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. Read More…