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Freedom Friday: Reading Law

In a free society, law is not written to control, but to protect free citizens. But the law cannot protect us if it has no discernible fixed meaning. Proper interpretation of the law, therefore, is a matter of paramount importance. The job of the interpreter, the judge, is the same as that of the theologian and preacher: to accurately explain the meaning of the text, not as they wish it to be, but as the writers intended. Sadly, with increasing frequency, we are seeing the former. Just as we in the church are seeing preachers mold the text to their own preferences, we are seeing in the courts judges who bending the law to meet their desired ends.


Is it an exaggeration to say that the field of interpretation is rife with confusion? No. Although the problem of tendentiously variable readings is age-old, the cause is not: the desire for freedom from the text, which enables judges to do what they want.

Distortion of text to suit the readeré─˘s fancy is by no means limited to the law. in the field of literature, T.S. Eliot warned about literary critics who forget that they are dealing with a text and instead find in a work such as Hamlet é─˙a vicarious existence for their own artistic realization.é─¨ They substitute é─˙their own Hamlet for Shakespeareé─˘s.é─¨ The practice of injecting oneé─˘s thoughts into texts has long been given free rein in some schools of scriptural exegesisé─ţso long, in fact, that scholars have the practice its own disreputable came: eisegesis. The antonym of exegesis, the term eisegesis denotes the insertion of the readeré─˘s own ideas into the text, making the reader the full collaborator with the original author and enabling the introduction of all sorts of new material. For eisegetes, the possibilities are endless.

Liberation from the text is attractive to judges as well. It increases their ability to do what they think is good. Unlike Shakespeare producers and theologians, judges are pressured by the environment in which they operate. In our adversarial system, one sideé─ţthe side with a bad argumenté─ţhas an incentive to urge departure from (or distortion of) text. It was about early nontextual expositors that John Locke wrote when he asked: é─˙[Does] it not often happen that a man of an ordinary capacity very well understands a text or a law that he reads, till he consults an expositor, or goes to counsel; who, by the time he [has] explain[ed] them, makes the words signify either nothing at all, or what he pleases?é─¨

é─ţAntonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts (Thompson/West, 2012), 9é─ý10 [bold type added].

Pray for judges who will read the law like we want our preachers to read the Bible, and vote accordingly.

Posted 2012·12·28 by David Kjos
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Posted in: Antonin Scalia · Reading Law
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