Scalia & Garner's Reading Law: A Civil Law for the Age of Statutes?

Document Type

Article

Publication Date

Summer 2013

Abstract

In Reading Law: The Interpretation of Legal Texts U.S. Supreme Court Justice Antonin Scalia and American legal lexicographer Bryan A. Garner challenge Americans to start over in dealing with statutes in the Age of Statutes. They propose ― "textualism," i.e., ― "that the words of a governing text are of paramount concern, and what they convey in their context is what the text means." Textualism is to remedy American lack of ― "a generally agreed-on approach to the interpretation of legal texts." That deficiency makes American law unpredictable, unequal, undemocratic and political. In the book's Foreword Chief Judge Frank Easterbrook calls the book ― "a great event in American legal culture." It is a remarkable book because it challenges common law traditions. This review essay shows how Scalia and Garner challenge common law and summarizes the content of their challenge.

This essay contrasts the methods of Reading Law with the methods of the Continental civil law. It shows that textualism is consistent with modern civil law methods. It shows also, however, that pure textualism, which largely restricts interpretation to grammatical and historical interpretation and excludes non-textual interpretation such as equitable, pragmatic and purposive approaches, is not consistent with modern civil law methods. In modern civil law, textualism and non-textualism coexist. They must, if law is to honor legal certainty, justice and policy.

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