No one with even a passing interest in American legal affairs can fail to have some awareness of Supreme Court Justice Antonin Scalia, hero and intellectual standard bearer of that court's conservative judges. In trenchant writings, lectures and judgments (frequently dissenting), he has insisted he alone has a consistent judicial philosophy. With others, like Hugo Black, he has long denounced the idea of the ‘living Constitution’, which holds that judges should interpret the Constitution to reflect the changing beliefs of an evolving society. Instead, Scalia insists that the document should be interpreted in the light of its original meaning. ‘Originalism’, as it has come to be termed, – not quite the same as ‘textualism’ (the literal meaning) or ‘intentionalism’ (the authors' intentions for meaning and application) – says that what matters is the original meaning the wording had for the Framers. That interpretative route alone leads, says Scalia, to ‘a government of laws, not of men’ (p 177). If ‘the people’ does not want something, the democratic and political process, under the rule of law, is the proper means of change, not the personal views of judges in the Supreme Court. It does not require much imagination to contemplate the jurisprudential challenges presented by this philosophy in decision making on subjects as diverse as abortion, guns and Guantanamo.

Scalia's exercise in legal hermeneutics and his quest for authority for legal decisions has immediate and obvious resonance for theologians who frequently find themselves grappling with the interpretation of an authoritative text. It is a commonplace that law and religion have much in common – nowhere more so than in the fields of authority and methods of interpretation. This interesting and stimulating (though not always easy going) collection of essays in the Ashgate Applied Legal Philosophy series grew from a visit of Scalia to celebrate the opening of the new law faculty building at the University of Leiden in 2004 and has been skilfully drawn together, as something of a ‘chain novel’ recording the subsequent debates, by Arie-Jan Kwak, a professor of law at Leiden.

Scalia's own lecture comes as something of an anticlimax after a masterful overview by Kwak in the first chapter of the diverse and inevitably slightly uneven contributions from seven other Leiden or Utrecht scholars which make up the book. Their immersion in Scalia's learning is impressive, their reasoning dense, their critique telling, whether from the perspective of law or of theology. Herman Philipse argues that Scalia's plea for originalism risks turning judges into mere legal historians – the judge's true task is not merely to establish the original meaning of a text but to make a decision in the case in hand. Willem Drees reasons that the judge's task is not ultimately that dissimilar to the believer's – deciding what to do after consulting the authoritative text. For Paul Cliteur, by contrast, the judge should be a textualist, for the task of adapting law to changing circumstances is for the legislature whereas the believer must ‘interpret’ if ancient religious texts are to have any sense or application in the modern world. Tom Zwart and Hans Nieuwenhuis mount a similar argument for the ‘living constitution’ and (in European terms) for the ECHR as a ‘living instrument which must be interpreted in the light of present day conditions’ (p 134). For Hendrik Kaptein, originalism is untenable. The original, historical, contexts of legal texts are gone forever, never to return. ‘Living law’ is the answer. Kwak ends the essays – which he readily recognises present a ‘diverse palette of perspectives and arguments’ (p 8) – with a fascinating elaboration of living law through the metaphor ‘law as theology’ – both are ultimately about a quest for authority, both are dependent upon interpretation, both have profound moral and political consequences.

Scalia has not been unduly concerned over the years at his failure to win many converts in the Supreme Court to his jurisprudential cause. These essays are unlikely to win many more, but they will inform and stimulate thought in an important debate.

I Do Solemnly Swear is also written out of the American experience and is, on any view, a considerably easier, lighter and wittier read. Steve Sheppard is Professor of Law at the University of Arkansas. He explains and unpacks a very basic idea: ‘Officials must be moral, not just legal. In other words, legal officials ought to carry out their offices according to moral obligations, not just narrowly defined legal rules’. (p xv ) In a time when the idea of morality in the law is widely distrusted and tools for moral assessment of official conduct have become unfamiliar, Sheppard analyses – perhaps, unfortunately, over-analyses – what he terms the ‘retail view of justice’ – law as ‘what is done, not merely what is or what is known’ (p 265), namely how laws are applied to ‘the common person’ by officials in the system, from judges to jurors, police, legislators and clerks, many of whom will have taken an oath of office of one sort or another – hence the book's title. ‘Officials must act justly,’ he writes, ‘or justice is impossible. Justice is personal or it cannot be institutional’ (p 265). Few would disagree with that. The breadth of definition of ‘the official’, however, makes his application problematic at times.

Sheppard structures the core of the book around seven major questions, asking who officials are, what is at stake in their work, what their obligations are, how obligations which arise from the law interact with those that do not, what it means when an official breaches these obligations and what tools assist an official to do justice and discourage injustice. Each question is in turn broken down into other themes (‘nine metaphors’, ‘six sources’, ‘four models’, ‘five aspects of modern legal office’ etc) in a way which feels somewhat laboured and overworked. An excellent and lively essay making an important point has somehow grown to an over-elaborate thesis, footnoted in impressive, if daunting, detail. The work, despite being interesting, readable and richly illustrated by ‘an aggregation of stories from many works in jurisprudence’ (p xxiii), is ultimately, as Sheppard himself admits, ‘necessarily preliminary, even cursory’ (p 265). Few will disagree with much of what he says. Sometimes he is banal – ‘each official is but a cog in the machine; the machine defines the cogs’ (p 26).

After a fascinating survey of legal officialdom in American affairs from Lincoln to Clinton, from the Salem Witch trials to Guantanamo, Sheppard reaches the theologically reassuring conclusion that ‘the most essential personal obligation towards others, and one that is historically most linked with the obligations of officials is charity … charity is integral to all other obligations anyone has toward other people … charity or benevolence is the obligation of each person to treat every other person with care, offering dignity, respect, fairness and honesty. It is the moral duty to act towards others with the love of mankind’ (pp 141–2). John Rawls might have a problem with this notion of charity by public officials, at least if it went beyond acceptance of a state in which all are treated with fairly strict equality to embrace some element of care. Antonin Scalia would probably not.