legal-terms legal-concepts textualism
What is the opposite of the legal concept called ‘textualism’?
<p>The concept of <a href="https://en.wikipedia.org/wiki/Textualism" rel="nofollow noreferrer">Textualism</a> has as its main focus the precise letter of the law.</p>

<p>What is the name of the opposite concept?</p>

<p>An opposite concept would be where focus also is given to non-textual sources, such as: </p>

<ol>
<li>intention of the law when passed, </li>
<li>the problem it was intended to remedy</li>
<li>Significant questions regarding the justice or rectitude of the law.</li>
</ol>

<p>Broad strokes, textualism is one of two schools in originalism School in U.S. Constitutional Law.  Textualism is the Letter of the Law vs. the Spirit in a simple form but more complex than that as Textualism which holds that the text must use the meaning as understood and makes not deference to intent of the writers.   This is loosely rebuffed by Original Meaning Theory, which holds close to textulism but the meaning must be understood as it would have in time of writing.  It is opposed by Living Constitutionalism, which holds that as the definition of the words change over time, so to does the law change as well.</p>
<p>For an example that relies on no political discussions, consider from the Flinstones' Theme song</p>
<blockquote>
<p>When you're with the Flintstones/</p>
<p>you'll have a yabba dabba doo time/</p>
<p>a dabba doo time</p>
<p>You'll have a <strong>gay</strong> ol' time!</p>
</blockquote>
<p>Were this some legal matter, then the interpretation between the Textualist, Orignialist, and Living Constitutionalist would vary because of the word &quot;Gay&quot; in the last line.</p>
<p>The Textualist would argue that while the definition of the word &quot;Gay&quot; has two meanings we need not look at other documentation to understand the meaning but substitute the two very different definitions (&quot;Happy&quot; or &quot;of a Homosexual nature&quot;).  Since the phrase &quot;Happy Ol' Time&quot; makes more sense given the context in the document than &quot;Have a Homosexual Ol' Time&quot; the former is the correct interpretation of the meaning of the fourth line, thus When you are in the company of the Flinstones, you will have a happy experience.  They would reject the latter argument on the basis that it would unreasonably read new meaning into the song, and that it is the song writers job to amend the song to better explain their meaning, not the courts.</p>
<p>An Original Meaning would argue that as the song first appeared on September 30th, 1960, we must used the ordinary meaning as understood in the early 60s and thus, the meaning of the word must match the common understanding of the word gay in this point in history (Happy) and the fact that the song is introducing a television commedy they would agree with the Textualist.  The difference between the two is grammer vs. etymology and contextual understanding of the writers intention, thus When you are in the company of the Flinstones, you will have a happy experience.</p>
<p>The Living Constitutionalist would argue that the word &quot;Gay&quot; to the modern listener means homosexual and is undertood as an archaic or outdated term for Happy, the song is thus interpreted as &quot;When you are in the company of the Flinstones, you will have a homoerotic experience&quot; and thus argue that the it should be rated R if you think it's between Wilma and Betty and X if it is between Fred and Barney (both because naked men tend to be more taboo in film than naked women and because of the egregious &quot;rock&quot; puns that would inevitably be made from a gay Flinstones fanfic.).</p>
<p>Okay, got a little silly in my attempt to avoid politics in explaining the theory, but was demonstrating the differences.  Also note these are statutory interpretation values too, so it doesn't have to be just the Constitution but any codified law (Common Law nations do have a lot of Common Law laws as well... that is, laws that aren't statutory because they were determined by a case decision.  The U.S. has several states where there is no Statutory definition of Murder, but there have been enough court cases regarding the crime that the legal definition exists and is perfectly workable.  Maryland, for example, has sentencing laws, but no codified definition of murder).</p>

<p><a href="https://en.wikipedia.org/wiki/Textualism" rel="nofollow noreferrer"><strong>Textualism</strong></a> is a school of legal interprtation. It may be contrasted with <a href="https://en.wikipedia.org/wiki/Original_intent" rel="nofollow noreferrer"><strong>Intentionalism</strong></a> (and the specialized version of intentionalism known as <strong>Oraginal Intent theory</strong>), with <a href="https://en.wikipedia.org/wiki/Strict_constructionism" rel="nofollow noreferrer"><strong>Strict Constructionism</strong></a> and the <a href="https://en.wikipedia.org/wiki/Living_Constitution" rel="nofollow noreferrer"><strong>Living document</strong></a> or <strong>Living tree</strong> school. The latter is generally applied only to written constitutions and other important legal documents that have survived with relatively limited change over a relatively long time, primarily the US Federal Constitution.</p>
<p>A textualist generally accords no weight to the &quot;intention&quot; of the legislature (or other body) which passed a regulation, law, or constitution, and is therefore also not interested in &quot;legislative history (records of debates over the passage, drafts that did not pass, and statements or reports by individuals or committees or staff on the intended purpose or effect of a law).</p>
<p>A textualist looks at the meaning of the whole document, as it would have been understood by a person knowledgeable in the law at the time the law was passed (or constitution or treaty was ratified). A textualist will consult specialist sources for the meaning of jargon or terms off art at the time of passage, and may consult dictionaries or other sources to determine the ordinary meaning of non-specialist terms <em>at the time of passage</em>. A textualist is not interested in the modern meaning of words, or of the document as a whole, but only in the meaning as it was at the time of passage. A textualist  considers that the meaning of the document is fixed at that point, unless it is amended or altered later. A textualist normally considers a document as a whole, not an individual word or clause except in the context of the rest of the document.</p>
<p>Textualism is a <strong>formalist</strong> theory. It is sometimes known as <strong>original meaning</strong> theory.</p>
<p>US Supreme court Justice Scalia described himself as a textualist, and was perhaps the most well-known textualist in the US during his term on the Court.</p>
<p>In the case of <em>K-Mart v. Cartier</em>, 486 U.S. 281, 319 (1988) Justice Scalia  wrote:</p>
<blockquote>
<p>The statute excludes only merchandise &quot;of foreign manufacture,&quot; which the majority says might mean &quot;manufactured by a foreigner&quot; rather than &quot;manufactured in a foreign country.&quot; I think not. Words, like syllables, acquire meaning not in isolation but within their context. While looking up the separate word &quot;foreign&quot; in a dictionary might produce the reading the majority suggests, that approach would also interpret the phrase &quot;I have a foreign object in my eye&quot; as referring, perhaps, to something from Italy. The phrase &quot;of foreign manufacture&quot; is a common usage, well understood to mean &quot;manufactured abroad.&quot;</p>
</blockquote>
<p>US Justice Robert Jackson used the term &quot;textualism&quot; in the 1952 case <a href="https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._v._Sawyer" rel="nofollow noreferrer"><em>Youngstown Sheet &amp; Tube Co. v. Sawyer</em></a>. That was the first use of the term in a US Supreme Court opinion.</p>
<p>A follower of Original Intent theory looks at what the authors of the document (the legislature for ordinary laws, the convention for the US Constitution) indented to achieve, what their purpose was. Such a person then attempts to interpret the document to achieve that purpose, regardless of the exact meaning assigned at the time of passage. Textualists deny that there is such a thing as <strong>the</strong> intent, because each legislator or delegate may have had a different intent, and we often cannot know what the intent of any one of them was, anyway. Original Intent is an <strong>interpretivist</strong> theory</p>
<p>A strict constructionist construes the powers of the government narrowly, as a rule. The term has been, in the US, applied primarily to judges of a conservative bent, and has become almost a synonym for &quot;conservative judge&quot;. Few Judges so describe themselves.</p>
<p>In his lecture <em>A Matter of Interpretation</em> (Princeton 1998) Justice Scalia wrote:</p>
<blockquote>
<p>The difference between textualism and strict constructionism can be seen in a statutory case my Court decided last term. The statute at issue provided for an increased jail term if, &quot;during and in relation to ... [a] drug trafficking crime,&quot; the defendant &quot;uses ... a firearm.&quot; The defendant in this case had sought to purchase a quantity of cocaine; and what he had offered to give in exchange for the cocaine was an unloaded firearm, which he showed to the drug-seller. The Court held, I regret to say, that the defendant was subject to the increased penalty, because he had &quot;used a firearm during and in relation to a drug trafficking crime.&quot; The case was not even close (6–3). I dissented. Now I cannot say whether my colleagues in the majority voted the way they did because they are strict-construction textualists, or because they are not textualists at all. But a proper textualist, which is to say my kind of textualist, would surely have voted with me. The phrase &quot;uses a gun&quot; fairly connoted use of a gun for what guns are normally used for, that is, as a weapon.</p>
<p>When you ask someone &quot;Do you use a cane?&quot; you are not inquiring whether he has hung his grandfather's antique cane as a decoration in the hallway.</p>
</blockquote>
<p>The <strong>Living Constitution</strong> or <strong>Living Tree</strong> theory holds that a Constitution must adapt to changing circumstances, and that is is proper, indeed essential, for judges to make such adaptations when they are needed, without waiting for formal amendments. This doctrine has been associated with both <strong>legal realism</strong> and <strong>judicial activism</strong>. In the US it was particularly associated with the Warren Court (under chief justice Earl Warren)  Justice Thurgood Marshall wrote approvingly of it.</p>
<p>In Canada, which does not have a single written constitutional document, the &quot;living tree&quot; theory is more generally accepted. The Supreme court of Canada wrote in the <em>Same-Sex Marriage</em> case, December 2004:</p>
<blockquote>
<p>The &quot;frozen concepts&quot; reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.</p>
</blockquote>
<p>A textualist would find such an approach totally unacceptable.</p>
