Category: Rhetoric

pure textualism and legal ambiguity

Commentators today have taken interest in a pointed footnote of Justice Jackson’s dissent in Stanley v. City of Sanford, Florida (p. 23, note 12). I’ve included below a screenshot of the note:

I find Jackson’s argument here fascinating (and compelling) in light of my recent writing on legal equity, particularly in the concept’s Aristotelian tradition. Above, Jackson criticizes the majority’s embrace of “pure textualism”—that is, the majority’s “refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve.” Such “pure textualism,” in effect, closes off a major method of grappling with the “ambiguous text” of a statute, empowering the Court to “disguise” their own interpretive practices in order to “secure the majority’s desired outcome.” In other words, tossing out any investigation into legislative intent leaves judges with little else to work with aside from their own presuppositions and personal aims, changing linguistic ambiguity from a question for research into a moment to exploit.

What caught my eye here is how a “refusal to try to understand … what Congress sought to achieve” is a rejection of Aristotle’s approach to legal interpretation in the Nicomachean Ethics. In that text, Aristotle foresees how general laws will need to be applied to unforeseen, particular cases. We will be left, he argues, to “rectify the deficiency [of the law] by reference to what the lawgiver himself would have said if he had been there and, if he had known about the case, would have laid down in law.” (This principle of “rectifying” the law by excavating its intent and bending it around individual cases is what Aristotle calls epieikeia, later translated as aequitas or “equity.”)

As I lay out in the third chapter of my book, Americans of the 1780s similarly understood how a law’s “consequences were not foreseen by the Legislature” and that, therefore, judges would need to reinterpret laws according to legislative intent (p. 81). In fact, it was understood even in this post-Revolutionary period that attending just to the strict text of the law “resulted in a confusion that wicked men turned to their private advantage” (p. 80). The American Founders and their contemporaries, then, would seem to agree with Justice Jackson. Groveling before the “pure text” of the law and refusing to consider “Congress’s aims” runs against both Greco-Roman attitudes toward statutory ambiguity and an early American embrace of legal equity as a necessary check on judicial corruption.

literature and the legal imaginary

I’m happy to join a collection of lawyers, historians, and literary theorists in Literature and the Legal Imaginary: Knowing Justice, a new book in the Crossroads of Knowledge in Early Modern Literature series based out of Cambridge University. My own chapter (“The Common Consent of Words: An Aristotelian Element of Hobbesian Legal Rhetoric”) shows how a 1637 summary of Aristotle’s Rhetoric paradoxically draws out some important developments in Hobbes “scientific phase,” during which he reportedly turned away from the rhetorical and humanist texts of his early career and tried to ground his political philosophy in demonstrable proof.

weirdly inept

In the October issue of Commonweal, I consider the complexity surrounding “weird” in American political culture. On the one hand, “weird” is a favorite attack against bizarre MAGA Republicans. On the other, it’s the proud self-branding of diverse, liberal-leaning Austin. What separates the interestingly weird from the dangerously weird, especially when it comes to politics?

To answer this question, I turn to the rhetorical and political thought of Cicero and Machiavelli, both of whom take an interest in the “push and pull between individual conviction and social pressure” and warn against a kind of “obstinate weirdness”:

Instead of flattening Machiavelli into an apologist for thoughtless immorality, we should see him as a realist grappling with “necessity.” It’s a theme that resurfaces in his Discourses on Livy, where he argues that “the reason why men are sometimes unfortunate, sometimes fortunate, depends upon whether their behavior is in conformity with the times.” While the vocabulary is different, his arguments here should sound familiar even to those who just learned their first lessons of ancient rhetorical theory in the preceding paragraphs. Whether Machiavelli speaks of “necessity” or “the times” or “fortune,” he persistently urges rulers to adjust their political calculus—and their moral scruple—to fit their circumstances. In short, leaders need to abide by a realist politics of decorum.

To borrow a phrase from Kamala Harris, Machiavelli did not just fall out of a coconut tree. Specialists in the classical tradition have long noticed, as Michelle Zerba explains, “the essential affinity between the Machiavellian doctrine of princely fraud and the Ciceronian ethics of gentlemanly dissimulation.” The ideas of rhetorical “propriety”—attention to “circumstance,” a sense of the aptum, a knack for fitting the occasion—permeate his political and ethical maxims. When Machiavelli writes, “It is necessary that [a prince] should have a mind ready to turn itself according to the way the winds of fortune and the changing circumstances command him,” he has simply taken to heart Cicero’s “universal rule, in oratory as in life,” to consider the moment. Cicero, of course, was chiefly interested in an apt turn of phrase, while Machiavelli was also interested in the apt turn of a dagger.

Launching from this ancient tradition, I draw on Isaiah Berlin’s reading of Machiavelli as a theorist of democratic accommodation and negotiation. He explains how people and princes “gradually [come] to see merits in diversity, and so [become] sceptical about definitive solutions in human affairs.” We should not be surprised, I conclude, to see how “the very politician celebrated for his attacks on weirdness has also reminded us to ‘mind your own damn business.’”

Head over to Commonweal‘s site to read the rest.