system is in decline because of its infidelity to textual precision and scrupulous hermeneutics. A general neglect for interpretive exactitude and consistency has “impaired the predictability of legal dispositions, has led to unequal treatment of similarly situated litigants, has weakened our democratic processes, and has distorted our system of governmental checks and balances.” All of this has undermined public faith in lawyers and judges.
Scalia and Garner, who recently teamed up to write Making Your Case: The Art of Persuading Judges (Thomson West, 2009), proclaim themselves “textualists,” because they “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” Most of us, they say, are textualists in the broadest sense; the purest textualists, however, are those who commit themselves to finding accurate meanings for words and phrases without regard for the practical results.
Consequences are the province of legislators. A judge ought to be a linguist and lexicographer rather than a legislator; he or she must be faithful to texts, not accountable to the people as are elected officials. (Leaving aside the issue of elected judges at the state level.) The authors seem to be suggesting that their approach needn’t be controversial. Originalism and textualism are simply names for meticulous interpretive schemes that could lead judges to decisions reflecting either conservative orliberal outcomes. One doesn’t need to be a fan of Scalia to appreciate the hermeneutics in this treatise.
Never have we seen a plainer, more complete expression of originalism or textualism. Reading Law could become a landmark of American jurisprudence, numbered among such tomes as James Kent’s Commentaries on American Law, Oliver Wendell Holmes Jr.’s The Common Law, H.L.A. Hart’s The Concept of Law, and Lon L. Fuller’s The Morality of Law. Although different from these works in important ways, Reading Law is equally ambitious and perhaps even more useful for the legal community, especially on account of its sizable glossary of terms, extensive table of cases, impressive bibliography, and thorough index.
Every judge should read this book; every lawyer who cares about law in the grand sense — who takes the time to consider the nature of law, its purpose and role as a social institution, and its historical development — should read this book as well. If Scalia and Garner are correct that the general public no longer respects the institutions of law, then this book is valuable not only for revealing the root causes, but also for recommending realistic and systematic solutions.
* Originalism and textualism are not the same thing; this review treats them as interchangeable only because Judge Easterbrook’s forward uses the term “originalism” whereas Scalia and Garner use the term “textualism,” but each author appears to refer to the same interpretive approach.
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