Jurisprudence II TERM PAPER VIII TRIMESTER
INTERPRETATION
AND
CONSTRUCTION
Arvind Srinivas 1555 IIIrd Year – B.A. LL.B (Hons.)
SUBMITTED ON 30th NOVEMBER 2010
Strategies for Development of Port Facilities in India TABLE OF CONTENTS
I. Introduction ................................................................................................................. ................ 3 II. Preliminary Distinctions.............................................................................................. .............. 4 III. Distinction between Interpretation and Construction.................................................. ............ 5 IV. Importance of the Distinction.................................................................................................. 8 V. Theories Opposed to the Distinction.................................................................................... ..... 9 VI. Conclusion.......................................................................................................................... .... 11 VI. Index of Authorities ......................................................................................... ...................... 12
2
I. INTRODUCTION
The distinction between interpretation and construction of legal texts has always been a contentious issue. The first use of this distinction can be traced back to Franz Lieber’s 1839 text, Legal and Political Hermeneutics.1 The distinction has been applied in
a variety of legal subjects such as contracts, patents, the law of trusts and constitutional law. Modern relevance to the distinction is provided by the debate between the Originalists and the Living Constitutionalists. New Originalists such as Keith Whittington 2 and Randy Barnet3 use this distinction extensively. The use of the distinction by the Originalists is to make a further distinction between the determination of the linguistic meaning of the Constitution as propagated by them and the use of construction to understand the
Constitution
as
is
the
practice
of
the
Living
Constitutionalists.4 In this research paper, it shall be argued that the distinction between interpretation and construction is not only present but also necessary for the wholesome understanding of any authoritative
legal
text.
It
will
further
be
argued
that
interpretation and construction are distinct parts of the larger process of deciphering a legal text. 1
For
the
Google
Books
version,
see
http://books.google.com/books?
id=_wwAAAAAYAAJ&dq=lieber+interpretation+construction&source=g bs_navlinks_s. 2
See K.E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and
Judicial Review, (Lawrence: University Press of Kansas, 1999) 3
4
See, R. Barnett, Restoring the Lost Constitution: the Presumption of Liberty, (Princeton University Press, 2003) L.B. Solum,
Science
“The Interpretation Construction Distinction”, sourced from The Social
Research
abstract_id=1120244
Network
available
at
http://papers.ssrn.com/sol3/papers.cfm?
II. PRELIMINARY DISTINCTIONS
Prior to defining the terms interpretation and construction and the scope of their operation, it is important that we examine, at this preliminary stage, two important distinctions. The first distinction is between vagueness and ambiguity and the second between the semantic and legal content of any legal text.
1) Distinction between Vagueness and Ambiguity 5 The use of words an phrases in any form of communication can suffer from the defects of vagueness and ambiguity. Though in common parlance these two terms are often used interchangeably as pointing to a general lack of clarity, a distinction exists and is important for the purposes of the ultimate distinction that we have to make.
In a highly technical sense ambiguity signifies the multiplicity of senses in which a word or phrase can be used. An example would be the use of the word cool. The word can be used to denote the temperature of a place or alternatively as an expression of something stylish.
Vagueness, on the other hand, signifies the existence of border line cases. This means that there are cases where the term might or might not apply. The discrepancy in the communication where vagueness exists is due to the lack of a specific degree attached to the content of the communication. Let us take for example the word tall. If a person is said to be tall then he just might be tall compared to a person who is really short. Thus here the description of the person as tall is vague.
The point can be made here, and will be explained in later chapters, that ambiguity in legal texts can be solved through interpretation whereas to resolve vagueness construction is needed.
5
Id.
2)Distinction between Semantic Content and Legal Content 6 The second required preliminary distinction is one between semantic and legal content of a legal document. There are two levels to any form of communication. One is the pure linguistic meaning which is apparent on the surface and one level which consists of the inferences and repercussions that result from such communication.
Semantic content of a legal document is the pure linguistic meaning of the text. The linguistic meaning of a legal text can be said to be a fact of the world. Let us take for example the Right to Freedom of Speech and Expression granted by Article 19(1)(a) of the Indian Constitution. The provision states that All citizens shall have the right to freedom of speech and expression. The semantic content of this provision is the pure linguistic meaning, which is, that all citizens have the right to free speech and expression. This obviously is a fact.
On the other hand the legal content of the same provision contains all the doctrines underlying the freedom of speech and expression, and is not apparent on a plain reading of the text. For example for the right to be availed, one must be a citizen of India. This is not explicitly stated in the provision but has to be inferred, thus forming a part of the legal content of the provision. Aspects such as when, how, where and by whom the right can be exercised forms a part of the legal content of the text. Once again the assertion can be made that the semantic content is understood through interpretation whereas the legal content needs construction.
III. DISTINCTION BETWEEN INTERPRETATION AND CONSTRUCTION
Now that the basic distinctions between ambiguity and vagueness and semantic and legal content have been made, we can progress to observe the distinction between interpretation and construction actually are.
What is Interpretation? 6
Supra Note 4.
Generally speaking, interpretation explains or finds out the linguistic or semantic aspect of an authoritative legal document. Be it contracts, patents or constitutions, interpretation helps us to decipher the semantic meaning of the legal text. Practically speaking, interpretation is employed in response to a host of problem types and recurring situations in which the linguistic meaning of a text is in doubt. One instance is where the language used in the statute is archaic. For example the use of the term domestic violence all over the world has come to mean violence by a spouse from its original meaning of internal unrest in a country.7
Apart from the use of archaic words and phrases, the other major problem is the presence of ambiguity. The solution to this ambiguity is found by attaching a context to the words and phrases. When there are more than one sense in which a word can be employed, interpretation functions to determine the correct sense by attaching to the word a publicly available context. This is by far the most common use of interpretation.8
What is Construction? As a concept, construction can be said to discover the legal aspect of the semantic content of a legal document. There are three types of construction possible.
These are: judicial construction, political construction and private
construction. The most common type is judicial construction, where the courts in the normal course of adjudication are called upon to decide on the implications of statutes and their provisions. Political construction takes place when non judicial bodies, especially the executive, implement statutory provisions, which are rarely subject to judicial scrutiny. Similarly, people in their everyday lives implement o host of laws and rules which results in private construction .9
The most important characteristic of any type of construction is its normative nature. Interpretation is done through the observation of linguistic facts and rules
7
E. Patterson , “ The Interpretation and Construction of Contracts” , Columbia Law Review, Vol. 64, No. 5 (May,
1964), pp. 833 8
Supra Note 4.
9
Supra Note 7. at p.836
and thus can be said to be value neutral. The correctness of interpretation has no connection to expectations and opinions about what the law should or ought to be. On the other hand construction can never be said to be value neutral . This is because there are no facts to measure the correctness of the production of legal rules. Ultimately, theories of construction are normative theories as they go beyond the mere recovery of linguistic meaning. This also means that justification for the construction should also include the premise for it and this premise should necessarily be more than just linguistic facts.
10
The most simple expression of the concept of theories of construction being normative theories, can be made using H.L.A. Hart's theory of the umbra of certainty and the penumbra of doubt. 11 Simply put, a judge should follow the clear meaning of the statute in the core of certainty, but in the penumbra of doubt other considerations, such as the political ideology dominant in the country should take precedence. Hart's theory also justifies the formation of the normative judgment on the basis of the necessity for the rule of law.
The final step to understanding the concept of construction is to see it as a part of the larger process of understanding an authoritative legal text. Interpretation and construction can be seen as two stages of the larger process. 12 Often the linguistic meaning is determined first through the process of interpretation. Then the core of certainty and the area of indeterminacy are discerned. Once these areas or issues are demarcated the theories of construction are used to make determinate the issues lying in the area of indeterminacy. Once we have determined that the semantic content of the text is vague and that the case to be decided lies in the penumbra of the rule, interpretation cannot resolve the case. Simply put when the text is vague, then the output of interpretation is vague which sets the stage for construction. These issues form what can be termed to be the construction zone, which differs on a text to text basis. 13
10
R. Stecker, Interpretation and Construction: Art, Speech and the Law, (Wiley-Blackwell, 2003), p.58
11
B. Bix, “H.L.A. Hart and the Open Texture of Language”, Law and Philosophy, Volume 10, Number 1, p.52
12
K.E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning, ( Harvard
University Press, 1999), p.26 13
See, J.B. Thayer , The Origin and Scope of the American Doctrine of Constitutional Law, (Little Brown & Co.
The Distinction in Brief It is useful for us now to sum up the distinction between interpretation and construction. Firstly interpretation is used to resolve ambiguity whereas construction resolves vagueness. Secondly interpretation deals with the linguistic or semantic content of the text whereas construction supplies legal effect to the same. Thirdly interpretation is guided by the facts of the world and construction is based on normative judgments. Lastly it can be said that interpretation is the first stage of understanding a legal text and construction usually follows interpretation.
IV. IMPORTANCE
OF THE
DISTINCTION
An assertion can be made that, not only is the distinction between interpretation and construction important, it is also necessary. This assertion is based on the need for conceptual clarity in examining an authoritative legal text. It can be further asserted
that
in
the
absence
of
this
distinction,
the
understanding of any law will be muddled and confused. To illustrate the point let us take up the debate that first gave rise to the distinction between interpretation and construction. As mentioned before the distinction arose from the debate between the Originalists and the Living Constitutionalists. Originalists claim that the meaning of the constitution is the original public meaning of the text. Further the meaning of the provisions are the semantic meaning that were assigned to the words and phrases at the time of framing. On the other hand Living
Constitutionalists claim
that
the
meaning
of
the
constitution changes with time and circumstances. This debate has been going on for a long time and has reached an
1893)
impasse.14 However it can be amply demonstrated that most of the issues that form part of this debate can be resolved by acknowledging the distinction between interpretation and construction exist and that they are two parts of a larger process. As stated before the Originalists believe that the semantic content of the legal text should determine the legal content of the text and therefore interpretation is the more important process. Contrary to this the Living Constitutionalists give priority to the adaptability
of
the
legal
content
without
having
to
be
constrained by the semantic content and thus believe that construction is the more important process. 15 If we apply the theory of the zone of indeterminacy or in other words the penumbra of doubt we can see that Originalism and Living
Constitutionalism
can
exist
side
by
side.
The
interpretation preached by the originalists will fall in the core of certainty for which in no situation is construction needed. If the interpretation places the text in the construction zone or the area of indeterminacy then the construction preached by the Living Constitutionalists comes into the picture. This conciliation is both necessary and natural. 16
V. THEORIES OPPOSED TO
THE
DISTINCTION
There are two theories which have been proposed to oppose the need for the distinction between interpretation and construction. 1) Objection based on the Identity of Semantic and Legal 14
J.Barber & S.Fleming, Constitutional Interpretation: the Basic Questions, (Oxford University Press, 2007), p.95
15
Id.
16
Supra Note 4.
Content
The first objection to the distinction between interpretation and construction is made on the basis that the semantic content of the legal text is generally the same as the legal meaning of the doctrines attached to it. Though this theory has been vigorously propagated, it is not accepted as it would mean that the traditional method of examining any legal text is itself wrong. The presence of separate semantic and legal content is undeniable and thus this objection fails. 17 2) Objection based on the Irrelevance of Semantic Content
The second objection raised is on the ground that though there are different linguistic and legal meanings of a legal text, the linguistic meaning holds no relevance whatsoever. This ground itself is based on provisions of law that are construed to form doctrines which are in contradiction to the linguistic meaning of said provision. Such provisions might exist, as seen in the cases where the Indian Supreme Court has, delivered judgments making Part I of the Indian Arbitration Act, 1996 applicable to foreign awards, where the provision actually says that Part I applies only to domestic awards. 18 However such examples are more the exception than the rule. Such cases tend to be looked upon in an unfavorable light as they go against the grain of the legislation. Normally the linguistic meaning forms the basis of all further processes to understand the law. Hence tis objection is limited in its scope and cannot negate the need for the distinction.19
17
Supra Note 7 at p.839
18
See Satyam Computers v. Venture Global, AIR 2008 SC 1061
19
Supra Note 7 at p.839.
VI. CONCLUSION
The paper was begun with two principal objects in mind. Firstly to prove the presence of a distinction between interpretation and construction and secondly to establish the necessity of the distinction. To achieve the first objective, two preliminary distinctions had to be made. Ambiguity was defined to be a multiplicity of senses and vagueness as the presence of borderline cases. Secondly the semantic content of a legal text was defined as the linguistic meaning whereas the legal content was seen to contain the doctrines associated with the text. The distinction was then established that interpretation is used as a solution for ambiguity
and
construction
for
vagueness.
The
second
distinction was based on the fact that interpretation is guided by facts whereas construction has to rely on normative judgments. To explain the distinction H.L.A. Hart's theory of the penumbra of doubt was employed. Normally the linguistic meaning of the text was found to be in the core of certainty as it is a fact of the world. However when the outcome of interpretation fell into the penumbra
of
doubt,
in
this
case
called
the
area
of
indeterminacy, the process of construction took over. This also led to the conclusion that interpretation and construction are two distinct parts of a larger process of deciphering legal texts. The necessity of the distinction was then established using the example of the Originalist-Living Constitutionalist debate. The Originalists hold for interpretation of the constitution based on the usage of the words and phrases at the time of framing. The Living Constitutionalist advocate the use of construction to adapt the provisions of the constitution in a manner suitable to current
circumstances.
If
the
theory
of
the
area
of
indeterminacy is used to place the Living Constitutionalists in the penumbra of doubt and the Originalists in the core of certainty, then they can co-exist. Thus conceptual clarity and harmony is achieved through the use of the distinction. In conclusion
and despite the objections based on
the
irrelevancy of semantic content in legal texts, it can be said that interpretation, which deals with ambiguity in semantic content and construction, which deals with vagueness in legal content, are distinct phases of the same process of understanding authoritative legal texts. VI. INDEX
A. Books:
B. Articles:
OF
AUTHORITIES
