BOOKS IN REVIEW

Law & LanguageLAW'S QUANDARY

by STEVEN D . SMtTHHarvard University Press,

222 pages, $45

Reviewed by Antonin Scalia

STEPHEN StvirrH TAKES US on a lively,thought-provoking romp throughthe philosophy of law. Like mostromps. It has no destination, but theexpenence is worth it.

Although Smith protests at theoutset of Law '5 (Quandary that he is

ANTONIN SCALW is an associate justice onthe United States Supreme Court.

"a law professor, not a metaphysician(or even a philosopher)," he cannothonesdy be absolved of that sin. Heis, after all, co-director of the Insti-tute for Law and Philosophy at theUniversity of San Diego, and he dis-plays an impressive familianty withthe scholarship, from ancient tomodern, bearing upon the philoso-phy of law. By the time this bookends, it has, with a minimum of cantand a maximum of wit, plausiblyconsigned the modem part of thatscholarship to error (or, at least, in-comprehensibility)—from Holmesto Pound, Llewellyn to Dworkin,Posner to Bork (and Scalia, honoredas I am to be condemned in such emi-nent philosophical company), with

many others in-between. Even Plato,it develops, leaves much to bedesired. The only philosophers tosurvive Smith's cntical scrutiny areSocrates (because he, like Smith him-self, did not propose a solution butonly called attention to a problem)and what Smith calls the "classicalschool" of legal philosophy, stretch-ing from Aquinas through Coke,Blackstone, and Story (because thatschool, unlike all the others, had acoherent theory of law, though itunfortunately rested upon "theisticmetaphysics").

Early on in its analysis. Law'sQuandary sets forth three "ontolog-ical inventories"—three categoriesdescribing what we in twenty-first-

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38 FIRST THINGS

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century America "believe to be real":everyday experience, science, andreligion. The last is excluded from thebook's ensuing analysis because ofthe "norm prescribing that religiousbeliefs are inadmissible in academicexplanations." Law's quandary, towhich the title of the book refers, isthis:

Since at least the time ofHolmes, lawyers and legalthinkers have scoffed at tlienotion that "the law" exists inany substantial sense or that it isnot reducible into our discourseand practices. Law is not a"brooding omnipresence in thesky." We have rejected any suchconception of law . . . becausewe j>erceive, correctly, that ourontological inventories (or atleast those that prevail in mostpublic and academic settings)could not provide any intelligi-ble account of... this "preexist-ing thing called 'The Law.'" At

the same time,.. . [there is]cogent evidence suggesting thatwe still do believe in "thelaw.". . . Our actual practicesseem pervasively to presupposesome such law: our practices atleast potentially might makesense on the assumption thatsuch a law exists, and they lookpuzzling or awkward or embar-rassing without the assumption.

The practices to which this passagealludes include the retroactivity ofjudicial decisions, even novel orunexpected ones. We apply the newrule that those decisions announce toconduct that occurred before thedecisions were rendered. This makessense on the classical view that judi-cial decisions merely "discover" thelaw but not on the view that theymake the law.

Similarly, we have a practice ofrelying upon judicial precedent (so-called stare dedsis), which is no less

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extensive post-Holmes than pre-Holmes. That made sense m a legalsystem that regarded judicial opin-ions as "evidence" of what "the law"is. It makes no sense in a legal systemthat regards the judicial opinion itselfas "the law," any more than it wouldmake sense to bind today's legislatureto the laws adopted in the past.

And finally, the fact that the "hold-ing" of a judicial opinion—the por-tion of Its text or the aspect of its dis-position that binds later courts —isalmost infinitely expandable or con-tractable, ranging from the mere pre-scription that these particular factsproduce this particular result to thebroad "rationale" expressed by thecourt to justify that prescnption.This is an inconvenience, perhaps,but not a contradiction in a systemthat regards judicial opinions as mere"evidence" of "the law"; in a systemin which the judicial opinion is thelaw it produces law that is virtuallylawless.

LAW'S QUANDARY, THEN, IS that webelieve like legal realists but act asthough there were indeed someomnipresent, overarching law. Smithproceeds to discuss why the broadvariety of twentieth-century juris-pnidential movements—sociologicaljurisprudence, legal realism, legalprocess, law and policy (includinglaw and economics), law and society,law and philosophy, critical legalstudies, law and literature, feministjurisprudence, cntical race theory,legal pragmatism and, oh yes, textu-alism—try but fail to resolve thisquandary, try but fail to explain"how the law makes sense without'the law.'"

Some of these movements relyupon one or another version of so-called "reader-response" theory,which in its purest form holds thatthe meaning of words is what theyconvey to the particular reader. Thatis conclusively enough refuted as aviable theory for law. Smith thinks(or for anything else, I think), by the

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40 FIRST THINGS

consideration that "every readingwould be as valid as every other read-ing." Other jurisprudential move-ments require reference to a real orhypothesized author; Smith agreesthis IS necessary in theory, but findsnone of the leading candidates forauthorship acceptable. The actual

legislators often intended conflictingmeanings, and often had no intent atall on the particular question at issue.The hypothetical "normal speaker ofEnglish" may serve for "some oflaw's more modes t . . . functions,"but "has no apparent qualification toperform law's more ambitious func-

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tions," such as "establishing socialpolicy" or resolving "high-level dis-putes." As for a hypothetical author"wiser and more articulate than weare": If he is indeed that, then we can-not know his mind, and we willmerely "project onto him" our ownintentions.

As interesting as Smith's analysisis, it essentially addresses a legal sys-tem that is now barely extant, thesystem that Holmes wrote about: thecommon law. That was a system inwhich there was little legislation, andin which judges created the law ofcrimes, of torts, of agency, of con-tracts, of property, of family andinheritance. And just as theories suchas the Divine Right of Kings werenecessary to justify the power ofmonarchs to make law throughedicts, some theory was necessary tojustify the power of judges (as agentsof the King) to make law throughcommon-law adjudication. That the-ory was the "brooding omnipres-ence" of an unwritten law that thejudges merely "discovered."

But democracy has overtaken allthat. Modern governments, or mod-ern governments in the West at least,are thought to denve their authorityfrom the consent of the governed,and the laws they prescribe are enact-ed by the people's representatives.Such a system is quite incompatiblewith the making (or the "finding") oflaw by judges—and most especiallyby unelected judges. Even in statecourts, it is a rare case that does notinvolve interpretation of an enactedtext. And federal courts have, sincethe decision of Ene R.R. v. Tomkinsin 1939, completely abjured com-mon-law powers except in a few lim-ited fields such as admiralty; they donot pretend to have the power eitherto "find" or to "make" a law unevi-denced by enacted text or (in casescoming within their diversity juris-diction) by the text of state judicialdecisions.

The contradictions that Smithfinds in a system of common-law-

NOVEMBER 2005 41

stjns-brooding-omnipresence do notexist in a system of enacted law,properly applied. It is entirely logicalfor interpretation of an enacted textto be retroactive—applicable to con-duct that occurred before the inter-pretation (but not before the enact-ment)—since the text always meantwhat the court said, just as in the pre-Holmesian system the broodingomnipresence had always containedwhat the court "discovered." As forgiving precedential effect to priordecisions {stare dedsis), that is merelyan administrative and social conve-nience; Courts do not have the timeto reconsider every legal issue anew,and citizens cannot confidently plantheir actions if what the SupremeCourt has said a statute means todayis not in all probability what theSupreme Court will say it meanstomorrow. {Some modern systems,of course, have not thought thisadministrative and social conve-nience worth the trouble, and, inprinciple at least, forgo the doctrineof stare decisis.) And since it is just anadministrative and social conve-nience, the doctrine of stare dedsis isnot applied rigidly, as it used to be atcommon law. As for the fact that the"holding" of a case is difficult todetermine: that poses no problem inprinciple, since the case is not the lawbut merely an interpretation of thelaw. Its indeterminacy may lessen theadministrative and social conve-nience of stare dedsis., but does notcontradict any premise upon whichthe law rests.

I have said that the contradictionsdo not exist in a system of enactedlaw properly applied., because thereare means of converting democrati-cally enacted law (or democraticallyratified constitutional provisions)into a sort of common law prescrib-able by judges. We have done tbiswith the federal Constitution. Onesuch means is simply reading text tosay what it does not say—so that theassurance that no person shall bedeprived of life, liberty, or property

without due process of law becomesan assurance that fundamental liber-ties shall not be eliminated; of course,it is the judges who get to decide, incommon-law fashion, what libertiesare fundamental.

Another means consists of assert-ing that a text does not retain the

meaning it had when it was adoptedbut, rather, changes meaning to con-form with current practices, or cur-rent attitudes, or (as the SupremeCourt has explicitly said with regardto the Eighth Amendment s proscrip-tion of cruel and unusual punish-ment) whatever a majority of the jus-

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42 FIRST THINGS

tices thinks best. Thus interpreted, theEqual Protection Clause, for exam-ple, which at the time of its enactmentplainly was understood not to pro-hibit a state from restricting marriageto persons of opposite sex, could nowcontain that prohibition. Depends onwhat the judges think. The constitu-

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men, whether there is a right to assist-ed suicide—are all questions that onlyarise if text is distorted or text isregarded as having an evolvingmeaning.

THE PORTION OF Smith's book I leastunderstand — or most disagreewith—is the assertion, upon which aregrettably large portion of theanalysis depends, that it is a "basicontological proposition that persons,not objects, have the property ofbeing able to mean." "Textual mean-ing," Smith says, "must be identifiedwith the semantic intentions of an(jM^Aor—and.. .without an at leasttacit reference to an author we wouldnot have a meaningful text at all, butrather a set of meaningless marks orsounds." "Legal meaning depends onthe (semantic) intentions of anauthor."

To prove his point. Smith recountsa hypothetical case devised by PaulCampos:

While walking in the desertnear the border between theUnited States and Mexico, youcome across marks in the sandforming the figures "REAL,"and you wonder what thesemarks mean. Your first step willbe to guess whether the markswere made by an English-speak-ing or Spanish-speaking agentIf you think the marks weremade by an English speaker,you probably will interpretthem to mean something like"real" in the sense of "actual" or"existing." If you supposeinstead that the marks weremade by someone speakingSpanish, then you will under-stand them to mean somethinglike the English term "royal."But if you think the marks weremade by no one, and wereinstead simply the fortuitouseffect of wind on the desertsand, then you will not supposethat the marks actually meananything at all; they are merely astrange accident devoid ofmeaning.

NOVEMBER 2005 43

The example is inapt because itassumes a reader of the symbol whofunctions under two different sym-bolic conventions, English and Span-ish. But when we approach the text ofa statute or Constitution, we knowwhat linguistic convention is in play.Try this hypothetical instead: Twopersons who speak only English seesculpted in the desert sand the words"LEAVE HERE OR DIE." It maywell be that the words were the fortu-itous effect of wind, but the messagethey convey is clear, and I think oursubjects would not gamble on thefortuity.

Smith confuses, it seems to me, thequestion whether words convey aconcept from one intelligent mind toanother (communication) with thequestion whether words produce aconcept in the person who reads orhears them (meaning). The bride-groom who says "I do," intending bythat expression to mean "I do not,"has not succeeded in communicatinghis intent; but what he has saidunquestionably means that he con-sents to marriage. As my desert exam-ple demonstrates, symbols (such aswords) can convey meanmg even ifthere is no intelligent author at all. Ifthe ringing of an alarm bell has beenestablished, in a particular buildmg, asthe conventional signal that the build-ing must be evacuated, it will conveythat meaning even if it is activated bya monkey. And to a society in whichthe conventional means of communi-cation is sixteenth-century English,The Merchant of Venice will be TheMerchant of Venice even if it has beentyped accidentally by a thousandmonkeys randomly striking keys.

Smith claims his assertion that" legal meaning depends on the(semantic) intentions of an author" is"a modest and commonsensica!claim." It stnkes me as an extravagantand nonsensical one. That is whyHumpty Dumpty's statement of theclaim ("When / use a word it meansjust what I choose it to m e a n -neither more nor less") has always

been regarded—by all except Car-roll's game-playing Logicians—ashilarious nonsense. Ahce and Ibelieve that words, like other conven-tional symbols, do convey meaning,an objective meaning, regardless ofwhat their author "intends" them tomean—unless, of course, the text

announces that it is departing fromconventional meaning ("black shallmean white").

What is needed for a symbol toconvey meaning is not an intelligentauthor, but a conventional under-standing on the part of the readers orhearers that certain signs or certain

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sounds represent certain concepts. Inthe case of legal texts, we do notalways know the authors, and whenwe do the authors are often numer-ous and may intend to attach variousmeanings to their composite handi-work. But we know when and wherethe words were promulgated, and

thus we can ordinarily tell withoutthe shghtest difficulty what theymeant to those who read or heardthem.

Of course, even if I could persuadeSteven Smith that words do havemeaning apart from their author, hewould still reject textualism—for the

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same reason that he rejects the posit-ing of a hypothetical author who is"the normal speaker of English":Merely giving English words theirnormal meaning would not enablelaw to perform its "more ambitiousfunctions," such as "establishingsocial policy."

But m a democracy, it is not thefunction of law to establish any moresocial policy than what is fairlyexpressed by legislation, enactedthrough prescribed democratic pro-cedures. It troubles Smith, but doesnot at all trouble me—in fact, it pleas-es me—that giving the words of theConstitution their normal meanitigwould "expel from the domain oflegal issues... most of the constitu-tional disputes that capture our atten-tion," such as "Can a macho militaryeducational institution dedicated towhat is euphemistically called the'adversative' method admit onlymen? Is there a right to abortion? Orto the assistance of a physician in end-ing one's life?" If we should read Eng-lish as English, Smith bemoans,"these questions would seemingly allhave received the same answer: 'Nolaw on that one.'"

That is precisely the answer theyshould have received: The federalConstitution says nothing on thesesubjects, which are therefore left to begoverned by state law. Smith'sresponse is revealing: "We have notbeen content with this sort of mod-esty in our law." The antecedent ofthe pronoun is unspecified, but Ifancy it refers to the legal academiccommunity which establishes thepermissible boundaries for Smith'sthinking, or at least his writing. ManyAmericans outside that communityyeam for this son of modesty. Indeed,it was something of an issue in the lastelection. Smith's complaint is that thejudges win not have the degree ofpower "we" would like them to have.Long live the common law!

If the notion that language meanswhatever its author intends it tomean is strange, stranger still is the

NOVEMBER 2005 45

notion that the author need not be areal author but can be a hypotheticalone. This portion of Smith's discus-sion brings to mind the doctrine of"hypothetical junsdiction" mventedby the United States Court ofAppeals for the Ninth Circuit.Where the question of the court'sjunsdiction to decide the case wasdifficult, but the merits question pre-sented by the case was quite simple(and produced a denial of relief just asa decision of no jurisdiction would),the court would simply hypothesizejurisdiction and go on to decide themerits.

The Supreme Court put an end tothis doctrine with the statement(among others) that hypotheticaljurisdiction can support nothing buta hypothetical judgment. So also, itseems to me, with law whose mean-ing depends upon a hypotheticalauthor. The problem is not simply, asSmith thinks, that we cannot posit anadequate hypothetical author. It isthat, even if we could, the law thatwould result would be a hypotheticallaw (whose violation would presum-ably be punishable by hypotheticalincarceration).

If, as Smith contends, a hypotheti-cal author is not up to the job ofresolving law's quandary, neither, itturns out, is Smith himself. His bookdescribes what he believes to be thequandary but does not resolve it,examining and rejecting various solu-tions—except, of course, the classicalone, which is out of bounds becauseIt violates the "norm prescnbing thatreligious beliefs are inadmissible macademic explanations." The book'slast paragraph acknowledges that"perplexity is not a resting place" butconcludes that "we would perhapsbe wise to confess our confusion andto acknowledge that there are richerrealities and greater powers in theuniverse than our meager modernphilosophies have dreamed of."

Hmmm. Richer realities andgreater powers than our modemphilosophies have dreamed of.

Could there be a subversive subtexthere? Why does Smith bring in at theoutset of his book a third ontologicalcategory—religion—which he im-mediately disclaims, not because it iswrong, necessarily, but because itviolates academic ground-rules? Andwhy does his book repeatedly point

out how the "classical school" —premised, alas, upon relipon—wascoherent where modern jurispru-dence is not? And why does hispenultimate chapter describe atlength (though with the academicallycorrect acknowledgment that it is"foreign to prevailing ontological

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46 FIRST THINGS

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PRESIDENr

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The Council for Christian Colleges & Universities (CCCU) is seeking a President Headquartered inWashington, D C , the CCCU is an international higher education association of intentionally Chrisiiancoileges and universities with 105 members in North Amenca (102 in the U.S and 3 in Canada} and 71affiliate institutions in 24 countries The mission of this tax-exempt 501(c)(3) nonprofit organization is toadvance the cause of Christ-centered higher education and to help its member institutions transform livesby faithfully relating scholarship and service to Biblical truth.

We are looking for someone who brings a well-documented track record of Christ-centered leadership,wisdom, energy, entrepreneurial spirit and outstanding communicatton skills to any leadership role Thethree areas of responsibility and accountability of CCCU's president are (1) supporting and clearlyarticulating the mission and vision of Chnst-centered higher education; [2} advocating in public arenas forthe distinctive interests of CCCU member institutions relating to accreditation, government, law and publicpolicy in general as well as leading member institutions and their constituents to be active and credibleparticipants in the public square, and (3) providing leadership for CCCU member campuses, includingprofessional development opportunities for the presidents of the member Institutions, encouraging thesemen and women to remain focused on the distinctive mission and vision of Christian higher education

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assumptions") the work of JosephV^ning, which speaks of a hypotheti-cal author who "would need in somesense to be actually/Jreserar," and "todisplay qualities of canng, and ofmindfulness"? Lawyers, Vining says,either "must believe what they dowith legislation is often foolish anddeceptive; or they do believe andconfess a belief in an informing spiritm the legislated words that is beyondindividual legislators." Holy cow!Could it be that . . . ?

STEVEN SMITH IS A diligent observer

of academic correctness. This is evi-dent in the fact that his book has atleast as many shes as hes {"So the hir-ing partner said, 'I'll call you,' didshe?")—excluding, of course, thosepronouns referring to antecedentproper nouns that are masculine, forwhich Smith can hardly be blamed.One would never expect Smith toviolate the "norm prescribing thatreligious beliefs are inadmissible inacademic explanations." Vining(with appropriate disclaimer) isabout as far as one can go withoutoffending the propneties. Could itbe, however, that Smith is inviting,tempting, seducing his fellow acade-mics to consider the theological wayout of the quandary—the way thatseemed to work for the classicalschool?

As one reaches the end of thebook, after reading Vining's just-short-of-theo!ogical imaginings fol-lowed by Smith's acknowledgmentof "richer realities and greater powersin the universe," he (she?) is sorelytempted to leap up and cry out, "Sayit, man! Say it! Say the G-word! G-G-G-G-God!" Surely even acade-mics can accept, as a hypotheticalauthor, a hypothetical God! Textual-ists, being content with a "modest"judicial role, do not have to call in theAlmighty to elimmate their philo-sophical confusion. But Smith maybe right that a more ambitious judi-cial approach demands what mightbe called a deus ex hypothesi.