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Really broad, elegant stuff in the statute chapter that kicks off the direct discussion of SOURCES of law. Judges frequently mistake the metaphor of legislative intent for the reality of what they are doing, which is almost always legislating to fill the gaps where legislators DID NOT have any particular intention. It's Erie guesses all the way down.

There is an incredible footnote where Grey just points out that "legal interpretation" is not even interpretation at all. It's not about what the statute says. Interpreting a statute based on context from other laws or judicial decisions means reasoning from other sources of law, not interpretation. Really neat point.

"When amendment is difficult, interpretation is free." This is why the constitution, which is impossible to amend in modernity, means anything and everything. This is why, when major civil rights legislation happens (which is hardly a MATERIAL victory, but we're working with liberal hats on rn), courts immediately set about interpreting the meaning out of them. The Civil Rights Act of 1965 or the Fourteenth Amendment will never be repealed; therefore, the judicial project becomes interpretation in ways that preserve the preceding legal order to the extent possible.

Also a great passage where Grey, in 1909, explains the doctrines attendant to the legal fiction of corporate citizenship as self-contradictory nonsense. Relatable.

I was procrastinating by reading some Karl Llewellyn earlier, and he reminded me of some updates to these ideas that I find useful. The observation that the one who interprets statutes is the lawmaker extends beyond judges, obviously. For instance, the police officer who decides that punching you in the face is legal, or the bureaucrat who decides that you do not deserve benefits. Another good update was that, if what Grey is saying about the distinction between law and sources of law (and, for that matter, interpretation) is true, then the actual content and words of the statues are not necessarily significant to the study of jurisprudence at all. What matters is what people who decide actually command and what others actually do in response to those commands, not the words within sources of law.

Very readable explanation of the state as an instrument of authorizing exercises of power by the "ruling spirits." As someone who believes that anarchy would be bad and believes that jurisprudence ought to be about observable reality rather than wishful justifications, Gray seems to speak a bit out both sides of his mouth on whether the state is ultimately a worthy form of human organization. How can one describe the state as an imposition of rule by the powerful over the powerless and concede the idea that it is better than nothing?

Also a cool set of refutations for common justifications of the state like "might is right" or the social contract. The latter, in particular, was quite funny in how openly he mocked the idea. From the vantage point of the 2020s, after many decades of the neo-classical project resurrecting dead ideas explicitly in defiance of them being disproven, the social contract stands out as particularly pernicious. Not even it's theoretical proponents considered it literally. And yet it is taught to us as truth, devoid if that context that immediately reveals that it is utterly unsatisfying as an explanation of the relationship between states and people.

The idea that book-driven or academic-driven advocacy is The Way can only be disproven by the existence of books like this. The legal realism movement was actually extraordinarily successful, but the moment it failed in the 1970s and was replaced with ideologies that just embraced ideas it disproved, logic-be-damned, it kind of failed forever. The books that inspired it were decades old and would only get more obscure to the liberal literati over time, necessitating that the same intellectual fights be fought all over again from scratch. At that point, the old book is useful (if read), but it is hardly a battle won.

The enumeration of the kinds of legal person were interesting. However, this chapter also digresses into a digestible treatment of legal fictions that I found really valuable. The difference between historic fictions—expanding the law by pretending that a new scenario meets the procedural requirements of tradition—and dogmatic fictions—compacting the law into the established rule—makes a lot of sense. And it clarifies the primary weakness of each. Historical fictions intended to be just, not intended to make perfect sense on their own terms. Thus, as they age, they can obscure what we're doing as much as they can help overcome resistance to change. Dogmatic fictions can simplify dramatically (such as when constructive notice relieves people of the affirmative but redundant duty to make people aware of material facts), but they are also entirely unsuited to creating new law because they are not strictly about doing the right thing.

But never let it be said that officers of the law are unwilling to make shit up to get their way. If they're doing it to expand access or because it does not make sense to turn someone away, fair enough. If they're doing it to materially change rules, perhaps that requires even more suspicion than we ordinarily give them.