Published online by Cambridge University Press: 20 July 2015
In this paper I consider the arguments for and against textualism, or the position that the meaning of a text can be ascertained solely by reference to the rules of grammar and the conventional meanings of the words used in the text. Textualism has a great deal of intuitive force and has been attractive to lawyers because it seems to advance the rule of law. Textualism promises to deliver accessible, objective, and clear meanings for legal texts, which in turn will achieve predictability, co- ordination, efficiency, and the constraint of state officials. My analysis concludes, however, that the arguments for the impossibility of textualism are convincing. What follows from this? Surprisingly little. Clear and compelling meanings for legal texts are still possible, as is the rule of law. Existing practices need to be redescribed— but not changed—as a result of textualism’s failure. Some of these redescriptions do upset the conventional self-understandings of lawyers (rewriting the law, for example, turns out to be a pervasive practice), but this does not matter much because practices and accounts of practices are independent things. Extensive changes made to one need not have effects on the other.
My thanks to Richard Bronaugh and John Smillie for helpful comments on earlier versions of this paper.
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8. Schauer, supra note 4 at 535. See also 537-39.
9. Ibid. at 526. See, too, 528: “Contextual understanding might be necessary to determine whether a given application does or does not serve the purposes of a rule’s framers. Yet the rule itself communicates meaning as well, although that meaning might depart from the purposes behind the rule or from the richer understanding to be harvested from considering a wider range of factors than the rule’s words. That we might learn more from considering additional factors or from more fully understanding a speaker’s intentions does not mean that we learn nothing by consulting the language of rules themselves.”
10. Ibid. at 544. See also 547-48: “More likely, formalism ought to be seen as a tool to be used in some parts of the legal system and not in others …. [W]e must ask what the legal system, in whole or in part, is supposed to do, for only when we answer that question can we determine what kinds of tools it needs to accomplish that task.”
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22. Alexander & Prakash, supra note 16 at 974-75 (“Argument One: Texts Cannot Declare the Language in Which they Are Written”).
23. Knapp & Michaels (2005), supra note 15 at 658.
24. “[W]hat the dictionary gives us is a record of the intentions previous speakers have had when using a word, a record, that is, of possible and multiple meanings absent any way of specifying which is the right (that is, intended) one; (and besides, the next intender may well extend the range of usage—that is often how lexical change occurs—in a way that will require the revision of the dictionary).” Fish (2005), supra note 17 at 644.
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33. Fish (2005), supra note 17 at 635.
34. Knapp & Michaels (1985), supra note 15 at 12.
35. Fish (2005), supra note 17 at 629.
36. Ibid. at 631.
37. Knapp & Michaels (2005), supra note 15 at 659. Alexander and Prakash also disparage the claims of those who say that they approach legislation as textualists by noting the way such people quickly abandon textualism when faced with cases of absurdity and “scrivener’s error.” They imagine a statute dealing with environmental pollution which has ten provisions dealing with “cars” and an 11th provision dealing with “cas.” Would a textualist judge decide that the 11th provision was gibberish? If the 11th provision referred to “carp,” would a textualist judge require emission control devices to be placed on fish? The fact that judges would correct the obvious typographical errors shows that they are not relying on conventional word meaning alone, but are relying on authorial intention. Alexander & Prakash, supra note 16 at 978-82 and Appendix I. For a textualist response, see Gold, Andrew S. “Absurd results, Scrivener’s Errors, and Statutory Interpretation” (2006) 75 U. Cin. L. R. 25 Google Scholar.
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39. Michaels, supra note 15 at 26.
40. Ibid.
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56. Ibid. at 510-11.
57. Fish (2005), supra note 17 at 643-44. See also Fish (1999), supra note 17 at 510: “[T]he assignment of intention can be, and often is, the occasion for dispute, and for a dispute that cannot be settled by pointing to the words since the words will only say what they will say in the light of an intention, and will say different things in the light of different intentions.”
58. Fish (2005), supra note 17 at 648-49. See also Fish (1999), supra note 17 at 510: “[T]he thesis that interpretation is the attempt to determine intention in no way privileges the author as an interpreter.”
59. Knapp & Michaels (2005), supra note 15 at 668.
60. Fish (2005), supra note 17 at 640.
61. Ibid. at 644-45.
62. Ibid. at 636-39.
63. Fish, supra note 27 at 94. See also 514-15, 523 and Fish, supra note 43 at 271.
64. Fish, supra note 32. See Alexander & Prakash, supra note 16 at 970, n. 3: “Whenever the precedent incorrectly interprets the intentions of the lawmakers, application of stare decisis in subsequent cases is obviously inconsistent with courts’ being faithful agents of the lawmakers …. Even when the precedent correctly interprets the intentions of the lawmakers, so that application of stare decisis in subsequent cases does not result in a departure from those intentions, the courts applying stare decisis will not be acting as the lawmakers’ faithful agents; rather, they will be acting as faithful agents of the precedent setting court.”
65. Fish (2008), supra note 17 at 1133-34 and 1144-45. See Knapp & Michaels (2005), supra note 15 at 659-60.
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70. Schauer may be an exception here. See supra note 10 and accompanying text.
71. Tamanaha, supra note 3, ch. 8 (“Instrumentalism in the Legal Profession”).
72. Fish, supra note 43 at 161.
73. For more detail, see Robertson, supra note 68.
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