The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I laid out two stylized views on interpretation – one that treats it as a simply matter of language (read the statute!), and one that treats it as a matter of judicial policymaking. And I hinted that there might be a third way. Since we give it away in the title of our paper, you probably already guessed what it is – law.
Simply put, we think that there can be, and usually are, legal rules of interpretation that pick among contested theories of meaning and fill gaps where language seems to run out. These are legal rules, not derivable from language alone. But as law, these aren't unfettered normative reasoning either.
Our proposal has been criticized as "artificial." We plead guilty to that charge, but only in the archaic sense (think "artificer") of "well-crafted." The "artificial reason" of the law, as Sir Edward Coke famously put it, offers artificial solutions to many questions in life. That's as true in interpretation as it is elsewhere.
After all, there are normative arguments underlying every topic in the law. What should the punishment be for murder, or drug possession? Should drug possession even be a crime at all? As a society, we don't have an inherent "just is" law of narcotics possession; we have highly contingent legal settlements of these normative debates. When judges are asked to accept a plea bargain for drug possession, they aren't asked to wade in to the normative debate about whether drug possession should be a crime. Instead the law asks them to look at the factual basis for the charge and see whether there's a legal settlement criminalizing that conduct.
We see this as one of the most important functions of a legal system: to replace real answers with fake ones. There may be real answers out there to lots of important normative and policy questions, but people persistently disagree on the real answers, and the legal system helpfully offers fake answers instead – answers that hopefully are somewhat close to the real ones, but which mostly let us muddle through our deeper disagreements.
So the law of interpretation can tell us which of several contested theories to use when reading a text, what texts to interpret, what kind of background presumptions to use, and how to resolve uncertainties in those readings. Our model here is private law, where legal rules of interpretation are common and relatively uncontroversial (think of the UCC, or the law of wills).
Even though there is NOT a UCC of federal statutory interpretation, we think the model extends just as well to public law, as I'll try to lay out over the rest of the week. Instead of resolving all of the hard linguistic or normative debates of the standard picture or the skeptical response, our system can and does skate by with the artificial answers of law.
[P.S. It's true that this kind of legal argument is still "normative" in a sense. (Kudos to the commenter yesterday who predicted that "'unfettered' is going to be doing a lot of work in the alternative to 'unfettered normative reasoning.'") But it requires only a very thin normative assumption – the assumption that judges and other public officials ought to obey the law. I lean heavily on arguments like Richard Re's for that assumption (as I've discussed on Jotwell and in a prior article). Our legal system relies on that normative assumption so ubiquitously that I don't think it's asking much to add it here.]
[UPDATE: In an ironic example of the scrivener's error the earlier draft of this post left out an important "NOT" in the sentence about the federal UCC.]