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Norms for Avoiding Substantively Infelicitous Results

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REASONING FROM CANONICAL LEGAL TEXTS
constraints on the authors of constitutions, that is, constraints assumed by the populace in its acceptance of the authority of those authors. For
example, as a preconstitutional matter, we could accept a norm that estab- lishes as fundamental law the determinations of the 1787 constitutional
framers, except to the extent that those determinations are substantively absurd, unjust, and so on.
Substantive constraints such as one denying the authority of any legal rule that is absurd or grossly unjust by the interpreter’s standards are
different from epistemological principles that help interpreters discover what the legal rule makers intended ought to be done. That some result
would be absurd or grossly unjust can be evidence – often strong evi- dence – that the rule makers did not intend that result. Nonetheless, as
we have stressed, rule makers can intend absurd or unjust results, even if not under those descriptions. That is, it is possible that: 1 rule makers
wish to require only what is just and not absurd; 2 rule makers intend that X be done; and 3 X is unjust or absurd. Simply put, rule makers can
intend unjust or absurd results because they make mistakes. And a norm that directs interpreters to disregard intended absurd or unjust results
operates as a constraint on the rule makers’ power to determine author- itatively what ought to be done rather than as an aid to understanding
what the rule makers did in fact determine.
Substantive constraints on the rule makers’ determinations can func- tion as absolute limits, much as do ordinary constitutional norms that
limit the authority of governmental actors. Alternatively, they can func- tion as do artificial evidentiary presumptions by directing interpreters
to resolve uncertainties about the rule makers’ intentions in favor of certain outcomes. Thus, if the rule makers’ intentions are not clear, such
substantive norms might direct interpreters to resolve the ambiguity in favor of the result that seems most just or wisest, rather than in favor
of the result best supported by the evidence regarding the rule makers’ intentions, which evidence includes the fact that one result is more just
or wiser than the other.
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Cass Sunstein’s canons of statutory interpretation appear to function as substantively moti- vated, evidentiary presumptions rather than as either norms that define what legislation
“means” or norms that act as absolute limits on the authority of that meaning. Cass R. Sun- stein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 1964. For Sunstein
urges the following canons unless it is clear that the statute “means” something at odds with the
INFELICITIES OF THE INTENDED MEANING
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Both types of substantive constraints, however, must be the prod- uct of a decision-making body that possesses higher authority than the
rule maker thereby constrained. That is so because both absolute and presumptive constraints on a rule maker result in departures from that
rule maker’s intended meaning and thus depart from that rule maker’s determination regarding what ought to be done.
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And the norms that are the product of this higher-authority decision-making body – be it
a constitutional ratifying body or ultimately, insofar as the substantive norms are preconstitutional norms on which the constitutional norms
ultimately rest, the citizens who accept the norms – must mean what their authors intended them to mean, whether the authors are the con-
stitutional ratifying bodies or the people themselves “authoring” norms by accepting them.

2. Norms for Effectuating Specific Policies


The common law is replete with doctrines that direct judges to disregard the intended meanings of documents that are otherwise thought to be
canonical statements regarding parties’ legal rights and duties. These include the parole evidence rule for the interpretation of contracts, the
doctrine that an ambiguous contract shall be construed against the party who drafted it, presumptions against disinheritance, and many others.
In effect, these doctrines direct judges to imagine a hypothetical author who is different from the actual author and to ask what meaning the
hypothetical author would have intended in drafting the document. If the hypothetical author’s intended meaning differs from the actual author’s
meaning, the former meaning controls. In this way, the common law makes it more difficult, though not impossible, for actual authors to take
advantage of contractual partners, to assert an idiosyncratic intended meaning that would deny the existence of a “meeting of the minds,”
canons. See, e.g., id. at 423, 434, 450, 456 implying that statute could have a meaning distinct from the “meaning” given by the canons. The same point applies to other substantive norms,
such as those which direct interpreters to construe statutes in favor of criminal defendants or to avoid constitutional issues: these norms dictate departures from the rule maker’s intended
meaning and in reality create new rules out of materials that the rule maker provided.
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The presumptive constraint results in such departures because it gives the interpreter’s view of what would be a wise or just result more weight in affecting the outcome than that view
would have as evidence of the rule maker’s intended meaning.
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REASONING FROM CANONICAL LEGAL TEXTS
to disinherit a spouse, and so forth. Whether or not these doctrines reflect wise policies, there is nothing problematic about them insofar as
interpretive methodology is concerned. They merely ask the interpreter what would this instruction in this document likely mean if it had been
authored by someone with characteristics that the actual author may or may not have possessed. Or, more precisely, these doctrines are not
about interpretation at all; they authorize the judge or other “interpreter” to author the document in question. The interpreter acting as author,
however, is not free to apply his or her best judgment about what the content of the document should be but instead must apply the algorithms
called for by the governing doctrine. The actual authors of contracts, wills, and the like can anticipate these “interpretive” algorithms and have
their documents interpreted in accord with their intended meanings if they are skillful.
Similarly unproblematic are substantive constraints on statutory interpretation that derive from the higher law of the Constitution. The
doctrine of lenity, for example, supposedly effects the policies of the due process and ex post facto law clauses that seek to protect actors against
being charged with crimes based on nonobvious to ordinary people intended meanings of criminal statutes. The doctrine directs the courts
to give criminal statutes the most restricted meaning where more than one meaning is possible. In other words, the courts are to imagine that
criminal statutes are drafted by hypothetical legislators who seek to limit the scope of criminal liability perhaps more than did the actual legislators
who enacted those statutes. This again is just intentionalist interpretation with hypothetical authors inserted in place of actual ones.
As we said, none of these doctrines that constrain the interpretation of canonical legal texts on behalf of substantive policies require departing
from the ordinary human endeavor seeking authors’ intended meanings. No special craft skill is required by them. Any of us can imagine that a
document was drafted by someone other than its actual author and ask what it would have meant in such a case. It takes no special legal training
to answer the question what would “I’ll make him an offer he can’t refuse” mean if, instead of Don Corleone making the statement, it were
made by our sweet, good-natured real estate broker.
There is an interesting problem here, however. If courts are directed to imagine hypothetical authors who differ from the actual authors along

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