A conservative relationship

TEXTUALISM in law and prescriptivism in usage are, in some ways, estranged cousins. It is fitting, then, that Antonin Scalia, textualism’s most prominent advocate, and Bryan Garner, the face of modern highbrow prescriptivism (and a law professor himself), have written together in “Reading Law”. It's a reunion of the two schools.

Both textualism (a philosophy of legal interpretation concerned with remaining faithful to a text) and prescriptivism (a school of linguistic analysis focused on prescribing proper usage) consider theoretical absolutes—a search for one proper answer. For textualists and prescriptivists, any wayward deviation from that one answer creates far too much uncertainty. Better then to rely on history and tradition to interpret the meaning of a word, a phrase, or a text. There is an affinity between each school’s desire to protect, to insulate, and to sterilise past language for present-day use. Prescriptivists and textualists both tend to lionise older authors and older patterns of usage. The most aggrieved among them demonise new things.



Of course, to view either prescriptivists or descriptivists as entirely rigid is unfair. Fair-reading textualism, at least in theory, encourages judges to consider modern norms when necessary. And none but the most hardened prescriptivists would completely ignore information about modern usage. It’s foolish to demand ideological purity in any school of linguistic analysis—whether it’s for a dictionary or for a judicial opinion—because language is so diverse and elastic.



There are differences between textualists and prescriptivists, to be sure. A textualist says he is a mere referee for the original law, not a rulemaker. A prescriptivist may make the same claim—that he is only a messenger of proper usage. But a loud textualist argues that his counterpart, a non-textualist, shouldn’t consider modern social norms in his opinion because he isn’t trained to do so. That’s not a judge’s job, in other words. In contrast, while a prescriptivist might disagree with his counterpart, a descriptivist (who validates colloquial usage by documenting it), he doesn’t necessarily claim that descriptive linguistics isn’t useful or proper. Indeed, it’s pretty common for both prescriptivists and descriptivists to draw on each other’s work.



Ideologically pure textualism, on the other hand, leaves no room for a relationship with non-textualist approaches like purposivism (which gives weight to the original purpose of a law, sometimes at odds with its text) and consequentialism (which considers the consequences produced by a law). But there really isn’t any such thing as ideologically pure textualism. I wrote previously that Mr Scalia adopts an approach in “Reading Law” that appears to free him of responsibility for past or future inconsistencies with the canons of interpretation he espouses. This apparent incoherence, in part, drives Richard Posner’s criticism of the book. But the sort of pure, passive textualism that Mr Posner would demand of Mr Scalia is far out of reach. No interpretative methodology can be entirely passive. Dismissing an imperfect textualism is an approach as flawed as dismissing all prescriptivists as cranky old men afraid of change. Textualism is a different approach from non-textualism, yes, but not an opposite one. (This broader defense of textualism, however, does not absolve Messrs Scalia and Garner of the smaller inconsistencies and misrepresentations noted by Mr Posner.



It’s apparent that one can be a prescriptivist textualist—Mr Garner, at least, appears to be one. But can one be a descriptivist textualist? Descriptivism, like textualism, has some elements of passivity. A descriptive linguist documents language, bereft (in theory) of judgments. Messrs Scalia and Garner’s ideal textualist does the same with a statute.  But in practice, the very reluctance of descriptivists to pass judgment on particular usages—which already puts them at odds with prescriptivism—may be irreconcilable with a more realistic textualism, which prescribes a similar dispassionate analysis but demands a right answer. Textualists, quite literally, pass judgment. As such, textualism is applied in search of an end and descriptivism is not.

At its core, textualism is motivated by a sort of conservatism much more akin to prescriptivism: textualists attempt to insulate the law from the fickle whims of society; prescriptivists do the same with language. It doesn’t really matter, then, that one author holds politically conservative views and the other liberal ones. In the end, the textualist Mr Scalia and prescriptivist Mr Garner are quite similar.

Of course, prescriptivists and descriptivists are highly trained in language analysis. Judges must do the work of historians, sociologists or, to the point here, linguists, without specialised skills. Messrs Garner and Scalia might complement each other in "Reading Law", but there aren't any language specialists on the bench.
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