Day: August 21, 2025

Writing in the thirteenth century, Thomas Aquinas never used the term “textualism” in his discussions of law in the Summa Theologica. He did, however, basically discuss the issue in two different treatises in the Summa and commends a pretty straightforward textualist approach to reading “written law.”

In his “Treatise on Prudence and Justice” in the Summa, Aquinas discusses the question “Whether we should always judge according to the written law?” (ST II-II, Q. 60, a. 5). In his “Treatise on Law,” Aquinas discusses the question “Whether he who is under a law may act beside the letter of the law?” (ST I-II, Q. 96, a. 6). While overlapping, the two questions address different people in different roles. In the former question, Aquinas addresses judges as they interpret law in their official capacity. In the latter question, Aquinas addresses common folk who are “under a law” regarding their personal obligation to obey that law.

Whether anachronistic or not, why might we care what anyone opined about textualism over 750 years ago? As an initial matter, due to Aquinas’s continued visibility, commentators and scholars arguing about textualism often invoke Aquinas to support their views. Former Supreme Court Justice Stephen Breyer cites Aquinas in his recent book for the claim that judges have asked “purpose-oriented questions” when interpreting laws “for hundreds if not thousands of years.” So, too, Harvard Law Professor Adrian Vermeule invokes Aquinas in his book Common Good Constitutionalism, distinguishing a classical version of textualism, which he identifies with Aquinas, from what he styles as the modern textualism of Justice Scalia and textualist justices currently on the Supreme Court.

More generally, it is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today. Whatever his private motivations might have been for discussing the issue in the thirteenth century, he couldn’t have been carrying water for one side or another in today’s legal debates; his view of interpreting legal texts couldn’t be a proxy for a set of substantive legal positions in twenty-first-century America.

Aquinas and the Sine Qua Non of Textualism

Aquinas orients his discussion in the Summa’s “Treatise on Prudence and Justice” to judges and others who have “authority” (ST II-II, Q. 60, a. 1, ad. 4). Here Aquinas affirms the sine qua non of textualism:

Since judgment should be pronounced according to the written law[,] … he that pronounces judgments, interprets, in a way, the letter of the law, by applying it to some particular case. … Just as a law cannot be made save by public authority, so neither can a judgment be pronounced except by public authority, which extends over those who are subject to the community. (ST II-II, Q. 60, a. 6)

We can draw on Aquinas even here to underscore a fundamental point about textualism that often gets lost in the debate: textualism, properly speaking, is not a theory of interpretation; it is a theory about what gets interpreted.

The first move of textualism is what Ronald Dworkin terms a “preinterpretive” move. That is, it is a stage at which a legal text is “identified and distinguished” from other texts. This may seem so obvious that it does not really merit notice, let alone comment. After all, the thought goes, “of course everyone agrees what it is that is being interpreted.”

But I’m not sure as a practical matter that everyone agrees on what texts are being interpreted. Even at an ostensibly preinterpretive stage, there can be some slipperiness in what in fact it is that is being interpreted.

It is because Aquinas discussed textualism 750 years ago that his arguments might be helpful to survey today.

In Cooper v. Aaron, for example, the Supreme Court includes its own decisions interpreting the Constitution and federal statutes along with these latter two texts as “the supreme law of the land.” The Court seemingly lists its decisions as a part of “the Constitution” that it interprets. Because of the significance of the issue at stake, and the Court’s (understandable) exasperation at southern states attempting to delay implementing its Brown decision, the Court slips around just what texts are the supreme law of the land. Equating its own decisions as the supreme law of the land means that the written text of the Constitution (as amended) is not a privileged textual dimension in the interpretive process; the text is not identified at a distinct “preinterpretive stage” and then is interpreted by subsequent decisions.

Rather, in the decision, “the Constitution” is part of a textual stew that not only includes the original text but also includes the text of subsequent decisions that interpreted the written text.

So, too, in his book, Reading the Constitution, former Justice Stephen Breyer treats the written text of the Constitution as just one ingredient of a constitutional stew:

The language of the Constitution will sometimes help [with interpreting the Constitution], say by setting boundaries for the interpreter. So will history and practice. Precedent may prove useful[,] … values (or purposes) matter; and so do consequences[,] … which of the relevant matters—e.g., text, values, consequences—the judge should emphasize will vary depending on the circumstances.

Listing a legal text as one of a set of equally “relevant matters” obscures identifying text as a distinct stage that precedes interpretation. Consider whether we would apply Breyer’s methodological approach in another interpretive context. Think, for example, of an English class studying a Shakespeare play. It is difficult to think the teacher would talk about “the language of the play will sometimes help.” To be sure, there may be numerous additional sources that students might draw on to help interpret the play, but it is the text of the play that these other sources are drawn on to interpret. The text is the material for interpretation; it is not one of a set of sources that might be helpful to interpretation. Like the lexicographic ordering of a dictionary, the text is an initial, privileged dimension that cannot be interpretively traded off against ways subsequently to interpret the text.

The problem doesn’t pertain only to critics of textualism. In moving too quickly to identify textualism with “original public meaning” (or some other interpretive approach), textualists can also invite conflating what is being interpreted with how one approaches the text to interpret it. To be sure, how one interprets the text is critically important. But rushing to that step can gloss over the distinct preinterpretive move of identifying exactly what text it is that we are interpreting. In Aquinas’s approach, he commends that we first identify “the letter of the law,” then move to a subsequent stage of providing a reasonable reading of that text.

Textualism and Equitable Interpretation

Justice Breyer cites Aquinas for the proposition that courts have applied “purpose-oriented” interpretation for “hundreds, if not thousands of years.” Aquinas, he writes, “understood the letter of the law to yield to ‘natural right’ and ‘equity’ where an overly wooden interpretation would frustrate the aims of the law.”

Breyer’s reading of Aquinas, however, has Aquinas’s exception swallowing Aquinas’s rule. Aquinas’s main proposition, after all, is that “it is necessary to judge according to the written law.” Breyer skips over Aquinas’s discussion of this main thesis and instead cites Aquinas’s reply to an objection as though it were his main point. In fact, Aquinas’s reply to this objection is accommodated in the modern era by judicial doctrines such as rationality review and “necessity,” doctrines that even textualists accept and apply.

Before getting to Aquinas’s reply to the objections he articulates, we should note Aquinas’s main thesis. In his reply to the question “whether we should always judge according to the written law” (ST II-II, Q. 60, a. 6), Aquinas first quotes Augustine:

In these earthly laws, though men judge about them when they are making them, when once they are established and passed, the judges may judge no longer of them, but according to them.

The quotation from Augustine draws on the distinction between an official acting in a legislative capacity and an official acting in a judicial capacity. While not a separation-of-power argument, it is certainly a separation-of-role argument.

Next, moving beyond the quotation from Augustine, Aquinas sets out his own view, observing first that there is both natural right and positive right, and that “laws are written for the purpose of manifesting both these rights.” Written law “manifests” these rights “in different ways,” given that written law “contains” natural right but does not establish its authority—nature does—while a written law both contains and establishes the authority of positive law. (The authority of positive law is established by human agreement or custom rather than by nature.)

From these starting points, Aquinas concludes, “Hence it is necessary to judge according to the written law, else judgment would fall short either of the natural or of the positive right” (emphasis added). Significantly, for Aquinas, natural law implies that textualism is a requirement for judges.

Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

Aquinas then discusses two cases in which judges should not apply laws as written. Importantly, when we translate these cases into modern jurisprudential categories, the two cases Aquinas discusses are not exceptional. Today’s textualist judges typically read texts consistent with Aquinas’s provisos.

The first case Aquinas discusses is when the law itself is unjust. The second case is when a particular application of the written law produces an unjust and harsh outcome.

Breyer cites Aquinas’s discussion in the second of these cases as supporting his view of purpose-oriented interpretation.

Aquinas quotes Justinian on this point: “By no reason of law, or favor of equity, is it allowable for us to interpret harshly, and render burdensome, those useful measures which have been enacted for the welfare of man.”

We can glimpse what Aquinas means here by looking at his related discussion in the Summa’s “Treatise on Law.”

A word of caution, however, before proceeding. Aquinas’s “Treatise on Law” is often treated as though it were an abstract discussion of law. It is not.

Unlike his discussion of judgment, which Aquinas aims primarily at officeholders, Aquinas’s “Treatise on Law” speaks primarily to those “under law.” Within the broad intellectual agenda of the Summa, Aquinas intends the “Treatise on Law” to speak to law as an “extrinsic principle” by which God instructs humans for good (and God then enables humans to do that good by grace).

While the first quarter of Aquinas’s “Treatise on Law” receives the most attention in discussions of jurisprudence (Questions 90 through 97), that section only develops the framework for the major work Aquinas does in the treatise, which is his discussion in Questions 98-108 of Old and New Testament laws. The bulk of Aquinas’s discussion in the treatise is focused on providing an answer to a pertinent Biblical question Christians face: identifying what aspects of the Old Testament law continue to oblige Christians and what aspects do not.

With that cautionary word, let’s consider Aquinas’s discussion of written law in his “Treatise on Law.” In Question 96, Aquinas provides an example of interpreting a law in the “harsh” and “burdensome” manner that Justinian discusses:

For instance, suppose that in a besieged city it be an established law that the gates of the city are to be kept closed, this is good for public welfare as a general rule: but, if it were to happen that the enemy are in pursuit of certain citizens, who are defenders of the city, it would be a great loss to the city, if the gates were not opened to them: and so in that case the gates ought to be opened, contrary to the letter of the law, in order to maintain the common weal, which the lawgiver had in view. (ST I-II, Q. 96, a. 6, co.)

Aquinas’s specific application in this Treatise is that law does not oblige obedience in this situation. We can apply Aquinas’s discussion to a judge overseeing a trial of a person accused of breaking this law in the situation Aquinas describes. Aquinas would presumably have the judge allow the accused to assert a defense of necessity, as presumably a modern American judge would as well. To be sure, today we would not call a defense an interpretation of the statute, but that’s not a problem regarding the point Aquinas makes.

Or in the alternative, a judge today might conclude that the prosecution’s construction of the statute is an “absurd result.” This is an interpretive doctrine admitted by the late textualist Justice Scalia.

So, too, Aquinas provides that if there be any doubt regarding the effect of a law, a person must resolve the doubt to “act according to the letter of the law, or consult those in power.”

Again, Aquinas’s immediate point concerns the person “under” the law, which a judge is not (at least not in the same way). Nonetheless, Aquinas’s insight that the law should be applied as written if there is any “doubt” whether the law would result in harm maps onto the minimal rationality test that modern US judges apply to laws. That is, that a law must be sustained if it can plausibly be understood to be rationally related to a legitimate governmental objective.

Aquinas’s approach to interpreting legal text would seem to side with Scalia’s criticism of the Supreme Court’s unanimous decision in Church of the Holy Trinity v. United States when it wrote, “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Aquinas’s approach to interpretation would reject both Breyer’s purposivism and older forms of “original intentions originalism” (this as opposed to textualist originalism).

The point is that modern-day textualist judges apply approaches similar to Aquinas’s as a matter of course. But that’s not really a surprise. Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated” (ST I-II, Q. 90, a. 4, co.). In reading and applying a legal text, this approach would seem to invite the judge to apply Scalia’s essential textualist approach: “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

On December 26 (O.S. December 14), 1825, a group of idealistic, young army officers, commanding about 3,000 soldiers, staged a coup in St. Petersburg with the aim of forcing the Senate to adopt a liberal constitution for the Russian Empire. Badly led and organized, it was easily crushed by the new Tsar, Nicholas I. An uprising by an allied group, operating in what is today Ukraine, met a similar fate days later.

These young officers, members of a number of different secret societies, subsequently came to be known collectively as the Decembrists, and their abortive coup as the Decembrist Revolt. Although it failed and its leaders were severely punished, the revolt was enormously important to the subsequent socio-political evolution of Russia. Following the revolt, Nicholas instituted an authoritarian regime that stifled any sort of free thought or intellectual inquiry that might remotely challenge his absolute power.

In her excellent book, The First Russian Revolution, fortuitously released in time for the revolt’s bicentennial, Susanna Rabow-Edling, a professor of political science at the Institute for Russian and Eurasian Studies at the University of Uppsala, Sweden, presents a detailed picture of the Decembrists themselves, their fellow-travelers, and their wives and girlfriends. Her focus is quasi-biographical; she asks why so many young noblemen, army officers with promising careers ahead of them, risked everything to build a liberal social and political order in their country. After introducing us to them, she recounts their actions in their short-lived attempt at revolution and their subsequent arrests, interrogations, and punishments. Finally, she acquaints us in great detail with their lives in Siberian exile, where most of them were joined by their wives. What emerges from the book is thus a work of political and intellectual history, enhanced by often extremely moving portrayals of human bravery, devotion, and love.

So who were these so-called “Decembrists?” As Rabow-Edling describes them, they were a small group (around 200 at any given time), though their ranks fluctuated and they always had large numbers of supporters who were not officially members of any of their societies or clubs. Almost all of them were young junior military officers drawn from the ranks of the aristocracy. Besides these professional and demographic characteristics, they shared two other extremely important traits: they had all received decent educations, including training in foreign languages, and almost all of them had taken part, to one extent or another, in the wars against Napoleon.

The ramifications of these last two aspects of their biographies are stressed by the author, who sees them as the foundation of the entire Decembrist saga. Armed with their knowledge of French (and usually German as well), and an intellectual curiosity whetted by their educational backgrounds, these young officers found the unaccustomed intellectual atmosphere in post-Napoleonic Europe to be exhilarating and immersed themselves in it to every extent possible. Often, this also meant joining the Freemasons, through which they imbibed additional Enlightenment ideas, besides providing a model for their subsequent establishment of their own secret societies in Russia. According to Rabow-Edling, the entire experience left them deeply impressed and committed to the central ideas of classical liberalism as it was emerging in post-Napoleonic Europe. Among others, these included republicanism (especially its insistence on constitutional government), the rule of law, equality, and patriotism.

An important related point, which Rabow-Edling mentions a number of times, is that the Decembrists had the courage of their convictions to advocate policies, especially the abolition of serfdom and the institution of representative government, which would have been detrimental to the material and political dominance of their socio-economic class.

Rabow-Edling goes into the intellectual background and interests of the Decembrists in great detail, providing lists of authors who influenced them, including the usual suspects of classical liberal thought. For example, one list she provides consists of such luminaries as “Smith, Bentham, Say, Rousseau, Nicholas de Condorcet, Cesare Beccaria, Louis de Bignon, Benjamin Constant, Jean-Louis de Lolme, Benjamin Franklin, Germaine de Stael, Antoine Destutt de Tracy, Gaetano Filangieri, Niccolo Machiavelli, Voltaire, and Montesquieu.”

Ideas, especially great, eternal ideas like freedom, justice, and equality, have no nationality. They are available to people everywhere. The Decembrist leaders recognized this.

This is a very diverse group, and unfortunately, Rabow-Edling does not go into detail about which authors were particularly important to the Decembrists and for what reasons. In general, in her extensive discussion of Decembrist ideology (such as it was), she stresses their advocacy of liberal political economy (especially private property rights and free trade), constitutionalism (occasionally expressed as republicanism), and the rule of law (particularly equality before the law).

Despite mentioning these authors frequently in general terms, Rabow-Edling only mentions one specific case where one of the Decembrists’ key leaders, Pavel Pestel, was “particularly inspired” by a liberal philosopher, in this case Destutt de Tracy. His famous book on Montesquieu (A Commentary and Review of Montesquieu’s “Spirit of Laws”) was apparently the major influence in Pestel’s draft of a constitution for a (republican) Russia. Rabow-Edling’s list of intellectual influences on the Decembrists is also interesting because of the complete absence of German names, whereas intellectual histories of Russia at the time usually highlight the importance of German philosophers, especially Friedrich Schelling and Hegel, at Russian schools and universities.

A main point in reviewing the Decembrists’ intellectual pedigree is that all of their major influences were Western Europeans. This becomes very important after their revolt, as their enemies sought to portray them as “alien” and anti-Russian. While Rabow-Edling freely admits, and even relates in great detail, the European influences on the Decembrists, she emphasizes that “these young Russian officers saw themselves as Europeans and Russia as part of Europe,” but also “they were committed patriots. They wanted what was best for Russia and for the Russian people, which in their mind was freedom, representative government, and the rule of law.”

Significantly, the Decembrists also went to great lengths to argue that their modern, “European,” ideas were, in fact, rooted in Russian history. They pointed to the medieval city republics of Novgorod and Pskov, with their popular representative institutions, as alternatives to the narrative of traditional Russian autocracy. Kondrati Ryleyev and Alexander Odoevskii, two prominent Decembrists, wrote poems and stories glorifying the republican histories of these cities, and in the draft constitutions they drew up for their future Russia, they named their parliament the Narodnoe Veche, after the assemblies of Novgorod and Pskov. 

It is important to understand that these young officers were hardly operating in a vacuum. Liberal ideas were clearly in the air and seemed to be advocated by none other than the Tsar himself, the young(ish) Alexander I, known after 1815 as the “Liberator of Europe.” He was genuinely interested in liberal ideas and eagerly accepted his role, established at the Congress of Vienna, as king of a constitutional kingdom of Poland (known as the Congress Kingdom). He hinted frequently that he saw the Polish experiment as a forerunner to a future constitutional monarchy for Russia itself. He oversaw the abolition of serfdom in the Baltic provinces, instituted a number of reforms in the structure of the imperial government, and began work on a constitution. For the future Decembrists, this was all exciting stuff indeed, and Tsar Alexander, besides being their commander-in-chief, was their intellectual and political hero. They looked to him as a leader in their (admittedly somewhat vague) project for the liberalization of the Russian Empire.

Alas, this was not to be. Liberal revolutions in Spain and Naples rattled the conservative Concert of Europe established by the Congress of Vienna, and Klemens von Metternich, its architect and guardian, stoked Alexander’s growing fears of liberal agitation. A mutiny of disgruntled soldiers in 1820 apparently shook Alexander badly, as did increasingly vociferous grumblings from the Polish parliament (the Sejm). By 1821, Alexander had retreated from most of his erstwhile liberalism and reasserted himself as an autocratic absolute ruler.

Undeterred, the young officers now decided that the only hope for Russia was a revolution. But, as Rabow-Edling describes in great detail, their planning was complicated by intellectual divisions and disagreements about strategy. By 1825, the various secret societies and clubs to which they had belonged coalesced into two allied branches called simply the Northern Society, based in St. Petersburg, and the Southern Society, in the garrison town of Tulchyn (now in Ukraine). Besides the challenges posed by this geographic division, there were intellectual differences between the two societies, with the more radical Southerners, for example, hankering for a republic as soon as possible, while the Northerners were more open to a constitutional monarchy.

As the officers drew closer and closer to formulating their plans for an uprising, they were faced with an unexpected and unwelcome challenge: Tsar Alexander died unexpectedly on December 1 (O.S., November 19), 1825. He was only 47 years old. To make matters even more turbulent, he died childless, and the heir apparent, his brother Constantine, had, without any publicity, sometime earlier had renounced his claim to the throne, leaving their younger brother, Nicholas, as the heir. Unlike his more liberal minded brother Alexander, Nicholas had never made any secret of his autocratic conservative tendencies and he was broadly unpopular not just with the future Decembrists but, importantly, with large numbers of the common soldiery as well, who saw him (rightly) as a supporter of their frequently cruel commanding officers (not including, of course, our young Decembrists!).

The leaders of the Northern and Southern Societies realized that this was a revolutionary moment and, though hardly ready for action, they realized that if they did not seize it, and Nicholas were able to come to power, their cause would be lost. Since Constantine had renounced his claim to the throne while also not making this public, the situation in the capital was extremely unclear. The Decembrists decided to take advantage of the confusion by convincing as many troops as possible to swear their allegiance to the new Tsar Constantine, portraying Nicholas as a usurper. They would then occupy the Senate building and call for a Russian constitution. By the time the dust had settled, they hoped, Nicholas would be confronted with a fait accompli and would have either to abdicate or agree to rule as a constitutional monarch.

The actual events of December 26, 1825, proved to be just as chaotic and, ultimately, disastrous for the Decembrists as the above description of their plans hints, and Rabow-Edling recounts the events of that day in minute detail. Despite being plagued by weak leadership, poor planning, and bad luck, she suggests that the Decembrists might just have been able to pull off their coup. As things turned out, however, by nightfall, Nicholas and his loyal troops dispersed the Decembrists’ forces with great loss of life and crushed the revolt.

The Decembrists also went to great lengths to argue that their modern, “European,” ideas were, in fact, rooted in Russian history.

Rabow-Edling spends the rest of her book, almost half, recounting the sad aftermath of the failed revolt. The Decembrists were all tracked down within a few days, arrested, and imprisoned under differing conditions, in the (in)famous Peter Paul Fortress. Nicholas, by now fully ensconced in power and recognized as the new Tsar, oversaw the investigation into the attempted coup personally. The many pages of testimony collected by the investigating officials show the continued defiance, courage, and idealism of the imprisoned Decembrists. While clearly prepared for severe punishments, many of them nevertheless seemed to have hoped for clemency; they were from good, aristocratic families, after all. As a result, the severity of the sentences came as a huge shock to most of them.

The majority were sentenced to some combination of imprisonment with hard labor followed by exile in Siberia. But five were sentenced to death, originally by quartering, but reduced to hanging, ostensibly by order of Nicholas himself to spare the young aristocrats such a gruesome execution. The death sentences stunned not only the unfortunate Decembrists but much of Russian high society. Capital punishment had not been used in Russia since the end of the Pugachev Rebellion in 1775, and its return, used against people from noble families no less, created an atmosphere of fear and dread. Tsar Nicholas, eventually dubbed “the Policeman of Europe,” of course, knew exactly what he was doing. He wanted to make sure that everyone, especially any uppity nobles, would think very carefully about making any sort of trouble in the future.

In fact, Nicholas very quickly instituted a regime that actively discouraged any sort of philosophizing at all. Although Rabow-Edling does not go into this in any great detail, any sort of organized or academic intellectual life, to say nothing of overt political activity or even philosophizing, in Russia came to a halt until after Nicholas died in 1855. Philosophical and intellectual discussions and writing, such as they were, continued to be carried out more or less as hobbies by various gentlemen or exiles (or both), especially people like Alexander Herzen, who as a teenager witnessed the Decembrists’ revolt and was profoundly moved by it and its aftermath.

The effects on Russian intellectual history were immense. As Rabow-Edling explains, Nicholas introduced in 1832 what became known as “Official Nationalism.” She describes how in this new doctrine, “The new conception of the nation as a unique people was employed as a substitute for the radical idea of the nation as a sovereign people advocated by the Decembrists. It allowed the regime to create a narrative in which the Russian autocracy was tied organically to the Russian nation, intrinsic to Russian nationality, and rooted in Russian traditions.” In part this was achieved, she argues, by the regime’s portrayal of the Decembrists’ ideals as “alien” and “an infection imported from the West.”

Despite the obvious parallels, Rabow-Edling is very careful not to draw too many explicit comparisons between the days of the Decembrists and current events in the Russian Federation. One exception is her reference to a 2019 movie on the Decembrist Revolution, sponsored by the Russian state, which “presents the Decembrist leaders as fanatical, power-hungry egoists or foolish romantics, who aspire to introduce ideas alien to Russia … and who threaten to undermine the unity between the tsar and the people.” Observers of the latest pronouncements coming from the Kremlin might be forgiven for seeing some parallels with Nicolas’ “Official Nationalism.”

Yet, the tragic tale of the Decembrists, while a crucial episode in Russian history, also suggests an important observation about intellectual history in general. Ideas, especially great, eternal ideas like freedom, justice, and equality, have no nationality. They are available to people everywhere. The Decembrist leaders recognized this, as did the thousands of soldiers who followed them, and the great number of civilian bystanders who came out in their support in Senate Square on that cold December day. Perhaps this is the real legacy of the Decembrists and their revolt.