Last week in my post about Popperian Falsificationism, I quoted at length from Michael Oakeshott’s essay “Rationalism in Politics.” Rereading Oakeshott’s essay reminded me that Oakeshott’s work also casts an unflattering light on the faux-conservative jurisprudential Originalism, of which right-wing pretend-populists masquerading as conservatives have become so enamored under the expert tutelage of their idol Justice Scalia.
The faux-conservative nature of Originalism was nowhere made so obvious as in Scalia’s own Tanner Lectures at the University of Utah College of Law, “Common-Law Courts in a Civil-Law System” in which Scalia made plain his utter contempt for the common-law jurisprudence upon which the American legal system is founded. Here is that contempt on display in a mocking description of how law is taught in American law schools.
It is difficult to convey to someone who has not attended law school the enormous impact of the first year of study. Many students remark upon the phenomenon: It is like a mental rebirth, the acquisition of what seems like a whole new mode of perceiving and thinking. Thereafter, even if one does not yet know much law, he – as the expression goes – “thinks like a lawyer.”
The overwhelming majority of the courses taught in that first year of law school, and surely the ones that have the most impact, are courses that teach the substance, and the methodology, of the common law – torts, for example; contracts; property; criminal law. We lawyers cut our teeth upon the common law. To understand what an effect that must have, you must appreciate that the common law is not really common law, except insofar as judges can be regarded as common. That is to say, it is not “customary law,” or a reflection of the people’s practices, but is rather law developed by the judges. Perhaps in the very infancy of the common law it could have been thought that the courts were mere expositors of generally accepted social practices ; and certainly, even in the full maturity of the common law, a well established commercial or social practice could form the basis for a court’s decision. But from an early time – as early as the Year Books, which record English judicial decisions from the end of the thirteenth century to the beginning of the sixteenth – any equivalence between custom and common law had ceased to exist, except in the sense that the doctrine of stare decisis rendered prior judicial decisions “custom.” The issues coming before the courts involved, more and more, refined questions that customary practice gave no answer to.
Oliver Wendell Holmes’s influential book The Common Law – which is still suggested reading for entering law students – talks a little bit about Germanic and early English custom. . . . Holmes’s book is a paean to reason, and to the men who brought that faculty to bear in order to create Anglo-American law. This is the image of the law – the common law – to which an aspiring lawyer is first exposed, even if he hasn’t read Holmes over the previous summer as he was supposed to. (pp. 79-80)
What intellectual fun all of this is! I describe it to you, not – please believe me – to induce those of you in the audience who are not yet lawyers to go to law school. But rather, to explain why first-year law school is so exhilarating: because it consists of playing common-law judge. Which in turn consists of playing king – devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind. What a thrill! And no wonder so many lawyers, having tasted this heady brew, aspire to be judges!
Besides learning how to think about, and devise, the “best” legal rule, there is another skill imparted in the first year of law school that is essential to the making of a good common-law judge. It is the technique of what is called “distinguishing” cases. It is a necessary skill, because an absolute prerequisite to common-law lawmaking is the doctrine of stare decisis – that is, the principle that a decision made in one case will be followed in the next. Quite obviously, without such a principle common-law courts would not be making any “law”; they would just be resolving the particular dispute before them. It is the requirement that future courts adhere to the principle underlying a judicial decision which causes that decision to be a legal rule. (There is no such requirement in the civil-law system, where it is the text of the law rather than any prior judicial interpretation of that text which is authoritative. Prior judicial opinions are consulted for their persuasive effect, much as academic commentary would be; but they are not binding.)
Within such a precedent-bound common-law system, it is obviously critical for the lawyer, or the judge, to establish whether the case at hand falls within a principle that has already been decided. Hence the technique – or the art, or the game – of “distinguishing” earlier cases. A whole series of lectures could be devoted to this subject, and I do not want to get into it too deeply here. Suffice to say that there is a good deal of wiggle-room as to what an earlier case “holds.” In the strictest sense, the holding of a decision cannot go beyond the facts that were before the court. . . .
As I have described, this system of making law by judicial opinion, and making law by distinguishing earlier cases, is what every American law student, what every newborn American lawyer, first sees when he opens his eyes. And the impression remains with him for life. His image of the great judge — the Holmes, the Cardozo — is the man (or woman) who has the intelligence to know what is the best rule of law to govern the case at hand, and then the skill to perform the broken-field running through earlier cases that leaves him free to impose that rule — distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches his goal: good law. That image of the great judge remains with the former law student when he himself becomes a judge, and thus the common-law tradition is passed on and on. (pp. 83-85)
In place of common law judging, Scalia argues that the judicial function should be confined to the parsing of statutory or Constitutional texts to find their meaning, contrasting that limited undertaking to the anything-goes practice of common-law judging.
[T]he subject of statutory interpretation deserves study and attention in its own right, as the principal business of lawyers and judges. It will not do to treat the enterprise as simply an inconvenient modern add-on to the judges’ primary role of common-law lawmaking. Indeed, attacking the enterprise with the Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.
The state of the science of statutory interpretation in American law is accurately described by Professors Henry Hart and Albert Sacks (or by Professors William Eskridge and Philip Frickey, editors of the famous often-taught-but-never-published Hart-Sachs materials on the legal process) as follows:
Do not expect anybody’s theory of statutory interpretation, whether it is your own or somebody else’s, to be an accurate statement of what courts actually do with statutes. The hard truth of the matter is that American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.
Surely this is a sad commentary: We American judges have no intelligible theory of what we do most. (pp. 89-90)
But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning; but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning. The ascendant school of constitutional interpretation affirms the existence of what is called the “living Constitution,” a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society. And it is the judges who determine those needs and “find” that changing law. Seems familiar, doesn’t it? Yes, it is the common law returned, but infinitely more powerful than what the old common law ever pretended to be, for now it trumps even the statutes of democratic legislatures.
If you go into a constitutional law class, or study a constitutional-law casebook, or read a brief filed in a constitutional-law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. Judges simply ask themselves (as a good common-law judge would) what ought the result to be, and then proceed to the task of distinguishing (or, if necessary, overruling) any prior Supreme Court cases that stand in the way. Should there be (to take one of the less controversial examples) a constitutional right to die? If so, there is. Should there be a constitutional right to reclaim a biological child put out for adoption by the other parent? Again, if so, there is. If it is good, it is so. Never mind the text that we are supposedly construing; we will smuggle these in, if all else fails, under the Due Process Clause (which, as I have described, is textually incapable of containing them). Moreover, what the Constitution meant yesterday it does not necessarily mean today. As our opinions say in the context of our Eighth Amendment jurisprudence (the Cruel and Unusual Punishments Clause), its meaning changes to reflect “the evolving standards of decency that mark the progress of a maturing society.”
This is preeminently a common-law way of making law, and not the way of construing a democratically adopted text. . . . The Constitution, however, even though a democratically adopted text, we formally treat like the common law. What, it is fair to ask, is our justification for doing so? (pp. 112-14)
Aside from engaging in the most ridiculous caricature of how common-law judging is conducted by actual courts, Scalia, in describing statutory interpretation as a science, either deliberately misrepresents or simply betrays his own misunderstanding of what science is all about. Scientists seek to discover anomalies, contradictions, and gaps within a received body of conjectural knowledge by finding solutions for those anomalies and contradictions and finding new hypotheses to explain gaps in knowledge. And they evaluate their work by criticizing the logic of their solutions and hypotheses and by testing those solutions and hypotheses against empirical evidence.
What Scalia calls a science of statutory interpretation seems to be nothing more than a set exegetical or hermeneutic rules passively and mechanically applied to arrive at a supposedly authoritative reading of the statute without regard to the substantive meaning or practical implications of applying the statute after those exegetical rules have been faithfully applied. In other words, the role of judge is to skillfully read and interpret legal texts, not to render a just verdict or decision, not unless, that is, justice is tautologically defined as the outcome of the Scalia-sanctioned exegetical/hermeneutic exercise. Scalia fraudulently attempts to endow this purely formal approach to textual exegesis with scientific authority, as if by so doing he could invoke the authority of science to override, or annihilate, the authority of judging.
Here is where I want to invite Michael Oakeshott into the conversation. I quote from his essay “Political Education” reprinted as chapter two of his Rationalism in Politics and Other Essays.
[A] tradition of behaviour is a tricky thing to get to know. Indeed, it may even appear to be essentially unintelligible. It is neither fixed nor finished; it has no changeless centre to which understanding anchor itself; there is no sovereign purpose to be perceived or inevitable direction to be detected; there is no model to be copied, idea to be realized, or rule to be followed. Some parts of it may change more slowly than others, but none is immune from change. Everything is temporary. Nevertheless, though a tradition of behaviour is flimsy and elusive, it is not without identity, and what makes it a possible object of knowledge is the fact that all its parts do not change at the same time and that the changes it undergoes are potential within it. Its principle is a principle of continuity: authority is diffused between past, present, and future; between the old, the new, and what is to come. It is steady because, though it moves, it is never wholly in motion; and though it is tranquil, it is never wholly at rest. Nothing that ever belonged to it: we are always swerving back to recover and make something topical out of even its remotest moments; and nothing for long remains unmodified. Everything is temporary, but nothing is arbitrary. Everything figures by comparison, not with what stands next to it, but with the whole. And since a tradition of behaviour is not susceptible of the distinction between essence and accident, knowledge of it is unavoidable knowledge of its detail: to know only the gist is to know nothing. What has to be learned is not an abstract idea, or a set of tricks, not even a ritual, but a concrete, coherent manner of living in all its intricateness. (pp. 61-62).
In a footnote to this passage, Oakeshott added the following comment.
The critic who found “some mystical qualities” in this passage leaves me puzzled: it seems to me an exceedingly matter-of-fact description of the characteristics of any tradition — the Common Law of England, for example, the so-called British Constitution, the Christian religion, modern physics, the game of cricket, shipbuilding.
I will close with another passage from Oakeshott, this time from his essay Rationalism in Politics, but with certain terms placed in parentheses to be replaced with corresponding, substitute terms placed in brackets.
The heart of the matter is the pre-occupation of the [Originalist] (Rationalist) with certainty. Technique and certainty are, for him, inseparably joined because certain knowledge is, for him, knowledge that is, which not only ends with certainty but begins with certainty and is certain throughout. And this is precisely what [textual exegesis] (technical knowledge) appears to be. It seems to be a self-complete sort of knowledge because it seems to range between an identifiable initial point (where it breaks in upon sheer ignorance) and an identifiable terminal point, where it is complete, as in learning the rules of a new game. It has the aspect of knowledge that can be contained wholly between the covers of a [written statutory code], whose application is, as nearly as possible, purely mechanical, and which does not assume knowledge not itself provided in the [exegetical] technique. For example, the superiority of an ideology over a tradition of thought lies in the appearance of being self-contained. It can be taught best to those whose minds are empty: and if it is to be taught to one who already believes something, the first step of the teacher must be to administer a purge, to make certain that all prejudices and preconceptions are removed, to lay his foundation upon the unshakeable rock of absolute ignorance. In short, [textual exegesis] (technical knowledge) appears to e the only kind of knowledge which satisfies the standard of certainty which the [Originalist] (Rationalist) has chosen. (p. 16)
Uneasy Money 