Meaning is messy. Since our notions of justice often demand clarity from the law, some jurists have set themselves to the task of cleaning it up. Textualists home in on the written word as the key to unlocking clarity. But the textualist’s endeavor is less the crusade of a purist than it is the tinkering of a technologist. Textualists labor in hopes they might develop algorithms that would allow them to escape the queasy uncertainty that comes with the exercise of judgment. If only they could consult the right dictionary or apply the right rule – or even build the right search engine – they could, the theory goes, ensure the certain and consistent construction of legal texts, word by word.
That project is founded on an incomplete view of language and meaning. Seventy-five years ago, JL Austin recognized that sometimes people do things rather than simply describe things with words – they sanctify marriages, settle scores, swear oaths, level threats. Words don’t just describe the world; they shape it …
Quinn, Elias Leake, W(h)ither Judgment (February 1, 2021). Cardozo Law Review, volume 42, no 162, 2021.