Religion & Law

And so the thot plickens (and other Spoonerisms) . . .  My response to Rick's rich questions begins, as Rick knows (from, inter alia, the public discussions many of us had at the recent "Annual Roundtable on Law and Religion"at Brooklyn Law (thanks again, Nelson!)), from the premise that the focal case (prime analogate) of law is: the ruling *mind* ordering other *minds* toward the common good.  I regard the substitution of texts for mind, as the locus/source of law, as *the* problem (yes, symptom of the deeper problem (of voluntarism)).  Now, the regulating mind of the lawgiver does indeed need to be promulgated (as a condition, indeed, of its becoming *law*), and that promgulation typically takes the form of a written (as opposed to oral) statement.  But I don't take writtenness, even of a constitution (even *our* Constitution), as a reason to conclude that a text takes on a law-giving role independent of the lawgiver.  To be sure, lawgivers' obligation to *promulgate* what they mean to be law will usually assure that there's a pretty tight convergence between the law, on the one hand, and what is promulgated, on the other, but scriveners' errors are just one example of why text does not equal law.  The impossibility of perfect transmission/translation of the *mental word* into the *spoken word* -- and this is the core issue -- assures that texts cannot rule.  An additional reason texts cannot "rule" is that the very conditions for taking promulgations-in-the-name-of-law seriously as *law* is that they are to contribute to the common good; where promulgations don't facially contribute to the common good, there is reason, though it too has constraints, to construe them in such a way as to cause them to do so.  So, I take the written texts very seriously indeed, but I don't imagine that I or anyone else can be ruled by a text as such.  "Textualism" is just the limit case, it seems to me, of an attempt to substitute stuff (e.g., *probabilities* of meaning generated by dictionary surfing) for (the meaning of an authoritative/ruling) mind.  Saying as much, I recognize the transaction (and other) costs of not stipulating that texts ("objectified intent," as Scalia calls them) are "law." 

What say you, Rick?    

Obviously, if one doesn't share my starting points (about law's being *exactly* [in the focal case] authoritative mind ruling subordinate mind), textualism (and other equally well-intentioned evils) are good to go.