Impartial judges?

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  • BroJamesBroJames Purgatory Host, 8th Day Host
    Dafyd wrote: »
    in terms of Biblical and literary interpretation, the perennial debate is between those who insist on the primacy of authorial intent, and those who follow Michel Foucault in asserting that the author is dead and buried and contemporary readers are not under any obligation to follow the author.
    Foucault is really quite a late comer to the idea that the aim of interpretation is not to uncover the author's intention. The earliest explicit statement that I can think of the position that the search for the author's intention is a distraction is actually by C.S. Lewis.
    I may be misunderstanding you, but I think Lewis’s criticism was of those who seek to discern the author’s intention other than through the author’s text. I think that’s rather different from the positions of those who follow Foucault or Barthes.
  • I may be wrong, but I had the impression that when Medieval scholars proposed tropological, allegorical, and anagogical interpretations of the Scriptures, there was no suggestion that those interpretations existed in the minds of the original authors.
  • DafydDafyd Shipmate
    BroJames wrote: »
    Dafyd wrote: »
    Foucault is really quite a late comer to the idea that the aim of interpretation is not to uncover the author's intention. The earliest explicit statement that I can think of the position that the search for the author's intention is a distraction is actually by C.S. Lewis.
    I may be misunderstanding you, but I think Lewis’s criticism was of those who seek to discern the author’s intention other than through the author’s text. I think that’s rather different from the positions of those who follow Foucault or Barthes.
    I agree Lewis and Foucault and Barthes would have disagreed with each other's approach. Just because they think you don't go looking for the author's intention doesn't mean that they agree on what you do go looking for.
    Actually I think I misremembered Lewis, in that he's not actually ruling out reference to intention but rather to the author's personality. But I think the two views go naturally together.

    A conventional history of theories of poetry would see a shift from ancient and Renaissance rhetorical-descriptive theories to a period where expressivists theories dominate (in roughly the Romantic period) to a period where formalist theories dominate (the early twentieth century). The rhetorical-descriptive sees the point of poetry as to please and to instruct; the expressivist says that the point is to express the author's emotions; and the formal says that the point is the poem in itself with no reference to anything outside the poem. Lewis' view is rhetorical-descriptive: the point of a poem is in how it describes the world or the emotion in provokes in the reader. The poem for Lewis is a window onto the world: whether what you see through the window is what the window maker intended you to see doesn't matter. What Lewis objects to is looking at the glass rather than through it: I suspect he would argue, fairly or not, that Barthes and Foucault stand so that what they see in the window is their own reflections.
    Lewis IIRC interprets Paradise Lost as a Trinitarian poem even though Milton was an Arian. That is, if Paradise Lost draws on Biblical material and the Biblical material has a Trinitarian interpretation that Trinitarian interpretation carries through in spite of Milton's intention and in spite of the fact that nobody who didn't know about the doctrine of the Trinity would come by it from Paradise Lost. He would reject an interpretation that says Milton intended the poem to be Arian. His objection to the Devil's Party without Knowing It interpretation would be that the text does not support that reading: such interpreters are looking at their own reflections. (Whether he's right is a different matter.)
  • Dafyd--

    Or maybe Milton intended to cloak his own beliefs in language and ideas that other sorts of Christians might understand?

    Just a thought. I haven't (yet?) read it, though a Shipmate once mentioned something about it that was exactly the opposite of whatever I thought at the time.

    TBH: I'm usually not big on Trying To Establish What A Book, Poem, Etc. Means. I soak up the story. I can recognize cross-references, if I've read or heard of the thing referenced; but I rarely make a point of it. It can ruin the work for me. (And yes, that occasionally make for some interesting situations in English class. Though some writers made a point of telling readers *not* to try to find A Meaning in their work. And I sometimes pointed that out. ;) )

    E.g., I like the Harry Potter books a lot. I can briefly acknowledge to myself that there are echoes of a certain Biblical character. But I don't focus on "Therefore, HP is a Type Of (Biblical Character)". I don't dissect it. Blech!

    We now return you to your literary discussion.
  • Lots to think about here. I’m pondering the observation that Supreme Court cases are generally ones where the facts are clear, but the interpretation of the law is not.
  • It seems to me that the political nature of the Supreme Court has always been more of an issue in the USA due to its power to interpret the Constitution. As the executive and legislative branches of government are both subject to the Constitution, the Supreme Court has the power to override them or indeed to create law through its interpretation of the Constitution. In the UK the Supreme Court does not have the jurisdiction to override the legislature. This was modified during the UK's membership in the European Union as the British legislature did not have the authority to override E.U law having ceded its authority to the E.U. This placed the British Judicial branch in a very powerful position, as did the Human Rights Act, which really introduced a written constitution to the UK, albeit this can be repealed by the legislative branch.

    I would argue that the place of the judicial branch is to guard the 'rule of law'. Just because a legislative branch of government makes laws it does not follow that they will be enforced. If they are not enforced then the most powerful elements in a society will be able to ride roughshod over the rights of others (including he executive branch). As such the rule of law is vital to democratic governance. In reply to the OP, impartiality us thus indispensable to the judicial branch in fulfilling this function. In my view a constitution can be consistent with democracy provided that it can easily be amended by the legislative branch. There must also be some minimal constitutional principles so that the roles of the different branches of government can be identified.

    It seems to me that the problem with the American system is the very high hurdle for amending the constitution. The worst decision in Supreme Court history is widely acknowledged to have been Dred-Scott and it took a Civil War to overturn that decision. The Supreme Court knows that if it inteprets the Constitution in a radical manner that the majority of Amercans may disagree with there is little that the legislative branch can do about it.

    The Supreme Court has traditionally recognised certain conventions
    such as the rights of states to determine certain issues without federal interference. This appears to have been eroded in recent years. That has the potential to undermine democracy if it leads to a diminution of the legitimacy of federal law.
  • I'd gloss that a bit Makepeace and say that the Bill of Rights is the thing that gives the US Supreme Court its distinctive character. It means that laws which infringe an idiosyncratically interpreted constitutional right can substantially undermine the will of the Legislature without recourse to an election to deal with that idiosyncratic interpretation. The issue de jour is Freedom of Religion and its purported superiority over other rights.

    In Australia, the High Court can strike down laws on Constitutional grounds, but we don't have a Bill of Rights at the Federal level. So mostly its about which level of Govt has the capacity to make laws in a particular field. We have a Bill of Rights in our Victorian constitution, but that can be amended by Statute, IIRC.
  • MarsupialMarsupial Shipmate
    edited November 2020
    Simon Toad wrote: »
    I'd gloss that a bit Makepeace and say that the Bill of Rights is the thing that gives the US Supreme Court its distinctive character. It means that laws which infringe an idiosyncratically interpreted constitutional right can substantially undermine the will of the Legislature without recourse to an election to deal with that idiosyncratic interpretation. The issue de jour is Freedom of Religion and its purported superiority over other rights.

    As as aside, I can’t think offhand of any recent First Amendment cases that fit that description. Hobby Lobby was about the interpretation of the Religious Freedom Restoration Act, and the wedding cake case in the SCOTUS turned on allegations of reasonable apprehension of bias on the part of the initial administrative decision maker.

  • Lots to think about here. I’m pondering the observation that Supreme Court cases are generally ones where the facts are clear, but the interpretation of the law is not.

    Or anyway, where the facts have already been decided in the courts below...

    To pick up on comments that others have made, I think there are two big issues that arise out allowing courts to review legislation for constitutionality. The first is that, at least in the common-law tradition, judicial interpretation always involves some element of judicial law-making, at least in the sense of deciding how existing principles are to be applied to new sets of facts. In the usual case, legislatures can reverse judicial lawmaking by legislation if they feel strongly enough that the courts got it wrong, but in a constitutional case this can be done only by constitutional amendment which is not usually a practicable option.

    The second issue is that experience has shown that the dividing line between law and politics in constitutional interpretation is not always clear. The big-picture idea, I think, is that the courts are supposed to patrol the boundaries of what the legislature should be able to do in a constitutional democracy founded on broadly liberal principles, but people can disagree both on what those boundaries are and also on whether they have been crossed in particular cases. Ideally, we want the courts to call balls and strikes in overseeing the democratic process, without appearing to step into the fray, but experience has shown that in practice this is easier said than done.

  • Dafyd wrote: »
    BroJames wrote: »
    Dafyd wrote: »
    Foucault is really quite a late comer to the idea that the aim of interpretation is not to uncover the author's intention. The earliest explicit statement that I can think of the position that the search for the author's intention is a distraction is actually by C.S. Lewis.
    I may be misunderstanding you, but I think Lewis’s criticism was of those who seek to discern the author’s intention other than through the author’s text. I think that’s rather different from the positions of those who follow Foucault or Barthes.
    I agree Lewis and Foucault and Barthes would have disagreed with each other's approach. Just because they think you don't go looking for the author's intention doesn't mean that they agree on what you do go looking for.
    Actually I think I misremembered Lewis, in that he's not actually ruling out reference to intention but rather to the author's personality. But I think the two views go naturally together.

    A conventional history of theories of poetry would see a shift from ancient and Renaissance rhetorical-descriptive theories to a period where expressivists theories dominate (in roughly the Romantic period) to a period where formalist theories dominate (the early twentieth century). The rhetorical-descriptive sees the point of poetry as to please and to instruct; the expressivist says that the point is to express the author's emotions; and the formal says that the point is the poem in itself with no reference to anything outside the poem. Lewis' view is rhetorical-descriptive: the point of a poem is in how it describes the world or the emotion in provokes in the reader. The poem for Lewis is a window onto the world: whether what you see through the window is what the window maker intended you to see doesn't matter. What Lewis objects to is looking at the glass rather than through it: I suspect he would argue, fairly or not, that Barthes and Foucault stand so that what they see in the window is their own reflections.
    Lewis IIRC interprets Paradise Lost as a Trinitarian poem even though Milton was an Arian. That is, if Paradise Lost draws on Biblical material and the Biblical material has a Trinitarian interpretation that Trinitarian interpretation carries through in spite of Milton's intention and in spite of the fact that nobody who didn't know about the doctrine of the Trinity would come by it from Paradise Lost. He would reject an interpretation that says Milton intended the poem to be Arian. His objection to the Devil's Party without Knowing It interpretation would be that the text does not support that reading: such interpreters are looking at their own reflections. (Whether he's right is a different matter.)

    Lewis thought critics fools who attempted to find deep allegorical meanings in texts based on elements outside the text, such as the writer's biography or various historical events of his/her time (e.g. the dropping of the atomic bomb). Basically, if you can't support your position adequately from the text itself, don't go searching outside it.

    The "devil's party" argument had to do with some interpreters missing the artistic problem of writing the character of the devil: if you want to write a believable seduction, you have to make your villain seductive. The naive interpreters assumed that because Milton made Satan attractive, it therefore followed that Milton himself felt that attraction and indeed had fallen victim to it. Which is like telling professional romance writers that they themselves have fallen in love with the attractive love interests they create.


  • Looked up what "certiorari" means which was used above. It means the process of appealing a court's decision to a higher court. In some places it means also the document which is used to get the appeal going in various ways. Legalistic jargon.
  • DafydDafyd Shipmate
    Dafyd wrote: »
    BroJames wrote: »
    Dafyd wrote: »
    Foucault is really quite a late comer to the idea that the aim of interpretation is not to uncover the author's intention. The earliest explicit statement that I can think of the position that the search for the author's intention is a distraction is actually by C.S. Lewis.
    I may be misunderstanding you, but I think Lewis’s criticism was of those who seek to discern the author’s intention other than through the author’s text. I think that’s rather different from the positions of those who follow Foucault or Barthes.
    I agree Lewis and Foucault and Barthes would have disagreed with each other's approach. Just because they think you don't go looking for the author's intention doesn't mean that they agree on what you do go looking for.
    Actually I think I misremembered Lewis, in that he's not actually ruling out reference to intention but rather to the author's personality. But I think the two views go naturally together.

    A conventional history of theories of poetry would see a shift from ancient and Renaissance rhetorical-descriptive theories to a period where expressivists theories dominate (in roughly the Romantic period) to a period where formalist theories dominate (the early twentieth century). The rhetorical-descriptive sees the point of poetry as to please and to instruct; the expressivist says that the point is to express the author's emotions; and the formal says that the point is the poem in itself with no reference to anything outside the poem. Lewis' view is rhetorical-descriptive: the point of a poem is in how it describes the world or the emotion in provokes in the reader. The poem for Lewis is a window onto the world: whether what you see through the window is what the window maker intended you to see doesn't matter. What Lewis objects to is looking at the glass rather than through it: I suspect he would argue, fairly or not, that Barthes and Foucault stand so that what they see in the window is their own reflections.
    Lewis IIRC interprets Paradise Lost as a Trinitarian poem even though Milton was an Arian. That is, if Paradise Lost draws on Biblical material and the Biblical material has a Trinitarian interpretation that Trinitarian interpretation carries through in spite of Milton's intention and in spite of the fact that nobody who didn't know about the doctrine of the Trinity would come by it from Paradise Lost. He would reject an interpretation that says Milton intended the poem to be Arian. His objection to the Devil's Party without Knowing It interpretation would be that the text does not support that reading: such interpreters are looking at their own reflections. (Whether he's right is a different matter.)

    Lewis thought critics fools who attempted to find deep allegorical meanings in texts based on elements outside the text, such as the writer's biography or various historical events of his/her time (e.g. the dropping of the atomic bomb). Basically, if you can't support your position adequately from the text itself, don't go searching outside it.

    The "devil's party" argument had to do with some interpreters missing the artistic problem of writing the character of the devil: if you want to write a believable seduction, you have to make your villain seductive. The naive interpreters assumed that because Milton made Satan attractive, it therefore followed that Milton himself felt that attraction and indeed had fallen victim to it. Which is like telling professional romance writers that they themselves have fallen in love with the attractive love interests they create.


  • DafydDafyd Shipmate
    edited November 2020
    Lewis thought critics fools who attempted to find deep allegorical meanings in texts based on elements outside the text, such as the writer's biography or various historical events of his/her time (e.g. the dropping of the atomic bomb). Basically, if you can't support your position adequately from the text itself, don't go searching outside it.
    That too. But if the position can't be supported from the text itself then it doesn't matter whether it was intended by the author or not.
    The "devil's party" argument had to do with some interpreters missing the artistic problem of writing the character of the devil: if you want to write a believable seduction, you have to make your villain seductive. The naive interpreters assumed that because Milton made Satan attractive, it therefore followed that Milton himself felt that attraction and indeed had fallen victim to it.
    That may be how B and yron felt about it. Shelley just found God tyrannical and Satan attractive simply as standing up to tyranny. (I think it's fair to say that Milton does not try to make his picture of God seductive.) Blake is more complex even than that.
  • EnochEnoch Shipmate
    Looked up what "certiorari" means which was used above. It means the process of appealing a court's decision to a higher court. In some places it means also the document which is used to get the appeal going in various ways. Legalistic jargon.
    Worse. It didn't mean that in English law which is where the term comes from. "Certiorari" was one of the prerogative writs which have now been subsumed into judicial review. It was never an appeal. It was for challenging certain forms of administrative or procedural irregularity.

    Incidentally, as Law Latin, how is it pronounced in the USA? It was 'sir-shaw-rare-eye' here.


  • Dafyd wrote: »
    Lewis thought critics fools who attempted to find deep allegorical meanings in texts based on elements outside the text, such as the writer's biography or various historical events of his/her time (e.g. the dropping of the atomic bomb). Basically, if you can't support your position adequately from the text itself, don't go searching outside it.
    That too. But if the position can't be supported from the text itself then it doesn't matter whether it was intended by the author or not.

    If it's a law, and not a novel, we're talking about, it matters a great deal.
  • BroJamesBroJames Purgatory Host, 8th Day Host
    Enoch wrote: »
    Looked up what "certiorari" means which was used above. It means the process of appealing a court's decision to a higher court. In some places it means also the document which is used to get the appeal going in various ways. Legalistic jargon.
    Worse. It didn't mean that in English law which is where the term comes from. "Certiorari" was one of the prerogative writs which have now been subsumed into judicial review. It was never an appeal. It was for challenging certain forms of administrative or procedural irregularity.

    Incidentally, as Law Latin, how is it pronounced in the USA? It was 'sir-shaw-rare-eye' here.
    In England I’m used to 'sir-shaw-rare-ee'
  • Gee DGee D Shipmate
    Enoch wrote: »
    Looked up what "certiorari" means which was used above. It means the process of appealing a court's decision to a higher court. In some places it means also the document which is used to get the appeal going in various ways. Legalistic jargon.
    Worse. It didn't mean that in English law which is where the term comes from. "Certiorari" was one of the prerogative writs which have now been subsumed into judicial review. It was never an appeal. It was for challenging certain forms of administrative or procedural irregularity.

    Incidentally, as Law Latin, how is it pronounced in the USA? It was 'sir-shaw-rare-eye' here.


    It was pronounced much like that here but the second syllable was not stressed, pronounced much like the indeterminate e.

    As for the process, it was most definitely not an appeal, but as you say an order to deal with an action (or purported action) by an inferior court, tribunal or quasi-administrative body. It, along with its companion writs of prohibition and mandamus, was abolished in my State in 1970.
  • Prerogative writs in Canada are dinosaurs, but not entirely extinct. Bizarrely technical, even as legal technicalities go.

    I would be curious to know how leave to appeal to the SCOTUS became known as certiorari if anyone knows the answer.
  • Gee DGee D Shipmate
    Marsupial wrote: »
    Prerogative writs in Canada are dinosaurs, but not entirely extinct. Bizarrely technical, even as legal technicalities go.

    I would be curious to know how leave to appeal to the SCOTUS became known as certiorari if anyone knows the answer.

    I suppose that the formal order sought was to direct the lower court to find in a particular manner, rather than for the SCOTUS to make the order itself. The latter course is that of our High Court, the Canadian and NZ Supreme Courts etc normally adopt.
  • BroJamesBroJames Purgatory Host, 8th Day Host
    AIUI certiorari (“we wish to be certain”) is/was a writ issued by a higher court requiring a lower court to submit its record of proceedings to the higher court for review. I presume the legal situation is that an appeal to SCOTUS takes the form of an application to SCOTUS to issue a writ of certiorari to the court whose judgment is being appealed.
  • EnochEnoch Shipmate
    Prerogative writs here are not dinosaurs. Habeas corpus still exists, and the other writs now correspond under different names and much simplified to the remedies usually sought under judicial review. The cases brought under them still get cited.

  • Gee DGee D Shipmate
    As Enoch implies, you can usually get to the substance of what you seek without using the traditional language. That may not be so in the case of the US Supreme Court given how it functions; in many respects States' rights exist in the US much more strongly than they do here, and the process of the election of the new president is another example of this.

    The NSW Act specifically exempted habeas corpus.
  • Dave WDave W Shipmate
    edited November 2020
    BroJames wrote: »
    AIUI certiorari (“we wish to be certain”) is/was a writ issued by a higher court requiring a lower court to submit its record of proceedings to the higher court for review. I presume the legal situation is that an appeal to SCOTUS takes the form of an application to SCOTUS to issue a writ of certiorari to the court whose judgment is being appealed.
    That's consistent with this page on Supreme Court procedures.
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