The Rule of Text: Is It Possible to Govern Using (Only) Statutes?
Is it possible to govern a jurisdiction by means of written text, which in today’s world refers to statutory law or codes? This may seem a rather strange question. Statutes govern much of our lives. They prohibit us from doing things that we might otherwise be tempted to do, tell us how much tax to pay to the government, and regulate innumerable daily activities, such as how we drive our automobiles, build our homes, or engage in business and commerce. Codes have the same function in civil law jurisdictions, as well as in some American states.
The question that I would like to address in this essay is actually more specific: is it possible to govern a jurisdiction exclusively by means of statutory text? Of course, in a common law system such as ours, statutes are not the only source of law. Yet they are covering more and more territory as a result of the adoption of uniform acts, the restatements, and a more textual approach to the writing and interpretation of case law.1 The rule of text may arrive sooner than we think.
Although we may live in an “age of statutes,” courts continue to engage in common-law adjudication, and, in particular, they interpret statutes and often give those interpretations precedential power. As long as judges have the power to authoritatively interpret statutes, and perhaps even expand their reach, as Guido Calabresi has suggested,2 we are governed not just by statutes, but also by the opinions of judges.
