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Norms for Failed Law

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Or, put differently, the only intentions such bodies have consistent with the role that rule makers are supposed to play are some aggregation of the
individual intentions of the members. Aggregation of individual inten- tions is not a problem if a majority has identical intentions. Where those
intentions come apart, however, the passage of a law may be illusory in this sense: despite the appearance of legislative majority agreement that
there be such a law, every possible intended meaning of that law would have been opposed by a majority of the legislative body. Put differently,
no majority determined any possible meaning for the law.
A norm of form such as one that irrebuttably assumes that all laws are intended to mean what they mean in the standard English of the date of
enactment can save some laws from the failure to command a majority of consistent individual intentions. Such norms will not handle all cases,
however, for even standard English will leave open the possibility of ambiguity. And in such instances, by application of Arrow’s theorem,
we face the possibility of majorities in favor of a law and its language but against all possible meanings of that language.
Consider this stylized representative case. Rule makers A, B, and C vote on term T. T is vague and can mean W, X, and Y or W, X, and Z. A
votes aye, intending W, X, and Y. B votes aye, intending W, X, and Z. C votes no. A would have voted no had he been presented with B’s definition
as his only choice. B would have voted no had he been presented with A’s definition as his only choice. Moreover, a truncated version of T, one that
covered only W and X and neither Y nor Z, would likewise have been rejected. It is clear in this case that we have no majority of the authorities
in favor of any possible meaning of T, even though we have a majority in favor of T itself.
See Kenneth J. Arrow, Social Choice and Individual Values 2d ed., New Haven: Yale University Press 1963. Arrow established that democratic procedures for determining policy cannot
avoid the possibility of the following dilemma. When the policy choices are A, B, and C, and the voters are V
, V
, and V
, it is possible for V
and V
to favor A over B; it is possible for V
and V
to favor B over C; and it is possible for V
and V
to favor C over A. Id. at 2–3. In such a situation, majority rule produces indeterminate results. Id. at 3, 51–59. Every
policy a majority favors can be trumped by another policy favored by a different majority in an endless cycle. Unless restrictions are placed on the voters’ agenda, extra weight is given
to some voters’ votes, or some other objectionable constraints are placed on the voters, this possibility of endless cycling is unavoidable. Id. at 22–31.
See Kenneth A. Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as an Oxymoron, 12 Int. Rev. Law Econ. 239 1992.
Or consider a simple case of ambiguity, such as would occur if there were an ordinance forbidding “canards in the park.” A voted for it to
prohibit lying. B voted for it to prohibit ducks. C voted against it, as would have A or B had “canard” clearly meant what the others intended
by it.
One way to handle such cases of failed law is to bite the bullet and say that, despite appearances to the contrary, those legal texts are not laws.
They are only apparent laws. Alternatively, one might decide that having apparent laws on the
books is undesirable for two related reasons. First, the existence of apparent laws confronts those subject to the laws with the specter of
uncertainty. In many or most cases, it will be difficult for the average subject of the laws to determine if a particular law is real and meaning-
ful or only apparent. The uncertainty implicates the rule-of-law value of accessibility.
Second, the existence of apparent laws and the consequent uncer- tainty makes it difficult for legal authorities to carry out their function.
For if they are uncertain about the content of the existing laws, they will be severely handicapped in deciding how best to legislate.
It might be desirable, therefore, to have norms that direct official interpreters to breathe meaning into laws that are actually meaningless –
in effect, to adopt the language of the existing laws but to “reauthor” those laws so that the laws reflect the interpreters’ determinations of what ought
to be done within the constraints of the norms of form. Such norms would make the official interpreters into the primary rule makers, though
constrained by the earlier rule makers’ choice of language.
Although many commentators propose such norms, they frequently make the
mistake of conflating actions taken in pursuance of such norms with interpretation of the statutes or constitutional provisions that exhibit the
failure of law. Those statutes and constitutional provisions are not being interpreted, however, for interpretation would conclude that they are
meaningless marks. Rather, the statutes and constitutional provisions are being reauthored by a new set of legal rule makers.
Note that the same problem of failed law would arise with respect to the interpreters’ determinations if the interpreters were multimember bodies, such as appellate courts.
Again, it should be emphasized that, as with substantive norms, these norms of form and of failed law must be the products of a decision-
making body that possesses higher authority than the rule maker to which they apply. That is so again because these norms lead to departures from
the norm-constrained rule maker’s intended meaning regarding what ought to be done. And, just as with the substantive norms, these norms
of form and of failed law themselves mean what the higher-authority decision maker intends their meaning to be.

3. Levels of Generality of Rule Makers’ Intentions

It is a common observation that the intentions of legal authorities can be described at various levels of generality. Thus, rule makers may intend
a law to accomplish specific results R in order to further a more general purpose P, which purpose furthers a still more general purpose P
, which purpose furthers Goodness and Justice. The rule makers think those
various intentions are consistent, which is why they passed the law in question. The intentions may turn out to be inconsistent in the view of
those interpreting the law, and inconsistent at any level. Thus, R may not in fact further P, P may not in fact further P
, and P may in fact
be inconsistent with Goodness and Justice. So some people believe that this raises the question, If the interpreters are to give effect to what the
authoring rule makers intended, at what level of generality should that intention be described?
An excellent case for illustrating how the possibility of describing the authorities’ intentions at various levels can affect judicial decision making is the U.S. Supreme Court’s decision
in Home Building Loan Assoc. v. Blaisdell, 290 U.S. 298 1934. Blaisdell dealt with a Minnesota mortgage moratorium law that was challenged as violative of the clause in
Art. I, §10, forbidding the passage of any law “impairing the obligation of contracts.” Jus-
tice Sutherland, dissenting from the Court’s decision upholding the law’s constitutionality, pointed out that not only was the law violative of the contract’s clause’s literal command,
but it was exactly the type of law that the authors of the contract clause had in mind when the clause was drafted, that is, a debtor-relief law enacted in a period of economic
depression. Id. at 448–50, 472. Chief Justice Hughes, on the other hand, writing for the majority, characterized the intent behind the contract clause at a higher level of general-
ity. According to Hughes, the authors intended to proscribe debtor-relief laws that were unreasonable 427–43. Although they may have thought all such laws were unreasonable,
even in depressions, their intention was only to proscribe unreasonable laws. See also Andrei Marmor, Interpretation and Legal Theory 144–45 Oxford: Clarendon Press 1992; David
O. Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 Phil. Public Affs. 105, 126–29 1988.
Some believe that this question can be answered only by reference to an interpretive norm chosen because of its anticipated good results,
and that the question cannot be answered in the absence of such a norm. They believe that when the intentions at the various levels of generality of
description are inconsistent with each other, there is no fact of the matter about what the rule makers intended. What they intended is rather the
product of whatever norm selects the appropriate level of generality at which to characterize their intention.
We believe that view to be mistaken, as we made clear in the pre- ceding chapter.
A norm that directs interpreters to correct rule makers’ mistakes regarding how their actual intended meanings square with their
more general purposes is one that threatens completely to undermine the rule makers’ role of determining what ought to be done. Because
rule makers always intend to achieve Goodness and Justice – to “do the right thing” – if they are acting legitimately, the interpreter can sub-
stitute his own views about what Goodness and Justice require for any specific intended meaning of the rule makers and still claim to be hon-
oring their more general intent. For the interpreter will undoubtedly believe that, had the rule makers been disabused of all their mistakes of
fact, mistakes of means-end reasoning, and mistakes in reasoning about values, they would have enacted intended to mean what the interpreter
would have enacted intended to mean. In effect, a norm allowing the
For a different constitutional implication of the various levels of generality of the inten- tions of authorities, see Note, Legislative Purpose, Rationality, and Equal Protection, 82 Yale
L.J. 123 1972.
Perhaps the foremost proponent of the view that what authorities intend is not a matter of fact but rather the product of normative argument is Ronald Dworkin. See, e.g., Ronald Dworkin,
Bork’s Jurisprudence, 57 U. of Chi. L. Rev. 657, 663–64 1990. This is also the official view of Cass Sunstein, though he equivocates at points. Cf. Sunstein, supra, n. 6, at 10 “Statutes
do not have pre-interpretive meanings, and the process of interpretation requires courts to draw on background principles”, with id. at 423, 434, 450, 456 implying that statutes
do have meanings that are independent of background principles. For a view similar to Sunstein’s official view, see Note, Figuring the Law: Holism and Tropological Inference in Legal
Interpretation, 97 Yale L.J. 823 1988.
For a good statement of the opposing view, the one that I now endorse, see Paul Campos, Against Constitutional Theory, 4 Yale J. L. Human. 279, 281–82 arguing that interpretation
is an empirical matter, not a theoretical one, because it seeks to uncover the “fact” of the author’s intention. See also Paul Campos, That Obscure Object of Desire: Hermeneutics and
the Autonomous Legal Text, 77 Minn. L. Rev. 1065, 1092–93 1993.
See Chapter 5 at notes 25–44.

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