Sect and Superstition

The Protestant Framework of American Codification

Bibliographic Data

ID8301985
AuthorsKellen R Funk, Kellen Funk (0000-0002-4165-9202, Princeton University, corresponding author)
Year2024
Volume64
Issue2
Pages190-213
Publication date2024-06-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueAmerican Journal of Legal History (JOURNAL)
Journal identifiersISSN: 0002-9319 • E-ISSN: 2161-797X
PublisherOxford University Press (PUBLISHER • GB)
DOI10.1093/ajlh/njae008
OpenAlexW4401407123
LanguageEN
References cited14

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’, the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground

Common law · Enlightenment · Epistemology · Political science · Protestantism · Sociology · Statute · Superstition · American Constitutional Law and Politics · History · Judicial and Constitutional Studies · Law · Legal Systems and Judicial Processes · Philosophy

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