Bạn đang xem bản rút gọn của tài liệu. Xem và tải ngay bản đầy đủ của tài liệu tại đây (1.5 MB, 263 trang )
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
INFELICITIES OF THE INTENDED MEANING
certain dimensions, there have to be additional constraints added to keep from completely undermining the ability of actual authors, whether
private or legislative, to have their intended meanings heeded. This is because any symbols can be employed to communicate any intended
meaning. Thus, as an example, if the doctrine of lenity instructs courts to “interpret” criminal statutes narrowly, what stops them from interpreting
those statutes ridiculously narrowly? It would not be the actual intended meaning of the actual author, for we have already dispensed with that in
invoking the doctrine of lenity. Nor would it be the actual meaning of the words; for, as we emphasized in the preceding chapter, actual words –
certain shapes and sounds – do not carry a meaning if there is no author intending a meaning by those words. So the doctrine of lenity and the var-
ious other similar doctrines that, in service of substantive policies, con- stitutional and nonconstitutional, direct judges to disregard the actual
intended meanings, need to supplement the characteristics of the target hypothetical authors beyond those we have mentioned. So if the hypo-
thetical legislators of criminal statutes are supposed to be motivated to limit the scope of criminal liability, judges need to know by how much.
Or if the hypothetical drafter of a testamentary document is supposed to be disinclined to disinherit the spouse, judges need to know by how
much. And so on. Otherwise, criminal liability would disappear, and so would the ability to disinherit spouses.
The most obvious supplement to add here is that the hypothetical legislature or will drafter uses, say, standard English – perhaps definitions
listed first in a designated dictionary – and standard grammar. Doing so will in most cases put limits on the hypothetical authors that will prevent
courts from undermining all criminal liability in the name of lenity and undermining the ability of drafters of private documents such as wills
and contracts to accomplish their ends.
One doctrine that directs courts to disregard actual intended mean- ings for substantive policy reasons but that raises a worry of a different
kind is the doctrine of interpreting statutes to avoid having to resolve constitutional questions – the so-called Ashwander doctrine in United
States constitutional law.
The problem with Ashwander is not that it
See Ashwander v. T.V.A., 297 U.S. 288 1936.
REASONING FROM CANONICAL LEGAL TEXTS
directs courts to look to what a hypothetical legislature would have meant by a statute rather than to what the actual legislature meant. The
doctrine of lenity does that as well. The problem is that, at least arguably, although the doctrine of lenity is a doctrine commanded by the Consti-
tution, the authority of which is superior to that of the legislature, the Ashwander doctrine does not implement any higher-order legal norm.
Interpreting to avoid constitutional issues is not itself a constitutional command. So when a court following Ashwander disregards the actual
intended meaning of a statute and “interprets” as if the statute were authored by a hypothetical legislature intending the statute steer clear of
any constitutional limits, the court is exercising only the power it has as a court to interpret statutes and not the power it possesses to strike down
unconstitutional statutes. And in following Ashwander, courts make leg- islatures go through hoops not found in the Constitution in order to have
their intended meanings implemented. It might be concluded that use of the Ashwander presumption represents a violation of the constitutional
separation of powers.
The more interesting constraints on authorities’ determinations are pro- cedural constraints. Procedural constraints are norms that dictate the
form that rule makers’ determinations must take and that handle cases where the rule makers have apparently but not really determined what
ought to be done. The norms that dictate form reflect the rule-of-law value of the accessibility of law. The norms that handle cases of failed law
reflect both the rule-of-law value of accessibility and the more substantive value of consistent policy.