Introduction and Recap:

Building on the previous post, I will examine in greater detail how Rationalism and Progressive thinking have made their way into the philosophy of law, practices of interpretation, and Supreme Court jurisprudence.

In the last piece, I contrasted the common law and its grounding in natural law, with contemporary movements and their intellectual underpinnings. The forces that have constituted a countervailing trend to the Western tradition in the intellectual domain are best thought of as constructivist, and rationalist in nature. That is to say, principles and values are ultimately constructed by human communities, and therefore somewhat arbitrary and contingent. Rather than precedent evolving and emerging in specific and local contexts, laws and regulations are to be designed and imposed rationally from the top down and cover more jurisdictional space without regard for the particularities of the place onto which they are imposed.

Segment 1: Positivism and Interpretation

In this piece, I’ll look at how these different historical trends are embodied in contemporary legal philosophy. Legal positivism is the idea that law does not contain any necessary connection to natural law and justice but is simply a fact that demands coercion and obedience. The most common way to understand and apply the law is through the ‘interpretivist’ framework, in which interpretation goes beyond ordinary meaning, existing precedent and foundational documents to include the ‘intention’ of authors, the contemporary culture, and more. The approach to understanding the constitution associated with the interpretivist approach is to see it as a ‘living’ document, that must constantly be reinterpreted in light of changing values.

Segment 2: Culture wars in the Courts

Today, the courts are increasingly seen as a battle ground in the culture war. Naturally so, for progressives came to recognize that the law is inherently conservative, as it is a body of doctrine, with rules and principles grounded in precedent and practical reason. It is thus a barrier to their otherworldly reforms that sometimes know no bounds.

The United States Supreme Court has seen some of the most dramatic culturally and politically sensitive cases. The politicization of the court is something that other countries like Canada have avoided, but I will argue that it is only because the progressive worldview is already embedded therein. Proof in point is the dominance of the ‘Living Tree’ doctrine, which is a concrete embodiment of the principle of absolute relativism in foundational principles.

Segment 3: Positive vision

Finally, I will point to the principles that must be recovered if the law is to endure and adapt to changing circumstances – these being realism, natural law and natural rights, concepts that I described in parts 2 and 3.

Recap: Rationalism to Positivism and Free-wheeling Interpretation

The terms ‘rationalism’ and ‘progressive’ are loaded terms with many meanings, and they ought not be thought of as coherent movements. However, they do capture prominent ways of thinking, and I refer to them as such in the following ways.

Rationalist thinking is fundamentally constructive. It is abstract at the expense of particular context, history, and often neglectful of truths that are accessible to a more comprehensive, historically informed and down to earth form of reasoning – in other words, wisdom. Those who subscribe to it are not content with the truths of human nature, indeed they seek to transform and overcome our nature in the pursuit of an idea. It is therefore imperative that a rational blueprint for the future be devised and implemented through the social engineering of new forms of life. This is to be achieved by expanding the power of the state and increasing oversight over more and more aspects of the lives of citizens via legislation, regulation and judicial activism in the courts.

Progressive thinking is more relativistic in nature. Whereas rationalistically inclined liberals and moderate left-wingers recognize core truths of reason, the progressive is open to accepting and advocating for anything that can be seen to bring about an egalitarian future, where the principle of equality reigns at the expense of all others. Progressives want to control the lives of citizens to ensure that material differences are levelled down, status is equalized, and equal respect enforced under the law, regardless of lifestyle choices.

These orientations produce markedly different approaches to the law. The expansion of the administrative state – the creation of unaccountable departments and agencies that churn out laws – is owed more to the rationalist tendency. Rationalism has engendered technocracy – the bureaucratic management of increasingly many things that intrude upon the sphere of personal freedom. The judicial activism that we have seen so frequently in the courts is due more to the relativism of contemporary progressives and their characteristic zeal. Conservatives have been all too happy to make use of the administrative state and engage in their own brand of judicial activism to be sure, but I believe that it is antithetical to the general thrust of the movement as it exists in the Anglosphere. However, a century of a too heady pragmatism and unprincipled ‘fiscal conservatism’ has perhaps engendered it.

In a pithy, but descriptively accurate statement, legal scholar Richard Posner describes the difference between schools of legal philosophy as simple cover for the feelings of conservatives and liberals. He may be right, after all, but in order to understand what divides the Supreme Courts in Canada and the United States, it is best to first look at what they’re arguing about. Theorists and practitioners alike tend to have very different views about what the law is, and how it should be interpreted – the subjects of the next section.

1 – The Philosophy of Law

The Twin Aspects of the Law – Forceful and Legitimate

The law is both a body of doctrine that is backed by the force of coercion, as well as a set of guidelines to encourage behaviour, and shape the conduct of citizens to whom it applies.

It is thus implicitly supposed to demand obedience, and to do so by virtue of being legitimate. What is regarded as legitimate varies from region to region, but it can mean both that it was properly enacted – by a legal and political system that was erected and has been maintained according to standards that the populace roughly deems to be acceptable, and that the laws are themselves just.

Many contemporary legal theorists do not ask this further question – whether a legitimate body of law is just? They instead settle for the fact that it is procedurally adequate – that is to say, it was developed according to legal and loosely defined, albeit socially acceptable, processes. The older tradition answers that law is only ultimately legitimate if it is fundamentally just according to an understanding of natural law.

This dual purpose of the law – a fact that commands obedience, and a standard that is normatively worthy – sets the stage for the tensions that exist in debates throughout the ages on the purpose of law; positions that are more or less represented by factions in the political and intellectual landscape.

The Development of Positivism

The 20th century saw the development and institutionalization of legal positivism, an outgrowth of major undercurrents in philosophy.

Positivism claims that the law is essentially a body of facts with coercive effect. It is one of the tools that the state has at its disposal to ensure order and good governance.

Positivists avoid making justifications for the legitimacy of the law by grounding it in normative conceptions – things like human nature, and views about right and wrong. This, they say, is not the essence of the law, but might very well naturally inform it.

To them, the law is justified only by its being on the books. An individual law can only be just if it is internally consistent with the body of law to which it belongs. This is called proceduralism.

The positivist is someone who avoids making further claims to rightness. They end by saying that a law is justified or not by its being on the books.

This view has been readily accepted by intellectuals, academics and the political class in the Western world for the past century because it is both rooted in value relativism, and has an air of hard-nosed empiricism about, being as it is fundamentally unconcerned with the philosophical grounds upon which decisions stand. However, it would never have enjoyed such support were it not for the fact that its adoption and acceptance coincided with the pre-eminence of liberalism on the political scene.

In my view, a century marked by constant technological, economic and concomitant social change, the majority public opinion tended to err on the side of change in the long run, interrupted only intermittently by periods of reaction. This clearly favoured liberalism, and so it is not surprising that positivism enjoyed strong support in the academy and in practice, for it effectively says whatever is law is justified, so long as it is enacted according to the rules for doing so in the body politic.

In summary, positivism has moved along with other forces in the culture. Positivism encourages judges, lawyers, politicians and by extension the public to view the legitimacy of law as something that is derived from its procedural enactment. This has come at the expense of substance, thereby engendering a practice of legislation, and judicial activism, that occur within the rules of the game in a macro sense, but often without adhering to logic, the meaning of words, precedent, intent, and similar tenets which, taken together, ensure that laws are also just.

The Law and its Place in Contemporary Democracies

As a body of doctrine commanding obedience, the law must be enduring, applied equally and consistently across time, subject, and place. It ought to contain principles and standards that guard against human error and judgment. It must therefore be complete in foundations, consistent, and adaptable to new and ever-changing circumstances.

In short, it must be too many things at once. Unless, that is, these often conflicting and competing roles can be ascribed to distinct elements of the governmental apparatus, as it now is in many developed countries. An appropriate division of powers and purposes has marked out the legal tradition as it has developed in places in Continental Europe, in Britain and its colonies, and the United States.

A Constitution contains the statutes, foundational cases with rules of application, and principles of interpretation from which to draw on. Britain does not have one single document, but a set that has emerged from statute, case law, political conventions and social consensus over the centuries. Many modern countries have adopted Constitutions, as well as Bills, or Charters of Rights and Freedoms. Like Britain, Canada had a largely unwritten constitution until the 1982 patriation from Britain of complete constitutional authority and the concomitant adoption of a written charter of rights and freedoms.

A Constitution, and companion documents must also rank and order principles in such a way so as to generate an intelligible framework for decisions.

The development of precedent and the adoption of new statutes and regulations ought to amend the peripheral elements of the body of law, but only constitutional reform can change its core.

When there is a specific case before the courts that cannot be clearly decided, precedent is supposed to develop a new solution, which is more like a novel application than a re-creation of the foundation. In other words, it is to be done in the spirit of the principles laid out in the constitution.

Cases reach the Supreme Court when an issue cannot be decided in the lower courts. The justices refer to the founding documents of the body of law in question, and the history of precedent and interpretation to determine their decision.

Hypothetically, the natural law serves as a basis for both a) assessing the justness of the Constitution or original body of law, and b) as a frame of reference through which to interpret and adjudicate novel disputes.

It is this second purpose that is more often disputed, because the natural law generates beliefs contrary to many contemporary norms and sentiments that are fundamentally opposed to legitimate authority, objective standards of behaviour, and moral principles.

However, in order to guard against the whims of majorities and minorities, the random fits and starts of history, the arbitrariness and irrationality of crowds, and the fickle opinions and beliefs of new lifestyles defined and consumed by raw impulse and naked desire, there must be a bulwark of defence built into the law –  a bedrock upon which it is based.

This tension naturally runs through all democracies, for the popular opinion must be respected, but it is always by definition vague, amorphous, and prone to sudden, a-rational change.

In Theory, our forms of Government recognize and accommodate this tension

The United States is a republic, and Canada a Constitutional Monarchy. Neither are pure democracies. In the case of the United States, the founders recognized that thoroughgoing democracy is nothing but the rule of crowds. Indeed, this was a truth known to thinkers throughout the ages, who ranked pure democracy as a form of tyranny.

Aristotle recognized democracy as a perversion of constitutional government[i]. Plato thought that democracy was the result of a devolution from ordered desire to the development of insatiable appetites for anything and everything among the populace[ii].

In order for democratic elements to exist in a society, there must be numerous types of activity and institutions that are not governed by democratic principles. Plato asks whether we would trust a doctor to build us a house, and a carpenter treat an illness. We wouldn’t because certain skills are appropriate to the end, or purpose they are in service of[iii]. Aristotle asks whether we would give musical instruments to someone who is superior at performing with them, or to others on the basis of unrelated traits[iv]. Likewise, we do not delegate all aspects of decision-making to a mass of opinion.

A representative republic or democracy combines the ability of citizens to engage in self-rule, and to vote out incumbents who abuse their power, or fail to govern adequately, while preserving  necessary foundational connections to reason and wisdom, as embodied in the natural aristocracy of merit through which rulers are imperfectly selected.

Section 1 – Summary

In summary, the law is both coercive and legitimate. It is a set of rules that the state may enforce, but it also commands normative authority because of its legitimacy. New laws gain the stamp of legitimacy when they are introduced through the accepted avenues, and these laws are ultimately warranted because they respect a higher standard of justice.

However, positivism in the 20th century engendered agnosticism about the ability of judges, lawyers, and politicians to reason about values, institutionalizing a view of legitimacy as something derived simply from procedure. Hitherto, legitimacy and the justness of law was something that the best Western thinkers believed to be natural law. In this view, the Constitution, the body of law, and existing precedent constitute the material basis and methodology from which and through which law is carried out, practiced, and modified.

The practice of interpretation is crucial to the practice of law and is closely related to the developments sketched above. In the next section, I will outline different styles of legal interpretation, and argue for the one that is rooted in the text and original meaning.

2 – Legal Interpretation

While it sounds nice on paper to say that words have a definite meaning, we all know that words can often mean what we want them to, facts can be used as evidence in support of either side of an argument, and disagreement is far more common than agreement. The practice of interpretation – sometimes called hermeneutics, a term and practice that originally referred to scriptural exegesis – can be carried out in more ways than one.

When you have to decide what something means, the circumstances often dictate the choice of methods.

If you need to confirm what someone meant when they said ‘it’s over there’, you can simply ask more questions to narrow your search for what area they were pointing to when they said it.

If you are dealing with written instructions, you do not have this luxury, but recourse to a number of other tools. You consult a dictionary, cross-reference and corroborate what was said with other relevant factors about the circumstances in question: the year, location, and context in which it was said, so as to further narrow the scope of possible valid interpretations.

This latter method informs the approach to interpreting the law that is known as textualism. It is the view that the interpretation of at text is guided by the ordinary meaning of the words in the document. Ordinary meaning is determined by the use of dictionaries and can be verified by comparing the use of the words in question in similar instances in the specific time and place in which the document was written. As such, it can be considered to refer to the ‘cognitive’ meaning, rather than ‘psychological’ meaning, i.e., what the authors might have had in mind while writing.

It contrasts with intentionalism, the view that the intent of the authors of a piece of writing is the best way in which to understand and read a document.

Naturally, both are useful tools to use in many practices of interpretation. But the emphasis on which one, and in which particular circumstances they apply, are wont to produce divergent philosophies, interpretations and outcomes of the law.

Proponents of textualism argue that the intent of the authors of a piece of legislation, for example, is more often than not a nebulous entity. How can a legislature of over 500 members be said to have a common intent? Furthermore, voting one way or another does not indicate that one intends the law to mean a certain thing, only the bare fact that one has decided to cast one’s vote in favour. Often times, politicians have not even read the documents in question, let alone fully understood them.

The same goes for judge-made law although for slightly different reasons. In the case of judges, developments in the law are meant to be constrained by existing legal statutes and documentation, rather than be an expression of their reasoned opinion and values.

This is even true of the practice of discerning the ‘true intent’ or ‘real cause’ of your own thoughts, or those of the person sitting next to you. We can easily use our everyday language in a common-sensical fashion to attribute an intention or reason for speaking and acting as we do, but only in an approximate fashion. If I say that I am going to the store to get groceries, or told someone that I really liked this or that, what kind of an answer will satisfy the question of ‘why did you do it?’, or ‘what did you intend by doing so?’.

Again, answers can be readily supplied, but there is always a larger context within which a statement or set of actions is contained.

The phenomenologists illustrated this well, by demonstrating that the significance and intelligibility of an action can only be understood by going back further and further to its fullest, most clearly articulated context of interpretation, defined and understood as a kind of purpose.

For example, typing on a keyboard is to write a sentence, in a paragraph, in order to write an essay. This essay serves some other purpose – to complete an assignment or communicate a thought to readers. But this is only intelligible in light of its embeddedness in a larger project – writing to get a job of some sort. This, finally, is bound up in being a certain kind of person and living in a particular way. The practice ultimately means something only in light of the larger personal horizon, and of course, that larger horizon includes other individuals that we live our lives with.

When do we cut this off? The answer matters a great deal with regard to legal reasoning, the meaning of a statute, or a foundational constitutional principle that can determine the spirit in which the letter of the law is read, and thereby to a ruling rendered in consequent decisions.

In my view, the implications for legal reasoning are clear – resorting to the ‘author’s intent’ rather than that of the cognitive meaning of the text is an unreliable approach.

Attempting to discern  an individual’s deeper motivations, let alone those of a group of people – among whom disagreement about most things is more common than agreement, even in reference to a single example – is  inaccessible, and cannot possibly serve as the criterion to resort to when trying to interpret the law, and make judgments on that basis.

Though there are plenty of cases in legal and everyday contexts in which we use the author’s intent to guide our practices of interpretation, it is more unreliable than not in the case of complicated documents.

To this it must be added that the law is a different kind of thing than discerning the meaning of a statement, or the actions of a person in a specific situation in everyday circumstances. The law is an enduring document that by its nature is to remain on the books in the same form in which it was originally written. Part and parcel to the concept of law itself is the idea that it applies equally and indiscriminately. Otherwise it would be a set of guidelines, the application of which change too much with each judge, region, circumstance, and time period.

Indeed, the very idea of ‘law’ is that it is independent of preferences, opinions and loose interpretations. The enduring character of the law has had tremendous positive effects on the social fabric by creating clear and predictable shared norms that form the basis of social interactions. In an increasingly complicated world, where people come into contact with more strangers in a single day than their ancestors would have in a lifetime, the law works to establish a common framework that forms the bedrock of social trust; it underwrites and enables a far larger number of volitional agreements between individuals to take place than it ever could in a world characterized by  more people and interactions than ever before.

The concept of law as we have inherited it does not apply to all laws, or legal systems. Unquestionably though, our inherited system of common law has been the most successful embodiment of the ideals of impartial justice in the world.

Objections and Responses to Textualist interpretative practices

Some point to the lack of agreement between originalists and textualists of varying stripes as a failing; others to the fact that that the interpretive methodology does not yield determinate conclusions.

The first objection would provide significant challenges to the approach, were it not for the fact that it does not apply to core principles, but only to accidental features.

There are many layers to the law, and legal reasoning and judgment can never follow a formula, due to the very nature of the disparate subject matter in question.

There are core principles in any body of law that should not be overturned, but others that are more subject to interpretation.

The second problem – the lack of consensus – is a valid consideration, but degree matters a great deal here. The practice of interpretation is an art form that fundamentally involves reasoning about the ranking and prioritization of competing values and principles. There is no formula here, nor should we want to have one.

Human disagreement is a fundamental and necessary aspect of theoretical and practical endeavours. If the extent of the disagreement were such that the divergent rulings revealed a flaw in the approach, then this would be a problem, but generally that is not the case. Textualist interpretation is an orientation, rooted in values about the practice of interpretation that its proponents argue are justified by the kinds of law and political structures Western countries have developed. Of course, it is not the only way to engage in interpretation. There are endless ways of interpreting things, but only a few that make sense in light of the relevant facts, and the way in which they hold together in consistency.

These contrasting views of how to interpret the law, and what it means spill over into politics and culture and divide justices on Supreme Courts in Western countries. Those who favour the text are more often conservative, and those focused on intent are more often liberal.

Original meaning and Original intent

Many would argue that it is not about which things are more or less static principles in the constitution, but which ones refer to a static standard, and which ones to a dynamic one in order to make sense. There are numerous examples of both, and some would argue that the debate about what is to stay the same and what is to change is fundamentally about this issue.

If a principle refers to a standard in the constitution that is relative in nature, then there is no way in which we could say that the original meaning of the text was to propose such and such a punishment. For example, in the US constitution, there are many principles that could not possibly account for the existence of the air force, or computers, and other such contemporary creations. There are punishments described for the breach of a law that are specific in nature and appear ridiculous in contemporary contexts, for example, a $20 fine for a major infringement.

The question is whether or not there is a clear meaning contained in the principles set out in the document. If a case refers to a particular punishment or evaluative standard to be used in a determination, then if it is a dynamic term, the law’s interpretation should change with the nature of the baseline in a continuously evolving society. If, however, it refers to a static baseline, then the meaning of the text is clear, even across time.

Unfortunately, this is the nub of the disagreement. People tend to think that a term has either a specific or a variable meaning insofar as they think it should stay the same, or change with the passage of time, and the circumstances in question. Affirming such a view can lead one to the conclusion that law is all about politics and that legal decisions constitute a type of cover for the personal opinions of judges and justices.

Such a view is consistent with contemporary postmodern thinking that is entirely relativist in nature. Things mean whatever you want them to mean, or whatever you ‘feel’ about them.

The argument would go, ‘originalists’ and ‘living constitutionalists’ simply ‘feel’ different ways about their principles, and construct elaborate justifications to conceal their inherent prejudices, which are simply expressions of emotions and convictions.

This cynical view that all beliefs are either naturally or socially determined, and therefore irrational is exactly what conservatives are trying to fight against. It runs contrary to the animating spirit of western philosophy and religion that has shaped and moulded our society largely for the better, throughout the ages.

Aside on Antonin Scalia’s Judicial Philosophy

Former US Supreme Court Justice Antonin Scalia was a textualist. He believed laws should say what they mean, plain and simple. If the proper meaning is clear, judges should determine if it provides support for whatever claimed right, or governmental authority is in question. If so, the claim is valid, and if not, it should be rejected[v].

When the text was unclear, judges should have recourse to the precedent and social history of the United States. If there has never been a ‘right’ to something, then it cannot be introduced by 9 unelected justices on the Supreme Court. If that was something that the public wanted, it could be introduced via the legislatures.

In cases of vagueness, or lack of clarity, judges were to apply clear, general rules that could be readily understood.

The chief reason for the emphasis on clarity and consistency was for the sake of predictability, and to guard against the whims of the prevailing opinions, and personal views of the judges and justices on a court at any given time.

This style of judging, he argued, was perfectly consistent with the spirit of the constitution that was designed to achieve maximum freedom for the person by constraining the power of the government through a complex system of checks and balances on power.

The separation of powers is a principle means through which the checks on power are carried out. Therefore, it is paramount that the different branches of government – legislative, executive, judicial – exercise authority only within its proper sphere.

Today, all of the Conservative justices on the US Supreme Court claim the originalist style in some form or another: Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch, Samuel Alito and Brett Kavanaugh.

Section 2 – Summary

The practice of interpretation is a fraught one. There are many ways to interpret, but I have argued that there are better and worse ones, the standard of which is contained in the history of philosophy, religion and political science that has come down to us throughout the ages.

In segment II, I will show some of the ways in which the progressive and rationalist modes of thinking have undermined the division of powers, the restriction of the state, and the protection of the negative rights of persons. I will examine key rulings in Canada and the United States, focusing on the the embrace of positive rights, vague interpretation and judicial activism and their impact on the rule of law and the integrity of institutions.

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[i] “Of the above-mentioned forms, the perversions are as follows: -of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.” The Politics, Book III, Aristotle. In Aristotle and Richard McKeon, The Basic Works of Aristotle, The Modern Library Classics (New York: Modern Library, 2001), 1279 b 5–10.

[ii] “Well, isn’t the city changed from an oligarchy to a democracy in some such way as this, because of its insatiable desire to attain what it has set before itself as the good, namely, the need to become as rich as possible?” The Republic, Plato, Book VIII. In Plato, John M. Cooper, and D. S. Hutchinson, Complete Works (Indianapolis, Ind: Hackett Pub, 1997), 1166; 555 b-c.

[iii] Socrates argues that when a craftsperson is performing their craft, they do it well insofar as they accomplish its purpose: carpenters, making things; doctors, healing the sick; rulers, ruling justly for the good of citizens. The Republic, Plato, Book I. In Plato, Cooper, and Hutchinson, 985–87; 340d–3344.

[iv] “Differences in speed, for example, do not entitle a person to more political power; they get their reward in athletic competitions.” The Politics, Book IV, Aristotle. In Michael Rosen, Jonathan Wolff, and Catriona McKinnon, eds., Political Thought, Oxford Readers (Oxford: Oxford Univ. Press, 1999), 227.

[v] Antonin Scalia and Kevin A. Ring, Scalia’s Court: A Legacy of Landmark Opinions and Dissents (Washington, DC: Regnery Publishing, a division of Salem Media Group, 2016).