I had a round and round debate with my near polar opposite philosophically. Essentially, he maintained that all interpretations were themselves just choices, and that there is no definitive, objective right answer to legal, moral, or philospohical questions. That all of these reasoning processes are highly contextualized and that it’s an illusion to posit right answers based on purported objective truth outside of the values of a particular community. Moreover, he argued that such confusion about “certain knoweldge” can lead to undemocratic rule by minorities, i.e., elites.
The debate was useful, not least because it forced me to articulate some of my views on these subjects more clearly, viz.:
[My opponent's] nominmalism/subjectivism on the other hand is more comprehensive, relating not just to legal knowledge but also moral right. That’s why the question of “how do we bind or persuade the community” becomes so relevant. Out of a surfeit of concern for any limitations on democracy, it abandons the moral foundations of such a liberal democracy, which is supposed to be grounded in certain truths about human nature and the nature of states. Without such a grounding, democracy’s defenders are reduced to saying, “I like democracy” and to dismissing as stylized rhetoric any attempt at articulating a rigorous system of moral, legal, or political philosophy.
[My opponent's] remark above, “But I recognize that the ‘truths’ that I believe in cannot be proven in any rational way to be ‘objective’ or ‘outside’ the context in which they exist. I recognize that the attempt to posit them as such is really just a rhetorical ploy,” is just another way of saying that philosophy, theology, and the like are not generating any real knowledge or development of understanding in these fields. There complicated treatises and books are simply very stylized ways of saying, “I want this” or, a la Cheap Trick, “I want you to want this too.”
The problem is that well organized minorities and run-amuck majorities have often proven capable of violating the rights of others. The only problem [in this world] is not democracy and protecting it through a comprehensive philosophy of skepticism, with majority rule as a default. There is also the problem of illiberalism, and to argue against and prevent illiberalism one must appeal persuasively to values outside the mere preferences of a majority–whether enlightened or otherwise. While potentially undemocratic, a well grounded moral philosophy presents a viable means of resisting both tyrannical majorities and minorities, by persuading such groups that they’re wrong.
Such knowledge is necessary (and possible) here for the same reason it is in science. There is an outside world apart from any of our perspectives on it. Human beings have an apprehensible nature without regard to whether one or another individaul or group is mistaken about the details of that nature. Nature is not simply meaningless [or morally neutral], in my view. It has built within it certain ends. For anmials these ends are pursued unreflectively, but human beings must pursue these ends through reflection and in a state of freedom. This fact of a common nature is the foundation of potential moral knowledge and moral consenesus. (I plead guilty to being a through-going Aristotelian in this regard).
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Your opponent: “[Have] Barthes and Derrida et al really had so little effect on other areas of study . . . that are concerned with textual interpretation?”
We can only pray.
I just hit upon a thought: It may be that the main difference between textualists/originalists and others is precisely that the former believe that we cannot, indeed should not, interpret the law the same way we interpret language, while the latter see no reason why we shouldn’t treat them equally.
In other words, some people try to read the law the same way they read literature, in that the words have meaning but there is a deeper meaning to glean as well. There are themes, ideals, motives, etc. lying underneath even simple prose. These people have no problem looking at the Constitution, reading the words therein, and then thinking, “this document is really reaching for DEMOCRACY [or other such thing],” and then applying those perceived dictates within to achieve that ideal/goal/higher meaning.
On the other side, there are people who see the law as a functional edifice, the purpose of which is to arbitrate conflicts, punish criminals, and relegate the power of the State. This is not literature, any more than the rules to Scrabble are literature. These people read the Constitution not to glean ideals or higher meanings, but to resolve the day-to-day problems that arise in society. And these tend to be the originalists/textualists.
Is it just me, or does this illuminate a key difference between the two groups? Law as literature vs. Law as law only?
I’m not sure I disagree. While I think more sophisticated textualists and originalists recognize that concerns for structure and purposes should play some role in interpreting the language used in the Constitution, they also believe that new meanings hsould not be interjeted into it from without, such as in changing social valus. In this respect, classic literary criticism and originalism are similar, as distinct from those that deny the possibility of understanding and the importance of new meanings coming into being in light of contemporary values.
That said, remembering that the Constitution and government generally must address practical issues and problems should be a useful counterbalance to the flights of fancy that certain legal theorists take.