At this point, Bush opponents should probably recognize that John Roberts will be confirmed as a Supreme Court justice.  If there was a battle to be fought, it was last November; and it seems that there will not be enough of a paper trail to stop him.  So, let me shift away from the immediate political battle, and think about the larger question of how a judge should judge.

     Judgment is central to Confucius’s philosophical project and he would almost certainly be bemused by the notion of original intent, or originalism – that we must discern what the founders meant when they wrote specific words and passages and that those meanings must be preserved in our contemporary jurisprudence.  Meaning, for Confucius, was much more dynamic than this, shifting with historical and social context.  This is perhaps best shown in a rather enigmatic passage from the Analects:

The Master said: "A cup not a cup: A cup indeed! A cup indeed!(6:24)

   Let me explain:

     First, let me toss out a couple of alternate translations.  Here is Ames:

The master said: "A gu ritual drinking vessel that is not a gu ritual drinking vessel – a gu indeed! a gu indeed! (6:25)

     And here is one from Simon Leys:

The Master said: "A square vase that in not square – square vase indeed!

    So, what is the big deal here?  This passage suggests that Confucius is confronted with a situation where some ritual protocol – and he takes ritual very seriously – calls for a square vessel.  But there is not a square vessel available.  Instead there is a round one, or something equally unsuited, at least at first blush, to the definition "gu: square ritual vessel". 

     But what matters for Confucius is not the particular physical qualities of the "square ritual vessel" but the social function of the ritual.  If the practitioners are conscientiously enacting the ritual in a genuine effort to cultivate their social relationships as a vehicle for extending Humanity in the world, then the round cup will do.  What in one set of circumstances would not appear to meet the criteria of "square ritual vessel" can indeed be a gu ("square ritual vessel") if the context calls for it and the intentions of the participants are correct.  A "cup" that is not a "cup" can be a "cup" if the conditions are right.

     Hall and Ames take this as an example of how assigning names is not simply an objective exercise in matching a word to some unchanging underlying reality.  Rather, naming is performative.  In the act of assigning a name we are contributing to a process that makes a thing what it is.  In this case, the thing appeared not to be a "cup", but our social use of it made it a "cup."  As Hall and Ames elaborate:

Just as ritual actions exist only to the extent that they are considered, embodied, reformulated, and extended via the peculiar conditions of the present moment, so naming and the attuning of names is a dynamic enterprise in which the existing structure and definitions is qualified by the understanding that names and their achieved harmonies are always fluid within the parameters of a context, and are in continual need of attunement. (274).

   To get back to the Supreme Court, clearly a Confucian judge would reject the idea of original intent as anachronistic silliness.  How could a term, an idea, a phrase, a legal concept, have the same meaning now that it had over two hundred years ago?  How could it have the same meaning from one particular case to another?  I don’t think Confucius leads us all the way to Humpty Dumpty ("When I use a word…it means just what I choose it to mean — neither more nor less.") – but he is closer to Wittgenstein than to Antonin Scalia. 

    I don’t know where judge Robers comes down on all of this.  I hope his seeming pragmatism wards him off Scalia’s originalism.  He might do well if he read Confucius.