The Owl of Minerva and “Our Law” – Ius & Iustitium

The Owl of Minerva and “Our Law” – Ius & Iustitium

Conor Casey & Adrian Vermeule[1]

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

The main question posed by Baude at the outset of his lecture is whether textualism is “missing something important”? Baude began in a conventional register by suggesting that textualism is said to reflect the “basic insight central to the structure of our government…and fabric of our law” that the job of the interpreter is (a) usually to enforce rules that have been made some place else, not to make the rules herself; and (b) not to imagine decisions that were actually never made by the legislature. In general, says Baude, the results of the “textualist revolution” have been “salutary” for embedding these ideas into legal practice and thought.

The talk, however, then took a sharp and surprising turn—indeed a turn towards the very approach to legal interpretation, the classical approach, that Ius et Iustitium was founded to advocate. Baude’s answer to the question posed at the start of his lecture turned out to be an emphatic yes. Textualism is grievously incomplete, Baude now argues, chiefly because it fails adequately to take account of other sources of law, including “unwritten background principles” and “natural law.” (Yes, everything in quotation marks is a quote from the lecture). Continue reading “The Owl of Minerva and “Our Law””→

Baude concludes by warning that denying the centrality of unwritten law to American legal practice has the risk of “sending us in statutory interpretation circles, unable to explain how we can avoid being literalists…and opportunists.” If students are not exposed to the centrality of unwritten law to legal practice and interpretation, then they will be “misled into thinking the only choices are the plain text and judicial policymaking” which Baude says “is not true.” We would add only that one might even call this fundamentally false alternative an argument by slogan.

All this is a welcome development indeed. To be sure, given Baude’s recent vituperative rejection of the classical view of legal interpretation, it seems that the Owl of Minerva, symbol of wisdom, has once again waited until dusk to take wing. Nonetheless, it is better that wisdom should take wing at all than that the legal theorist learns nothing and forgets nothing. As Justice Felix Frankfurter famously observed, “wisdom too often never comes, and so one ought not to reject it merely because it comes late.”