Funk on Codification and Protestantism

Kellen R. Funk, Columbia Law School, has published Sect and Superstition: The Protestant Framework of American Codification open access in the American Journal of Legal History:

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.

--Dan Ernst