Essay by Shael Herman
According to a venerable Jesuit aphorism, interpretation is the art of letting a text speak for itself. Despite its superficial glibness, this aphorism conceals an important fact: a text may emit many signals at once, leaving its interpreters to wonder whether they have been trapped in a Tower of Babel. Textual interpretation is an ineffably complex process by which we sort out signals and decide their relevance to particular circumstances. Every text, no matter how apparently lucid, requires interpretation; without at least some interpretation, the text mystifies.
If the text under our lens is a legislative provision, then the interpretive process recurs whenever a court assesses the applicability of the text to the case then under consideration. Applied to one set of circumstances, the verbal symbols in a legislative provision may yield one particular signal; triggered later for another set of circumstances, the interpretive process begins anew, and the text may yield other signals. From a technical standpoint, we judge legislation in terms of its combination of reliable guidance and its adaptability to countless cases. The proposition that interpretation is both incessant and essential for application of a legislative norm conceals yet another basic point: legislative interpretation presupposes an act of faith on the interpreter's part. Legislative interpretation requires of its interpreter an imaginative leap akin to a mental state that S.T. Coleridge characterized as a “willing suspension of disbelief.”
Interpretation of any statute, even one of narrow scope, requires at least an imaginative hop, if not a leap. When the legislation in question is a civil codification of general scope, then the interpreter's conviction behind this act of faith must be particularly resolute. This is so because a civil codification makes wide claims upon our imagination: implicit in such a codification is a view that human conduct and experience display a regularity that permits formulation of abstract, general propositions. Some of these general propositions are, in Rudolph von Jhering's phrase, “formally realizable”; their meanings can remain stable over long periods. By contrast, however, other general propositions may be open-textured and elusive; their meanings may vary over time in accordance with geography, mores, and customs.
Whatever the content of the legal propositions themselves, we act as though their drafters were nearly omniscient. We invest the code with conceptual and terminological coherence even though we know that a provision in question was formulated to regulate an infinite flux of phenomena that the legislator could never have foreseen. In the plenitude of human experience, historical data are bound to outstrip the human imagination. As every lawyer learns, if something can happen, then in time it will.
When a plain, commonsensical reading of a civil code provision seems to lead to absurd results, we read the provision in pari materia with others; we accept on faith that this interpretive method flows from the code's organic integrity. That faith implies belief that the code's deep structure, properly investigated, will yield appropriate guidance for filling gaps when efforts at pari materia reading have failed. Were we shorn of faith in the lawmaker's acumen and in our own capacity to map his intent onto our thinking processes, use of a code would be impossible in all but the clearest cases, and clear cases do not go to court.
For civil code readers, nevertheless, this complex interpretive enterprise seems almost as natural as breathing, for we are true believers in the “equity of the statute,” an English phrase that corresponds to a civilian's description of legislation as ratio scripta. Both the English and the Latin phrases imply an interpretive approach that encourages a teleological search of legislation despite the imprecision of its language. Discovery of the provision's ratio is not at all natural; one acquires the technique with practice.
Although a search for the statute's “equity” has become indispensable for civil code readers, English judicial method has traditionally discouraged the technique, at least in the reading of statutes. Confronting statutes, English judges have traditionally manifested an institutional agnosticism toward interpretive premises that a code reader, by contrast, would embrace as articles of faith. English tenets of statutory interpretation display a noticeable aversion to legislative purpose as a way of helping the legislature speak its collective mind. Unlike a civilian in search of a statute's implications by reference to analogy and purposive interpretation, a typical English judge on a similar expedition through a statute has traditionally been content with a strict or literal construction.
Of course, no comprehensive English code covers topics typically regulated in the French Civil Code or its German counterpart. But even when an English court confronts a statute of narrow scope, it is apt to be guided by a view that statutory law is somehow exceptional or aberrant, and hence in derogation of common law. To an English judge's ear, statutes are a “necessary evil” that disturbs “the lovely harmony of the Common law.” Toward the claim that a statute has an inherent adaptability to unforeseen circumstances, the English judge is apt to be an agnostic, not a true believer. English judges who venture into purposive or teleological interpretation of a statute are apt to become targets of their colleagues' criticism, and even their scorn. They may not forgive these adventurous judges even when the statute in question is a multinational convention drafted lapidarily in accordance with continental drafting principles and only later domesticated in English law by adherence to the convention. Fellow judges may charge their adventurous colleagues with having arrogated to themselves the legislative function and with meddling where they have no business to be. In this collective judicial stance, one can almost detect echoes of Alexander Pope's memorable phrase, “fools rush in where angels fear to tread.”
Such judicial fingerwaving does not imply that literalism straitjackets English judges in their reading of all legal sources; deprived of all analogical and purposive techniques, English judges would barely function and their lawmaking enterprise would come to a halt. Left alone to explore their libraries for solutions to new fact patterns, English judges prefer to find their analogies among judicial precedents rather than statutes. Confronting legislation of uncertain scope, a typical English judge would likely resist application of Francois Geny's celebrated libre recherche scientifique, a method that calls for a number of leaps of faith to discern the spirit of legislative texts when a literal technique has not fully illuminated their senses. However, if the English judge had to discover a solution to a new set of facts in a series of judicial opinions, not statutes, he would probably be comfortable with such imaginative leaps of faith. An English judge's decided preference for precedents flows from an institutional assumption that “precedent is the . . . soil from which predictability is mined, and stare decisis is its visible sign.”
Unlike their civilian counterparts, English judges, in exploring a statute, work with the psychological security of a safety net of the common law; they are confident that this net will cushion their fall if they lose their footing on the legislative construct. By contrast, if civilians misstep as they inch their way along a legislative construct, they fall into a void. Fear of this void likely explains why Continental courts will routinely expend so much creative energy in a search for guidance within the legislation itself.
About the Author
Shael Herman. Professor of Law, Tulane University School of Law. B.A., M.A., J.D., Tulane University. Scholar-in-Residence, Louisiana Bar Foundation.
Citation
69 Tul. L. Rev. 535 (1994)