The Impossibility of Textualism and the Pervasiveness of Rewriting in Law

Abstract

In this paper I consider the arguments for and against textualism, or the position that the meaning of a text can be ascertained solely by reference to the rules of grammar and the conventional meanings of the words used in the text. Textualism has a great deal of intuitive force and has been attractive to lawyers because it seems to advance the rule of law. Textualism promises to deliver accessible, objective, and clear meanings for legal texts, which in turn will achieve predictability, co- ordination, efficiency, and the constraint of state officials. My analysis concludes, however, that the arguments for the impossibility of textualism are convincing. What follows from this? Surprisingly little. Clear and compelling meanings for legal texts are still possible, as is the rule of law. Existing practices need to be redescribed— but not changed—as a result of textualism’s failure. Some of these redescriptions do upset the conventional self-understandings of lawyers (rewriting the law, for example, turns out to be a pervasive practice), but this does not matter much because practices and accounts of practices are independent things. Extensive changes made to one need not have effects on the other.

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