Thursday, June 30, 2022

Speaking As A Student…

...of textual analysis and interpretation (exegesis) across three disciplines (literature, law, biblical studies) , as well as philosophy and theology, I can say with some authority that I always thought “textualism” in legal analysis was crap. It’s so far behind the praxis of even literary analysis as I was studying it 44 years ago it’s just farcical to speak of it seriously. Textual analysis, literary analysis (in all its schools), exegesis, all rest on a premise of making an interpretation out of an analysis. But it is understood that interpretation is itself subject to interpretation, and all interpretations have their validities; or at least have to be considered and examined.

Textualism in legal analysis is a way of stifling examination by declaring the preferred argument to be the “right” interpretation, and defending that conclusion by appealing to the text as if such an appeal was objectively correct. It’s the appeal to objectivity that is the fundamental problem. That’s a 19th century posture which no modern school of analysis supports (not even science), Modern legal analysis clings to it even though it’s not the heritage of the common law or the history of legal reasoning.*

One of the bedrocks of legal analysis is the "reasonably prudent person."  This imagined creature, much discussed in jurisprudence and even case law, is not meant to be a purely objective observer or even creature; but a human being placed as centrally as possible in the situations presented by the law, and reacting to/understanding the reaction to, those situations.  So in a fraud case:  would a reasonably prudent person be defrauded, i.e., misled, by the alleged fraud?  Would they rely on the misrepesentations to their harm?  Would they expect the premises to be safe, only to be injured by their condition (the torts arising from premises liability).  It's a standard of understanding that tries to understand the situation, and the expectations the law can place on persons, from the point of view of an ordinary person of "reasonable prudence."  Not too stupid and gullible; not too smart and clever.

Textualism leans more toward the subjective interpretation of the judge/justice doing the analysis.  When the text alone is the guiding standard, what is the text, and how is it understood?  There are decades of discussion of this very subject in literary and even philosophical circles.  Literary analysis alone examines a text from psychological positions (primarily Freudiand and Jungian); from standards of cultural and historical sitatuations; from the very concept of a "text" and the use of language both as a tool of expression and of interpretation.  Legal textualism is much closer to:  "well, we know the words, and we know what they mean, so we can decide how this law should apply, or should have always been applied."

It's practically a reductio ad absurdum.  And perfectly indefensible outside the cloistered world of judicial review.  Which is not to the credit of judicial review, or statutory interpretation.

In other words, it's no wonder textualism in the law is a stricture that applies only when it suits the ideology of the judges wielding it.  That's all it was ever for: a ready-made argument to slap on any ruling to justify the conclusion.  Not as guidance to understanding the law or the ruling or even how to apply it in future cases where the facts can alter the outcome; but just as a shield to protect the preferred result long enough to impose it.  It was already a "get-out-of-analysis-free" card.  Scalia himself applied his form of textualism, "originalism," as it suited him.  He hung it on a hanger like a suit of clothes, wearing it only when the occasion warranted; otherwise leaving it in the closet when he didn't need it.  His progeny (Thomas and Barrett in particular) took him more seriously, and wear the suits for all occassions. But it was never more than "I can't get the result I wanted this way, so I'll get it that way" method of reasoning in the first place.

Now it's just hard, if not impossible, to ignore that.

*There are well-established standards for constitutional and statutory interpretation.  Textualism and its progeny (such as "originalism," which is greater load of crap than "textualism") abandons those, in the main, for a "new and improved" standard of analysis which is neither new, improved, nor demonstrably analytical.  And it is as objective as personal preferences in food or music; in other words, not at all.

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