There’s a debate taking place between Marc Danziger (Armed Liberal) and Patrick Frey (Patterico) on their respective blogs and in the comments of the posts on legal philosophy that I found interesting:
As I take his post, it suggests that he broadly wants to push back against intentionalism, and to suggest that the plain meaning of language – as interpreted by a reasonable listener – should rule our understanding what a speaker or writer means. Narrowly, he wants to push back against the use of legislative intent to frame the meaning of law, and return priority to the text itself.
I’d like to extend the discussion a bit into a more general discussion of government.
Which do you think would be better, a government in which only highly trained professionals were in a position to enact or understand laws and ordinary people didn’t have even an expectation of knowing what was or wasn’t against the law or one in which any reasonable interpretation of the law on the part of an ordinary person was acceptable? I can’t say that the extreme version of either of those eventualities particularly thrills me but I’m enough of a democrat to be very suspicious of the former. I don’t believe that any jurist however benevolent is completely free of self-interest or will be able to separate his or her understanding of the law from self-interest sufficiently to have a just society.
In the real world in which legislators were trained as lawyers 30 years ago and haven’t practiced since then and judges may well be attorneys who couldn’t make the grade practicing law, I find our common law system and, particularly, intentionalism even more concerning.
But I don’t have committed views on this subject and I’d be interested in hearing what others might have to say.
One last thing that I think is worth mentioning. It hasn’t always been the case that the interpretation of the law was exclusively the province of the courts. Indeed, in the years just prior to Marbury v. Madison it was assumed that the courts, the legislators, the executive, and the people themselves all had a right to interpret law. Some may find that idea outrageous but I’m not so sure. Remember, most of the world doesn’t operate under the same system of common law, i.e. judge and lawyer-made law, that we do.
I strongly favor Patterico’s views on this, possibly because I have read enough legislative history to have great suspicions about legislators. Indeed, I’ve testified before state legislators and they had to rely upon staff members whispering questions in their ear to engage me on the subject of their occupation.
As to the rest, I lived (and studied) in New Orleans, I don’t believe there is as much difference between a civil and common law system these days in terms of understandability of laws. Civil systems tend to have more laws, though they are said to be easier to understand. I seem to recall some French words in the law books I scanned. The common law system puts its trust in process, not language. That process often includes a right to a ruling from a jury of one’s peers, as well as judicial review of the fairness of a statute (e.g., void for vagueness).
One of the philosophical problems — maybe the philosophical-political problem — inherent in any textualist approach is whose understanding of the terms are we to recur to? Originalists maintain that the meaning of the terms at the time of passage of the law (or ratification of the amendment, etc) is to be governing. Antioriginalists (for want of a better appellation) argue that the current meaning of the terms — if the meanings differ — should be the foundation of interpretation. That is, if there has been a paradigm shift in our understanding of social-political phenomena, we should base our interpretations on our new understandings. I used the term ‘paradigm shift’ purposely: in The Structure of Scientific Revolutions, Kuhn argued that one of the hallmarks of a paradigm shift is a change in meaning of core terms. For instance, in the shift from newtonian mechanics to relativistic mechanics, the meaning of the term ‘mass’ changed–an alteration in meaning that upended one world view and replaced it with another. So in the case of the interpretation of a law: If our understanding of the world has altered, perhaps radically, from that of the authors of the legislation, whose understanding should govern? And why?
sam, in my view there’s a radically different approach that cuts through the Gordian knot of interwoven philosophy and interest. We should be searching less for truth than for reasonableness. Rather than for trying to determine what a law means or what is what intended to mean, I think that what we should be searching for is whether the interpretation of the law was reasonable.
sam, I believe Patterico’s points are more aptly addressed to the issue of statutory interpretation. Statutes are written to govern individual behavior, and can be easily amended if interpreted incorrectly or if circumstances change. Most of the Constitution consists of statements of principle that govern the government and it’s nearly impossible to amend. There are different harms at issue here, a “misinterpreted” statute can deprive a person of life, liberty or property. A “misinterpreted” constitutional provision poses a harm to republican government.
Yeah, Dave. I’ve spent a lot of time thinking about the difference between the (purely) rational and the reasonable. There is a difference, though trying to explain it a doctrinaire libertarian (or doctrinaire anybody, for that matter) is no easy thing. Maybe the Greek idea of sophrosyne is closest (and by that I mean, balanced).
It’s funny you should mention that, sam. I wrote a post on that very subject three years ago.