4.0185 "Text" and "Law" (1/55)

Elaine Brennan & Allen Renear (EDITORS@BROWNVM.BITNET)
Thu, 14 Jun 90 17:42:01 EDT

Humanist Discussion Group, Vol. 4, No. 0185. Thursday, 14 Jun 1990.

Date: Thu, 14 Jun 90 10:58 EST
From: "Peter D. Junger" <JUNGER@CWRU>
Subject: It ain't the law's fault

Mike Heim of Cal State Long Beach writes that:

Western religious and Western legal systems base their
legitimacy on an authoritative word, whether the word of God or
the lawmakers' statutes on the books. Our religious and legal
traditions deem essential the search for the original meaning
and hence the original text. The author's original meaning
(found in the word) establishes the rule of moral and legal
life, and these together constitute the code of conduct.

As a law teacher this seems to me a very questionable proposition. Our
tradition in the United States (with the exception of Louisiana) is that
of the English Common Law, which is most definitely _not_ based on
statutes. Although it is traditional to say that the Common Law is not
written law, it is as a matter of fact incorporated in written
texts--the reports (aka stories) of earlier law cases which are
_interpreted_ by the oracles of the law (in Blackstone's wonderful
phrase) the judges (whose predecessors wrote--or, in the case of English
judges, perhaps only told--the stories that they are interpreting).

Mike Heim's statement reeks--though perhaps I have sensitive
nostrils--of `legal positivism', the nasty idea that law is (nothing
but) the command of the sovereign. In particular, the dogma that the
`original intent' of the framers of the United States Constitution
should govern today's interpretation of our fundamental law, a doctrine
that was subscribed to by the Reagan administration, represents a
political effort to turn the clock back to a time when there were
minimal protections of civil rights rather than an intellectually
defensible legal interpretation. (There are arguments for paying respect
the to original intent--and stronger arguments that, in any interesting
case, there is no original intent to refer to--but these are arguments,
not givens.)

I raised the question of the interpretation of those texts or formulae
that are used to start the wheels of the law agrinding--which struck me
much like the problem of interpreting those texts, if they are texts,
which serve as computer programs. The interpretation of the Sibyline
books containing the reports of law cases is another matter. That type
of interpretation undoubtedly has much in common with the interpretation
of stories in the Bible--or the Sutras--but, though those texts may be
treated as being `authoritative', they do _not_ (with the exception of
the Ten Commandments and some other thou-shalt-not's) consist of rules
that are to be obeyed.

I do not believe that it is fair to blame the law--as to the issue of
blaming God I take no position--for the Western tendency to think that
_the Answer_ is lurking in a text. A lot of lawyers and some law
teachers are afflicted with this sort of naivety, but I think that that
is a disease that they acquired from other elements of our society--like
philosophers and Sunday school teachers.

Peter D. Junger--CWRU Law School--Cleveland, Ohio