Reddit reviews Reading Law: The Interpretation of Legal Texts

Seems like you're interested in legal policy and history more than the law itself, and you have a highly romanticized idea of what law school actually is. Very little of what you find interesting is taught in law school, and law school is more just mind numbing statutes and common law rules that are then applied to fake fact patterns.

This book might be up your alley. I haven't read it, but the reviews seem decent. Scalia is a very good writer, even if you don't subscribe to his worldview.

> Are we to say they can be wrong, but not fallible? How reasonable, or more importantly unreasonable can our reinterpretations be? Can we say, for example, anathemas were only being sarcastic?

We can say that the Council Fathers are wrong and that they are fallible. Only the text they produce and approve, as a body, is infallible (and also not wrong). (This goes double for popes.) Anything else goes beyond the guarantees of Pastor Aeternus and Lumen Gentium. And that's good, because anything else would lead -- fairly quickly -- to madness.

As for rules of construction, I think we might be able to draw a parallel to a classic example in American law: the Second Amendment. Now, the Second Amendment guarantees the "right to bear arms." But it does not define the word "arms." There are a number of reasonable constructions one can place on the word. Some of those different constructions were already available and relevant at the time, and simply weren't spelled out (instead were left to the People and the courts to figure out); for example, was a cannon considered to be "arms"? The Constitution itself does not say; people can reasonably differ. Some of those different constructions were not available at the time; is a nuclear bomb protected by the right to bear arms? Is a handgun? Is a machine gun? None of these things existed at the time of the Founders, so they could not possibly have been thinking "let's guarantee a right to handguns" when they signed (and 13 state legislatures independently ratified) the Second Amendment.

A very small minority of legal thinkers -- mostly sarcastic faux-originalists -- think that our legal analysis should stop there. The original intent of the Founders could only have encompassed guns that actually existed at the time; therefore Americans have a right to bear breech-loading muskets and bow/arrow, but not .22 rifles.

But pretty much everyone agrees that this position is stupid. As I said, most of the people who hold it only hold it sarcastically. The school I follow, textualism, says, "Look at the text. Look at the meanings of the words as they were defined at the time. Determine the different ways those definitions (there are often several different definitions) would be applied to modern arms. Determine which of these interpretations is most reasonable. Evaluate consistency with modern understandings as a factor. Issue a ruling." Under this system, it's obvious that handguns are indeed "arms", by virtually any definition of "arms" you can imagine (from 1789 or 2015), and therefore they are protected by the Second Amendment. The other cases are largely debatable.

Okay, neat story, BCSWowbagger, now tie it back to what we were talking about.

In the 1500s, there were several understandings of "man" floating around, most of them incomplete. Man as biological member of the species. Man as separated substance. Man as hylomorphic person. Man as thinking animal. Trent wrote the word down and didn't define it for us, leaving that for others -- other Councils, if necessary, but reasonable discourse if possible. Now we, in 2015, are looking backwards at this text and aren't sure how to interpret the word "man." But we can look at those different available interpretations and quickly see that some are more reasonable than others: Canon 1 is nonsense if we pick "man as separated substance," since Adam was not a separated substance, and (the passage goes on to say) could not be until after the Fall. So even the Council Fathers would have said that's obviously not how to understand it. Taking it to mean man as biological entity is plausible in the Tridentine context, but creates enormous problems given our more advanced understanding of the development of human life. So, unless we discover some very good reason to adopt it, let's not. It seems most favorable to understand this in terms of the first homo sapiens who was ensouled.

Of course, this is all too pat. Judicial construction does not provide pat answers. Scalia, whom I earlier disparaged, actually wrote a pretty good book, IMO, about the rules of construction. Though his work has been criticized from a number of directions, by people who have slightly different ideas about legal construction. You can spend a lifetime working out the exact boundaries of "how far" you can go before your interpretation becomes unreasonable.

But it doesn't take a lifetime to be able to see that interpreting Canon 1 to mean "ensouled man" is a reasonable understanding of the passage according to the plain meaning of the text, while interpreting Canon 1 as sarcastic is not.


>By saying Adam was so fundamentally different from his parents, that he required a vastly different soul, and a vastly different form, so much so that he was immortal no less and could walk through walls etc., necessitates that we call him a different species from his parent.

Actually, if he were still biologically capable of reproducing with his biological parents -- and we have no reason to believe he would not be (indeed, the fact that we all exist may be attributable to this interbreeding!) -- he would still be a member of the same biological species. Ontologically, something truly extraordinary happens when man is "uplifted". This difference must be reflected biologically, but there's no need to believe that the changes are terribly extraordinary -- indeed, good reason to believe they aren't. I mean, Jesus, after being raised from the dead, was still basically a human being. Just a human being with powers beyond physical (and therefore beyond biological) explanation.

Sure, it says that man did not merely evolve, but that God directly and miraculously intervened at a certain point in the process of evolution. However, the Church has always taught this to be the case, and science has never taught against it -- only the most hard-bitten secular ideologues, acting with no actual basis in science, insist that "science" says belief in miraculous interventions are incompatible with belief in the generally well-supported processes of evolution.

>Furthermore if Man was a plan, are we to affirm that evolution is not based on random mutations, that life spent billions of years with intention, using insignificant mutations to the fulfillment of Adam's parents

That's pretty basic theistic evolution, yeah. Before you raise the classic objections from the evidence, note that we affirm that evolution is not purely random, but providentially directed. We need not affirm (as the Intelligent Design school does) that the providential direction of evolution is detectable by human means.

>Are we to affirm that we as a species have not evolved genetically since Adam. and are not continuing to do so?

Eh? I don't understand where this idea even came from. No, we do not need to affirm that. Why would we? Do you think that man's ontological nature is defined by his genetic code? It's not.

>This first thinking animal definition. How do we define thinking?

There is a complicated argument that perhaps deserves a different week. There are several valid Catholic perspectives on this, and -- on top of that -- modern anthropology has not uncovered enough evidence about the past for us to draw clear conclusions from any of them. Personally, I follow philosopher Walker Percy's thinking that the essential characteristic of man is triadic, symbolic language (as opposed to the mere dyadic, instinctual/Pavlovian communication common to many mammals). But when did that appear? I don't know. Is Percy's definition right? I'm not sure. The Church has not settled the question yet -- and won't, until there's a lot more data available.

>Are we going to say that Adam at 200,000 years ago could understand and communicate with God, acknowledge his threats and transgress his commands?

This is a good Scriptural reason for adopting Percy's definition. Because, yeah, whenever Adam was uplifted ("ensouled" is really a misnomer, since all things have souls; Adam's was just special), he must have been capable of understanding and communicating with God in order to commit his sin -- which Trent tells us was prevarication, a fairly advanced linguistic concept.

If you want a little preview for next week, I tend to think that Adam probably showed up at the start of (and kicked off!) the Upper Paleolithic Revolution, around 50kya. But I've heard at least plausible arguments ranging anywhere from as early as 2.5mya to as recently as 4kya (though, frankly, I get real skeptical of anything more recent than 15kya). I really enjoyed Dr. Ken Kemp's take on the question here, though it is inevitably caught up in questions of monogenesis you're here straining to avoid.

I like theories that are more recent, because the idea of millions of years of unrecorded human history where the poor sods didn't even have the Law of Moses bugs me, but that's just a bias I have, not something based in fact.

Read the first few chapters of this book to understand the rationale of contructionist arguments.