Article by Peter M. Tiersma
There are some significant differences between spoken and written language, differences that are quite relevant to legal interpretation. A person stranded on a desert island may just be able to shout ‘help‘ to a passing ship and his message will be clear enough. But if there is no passing ship, and he begins to put notes in bottles, the text of his message will have to be far more detailed and explicit. The style of the note in the bottle is sometimes referred to as “autonomous” and is common in many types of written language. Face-to-face spoken conversation, on the other hand, is normally less autonomous. With speech, much information can be conveyed by devices like intonation and gesture between speakers who share a certain amount of background knowledge.
These observations have obvious relevance for the process of statutory interpretation. Statutes tend to be quite autonomous, not unlike messages set adrift in the currents of the ocean. The entire message must be expressed in words. The text may be read months or years after it is created. It must be carefully planned out in advance, because there is little or no opportunity for the recipient to ask questions or request clarification. All the writer's communicative intentions must be in the text itself. The relatively autonomous nature of legal texts thus provides a linguistic explanation for the development of the plain meaning rule and textual approaches to interpretation.
The current debate about whether judges should be textualists or intentionalists addresses the wrong question. What judges should be asking themselves is not whether to be textualists, but when they should concentrate largely on the text and when, in contrast, they might use interpretive strategies that look at other evidence of the intentions of the drafters.
This Article suggests that we answer this question by considering the nature of the legal text before us and how autonomous it is or ought to be. An important consideration is to whom the writing is addressed. Laws directed at the public in general should be as clear and comprehensive as possible. The same is true for statutes that implicate the rule of law. Courts should require that the legislature speak clearly and place all its intentions into the text itself, and they should interpret such statutes accordingly. Penal statutes, in other words, should be relatively autonomous texts that resemble messages in a bottle.
When these values are less critical, the case for autonomous text is correspondingly less compelling. Thus, approaches that emphasize intent, purpose, or imaginative reconstruction may be appropriate. An illustration is a statute directed at an administrative agency. Such a statute might, by design or accident, contain a gap or fail to cover certain details. In that case, either the courts or the agency itself should be allowed to carry out the evident intentions of the legislature as best they can be determined, or to fill in the details in light of their own experience.
Judges, in other words, should be part-time textualists. The more autonomous a text, the more appropriate a textual mode of interpretation.
About the Author
Peter M. Tiersma. Professor of Law and Joseph Scott Fellow, Loyola Law School, Los Angeles. B.A. Stanford University; Ph.D. University of California, San Diego; J.D. Boalt Hall School of Law.
Citation
76 Tul. L. Rev. 431 (2001)