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Thursday, July 3, 2014

Old School Judicial Activism in the Ecclesiastical Courts

I recently got a copy of R.H. Helmholz's Roman Canon Law in Reformation England, and I have been reading in the brief intervals of spare time I have between long stretches of memorizing law and attempting to find a new apartment.

Helmholz points out that statutory interpretation in the medieval ecclesiastical courts was characterized by judges and practitioners taking aggressive liberties with statutory interpretation and often departing from the words of the relevant texts. He describes the law of wills as an example of this chaos:

Instances of the freedom which medieval jurists felt in dealing with the texts abound in the literature, but a particularly instructive example is provided by one of the questions already mentioned, on which English practice diverged from the formal texts. That is the question of how many witnesses must be present at the execution to allow a court to treat a last will and testament as legally valid. The texts of the two papal decretals on the subject seem clear enough. There must have been two trustworthy witnesses plus the parish priest present at the time an ordinary last will and testament was made for it to be probated. If a bequest ad pias causas were at issue, however, then the presence and testimony of "two or three legitimate witnesses" would suffice. 
These two decretals never functioned as modern lawyers expect statutes to. In the hands of medieval commentators, they and the Roman law on the subject led to speculation, distinction, and disagreement. How many witnesses were required became a quaestio dubitabilis, a quaestio perdifficilis. On the one hand, the civil law's rules requiring the solemnity and certainty afforded by several witnesses were evidently "just and for the common utility." Perhaps they were to be preferred. On the other hand, the law's paramount goal was to establish and enforce the testator's last true wishes, and the testimony of two persons or sometimes even fewer ordinarily sufficed to do this. At least in the forum of men's conscience nothing mattered except the intentions of the testator, and this implied a more relaxed standard, perhaps more relaxed than that provided in the two decretals. Antonius de Butrio (d.1408), for instance, held that the testimony of only two unimpeachable witnesses would be enough. He reasoned that the undelrying rationale, "the mind" of the decretal was what counted, and that the mention of the parish priest was a matter of accident, not substance. Hence two witnesses sufficed. Other canonists took a stricter view, some even holding that a higher standard than that found in the decretal should be required. (12-14) (footnotes omitted)
One of the most notable contemporary trends in legal thinking is a shift toward an "originalist" approach to reading law and interpreting cases. Originalism, crudely stated, is the philosophy that laws and cases should be construed in accordance with their plain meaning as understood at the time the laws were drafted and the cases decided. Justice Antonin Scalia is one of the most notable proponents of this approach, and he sets forth a detailed originalist approach in his book, Reading Law: The Interpretation of Legal Texts.

Scalia worries that an alternative approach would lead to judges imposing their own views on what the law means, and that "nine unelected lawyers living in a marble palace" should not be entrusted with this role. In the absence of originalism, Scalia worries that the absence of guiding principles could lead to uncertain and undemocratic results.

Would courts devolve to the level of ecclesiastical courts' divergent treatments of laws in the absence of an originalist philosophy? Probably not. But the confusing network papal decretal interpretations in the ecclesiastical courts shows that modern complaints of judicial activism are somewhat lacking in old school outrageousness.

In any event, I am happy that I am not learning about the ecclesiastical approach to the law of wills. California takes a two-(disinterested)-witness approach -- hold the priest -- and that's all I need to know about that particular part of the law.

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