W(h)ither Judgment

Abstract

Meaning is messy. Since our notions of justice often demand clarity from the law, some jurists have set themselves to the task of cleaning it up. Textualists home in on the written word as the key to unlocking clarity. But the textualist’s endeavor is less the crusade of a purist than it is the tinkering of a technologist. Textualists labor in hopes they might develop algorithms that would allow them to escape the queasy uncertainty that comes with the exercise of judgment. If only they could consult the right dictionary or apply the right rule—or even build the right search engine—they could, the theory goes, ensure the certain and consistent construction of legal texts, word by word.

That project is founded on an incomplete view of language and meaning. Seventy-five years ago, J.L. Austin recognized that sometimes people do things rather than simply describe things with words—they sanctify marriages, settle scores, swear oaths, level threats. Words don’t just describe the world; they shape it. With that simple insight, Austin complicated any effort to deduce a statute’s meaning from the words on the page. And when Austin then failed to parse the ‘performative’ utterances from the ‘descriptive’ ones—recognizing that every meaningful statement is indelibly both—he put the lie to what’s become textualists’ fundamental assumption: that meaning is determined exclusively by the words’ descriptive content, and that context, authority, audience, and circumstance play no role in answering questions of interpretation.

But the pure textualists’ project is not only misguided, it is self-defeating. In pressing for a detached and mechanized approach to resolving quandaries of meaning, the textualists’ project rests on the principle that judges are not to be trusted, and that judgment should be avoided. But trust is the currency of the judiciary, and the erosion of trust imperils the rule of law.

Keywords: textualism, originalism, philosophy of law, interpretation, corpus linguistics

JEL Classification: K10