At the Threshold’s series on interpreting scripture continues. Our method is to examine the theories of how lawyers, judges, legal scholars, and politicians interpret laws, with a special eye to constitutional law, and then use that understanding to cast light on how scripture is interpreted by biblical scholars and theologians. We have discussed the first of the two basic schools for interpretation, the “objectivist” methodology that Americans usually refer to as “strict constructionist.” We will now turn our attention to the “subjectivist” mode of interpretation.
Part 7 of a 10- part series
A General Review
The subjectivist method considers itself more sensitive to the actual effect it has on the moral order it seeks to uphold, to restore when violated, and to reconcile when differences arise between states and parties. Instead of standing above what is going on in order to judge objectively, subjectivists are willing to go behind, or deeper within, what is seen on the surface of a disputation into the realities as they are and as they will be affected.
Judges and other interpreters of constitutional law often consider each of the three primary schools within it to be reliant on variations of some sort of “natural law” (although not in the sense that scholastic theology defined the term.) That is, instead of limiting their consideration to that which has already been agreed upon and instituted as law, subjectivist are prepared to rely on something outside of the existing and formulated body of law that “naturally” validates the law in question, something that at once transcends concrete instances of law yet remains so fundamental that it must be allowed to govern. Adherents of these forms of interpretation do not believe it is necessary that everyone agree on what that something is or the relation that something must have to law in order to make a rule legitimate.
Even the most ardent objectivist interpreter acknowledges the existence of unwritten and pre-existing equities within the law, an understanding that there are certain inherent protections of the justice and fairness for which the law as a whole stands and which it seeks. The law cannot allow a law to be “inequitable.” If a court recognizes that this is happening in particular cases it will look to where equity is to be identified, even in the face of clearly written statues and precedents. The courts look to the foundational purposes of law itself and of the law in question. The great English jurist Francis Bacon defined equity as the set of maxims that “reign over all the law” and “from which flow all civil laws.” The equities always exist and always must be satisfied; otherwise the law would be forced to contradict its own purposes.
Whether or not an interpreter believes in natural law as a transcendent reality or as the internal logic of the law as always equitable, she or he can accept the proposition that legal rules must be in harmony with the “nature” of human beings and the world. For example, certain rights and obligations cannot be taken away or compromised, such as are revealed in actions of torture, murder, genocide, and slavery. These rights and obligations are founded over time and trial, become established in custom, enjoy the highest status within international law, and must be upheld in national law. They are binding on all nations and cannot be pre-empted by a nation’s legislation or by treaty.
Application of the Reliance on Precedents to International Constitutional Law
Every jurisdiction acknowledges and applies rules generated by previous decisions regarding constitutional interpretation, especially if such a rule, acted upon, becomes custom. This is so definitively for common law jurisdictions, most of which were established with English colonialism or where the English had great influence. But it is also true for civil law jurisdictions that have roots planted more squarely in law as it developed from the Roman Empire. Civil law jurisdictions are primarily found in the continental European nations and those parts of the world where those nations had colonies or significant influence, such as in Latin America.
The civilian tradition relies more on legislation and codified law than on the gradual evolution of the law set precedent by precedent. But all laws, whether legislated or evolved from precedents, require decisions that cannot be anticipated. Precedents are of great importance in all jurisdictions. Legal doctrines and processes for deciding constitutional law evolve and obtain the authority of legislative law.
It is important to acknowledge the necessity of overturning precedent, just like statutory law, in a process that must be flexible enough to face new and unforeseen circumstances. This occurs when new facts arise to confront a question that will not receive satisfactory resolution according to the profound and ever present criterion for equity with the law. For example, it is recognized that the members of society who tend to fall through the cracks of the legal system are those most vulnerable. In scripture, the protections of equity are most often articulated on behalf of orphans and widows, for these were considered the most unprotected members of society at the time.
Application to Scriptural Interpretation
Whenever it is recognized that a certain section of scripture requires interpretation, the first level of examination will inevitably look to what has already been decided. If there is agreement on the precedent as still applicable, the question will remain settled for the time being. However, if there is some pressing disclosure of the need to adjust the understanding, the question of tradition will have to be addressed. Tradition has genuine standing, together with reason, in the art of scriptural interpretation; it is not to be subject to violation without insistent cause. It is here that we must remember the famous insight of Hooker regarding the use of precedents that work toward becoming established as “the tradition.”
Richard Hooker, in Of the Laws of Ecclesiastical Polity, granted the highest of authority to the law as set by precedent. It was thus that he understood tradition as becoming settled, not by simple reason regarding revelation in scripture, but by becoming accepted through a process of precedent-setting. He realized how neither the Christian, and particularly the Christian scriptural tradition, nor the law was a simple matter of discovering the absolutely correct and valid interpretation that can be applied at all times and all places. He recognized the reality that all times and all things within it change, and so do all things human. Consequently, precedents are to determine the law and scriptural interpretation until human experience and human reason demands that another, perhaps contrary, precedent is more equitable and more in accord with the great values and insights of the bible. It is only after a process of precedent-setting that the church can see the whole well enough to finally decide what is to be established as the tradition regarding scriptural interpretation.
“The tradition” can only be established in the history of changing and competing interpretations and applications. That takes time and patience, together with the application of reason. Hooker based unity, not on the interpretation of a literal, or magisterium, reading, but on the willingness to live a variety of interpretations until, over time, one rises to acceptance over the others as true.
Joe Morris Doss
President, At the Threshold