“A dictionary-centred textualism is hopeless” (Richard Posner). Do you agree? Discuss this statement with reference to the interpretative philosophy of Justice Scalia and his critic.
I agree with Posner that a dictionary-centred textualism is hopeless, in the sense that all hope that law originally brings would be gone if textualism is to be chosen as the way of interpretation. I would argue that the aims of law can be better manifested under the purposive approach, ‘which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.’ Under the notion of the Rule of Law, the community should be governed by the law instead of …show more content…
Dictionaries are part of the social institution. After a vernacular has been selected among many in a society to be a model of language use, these linguistic codes will be codified by the publication of dictionaries. Different words are given a definition at this stage and are stored in the dictionaries. It is then accepted by having a body of users who adopted these meanings in the dictionaries. For example, standard English will be taught in schools with the help of dictionaries, students often are asked to memorise definitions in the dictionaries. These people, having received education, learned the public meaning of the word. They then can be qualified as the “reasonable …show more content…
Under textualism, judges should adopt the public meaning at the time of enactment, which is in this case in the eighteenth century. The ruling that freedom to burn the American flag is included in the notion of freedom of speech in the First Amendment seems to be inconsistent with textualism and was viewed as “exceedingly unoriginalist” as concept of freedom of speech by then was ‘much narrower than the modern concept.’ The only exception to the rule is technological innovations which modern concepts may be adopted, however burning cloth is not a modern technological innovation. Posner pointed out that William Blackstone, whom Scalia treated as an authority on American law at the time of the Constitution, was in the view that freedom of speech ‘does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious.’ This is one of the examples that inconsistencies were shown in adopting textualism by Justice Scalia because textualism is impractical and not ideal to the modern society, more examples will be given below. The same conclusion, on the other hand, can actually be easily justified under the purposive approach, which is broad enough to consider the intent of the Constitution in light of social
I agree with Posner that a dictionary-centred textualism is hopeless, in the sense that all hope that law originally brings would be gone if textualism is to be chosen as the way of interpretation. I would argue that the aims of law can be better manifested under the purposive approach, ‘which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.’ Under the notion of the Rule of Law, the community should be governed by the law instead of …show more content…
Dictionaries are part of the social institution. After a vernacular has been selected among many in a society to be a model of language use, these linguistic codes will be codified by the publication of dictionaries. Different words are given a definition at this stage and are stored in the dictionaries. It is then accepted by having a body of users who adopted these meanings in the dictionaries. For example, standard English will be taught in schools with the help of dictionaries, students often are asked to memorise definitions in the dictionaries. These people, having received education, learned the public meaning of the word. They then can be qualified as the “reasonable …show more content…
Under textualism, judges should adopt the public meaning at the time of enactment, which is in this case in the eighteenth century. The ruling that freedom to burn the American flag is included in the notion of freedom of speech in the First Amendment seems to be inconsistent with textualism and was viewed as “exceedingly unoriginalist” as concept of freedom of speech by then was ‘much narrower than the modern concept.’ The only exception to the rule is technological innovations which modern concepts may be adopted, however burning cloth is not a modern technological innovation. Posner pointed out that William Blackstone, whom Scalia treated as an authority on American law at the time of the Constitution, was in the view that freedom of speech ‘does not prohibit punishment after the fact of speech determined by a jury to be blasphemous, obscene, or seditious.’ This is one of the examples that inconsistencies were shown in adopting textualism by Justice Scalia because textualism is impractical and not ideal to the modern society, more examples will be given below. The same conclusion, on the other hand, can actually be easily justified under the purposive approach, which is broad enough to consider the intent of the Constitution in light of social