Thursday, June 30, 2016
A return trip to Patrick's first two posts on his new paper (McLaw & McRestroom), as prompted by his third (McFixity), reminds me of something people who deal with me regularly know: Sometimes you have to say something to me three times before it begins to sink in! To the extent we have had a failure of communication, I acknowledge my McStake.
This reminds me of a challenge we all need to be reminded of in the life of the law, which is the challenge of listening for law. Were it not for Patrick (and Steve Smith), I would have given up long ago on trying to understand Joseph Vining, whom Steve (in a passage quoted by Patrick) has described as "one of the most provocative but elusive legal thinkers of our time." I haven't yet ... haven't fully understood Vining, that is, but also haven't yet given up on trying, perhaps because I partially understand him.
Other readers of MOJ will surely have more success, more quickly, than I have. So here's an extended quotation from Vining (as quoted by Patrick in his Locating Authority paper):
There is always an enormous difficulty, an enormous struggle in law particularly, to recall and keep in mind that language is evidence of meaning, not meaning itself. The struggle comes from the thirst to know, for closure, that can always be slaked for the moment by illusion, but at a cost and often a terrible cost. The difficulty, the struggle, is the difficulty of listening, and it is a person one listens to--only a person, whom one approaches in good faith, which includes faith that there is a person to be heard. Axiomatic elimination of the person, at least from conscious presence in the reasoning mind, is a way of cutting short the struggle, stopping the work of listening. It is precisely the elimination of the person that permits one to think of rules not as linguistic evidence but as having a real existence of their own. . . . So there is always the temptation in law to approach a statute as if its words had meaning in themselves and by themselves -- the authoritarianism sometimes shown by those devoted to maintaining the supremacy of democratic politics and legislative authority. . . .
Okay. But as my jurisprudent co-author, Jeff Pojanowski, suggested in a series of tweets responding to McFixity (yes, this the world we live in, I just wrote that), there may be room in an intentionalist metaphysics for a practical ethic of presumptive textualism. This is but one reason why it is important to distinguish theories of adjudication from theories of law, even while recognizing that how one interprets a law depends on what kind of law it is.
I worry more about the likes of a pseudo-Lonerganian like William Brennan than an actual Lonerganian like Patrick Brennan. One reason to worry about the latter at all, though, is that one can easily misread P to underwrite a constitutional jurisprudence of W. (Believe this because you've seen it done!) And so I'll conclude with a point I should have reminded myself of earlier: When Patrick writes of "common law method," and uses words like "potentially progressive and cumulative," today's readers should not assume these words mean what today's readers probably think those words mean, but should instead read more of Patrick's work to determine what those words actually mean.