How To Interpret Law
This post discusses the problems of legal interpretation and offers insight into how we can solve those problems. The first issue to discuss is the problem of unfixed reference or indeterminacy of rules and language. Once we thoroughly explore this topic, we will explore legal interpretation and some of the methods, and the problems therein, available to apply our laws. For instance, legislative authority, textualism, and political pluralism. After doing so, we will conclude on what to make of the issues around legal interpretation.
Laws, Reference, and Determinacy
Determinacy is an inherent problem for any collection of: rules, symbols, or variables. It plagues philosophers, linguists, and even legal theorists, to the point where hundreds of articles and multiple books have been published, some of which sought to end the problem of both determinacy and legal interpretation once and for all. However, though many have tried, none have succeeded. Determinacy and the problems of legal interpretation seem to be genetically hard-wired, and so they won’t be going anywhere soon.
But what exactly is the problem of determinacy, and how does it influence how law is interpreted? Albeit it has similar wording to the concept of determinism, but it has little in common with determinism. Put simply, determinacy references the degree to which a given rule, symbol, or variable can characterize an object or circumstance. I say, “degree to which,” as some believe in moderate indeterminacy: (Lewis 1984, pp. 227-28), while others believe in absolute determinacy. But moreover, the problem of determinacy arises from rules, symbols, and variables because each of these things necessarily references something while at same time being dependent on a user. In other words, the problem of determinacy is about fixed versus unfixed reference.
To explain further, consider rules. When we create a rule or statute, we have in our interest some intent to guide behaviour or action, or even a restriction: the formation or restriction of a habit. And so, we create a rule to produce a desired effect. However, in our act of creation, we have introduced a space between the formation of the rule and the thing which the rule was intended to regulate. That space can be characterized as the semantics of the rule – what the rule means. For example, if children were to create a rule during their time of play that stated: “whoever is not the seeker cannot be on the ground that is around the jungle-gym when the seeker utters X, otherwise you will lose,” then the children would have to determine the meaningful applications of said rule. They have to determine who the seeker is, they have to determine who uttered X, and they likewise have to determine what constitutes the ground: i.e., does the grass, of which is 20 yards away, count as “the ground that is around the jungle-gym”. The application of the rule will, in part, determine its meaning. And so, when the rule is independent of its application, it has an indeterminate meaning. In addition to that, some of the children might disagree with the interpretations offered as well, thus effectively negating the precedent-based referent.
The same can likewise be said about symbolic systems such as language. Language consists of, though not exclusively, a series of symbols. We have a primary set of symbols, letters, of which we use to create more complex symbols, words, that then become complex constructions involving multiple symbols, sentences. However, the meaning of these symbols depends, in part, on the contextual application. Let us take, for example, the word “over”. The word “over” has numerous meanings, many of which vary in accordance with context.
1. The painting is over the mantel
2. The plane is flying over the hill
3. Sam is walking over the hill
4. Sam lives over the hill
5. The wall fell over
6. Sam turned the page over
7. Sam turned over
8. The game is over
The word “over” in each of these instances has an ever so slightly different meaning, precisely because the word is being applied to a context. It can be interpreted in more than one way. For instance, the distance between Sam and the hill is necessarily nil in sentence 3, whereas the plane and the hill have considerable distance between them in sentence 2.
Likewise, the word “over” in sentence 8 has a markedly different meaning than it had in the previous 7 sentences, as the previous 7 sentences can be characterized by path-goal schemas, but sentence 8 cannot. So, as we can see, the symbols within a language possess the property of indeterminacy, much like the rule in our jungle-gym example.
In essence, then. The problem of determinacy relates to the ability for a user of a given system to account for the reference of the system, or one could likewise suppose the issue is instead about the ability of the system its-self to have fixed reference rather than its user. Of how either the user relates the symbols to experience, or how the symbols themselves relate to experience, the problem of determinacy adheres to.
Laws are written in such a way that, if to be used correctly, there need be some agent of judgement; meaning, laws are written in vague or general fashion so that their application can be wide-sweeping. This, of course, might lead one to think that, because laws are indeterminate, one can purposively construe them towards a self-driven political or personal agenda, in absolute fashion. But, fortunately, such conditions cannot be found in law, generally speaking. Albeit, there are cases where purposive interpretation is acceptable, but the majority of the cases fail to follow like lines of acceptability. Which is to say, in the same way that a linguist who works on polysemy attempts to find the conditions of usage which determine the possible meanings of a polysemous word, there are likewise judges who attempt to find the conditions, of which necessarily entail restrictions, that satisfy the application of a given law. And so, law, if to avoid radical indeterminacy and bias, cannot always be purposively interpreted by judges and lawyers. In other words, it is the duty of a judge to determine whether a given set of circumstances or conditions constitutes the correct or appropriate application of a law. And when they do so, they set what is known as a precedent, if the precedent has not already been set. For instance, a precedent ruling inside a custody case, which turned into a two-year process of appeals by two different parents, regarding custody over their children required a precedent ruling with respect to the Hague convention, as it was used as a means to obtain custody in this case. Even furthermore, consider the discretion of a court in Iowa v Leckington, where in which the court held the meaning of “custody,” in section 726.3 of Iowa code, to mean that which was put forth in State v Johnson: “to be in charge of an individual and to hold the responsibility to care for that individual”. Upon such interpretation, the application of the code became much more clear; it had played a massive role in who had custody, and, therefore, who was criminally responsible for, a child who had been criminally neglected. In doing so, the court had also set a fixed-reference upon the word “custody,” of which will now be referenced in future cases; thus, to some extent, combating the problem of indeterminacy. Thus, laws require, as a result of their nature, a judge.
Herein comes the topic of legal interpretation, as there are many methods at the disposal of a judge, of any sort, to interpret law. In general, we try to establish standards in law to avoid the charge of indeterminacy, to avoid having absolutely arbitrary reference. However, such is not always the case, as there was once upon a time where justices had used entirely arbitrary standards to interpret the language of amendments. But imperfection does not warrant the extreme conclusion, thankfully, that all law is arbitrary. The methods of legal interpretation which we will focus on, though not exhaustive, are legislative authority, democracy, and language. These are each a source of legal interpretation used, either in conjunction with one another or independently, by judges and others. These interpretative methods allow for a means to resolution when dealing with the application of law.
Legislative Authority and Legal Interpretation
Legislative authority, sometimes called legislative supremacy or parliamentary supremacy, is a constitutional law which argues for absolute sovereignty of the legislative branch. It grants power over all other government branches; meaning, it has the right to create and over-rule whatever law it so whims, despite any push back from a judicial or executive branch. In addition, when the legislative branch has legislative supremacy, there is no constitution or set of laws which bind the legislative branch’s power, and so the legislative branch is entirely unrestricted. Of course, the legislative branch can regulate its self, like when previous members create laws that will impact the next members; and on top of that, there are conventions in place that the legislative branch acknowledges: if the legislative branch ignored a convention, then political turmoil would ensue. For instance, if the Queen enacted her legislative supremacy on Canada, then there would most certainly be country wide revolt. So, although legislative supremacy grants the legislators ultimate sovereignty, they still recognize some implicit limitations.
The reason we have parliamentary supremacy relates to issues which are contentious and cannot be solved without a sovereign decision maker; because, of the various methods available for legal interpretation, there might be good arguments coming from multiple interpretative methods, and so the legal system might be at a stand still on the issue. In such scenarios, for the pragmatic value of not having our legal system clogged, we allow a rule by sovereignty to put an end to such debates. However, some scholars believe that rule by sovereignty indeed causes political turmoil after the fact, and can sometimes sway judges and politicians to have antagonistic attitudes toward one another.
Furthermore, parliamentary supremacy is especially useful when laws conflict with one another. For example, in Cheney v Conn (UK – English Legal System), a tax payer challenged the Finance act of 1964 because the act allowed for expenditures on nuclear arms, and such was contradictory to the Geneva Conventions Act of 1957. On further analysis, it was held that said legislation, and its intended purposes, could not be illegal, because its illegality would deny parliamentary supremacy.
“If the purpose for which a statute may be used is an invalid purpose, then such remedy as there may be must be directed to dealing with that purpose and not to invalidating the statute itself. What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest from of law that is known to this country. It is the law which prevails over every other form of law, and it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal.” -Ungoed-Thomas J.
So, parliamentary supremacy as a means of legal interpretation can be quite useful; it can end contentious debates as well as make laws, of which might be necessary, despite apparent contradictions, coincide with one another.
Moreover, it is also important to note that not all countries have legislative supremacy. In fact, on paper, the U.S. legal system lacks legislative supremacy. The separation of powers within the U.S. is designed to avoid legislative supremacy. But, though it lacks legislative supremacy, it indeed has judicial supremacy and something which functions much like legislative supremacy. Judicial reviews are equivalent to judicial supremacy insofar as we are accepting one judge’s interpretation of the law over another judge’s interpretation. And on top of that, there is legislative supremacy in the U.S. legal system to the extent that the Enrolled Bill Doctrine forces courts to accept the interpretations of the Senate or Congress. It should be clear, however, that the two above-mentioned forms of supremacy fall within the realm of theory, as the U.S. legal system has no legislative supremacy on paper. So, in other words, these are simply arguments, of which one might come to reject upon the maturation of their legal reasoning.
Democracy and Legal Interpretation
Democracy is involved in legal interpretation as well. For example, the recent act of extending due process to those who are not legal citizens, in America, was an act of progressive or leftist legal interpretation. A conservative interpretation of how due process is applied would have been to apply it to legal citizens only, but obviously such an interpretation was not favoured. So, laws can be politically interpreted by judges. In addition to such, laws can be political via democracy by popular opinion. A law can be rejected by elected officials if the people who voted the official into power reject the law; only because the elected official, in general, has an incentive to get voted in again or maintain alignment with the ideology of their party, who likewise depend on public votes. So, people can have a sway on the formation of law with the power of their vote.
But legal interpretation is democratic in ways other than just political; for instance, as a result of a scientifically educated public, judges have now sought out the help of expert psychologists and neuroscientists to deal with contentious issues rather than priests or similar meta-magical thinkers. For example, rather than supposing someone’s aggressive behaviour stems from an evil spirit, we are now more inclined to adopt the progressive and scientific view which favours materialism: the aggressive behaviour stems from the brain or environmental influences on the brain, not spirits. In doing so, we apply certain laws differently, and we even introduce special exceptions for those who demonstrate significant biological impairments. And if it sounds far fetched to adopt anything but a materialist approach, then consider the following: there are some who believe in non-materialist metaphysics, which denies that the mind is simply the brain. Such a view leaves room for non-materialist doctrines to explain aggression, like religion or astrology. This, then, could reach into law, as it has in the past: I.e., religious law. So, public acceptance of materialist doctrines has lead to an increase in scientific evidence and attitudes in the application of law.
The Language of Laws and Legal Interpretation
The wealth of knowledge known as linguistics has had the ever so fortunate event of a few trail blazers clearing for its stream of knowledge a river-bed which connects its flow to a body of law. Whether it be the formation or interpretation of legal text, linguistics has submerged either of said acts, necessarily, into the waters of psycholinguistics, sociolinguistics, syntax, pragmatics, discourse analysis, and even neurolinguistics. In so doing, the unstoppable current of scientific enterprise, which propels forward those engulfed by it, has washed away with the stagnant and murky methods previously deployed for the interpretation and formation of legal text. Such methods as the “new textualism,” of which rely heavily on the ordinary meaning or dictionary definition of a word, have been washed away and subsequently replaced.
Of the motivations for the intersection between law and linguistics, there are many, though the most pertinent being the demonstrable influence which ill-advised interpretations and formations of legal text have had on law as a whole. To take but only one instance of an interpretive blunder that stemmed from a poorly constructed legal text, consider the following: in united states v granderson an interpretation had lead to a poor outcome for a defendant, who served more time than necessary, simply because the laws deployed in granderson were missing a referent; they refer to no thing in particular:
…”Notwithstanding any other provision of this section, if a defendant is found by the court to be in possession of a controlled substance, thereby violating the condition imposed by section 3563(a)(3), the court shall revoke the sentence of probation and sentence the defendant to not less than one-third of the original sentence.”
The term “original sentence” has no contextually identifiable referent, and so has a high degree of ambiguity when being interpreted. For example, in granderson, the courts had selected multiple different referents for “original sentence,” and they did so without any contextual information – simply because it has none. Such is equivalent to armchair psychology: speculation about humans without empirical data, except we would instead suppose an armchair linguistics. And even furthermore, “sentence,” in accordance to chapter 1 section 18 of U.S. code, has three distinct meanings: probation, fine, or imprisonment, which only increases the lexical ambiguity of the legal texts that are relevant to united states v granderson. It is of these matters where ordinary meaning, such as the kind advocated for by Justice Scalia, fall short; and thus, we necessarily require the expertise of linguists for clarification.
“I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not-and especially if a good reason for the ordinary meaning appears plain – we apply that ordinary meaning.” – Justice Scalia
Linguists can help us not only in the court room when considering linguistic evidence, but they are likewise necessary for the formation and interpretation of legal text. Though not an exhaustive list of the duties fulfilled by linguists, their theories have helped us with legal interpretation in the following ways: linguists have worked on the scope of words, such as knowingly, so that we may know to what extent a given word modifies a sentence; linguists have worked on the propositional content of words, such as believe, so as to understand the appropriate application of such words within legal documents; and linguists have even worked on the syntactic ambiguity of certain constructions, such as old men and women, so as to determine whether the following sentence is read in fashion (a) or (b):
(a) Old men and [old] women.
(b) Old men and women.
Linguistics has altered the way in which we use language to infer the meaning of a law; and because of that, the field has had a massive impact on law. However, before we suppose the ultimate authority of linguistic interpretations, we need keep close to our awareness a most central fact of characterization: namely, linguistics is a descriptive enterprise. Which is to say, linguistics can only be used, with legal authority, when debunking arbitrary methods of interpretation, for example:
(a)”John thought he should be more polite to Bill”.
(b)”he thought John should be more polite to Bill”.
In sentence (a), the pronoun has the capacity to adopt John as a referent, and such an interpretation follows our rules of syntax; however, in sentence (b), the pronoun “he” has to reference someone other than John. Thus, if someone were to interpret sentence (b) in such a way that “he” had John for a reference, then we could negate the claim with linguistic theory. Put in other words, linguistics, by means of empirical knowledge, can constrain the range of acceptable interpretations proposed by any interpreter. This means linguistics has limitations when being used to interpret law, such as when culturally bound syntactic constructions are found within statutes, and so cannot always have normative claim to the acceptable interpretations of a law.
So, in conclusion, linguistics has much to offer our legal system by providing a means to negate arbitrary language analysis; and in doing such, it has improved the relative objectivity of the law. Rather than have legal theorists battle issues of conceptual fuzziness, like when Justice Scalia debated the ordinary meaning of the word “use” with another Justice, we can have more empirically informed opinions, of which are supported by theoretical doctrines that can be falsified. The intersection between linguistics and law, undoubtedly, is a step into the right direction for legal interpretation.
The question which now arrives at our door is “what now?”. We have at our disposal numerous means to interpret the law, but, of those means, which should we rely on? Why should we favour a linguistic interpretation over a political interpretation? When should we favour a linguistic interpretation over a political interpretation? Or, are there instances where, when both forms of interpretation are available, a political interpretation is more advantageous than the linguistic one? The difficulty with which one is faced with when asking these questions is precisely the difficulty which a judge, or anyone who interprets legal texts, is faced with. There is no structure; we have not any framework to work from. This is a problem with legal interpretation more generally.
Unfortunately, there are no solutions to this problem, as this problem is one which accompanies any system of rules or symbols, and so it will be a constant problem. Though there is a pessimism inherent in our interpretive circumstances, much like the pessimism which is experienced by those who, at the outset of a race, assuredly know their defeat, legal scholars have put forth their intellectual foot, nonetheless. Of the problem that is legal interpretation, many schools of thought have propped up: originalism, intentionalism, purposivism, positivism, textualism, and etc.,. And each school of thought, in attempts to provide a solution for the problem of interpretation, advocates for a principled method of interpretation. A textualist believes the content of law can be found within the language of the law, whereas an intentionalist supposes the intentions of legal authority determines the content of the law. In fact, much has been said about the benefits and hinderances associated with each school of thought, and so our initial pessimism seems to have no weight on real legal scholarship: an unsolvable problem brings about never ending growth.
Thus, though the problem of determinacy shall plague legal theory for some time to come, we nevertheless have methods, of which are falsifiable and pragmatically justifiable, to interpret the law. The textualists make linguistic claims, the intentionalist make psychological claims, and the positivists make non-moral claims, all of which can be either justified and falsified. When a textualists argues for certain syntactic constructions, we can check the corpus of data we have for any similar constructions; and if we find no such constructions, then the textualist would be wrong. When a an intentionalist makes a claim about the intention of some law, we can construct a theoretical model, of which makes predictions about previous forms of the given law, and then see how accurately the model can predict the applications of the previous versions of the law. If it fails to be remotely accurate, then the intentionalist approach is likewise inaccurate in such circumstances. In general, each approach to legal interpretation can be either correct or wrong, and so we can apply them without the charge of arbitrariness. Thus meaning, legal interpretation, albeit more complicated than preferable, is possible when done with a given school of legal thought.
So, in order to interpret law, one must rely on a school of thought: a metaphysics of law and method of interpretation. It is these philosophies which shall guide us in our legal interpretation, to the point where we genuinely can favour a linguistic interpretation of a political interpretation.