Legal Interpretation
Timothy Endicott
In the Battle of Balaklava in 1854, the Earl of Lucan was in command of British forces facing the valley of death. Russian artillery stood a mile away at the far end, and there were 5,000 Russian cavalrymen in the valley. Russian artillery and thousands of infantry with muskets lined the heights on either side. The Earl received this order:
Lord Raglan wishes the cavalry to advance rapidly to the front—follow the enemy and try to prevent the enemy carrying away the guns. Troop Horse Artillery may accompany. French cavalry is on your left. R Airey.Immediate.
(www.nationalarchives.gov.uk/battles/crimea/charge.htm)
The Earl ought to have interpreted the order as referring to captured British guns on the heights, which the Russians were removing. Instead, he won a place in military history by interpreting it as referring to the Russian guns at the end of the valley. He ordered the Light Brigade to charge down the valley in a hopeless attack on the Russian artillery at the end. Of the 673 men, more than 200 (and most of the horses) were killed or wounded.
Interpretation is a creative reasoning process of finding grounds for answering a question as to the meaning of some object. The Earl would have interpreted the order well if he had found good grounds for answering the question he faced (what meaning was to be ascribed to the reference to “the guns”?). But then, if the order had said, “Try to prevent the enemy from carrying away the captured guns on the heights,” the question of interpretation would not have arisen. The Light Brigade would not have entered the valley of death.
The disaster should serve as a reminder to lawyers and to lawmakers: that interpretation is a potentially dangerous reasoning process, and that the need to interpret only arises if a person faced with a decision needs to answer a question as to the meaning of some object.
Deciding what is to be done according to law sometimes takes interpretation. But no need for interpretation arises if no question arises as to the meaning of an object. If you approach a red traffic light in your vehicle, you need to know what it means, but the legal rule does not give you the interpreter’s task of finding reasons for ascribing one meaning to it rather than another. And where a controversial and difficult question arises as to what is to be done according to law, interpretation may not resolve it. If, on the best interpretation, the law requires you to do what is reasonable, you will need a technique other than interpretation in order to identify the reasons at stake.
Yet it is easy and attractive to think of legal reasoning generally as a matter of interpretation. This mistake means forgetting just how extravagantly the law may leave matters for decision by the parties to a transaction, or by an institution that must resolve a dispute. Conversely, it means forgetting how tightly, transparently and incontrovertibly the law can bind the parties and the institutions.
The mistake is easy to make because of the charm of interpretation. The charm comes from the tantalizing complex of creativity and passivity that interpretation involves (see Finnis 1987: 362–63; Raz 2009, chs. 10 and 12). Judges, instead of claiming authority to invent a resolution to a dispute, have a natural inclination to see what they are doing as interpreting what others have decided (the parties, the legislature, framers of a constitution, states that signed a treaty, previous courts …). Conversely, when judges are moved (legitimately or illegitimately) to depart from what others have decided, they have a natural inclination to see what they are doing as interpreting what those others have done. These natural inclinations of judges correspond to the standard techniques of advocates, who do not say, “Please make something up in my client’s favor,” but “This is best interpreted in my client’s favor.” Advocates do not ordinarily say, “Please exempt my client from this law” but “Properly interpreted, this law does not apply to my client.”
The judges’ inclinations and the advocates’ techniques are related to the best feature of a concern for the rule of law: the determination not to subject the parties and the community to the arbitrary will of an official. But the charm of interpretation can be blinding, and I think that it is healthy to be skeptical about it. So this chapter will be an exercise in skepticism about the importance of interpretation to legal reasoning.
By “legal reasoning,” I mean finding rational support for legal conclusions (general or particular—that there is an income tax in English law, that the law requires me to drive on the left in this country, that this defendant is liable to compensate this claimant …). I do not mean by it merely reasoning that identifies the content of the law, but also reasoning as to what is to be done according to law.
Here are the general propositions concerning interpretation that I will rely on, and I hope you can accept them:
– it is of an object (that is, a good interpretation depends on true propositions that refer to the object); and
– it is creative (that is, an interpretation does not simply state what everyone knows if they are familiar with the object, but ascribes to it a meaning that someone else might dispute); and
– it is rational (there can be reasons for arriving at an interpretation).
And here are two specific propositions that I will rely on concerning legal interpretation, which distinguish it from, e.g., literary interpretation or the form of interpretation that is displayed in a performance of a symphony:
– a legal interpretation gives a rule for the application of the law (it is applicative, not generalizing); and
– a legal interpretation is articulate, or propositional (i.e., it can be expressed in propositions).
I will argue that each of the following aspects of legal reasoning need not involve interpretation:
1. Resolving indeterminacies as to the content of the law
2. Working out the requirements of abstract legal provisions
3. Deciding what is just
4. Equitable interference with legal duties or powers or rights
5. Understanding the law
I will see how far I can press the skepticism, for the sake of the exercise. I hope that I will not seem to be making the absurd claim that interpretation is unimportant to legal reasoning. But most legal reasoning is not interpretive. Much of what is commonly called “interpretation” can be done with no interpretation at all.
1. Resolving Indeterminacies as to the Content of the Law
In Regina v. Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23 (House of Lords), two bus companies had merged to provide services in an area of Yorkshire covering less than 2 percent of the area of the United Kingdom, and containing about 3 percent of the British population. The companies challenged the jurisdiction of the competition tribunal to investigate their merger. The legislation required that a merger should affect “a substantial part of the United Kingdom” in order to be subject to investigation. The bus companies asked the court to interpret that provision, to determine that their territory was not a substantial part of the UK and to impose that interpretation on the tribunal.
The Law Lords rejected an interpretation of “substantial” as meaning “more than de minimis.” They held, on the other hand, that “the court should lean against an interpretation which would give the commission jurisdiction over references of the present kind in only a small minority of cases” (p. 31). They concluded that a substantial part of the UK in the relevant sense was a part of the country “of such size, character and importance as to make it worth consideration for the purposes of the Act” (p. 32). That was all they would do. The Law Lords agreed that it was their task as judges to interpret the legislation to identify “the criterion for a judgment.” But:
the criterion so established may itself be so imprecise that different decision makers, each acting rationally, might reach differing conclusions when apply ing it to the facts of a given case… Even after eliminating inappropriate senses of “substantial” one is still left with a meaning broad enough to call for the exercise of judgment … the conclusion at which the commission arrived was well within the permissible field of judgment.
(pp. 32–33)
The South Yorkshire Transport case shows that there is no general reason to expect interpretation to resolve indeterminacies in the law. Interpreting the legislation meant ascribing a meaning to it, and the meaning that the judges quite rightly chose was itself very vague and did not resolve the question of just how much of the country had to be affected by a merger before it would count as substantial. As this case suggests, the connections between indeterminacy and interpretation are all contingent: there may be conclusive, determinate reason in favor of one interpretation, or there may not. The criterion of judgment yielded by a good interpretation may involve all sorts of indeterminacies in its application, or it may not.
The plain case, where the general terms seem to need no interpretation and where the recognition of instances seems unproblematic or “automatic,” are only the familiar ones, constantly recurring in similar contexts, where there is general agreement in judgments as to the applicability of the classifying terms.
(Hart 1994: 126)
If the formulation of a particular rule is inadequate for purposes of determining a particular result in certain circumstances, then there is nothing more to explain or understand about its meaning; what is required is a new formulation of the rule—one which would remove the doubt—and this is what the term “interpretation” properly designates.
(Marmor 2005: 117)
These views are attractive because there is no room for interpretation if no question arises as to the meaning of the law. There is certainly room for doubt or disagreement if there is room for interpretation. But a doubt or a disagreement may well arise without any indeterminacy. Legal interpretation comes into play when there is a possibility of argument as to the meaning of the law. Interpretation may be needed in order to work out what is determinately the best way of understanding the object of interpretation (where, for example, everyone else jumps to a conclusion about how to understand the object, but you can explain why it must be understood differently). There may be a pressing need for interpretation, even where there is only one right answer to the question at issue. At the Battle of Balaklava there was more than one way of interpreting Lord Raglan’s order, but there was determinate reason in favor of one particular interpretation. The Earl of Lucan’s interpretation was a misinterpretation.
But if no argument can be made, then no interpretation is called for; an “interpretation” arguing the unarguable would not only be a misinterpretation, it would be a pretense, or a failure to interpret, as an irrational argument reflects a failure to argue (Raz 2009: 299 makes the important point that “some interpretations are so bad as to be interpretations no longer”).
The British competition legislation did not determine the extent of the competition tribunal’s jurisdiction, and interpretation could not make it do so; in fact, the best interpretation of the legislation implies that Parliament had used the vague requirement of substantiality to confer a discretion on the tribunal (subject to control through judicial review) to determine which mergers were important enough for it to investigate. Determining the undetermined is one of the standard functions of adjudication, and it is not an interpretive function.
2. Working Out the Requirements of Abstract Legal Provisions
In April 1999, as part of its response to the Kosovo crisis in the former Yugoslavia, NATO launched a bombing raid on the Serbian capital, Belgrade. A single rocket struck a radio and television station, killing 16 people. The victims’ families argued that the European NATO countries had violated the right to life guaranteed in the European Convention on Human Rights (Bankovic v. Belgium (52207/99) (2001)). The defendant countries argued that the victims could not assert rights under the Convention because the extra-territorial military operation was not within the countries’ jurisdiction for purposes of the Convention.
Article 1 of the Convention provides that “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.” In Bankovic, the European Court of Human Rights held that the victims of the Belgrade bombing were not within the jurisdiction of the states under Article 1. The court approached the problem as one of “interpretation” of the jurisdiction provision in Article 1 and set out to decide what “meaning” was to be given to the term “jurisdiction” (Bankovic, paras. 53–63).
In fact, the problem before the court in Bankovic was not a problem of interpretation. The justices were swayed by the charm of interpretation: they proceeded in their reasoning as if the framers had determined the jurisdiction of states in Article 1, so that the judges’ job was to interpret that article to work out what jurisdiction the states had created by adopting the Convention. But the framers had not determined the jurisdiction at all. And by agreeing to secure rights “within their jurisdiction,” the state parties did not determine the extent of their jurisdiction.
I do not mean that there is no need for interpretation of Article 1 (indeed, it needs to be interpreted in order to reach the conclusion that it gives judges an open-ended responsibility). We can certainly interpret Article 1 as implying that not all acts of states are subject to the Convention (or the phrase “within their jurisdiction” would be superfluous). And by use of the travaux preparatoires, we can reach the interpretive conclusion that the jurisdiction was not meant to be restricted to residents. But neither the context in which it was used, nor the travaux, determine the extent of the jurisdiction.