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LAW & CULTURE:

JUSTICE ANTONIN SCALIA VS. THE POSTMODERN BIBLICAL CRITIC

AND

WHY IT IS NOT “JUST A MATTER OF YOUR INTERPRETATION”

By

Craig A. Parton

Contrary to the prophetic–and marketing--impulses of many Christians, the critical issue that surfaced at the end of the 20th century was not eschatology and the precise weekend of Christ’s return. Nor did the defining issue end up being in the area of ethics, or church government, or ecumenicalism. In fact, the issue did not even end up being, in the final analysis, the crisis in Biblical inerrancy (though that surely was central for much of the century and a battle worth fighting and winning definitively). No, the issue that defined the end of last century and defines our current day is one that few Christians could have ever seen coming. It was, simply, the question of hermeneutics or interpretation. As powerful efforts were made by historical, legal and literary apologists (e.g. the likes of Lewis, Chesterton, and Montgomery) to establish the facticity of Christian revelation and its utter and complete trustworthiness, the enemy was forced to shift the field of battle. Instead of launching frontal assaults on the sufficiency of the evidence for the case for Christianity (a difficult chore indeed in light of the evidence for the resurrection alone and its fundamental legal and evidential adequacy), the questions surrounding interpretation sought to make the inquiry futile–or worse, just another viewpoint in the marketplace of relativistic worldviews. Within the wider Christian Church the result is a wavering in confidence that the concepts of “missions” or “evangelism” even make sense any more since they surely presuppose a cross-cultural objectivity not possible to achieve from the Biblical text.

We are very much convinced that there is help in this raging debate and it is help to be obtained from a very unlikely ally: The law and legal reasoning. More specifically, help can be found at the United States Supreme Court and its approach to the interpretation of the United States Constitution. Of great benefit in this regard is the hermeneutical approach of Associate Supreme Court Justice Antonin Scalia. Scalia has surfaced as the clearest expositor of a position toward the interpretation of the text of the Constitution that has direct and powerful implications for the hermeneutical quicksand we find ourselves stuck in today even within the domain of our own one, holy, apostolic, and catholic faith. Scalia has taken an approach to the interpretation of the Constitution that is directly in line with the traditional “historical grammatical”school of creedal Christianity, a method engaged in by serious Biblical interpreters for centuries prior to the Age of the Enlightenment.

There are valuable lessons to be learned from how Justice Scalia has articulated his position and how it has stood up to the postmodernist arguments of the likes of Supreme Court Justice Anthony Kennedy and Professor Lawrence Tribe of the Harvard Law School. Scalia’s approach is a powerful apologetical anecdote to postmodernism and its oft-used and abused mantra that “even if the New Testament text is reliable, ultimately it all comes down to a matter of interpretation and interpretation is a subjective undertaking.”

Not so, says Scalia. Not so, says the orthodox Christian interpreter. Both the law and contemporary Christian theology (and missions) should have ears to hear...

Scalia Amongst the Postmoderns

1. The actual words control every interpretation of a text and no interpretation should suffer to contradict the natural and plain sense of the text.

Misguided right wing Christian political reactionaries are often heard in the media decrying the need to get behind the words and to divine the “original intent” of the authors of the Constitution. Of course, these voices usually assert this position when arguing against things such as gun control, asserting that the 2nd amendment clearly assumes an armed civilian population since weapons in homes were a normal occurrence in Revolutionary Era America. They do not also argue, however, that an “original intent” approach to the Constitution would find that black people are not protected as persons by the Constitution as originally drafted since they were clearly assumed to be chattel or property. Nor do they argue that the original intent of the Framers of the Constitution was that only print media–and not things like television and the internet–were protected by the Free Speech provisions of the 1st amendment to the Constitution. Scalia, on the other hand, asserts that anything other than strict reliance on the actual words of the Constitutional text is fraught with peril and will result in pure speculation.

In numerous articles and opinions, and in his book on the topic of interpretation[1], Scalia explains that the concept of an author’s “intent” is very complicated and largely unfathomable. Authors and other creators sometimes later explain their own works in ways radically different than, or at odds with, the actual words or images they use or produce, which is why even an author’s later interpretation of his own intent is not necessarily reliable or even useful evidence in understanding a work.[2]

 

When an effort is made to divine the true intentions of a group of authors, such as those of the Constitution, the problem multiplies exponentially. Exactly what criteria would one use to determine the “original intent” of the framers of the Constitution anyway? Historical biographies of the Framers? Comments made to their wives over lunch during the Continental Congress? Statements about their intent found in later–or even contemporaneous--letters? How about statements made from the floor of the Constitutional Congress?

Similarly, how does one divine the intent of the Biblical authors if not from the text of Scripture itself? Of course, this does not mean that extra-Biblical sources may not be useful to understand the context in which the authors wrote a particular letter or Gospel or Psalm. However, such sources must always operate ministerially–or under the text in a subservient role–rather than magisterially or above the text.

California law puts it nicely: “The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.”[3]

2. The meaning of a text should never be created from external sources (nor, we might add, from the pressure of current events or evolving public opinion) and then imposed on a text to render a meaning contrary to the clear language.

For Justice Scalia, when a text is clear on its face, that ends the matter. To then plumb the depths of secondary sources to impose a meaning contrary to the clear text would be to engage in pure divinization. Lord Bacon summed it up nicely: Non est interpretatio, sed divinatio, quae recedit a litera (“Interpretation that departs from the letter of the text is not interpretation but divination.”)[4] This was the fundamental problem with modern Biblical criticism, says C.S. Lewis in his work entitled Modern Theology and Biblical Criticism. Lewis took particular aim at the “new hermeneutic” of the 20th century German Biblical critic, Rudolph Bultmann. It was Bultmann’s indefensible anti-miraculous starting point that tainted his entire approach to Scripture. Miracles were ruled out a priori[5], and thus obviously any eyewitness accounts in the Gospel writers of a miracle could not mean what a plain reading of the utterly clear text would suggest to any 10 year old reading the eyewitness account of John the Apostle. Thomas Jefferson employed the same Bultmanian hermeneutical approach to Scripture much earlier in the 18th century in order to cut out all the miracles in the Bible, thus creating that peculiar species type known as “The Jefferson Bible.” Like Bultmann, Jefferson took an interpretive grid from sources outside the text itself and then imposed that grid on the clear text and simply forced the text to speak in a way harmonious with 18th century Enlightenment Deism. The result tells us much about Jefferson theologically, intellectually, and even psychologically. It tells us absolutely nothing about what Matthew, Mark, Luke and John are saying.

Scalia stresses the importance of not imposing an interpretation on a text from sources external to that text in his recent brilliant dissenting opinion in Roper v. Simmons (03-633, decided March 1, 2005). That case presented a clean issue of constitutional interpretation: Does the 8th Amendment to the Constitution (the prohibition against “cruel and unusual punishment”) prohibit states from executing minors? Justice Anthony Kennedy, writing for the majority, held that such executions were indeed unconstitutional. It is not unimportant to note, however, that the Supreme Court reached precisely the opposite conclusion 15 years earlier on the same exact issue! Presumably a new version of the Constitution had not been discovered in the ensuing 15 years.

Justice Kennedy’s majority opinion reads as if it was cribbed from the “new hermeneutic” school of theology that was so popular a century ago in Christian theology. Kennedy found that “evolving standards of decency” within communities[6] argued for a finding that the execution of minors was cruel and unusual under the Constitution. The practice of such executions is becoming more and more unusual in the United States, said Kennedy, and is largely unheard of in developed and industrialized societies in the west. Of course, neither “evolving standards of decency” nor “the practices of other civilized and industrialized societies” gives us any insight as to whether the words of the Constitution itself prohibit this conduct![7] This reminds one precisely of liberal Biblical scholarship in the past century that first discovered that the Bible, following Darwin’s cultural lead, was actually setting forth an evolutionary schemata for humanity and that the Bible must be interpreted in evolutionary terms and by external “evolutionary” criteria–whatever that means.

This approach of developing an interpretation of a ancient and well-established text by first determining how it speaks to one’s present condition is seen best today in the so-called “hermeneutic of inclusiveness” (or the “gay” approach to Holy Writ). So, contrary to 2000 years of grammatical-historical interpretation of the Scripture employing the natural sense of the text, we now instead have concluded that the Bible not only does not condemn homosexuality, it applauds and supports gay unions.

3. There is one best interpretation of a passage.

Traditional Biblical interpretation stresses the “sensus literalis unus est”–the one proper and intended sense of the text.[8] This is determined from the words of the document itself. The law supports this approach unreservedly, and the rules of evidence in California set this forth in a number of specific principles of contract–or document–construction. For example, Civil Code Section 1644 states that words are to be interpreted in their natural and plain sense, unless the context dictates otherwise. Courts, when involved in document interpretation, do not ever engage in the postmodern speculation that “each is entitled to his own interpretation.” There is one best interpretation of a contested contractual provision–period.[9] That interpretation is best which takes into account the entire text of the document, harmonizes the maximum amount of data without internal or external contradiction, and relies on words being interpreted in their natural and non-technical sense (unless the context demands a technical usage of the word).

Scalia pointed out in the Roper decision that Justice Kennedy appealed to foreign law for assistance in interpreting the United States Constitution. Kennedy very magnanimously pontificated that the United States should learn from the jurisprudence of “other nations” and that other nations had largely concluded that executing minors is indeed cruel and unusual punishment. That is all well and good and interesting to boot. But it has nothing whatsoever to do with how our Constitution is to be interpreted and does not deal with the text and interpretation of the Constitution in the slightest. The fact is that when the Constitution was written the practice of capital punishment was essentially universal. Furthermore, the execution of minors was practiced by a majority of the colonies in the second half of the 18th century. Scalia reasoned that if the framers of the Constitution wanted to declare that such executions were contrary to the Constitution they could have easily done so. They chose not to. The only defensible conclusion is that the framers did not consider the execution of minors by the states to be a violation of the 8th amendment. States were free to engage in such executions or not–it was their choice. Whatever they decided, however, would not be prohibited by the Constitution.

If one wants to argue against the execution of minors on the basis of economics, sociology, or adolescent psychology, they are free to do so and to so convince their state legislatures. What they are not free to do is to use the United States Constitution to support their position. Contrary to Holy Writ, the Constitution is an admittedly human and fallible document and itself allows for amendment. The Framers provided for the fact that their document would likely well evolve and that future governments would want to amend (clarify, add or subtract) to its provisions That is the honest way to deal with issues, as opposed to manufactured “interpretations” that turn the Supreme Court into low-skilled sociologists trying to divine the direction that societal wind is blowing on any particular issue.

Some Free Legal Advice

Those dabbling in the field of Biblical interpretation often suffer from paralyzing narrowness.[10] In particular, postmodern critics of the Biblical material are not known for seeking instruction from other disciplines that may have been dealing with related problems for centuries.[11] There are several good reasons why postmodern Biblical critics could benefit from the great common law principles of document interpretation.

First, lawyers are hardly considered bias in favor of religion. With certainly no philosophical axe to grind on behalf of Christian truth claims to be sure, lawyers have spent considerable time and effort dealing with the issue of how to interpret writings (contracts and their interpretation are standard first year law school courses in themselves). The result has been a highly developed set of hermeneutical rules, the import of which directly and powerfully support the traditional approach to Biblical interpretation engaged in by the Christian church for over a millennia and as seen in the remarkable consistency and acceptability across the three major branches of Christendom itself of the so-called “Ecumenical Creeds of Christendom” (Apostle’s, Nicene and Athanasian Creeds).[12]

Second, lawyers deal with facts and evidence. As importantly, they deal with verdicts, some of which literally involve life and death for the parties. The law therefore has a distinct advantage over speculative postmodern literary criticism which remains insulated in comfortable academia, often totally isolated from the a world where postmodern approaches are totally and thoroughly unworkable.[13] In the final analysis, a Court hearing a case of contractual interpretation will decide that one party–and one party only–has the correct interpretation of a document. Any judge presiding over a case of contract interpretation who concludes that “everybody is entitled to their own interpretation” and that “all interpretations are equal” would be given time off to pursue other more productive occupations, like delivering mail.

Finally, Justice Scalia for one has done the Christian church a great service in reminding us that interpretation is a science whether or not the field it is employed in is law or theology or medicine. There are rules to follow and there are good and bad interpretations of writings.

Our Lord Himself was the great teacher in this area, most clearly seen when the Apostle Peter suggested that there were–in the spirit of the postmodernism of the Roman era--a variety of valid interpretations and “dissenting opinions” as to Christ’s true identity. “But who do you say I am?” brought the discussion down to the critical question of the eternal consequences of arriving at the right interpretation of the meaning of the life and death of Our Lord.

Oftentimes, getting the “right interpretation” is a little consequence. Obtaining the correct interpretation of a work by Melville, Faulkner or Graham Greene makes for interesting discussion in class, but disagreements are hardly eternal in their ramifications. However, in some fields getting the right interpretation is literally a matter of life and death. In medicine, postmodern interpretative approaches are not found amongst cancer specialists when intrepreting the radiological scans of their patients. Similarly, juries reach verdicts and send defendants to an appointment with a last meal and a lethal injection on the basis of one correct interpretation of the facts of a case.

On the same level, we suggest that the interpretation of all the facts arrived at by Peter concerning the identity of Jesus Christ has weighty consequences. The foundation of Christianity and of the Christian Church rides solely on one correct interpretation of the data concerning the life and death of Jesus Christ. The result is that the correct interpretation ends up being, in this case, of mortal–and eternal--importance.

“Thou art the Christ, the Son of the Living God” still remains the best–and most evidentially supportable–interpretation of the entire data set found in the Biblical contract.

Craig Parton is a trial lawyer and partner in the law firm of Price, Postel and Parma of Santa Barbara, California–the oldest law firm in the western United States. His recent book is entitled “The Defense Never Rests: A Lawyer’s Quest for the Gospel”. He is the United States Director of the International Academy of Apologetics, Evangelism and Human Rights which meets each year in Strasbourg, France.

 


[1]Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton Univ. Press: 1997).

[2]Literary and artistic examples of this truth are not difficult to produce. Simply read the low view that Arthur Conan Doyle himself had of the literary value of his Sherlock Holmes character (versus his exceedingly high view of his history of the Boer War!). Doyle seemed incredulous–even disgusted--that the public was taken by this larger than life figure. Similarly, the utterly masterful and Christologically weighty film Dogville by writer-producer Lars von Trier is reduced in impact if one listens to von Trier himself explain what he intended the work to communicate.

[3] California Civil Code Section 1638 (emphasis added).

[4]Francis Bacon, The Advancement of Learning, II.20.viii.

[5] This approach is based on the philosophical efforts of the 18th century empiricist David Hume and his arguments against miracles. Hume’s approach has been devastated by a long line of thinkers, including Richard Whately, C.S. Lewis and recently, John Earman. See Earman, Hume’s Abject Failure: The Argument Against Miracles (Oxford Univ. Press:2000).

[6] Note the reliance on opinion polls and current sociological trends to determine the meaning of a document written over 200 years ago. Robert Bork puts it well: “Once the justices depart, as most of them have, from the original understanding of the principles of the Constitution, they lack any guidance other than their own attempts at moral philosophy, a task for which they have not even minimal skills.” Wall Street Journal, Editorial, July 5, 2005, pg. A-20.

[7] Scalia has reminded his fellow Justices that if the Court was going to be instructed by “other industrialized societies” as to whether certain conduct was or was not protected by the United States Constitution, the right to abortion under Roe v. Wade should be overturned since wholly unrestricted access to abortion is a minority legal position in the “civilized western” world.

[8]“It is a fundamental principle to assume that there is one intended, literal, proper sense to any given passage in Scripture; also that the Scripture is its own best interpreter....The literal sense thus always stands first and each interpreter must guard against cluttering that which is being communicated with his own ideas, lest the meaning be lost.” Eugene F.A. Klug, “Sensus Literalis”, 12/5 Evangelium (December, 1985), pgs. 165-75.

[9] Documents offered in a legal trial may contain a variety of literary styles and topics within the very document being interpreted. The Biblical text is also replete with a variety of literary styles, topics, and figures of speech (e.g. differing “styles” found in the gospels, epistles, historical works, and psalms, and differing figures of speech like metonymy, metaphor, personification, synecdoche, and hyperbole). This does not mean, however, that such styles and figures of speech are incapable of conveying truthful information or that a single best interpretation of highly diverse passages within the same work cannot be determined (one immediately thinks of the vast number of topics covered in some of the pastoral epistles of Saint Paul). See Robert D. Preuss, “Notes on the Inerrancy of Scripture”, found in John Warwick Montgomery, Crisis in Lutheran Theology, Vol. II, pgs. 40-41 (Bethany: 1973). Similarly, documents offered in a legal proceeding may also require repeated efforts in interpretation involving multiple literary “styles”, topics, and figures of speech depending on the aspects of the document under consideration. For example, a last will and testament may have hundreds of diverse provisions each requiring separate interpretive efforts and involving the interplay of highly technical trust and estate planning language with everyday language (e.g. provisions designed to insure compliance with the obtuse ancient legal “Rule Against Perpetuities” in estate planning law may be side by side with bequests stating that “my old red satin smoking jacket with the stains on the sleeves goes to my dear Cousin Buford”).

[10] H.J. Rose and Cyrus Gordon have pointed out how the subjectivistic school of interpretation was tried and found utterly wanting in both Homeric and Ugaritic studies in the past century. See H.J. Rose, Handbook of Greek Literature from Homer to the Age of Lucian (Methuen: 1934), pgs. 42-43; Cyrus H. Gordon, “Higher Critics and Forbidden Fruit”, Christianity Today, 4:4, November 23, 1959. For a satirical expose of postmodern literary theory when applied to the venerable Winnie-The-Pooh, see Frederick C. Crews, The Pooh Perplex (E.P. Dutton & Co.: 1963). There one learns of the Marxist and Freudian Schools of “Pooh Interpretation”, with the result that any simple enjoyment of Pooh as a wonderful children’s story is sacrificed at the altar of “getting at the deeper meaning”.

[11] The particular “species” of postmodernism (and they are legion) is not of direct importance for purposes of this inquiry. For further reading in the distinctions between Derrida’s “metaphysics of presence”, Rorty’s “edifying philosophy”, or Foucault’s concept of the “death of the author” see The Challenge of Postmodernism: An Evangelical Engagement, ed. by David Dockery (Bridgepoint Books: 1995). All the forms–including the theological forms found in the advocates of structuralism, post-structuralism, reader-response criticism, narrative criticism etc.--suffer from the effacing of the subject-object distinction and the elevating of culture often over and against the text. See Thomas C. Oden, “The Death of Modernity” in The Challenge of Postmodernism, at pgs. 19-33. Those wishing to do the primary source work on the particular positions of Derrida, Rorty and Foucault should first consult the following: Jacques Derrida, Writing and Difference (Univ. of Chicago: 1978); Richard Rorty, Objectivity, Relativism and Truth (Cambridge: 1991) and Consequences of Pragmatism (Univ. of Minnesota: 1982); and Michael Foucault, “Truth and Power”, in Power/Knowledge: Selected Interviews and Other Writings 1972-1977, ed. Colin Gordon (Pantheon: 1980).

[12] Lewis, Chesterton and others commented on the fact that what the unbeliever should be more concerned about is the vast amount that all “creedal” Christians agree upon, rather than the relatively minor number of areas on which there is honest disagreement.

[13]For the utterly disastrous and utterly unworkable efforts at importing postmodern categories into modern scientific research, see A House Built on Sand: Exposing Postmodern Myths About Science, edited by Noretta Koertge (Oxford Univ. Press: 1998). This series of essays should send a chill down any budding physicist or biologist who wonders what will happen to science in general if the concept of “objectivity” is replaced with discussions of how the laboratory is really only about power politics, western imperialism, class conflicts, and gender domination.

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