Tuesday, March 01, 2016

Mark Rylance and the Law

Mark Tushnet

No, not because he played Rudolph Abel in Bridge of Spies. But because he had the same line several times during the movie -- "Would it help?," -- and each time he gave it a different reading, which means that each time the same three words meant something different. At the most basic level, what his performance of that line (those lines?) shows is that context matters: "Would it help?" in one context means something different from "Would it help?" in another.

But I think there's something more to be said. A few years ago I saw a production of "Waiting for Godot," and realized/understood something that serious literary critics probably had known for a long time. To put it somewhat crudely: Each and every line in the play could be given widely different readings, and one reading having been given to a specific line, the next line could still be given widely different readings. In that sense there is no single play "Waiting for Godot," but an enormously large number, with variant readings of lines throughout.

Now go back to constitutional theory and Ronald Dworkin's account of the law as a chain novel, in which what was written just before you come on the scene powerfully limits what you can plausibly add to the novel. If "Waiting for Godot" is the model for literary composition, then the analogy between law and a chain novel doesn't establish what Dworkin apparently thought it did: What came before doesn't constrain what comes after much if at all.

Put in somewhat more traditional terms, which I associate with Karl Llewellyn and Jan Deutsch, we know what has come before only by seeing what comes after. What a precedent or other legal text (the Constitution and statutes, specifically) means is something we can know only after we have used/applied/worked with the text.

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