What if the written law was incoherent? What if statutes used key terms (“right,” “election,” “property,” “religious freedom,” “privacy,” “reasonable,” “compelling state interest,” “life,” “science,” “evidence,” “free speech,” “establish,” “not delegated,” “baby,” “human,” ad infinitum) in a fashion which was not consistent across the whole body of the positive law? What if a state’s constitution used a term like “election” in a much different way than the state Supreme Court’s canon law, regulating the speech of judicial candidates, or state statutes? (This occurred in a classic case that went all the way to the US Supreme Court.) Would the rule of law be possible? Of course not. If the use of terms which are at issue in court decisions is not consistent across the whole text of the positive law (the written law) then the law would have no coherent meaning, for its meaning is determined by the use of this language in prosecutions and law suits.
The controversial language in many cases is at issue precisely because there are different uses of it in the law. And so it must be made coherent with some overall concept of justice as the objective of the decision. The final use of the language, imposed by the court’s decision, should echo the way that the term “justice” is used in a constitution, in statutes, and in other court decisions where such decisions are the most active and dominant source of legal culture. Court decisions are the primary artifacts establishing the use of the term “justice.” Nevertheless the term “justice” is even more abstract than all of the other terms used to state the law in both its written and verbal forms.
So let us say that there is a statute, which is extensive (say 1000 pages long) and uses a key term like “election” dozens of times in an absolutely consistent fashion, so that the meaning of the term, established by that use, is easy to figure out from careful study, careful observation of the statute alone — just as most of us learn the rules of baseball by simply watching that game wherever it is actually played consistently. We find that we do not need rules for deciding if the term has been used correctly in any given paragraph (is consistent with the other uses of the term in the same statute). This would lead to an infinite regression of rules. We would have to have rules which told us that our rule for deciding if the use of the term was consistent (what that use was) was correct, and then another rule for deciding if our use of that rule was correct, and so on. Ludwig Wittgenstein, in his Philosophical Investigations, points out that the whole idea that we must have explicit rules for determining if a term is being used correctly in the first place (as if the dictionary, rather than de facto use, set the standard) leads to this absurdity of an infinite regression of rules for using language correctly.
In the meantime, if the meaning of these terms is Platonic (absolutely stable essences floating around out there some place), instead of being determined by their use, why would there be so much disagreement about the meaning of words like “justice”, and how could such controversies be resolved except by taking sides with some self-declared expert (a philosopher king)? The dictionary is circular in its reasoning, one term’s meaning depending upon another, and lexicographers change the definitions of terms based on the observation of current use. Some philosophers have argued that the meaning of a word relies on the meaning (the use) of every other word in the same language. There is, in any event, an implicit recognition by most of us that the human use of language is not absolutely stable. It is a self-organizing, democratic activity, just like commercial markets. Fortunately or unfortunately, no republic can change this, not even Plato’s.
Of course, it is one thing to recognize the practical fact that people use language just about any way they want. Along with conservatives, this does not mean we have to accept this instability. But then how do we stabilize a society’s use of language as an essential aspect of temporal salvation — of establishing a consistent rule of law based on a view of our experience which is morally practical (that is, Christian)?
To help answer that question, we need, for a long moment, to continue to focus directly on the nature of language which is the all-important subject of postmodern philosophy.
The postmodern solution to the problem of linguistic meaning is that the meaning of language is determined by its use, and that whole traditions (like Christianity, Islam, Liberalism, Marxism) internally determine the meaning of key terms like “justice” and “reason” with consistent, traditional use. The meaning of language is what we can do with it. It is a tool — a multi-tool. The reason why consistent use is enforced (see science and theology) is because there are practical effects to it; it leads to the achievement of personal, social, and political goals which are explicitly embraced by rival traditions. But then there must be some kind of stable human nature upon which language works! The effects of language become predictable. And the people who are trying to destroy us morally know it. They are implicitly, and ironically, rooted in the notion of an immutable human nature. Without it, there would be no predictable consequences to changing the language. Language is relative, but human nature is not. If both were relative, language would be useless.
A very good reason to enforce the consistent use of language, within a tradition, is that the use may have been demonstrated by authorities like Moses, Christ, the disciples, et al, and documented in the Bible. In other words, this idea that the meaning of language is its use is completely compatible with the notion that God delivered an authoritative use of language in salvation history. By allowing the use of language to vary in principle, God guarantees human moral freedom while still enforcing structure — the utmost compatibility of one paradigm of language with the image of God in each one of us.
My summary of postmodernism is that all human thought and action, all human language, is tradition-bound, and that salvation does not and cannot be found outside of a text, the Word — the Word of God. The Word of God is God’s own consistent paradigm of language. It is all-encompassing. That is, for believers, this Word explains all other uses of language, where language is otherwise twisted by non-believers to achieve competing goals. All shooting wars are ultimately just a final attempt by the aggressor to establish an authoritative use of language. All of human history, including the history of the law and the courts, is a war over language (the nature of reason, justice, and human salvation; what it means to use these terms “correctly” so as to achieve certain goals). It is always spiritually violent. The physical violence is an expression of this spiritual (linguistic) violence.
People understand that a competing use of language can destroy their world — their concepts of reason, justice, and salvation. Language is the most constructive and destructive force in human history. And language is the most mysterious capacity of man. It may be the one sure sign that man is made in the image of God. Being able to create and use language, and, therefore, create and destroy entire cultures, entire worlds, is the most significant sense in which we are made in the image of God. Only Christianity recognizes the primacy of language, as a creative and destructive act, in the doctrine of the Trinity. Language requires a community, like the trinity. There is no such thing as a private language. Creation starts with a triune God, who is capable of language, who is identified with the Word.
The problem with putting language, as a creative and potentially destructive act, in the hands of human beings, is that we are finite and corrupt. But it had to be done. Making man in His own image required God to give man this utterly mysterious and overwhelmingly powerful capacity for language. When you combine a finite creature with the infinite power of language, the fall is inevitable. Language must be controlled in order to save us, instead of destroying us. And so God enters history to teach us how to talk about the human experience in a fashion which is compatible with His goals and our true happiness. God becomes the Word incarnate.
If post-structuralism (radical relativism) is the notion that all of Reality is mediated by language and since language is unstable, Reality is unstable, then my anti-relativist (anti-poststructuralist), Christian postmodernism is a recognition that the image of God in man is not relative and the Christian revelation provides the Word as the stabilization of morally authentic language about Reality. This language is practically confirmed, in our concrete experience, by its salvation of the image of God in man.
This experienced-based religious knowledge, both historical and personal, turns out to be clearer and more stable than any proposed scientific knowledge about Reality which is no longer experience-based. (The Reality proposed by science is not actually observable.) The Word, the Christian tradition, which is a whole paradigm of language for talking about Reality, is delivered by God in history, and then works. The Word, the right linguistic order, leading to all other order, becomes incarnate. This claim, I think, is much more powerful than any Platonic claim about language (absolute meanings are floating around out there somewhere independently of God and constraining God) which could only keep the war of words going on forever.
Now back to the law, the courts, and how all of this applies in that arena.
A judge can learn the use (the meaning) of a term in a statute by observing its use therein. But he is free to reject that use when he can demonstrate in his decision (opinion) that this use is inconsistent with the use of the same term in other law, which he may argue is more authoritative, along with other court decisions, than the statute in question. (The use might be constitutional.) Even when the use of a term in a given law seems clear, consistent, and therefore intelligible, most judges know how to appeal to many other competing uses of the term in the text of the positive law. They can always justify a decision on the grounds that the whole body of the law must evolve toward coherence or be dismissed as unintelligible and inapplicable. But then whose “coherence,” which “coherence,” which tradition of linguistic use?
Above all else, a judge may issue a decision in any given case based on the most abstract and most important legal concept of all — justice. And his understanding of justice, his use of this term, will always be rooted in his tradition. There is not enough content in any constitution to clearly dominate the use of the term “justice.” The judge is there to meet out “justice.” And even though the use of a term like “election” or “religious freedom” or “marriage” may seem clear in the text of a given law, it may or may not be consistent with his concept of justice for which he can usually make some argument by selectively appealing to uses of the concept in other laws, or parts of a constitution, which are taken to define the nature of justice even if the word is never used there. And so if “justice” is “equal protection,” the judge may simply argue that gays are not equally protected if they cannot marry each other, even though they can marry someone of the opposite sex, like the rest of us. He implicitly appeals to a linguistic paradigm in which homosexuality is not a behavior, but a condition like race. This is an entire, competing paradigm of language; an entire, competing view of Reality. The judge is simply creating, or repeating, an alternative use of the term “equal protection” thus making it consistent with his own tradition. He sets out to establish his tradition of use as the establishment of justice. (See Thurgood Marshall.) In the end, we are literally disagreeing about the nature of justice on traditional grounds. It is competing traditions, as a whole, which are in power or out of power. There is no other “rule of law.”
Because the meaning of language is its use, the written law, especially as it piles up and precisely because it piles up (too many laws), cannot enforce a consistent use of language. A given law is just one use of the terms at issue and this use is not necessarily consistent across the body of the written law. Left wing legislators may invent new ways of using an ordinary term precisely because they are attempting to overthrow ordinary language as a repository of western religious tradition. Left wing judges then enforce this new use. Traditional “marriage” is overturned. There is no clear explicit rule (a rule for deciding that a rule of use has been applied properly) which falsifies the judge’s decision when he chooses to make the law “coherent” in a certain way, by either elevating or demoting the use of the terms at issue in a particular part of the body of the positive (written) law. The written law, cannot, all by itself, enforce a stable use of legal language. Only a dominant tradition, a clear dominant culture, can do this.
Only a full-blown tradition, dominating a culture, whether through a republican or democratic form of government, can enforce a consistent use of legal language about justice.
The rule of law is not actually the rule of the written text of the law. The simple fact that the law is written down, does not save it from this attempt by any judge to supposedly make it coherent, ultimately with a specific, traditional concept of justice. The rule of law, fortunately, or unfortunately, is the rule of a dominant tradition. Only a dominant tradition, consistently applying its view of justice and reason, could make the use of the positive law in judicial decisions consistent. Sometimes this might involve throwing statutes out; declaring them invalid or unconstitutional, because they are inconsistent with the tradition’s understanding of justice. This understanding is not morally relative. It is an understanding which is able to realize the salvation of the image of God in man or prevent it.
Until the United States is an explicitly Christian republic, or Progressive republic, or Islamic republic, or so on, there will never be a consistent, realized rule of law. This achievement is traditional, not tradition-neutral. It is by its very nature, illiberal. So take your choice when it comes to the best method, the best process, for making the Christian tradition dominant on the bench. You may think you can do it through the existing constitution or a new constitution (a republic) or you may believe that after being liberated from government education (programming) democracy (electing all of our judges) will work more reliably than any republican elite appointing all of our judges.
At least we can agree that there is no rule of law, and no true justice, apart from the overt domination of the bench by the Christian tradition. And we can agree that in order to make the Christian tradition dominant on the bench we must destroy the power of the state to tax us for a government school monopoly which promotes the lie that justice is tradition-neutral. Christian parents who continue to support the government schools are giving strategic aid and comfort to the enemy. Either get your kids out of the government schools, or suffer the evil consequences.