Comment by rayiner

Comment by rayiner a day ago

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You misapprehend what textualism is. It does not say that every legal case can be decided by interpreting written law. It is merely a philosophy of how to interpret written law when its meaning is what's at issue. What American lawyers call "textualism" is how most continental european courts interpret written laws. It would hardly merit a label, if it wasn't for a long history in the 20th century of jurists departing from written law in making decisions. In this case, there is no dispute about what the written law means. It's about applying a pre-existing legal concept, the freedom of speech, to particular facts.

Another example that highlights the distinction: Justice Gorsuch, one of the Supreme Court's preeminent textualists, is also one of the biggest proponents of criminal rights. Those cases similarly involve defining the contours of pre-existing legal concepts, such as "unreasonable search or seizure." Nobody denies that such questions are subjective--in referring to what's "unreasonable," the text itself calls for a subjective analysis.

lolinder a day ago

For anyone curious to dig into this more, the terms to read up on are "common law" [0] vs "civil law" [1].

Common law is basically just the US, UK, AU, and NZ. Outside the anglosphere it's mostly civil law.

[0] https://en.m.wikipedia.org/wiki/Common_law

[1] https://en.m.wikipedia.org/wiki/Civil_law_(legal_system)

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  • tptacek a day ago

    Not to wave anybody off an interesting rabbit hole, but is that the germane difference here? My understanding: common law features a relatively smaller "source of truth" of written law, and relatively more expansive and variably-binding jurisprudence, where judge decisions set precedent and shape the law. Civil law writes almost everything down ahead of time.

    I guess civil law gives you less room to explore ideas like "living" statutes and laws that gain and change meaning over time; if there was such a change, you'd write it down?

    Regardless: whether you're a textualist or realist, in the US you're still operating in a common law system.

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    • lolinder a day ago

      It's the difference OP is referring to. You can be the judge of if it's relevant in the US to talk about civil law as the "norm" given that our legal system is not, in fact, based on civil law. I'm just providing a link to the concepts OP was referencing.

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      • tptacek a day ago

        I don't think it is, because textualism is just one school (the other current school is legal realism) in the US system, which is common law. But I'm not sniping you, I'm just pursuing a nerdy angle here.

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        • lolinder 20 hours ago

          Ah, I see what you're getting at. I was specifically referring to this line by OP:

          > What American lawyers call "textualism" is how most continental european courts interpret written laws.

          They were making a direct comparison between "textualism" and civil law, but didn't include the terms. I found the comparison interesting and thought I'd make it easier for anyone else who was confused by OP's comparison.

          I realize on re-reading that this comparison is much less prominent than I thought it was in OP's comment, so it makes sense that my links would seem out of place. An explicit quote of that sentence would have helped.

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ceejayoz a day ago

> Another example that highlights the distinction...

No, that just highlights the hypocritical picking-and-choosing they do to justify it. Gorsuch is a textualist when he wants to be, just like the others.

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  • stale2002 a day ago

    Do you understand that the word "unreasonable" would be a subjective analysis and that this would be the textualist recommendation? The text itself calls for a subjective analysis. And therefore doing so would be the textualist position.

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intermerda a day ago

> Textualism is a formalist theory in which the interpretation of the law is based exclusively on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy, or significant questions regarding the justice or rectitude of the law.

Textualism in modern context is a tool used by conservative justices used to uphold laws that serve business interests and conservative causes.

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