§ 54 The Interpretation of Enacted Law
We have seen that one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute a part of the law itself. Legal authority is possessed by the letter, no less than by the spirit of the enactment. Other forms of law (with the exception of written conventional law, which in this respect stands by the side of statutory) have no fixed and authoritative expression. There is in them no letter of the law, to stand between the spirit of the law and its judicial application. Hence it is that in the case of enacted law a process of judicial interpretation or construction is necessary, which is not called for in respect of customary or case-law. By interpretation or construction is meant the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed.
Interpretation is of two kinds, which Continental lawyers distinguish as grammatical and logical. The former is that which regards exclusively the verbal expression of the law. It does not look beyond the litera legis. Logical interpretation, on the other hand, is that which departs from the letter of the law, and seeks elsewhere for some other and more satisfactory evidence of the true intention of the legislature. It is essential to determine with accuracy the relations which subsist between these two methods. It is necessary to know in what circumstances grammatical interpretation is alone legitimate, and when on the contrary it is allowable to accept, instead, the divergent results that may be attainable by way of logical interpretation. In other words, we have to determine the relative claims of the letter and the spirit of enacted law.
The true principles on this matter seem to be the following. The duty of the judicature is to discover and to act upon the true intention of the legislature—the mens or sententia legis. The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum es is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable.
To this general principle there are two exceptions. There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be sought from other indications. The first of these cases is that in which the letter of the law is logically defective, that is to say, when it fails to express some single, definite, coherent, and complete idea.
The logical defects by which the litera legis may be affected are three in number. The first is ambiguity; for a statute, instead of meaning one thing, may mean two or more different things. In such case it is the right and duty of the courts to go behind the letter of the law, and to ascertain from other sources, as best they can, the true intention which has thus failed to attain perfect expression.
When a statutory provision is capable of two meanings, it is commonly, though not invariably, the case that one of these is more natural, obvious, and consonant with the ordinary use of language than the other. The interpretation of an ambiguous law is therefore of two kinds, according as it accepts the more natural and obvious meaning, or rejects it in favour of another which conforms better to the intention of the legislature, though worse to the familiar usages of speech. The former mode of interpretation is termed literal or strict, and the latter may be distinguished as equitable. The general principle is that interpretation must be literal, unless there is some adequate reason to the contrary. In the absence of sufficient indications that the legislature has used words in some less natural and obvious sense, their literal and ordinary signification will be attributed to them. The maintenance of a just balance between the competing claims of these two forms of interpretation is one of the most important elements in the administration of statute law. On each side there are dangers to be avoided. Undue laxity, on the one hand, sacrifices the certainty and uniformity of the law to the arbitrary discretion of the judges who administer it; while undue strictness, on the other hand, sacrifices the true intent of the legislature and the rational development of the law to the tyranny of words. Scire leges, said the Romans,118 non hoc est verba earum tenere, sed vim ac potestatem.119
A second logical defect of statutory expression is inconsistency. A law, instead of having more meanings than one, may have none at all, the different parts of it being repugnant, so as to destroy each other’s significance. In this case it is the duty of the judicature to ascertain in some other way the true sententia legis, and to correct the letter of the law accordingly.
Lastly, the law may be logically defective by reason of its incompleteness. The text, though neither ambiguous nor inconsistent, may contain some lacuna which prevents it from expressing any logically complete idea. For example, where there are two alternative cases, the law may make provision for one of them, and remain silent as to the other. Such omissions the courts may lawfully supply by way of logical interpretation. It is to be noted, however, that the omission must be such as to make the statute logically incomplete. It is not enough that the legislature meant more than it said, and failed to express its whole mind. If what it has said is logically complete—giving expression to a single, intelligible, and complete idea—the courts have no lawful concern with anything else that the legislature may have meant but not said. Their duty is to apply the letter of the law, therefore they may alter or add to it so far as is necessary to make its application possible, but they must do nothing more.
It has been already said that there are two cases in which logical interpretation is entitled to supersede grammatical. The first of these, namely that of some logical defect in the litera legis, has been considered. The second is that in which the text leads to a result so unreasonable that it is self-evident that the legislature could not have meant what it has said. For example, there may be some obvious clerical error in the text, such as a reference to a section by the wrong number, or the omission of a negative in some passage in which it is clearly required.
In considering the logical defects of the litera legis, we have tacitly assumed that by going behind the defective text it is always possible to discover a logically perfect sententia legis. We have assumed that the whole duty of the courts is to ascertain the true and perfect intention which has received imperfect expression. This is not so, however. In a great number of cases the defects of the litera legis are simply the manifestation of corresponding defects in the sententia. If the legislature speaks ambiguously, it is often because there is no single and definite meaning to be expressed. If the words of the legislature are self-contradictory, it is possibly due to some repugnancy and confusion in the intention itself. If the text contains omissions which make it logically imperfect, the reason is more often that the case in question has not occurred to the mind of the legislature, than that there exists with respect to it a real intention which by inadvertence has not been expressed.
What, then, is the rule of interpretation in such cases? May the courts correct and supplement the defective sententia legis, as well as the defective litera legis? The answer is that they may and must. If the letter of the law is logically defective, it must be made logically perfect, and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain and give effect to it; where there is none, they must ascertain and give effect to the intention which the legislature presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. This may be regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute in the absence of any real and conscious intention.120
In the case of the sententia, as formerly in that of the litera legis, it is to be noticed that the only defects which the courts may remedy are logical defects. That the intention of the legislature is ethically defective, is not a fact with which the judicature has any concern. The sententia legis might have been wiser, juster, or more expedient, had it been wider, or narrower, or other than it actually is. But the courts have no authority to detract from it, add to it, or alter it, on that account. It may be that had a certain case been brought to the notice of the legislature, the statute would have been extended to cover it; but so long as it is logically complete and workable without the inclusion of this case, it must stand as it is. If a statute makes a provision as to sheep, which in common sense ought to have been extended to goats also, this is the affair of the legislature, not of the courts. To correct the sententia legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious intention of the legislature. But to correct it on ethical grounds is to assume and exercise legislative power.