Statutory interpretation
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Statutory interpretation is the process of interpreting and applying legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in most cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose.
In common law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by the legislature, or to delegated legislation such as administrative agency regulations.
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[edit] General principles
[edit] Meaning
The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:
- Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time.
- Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult.
- Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.
Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. In practice, by performing the construction the court can make sweeping changes in the function of the law.
[edit] Conflicts Between Sources of Law
Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as Parliamentary Sovereignty. In Australia and in the United States, the courts have consistently stated that the text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute.
- "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' "
- "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
- "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996);
Federal jurisdictions may presume that either federal or local government authority prevails in the absence of a defined rule. In Canada, for example, there is a presumption that the federal government has paramount authority in areas where the Constitution is silent and the legislative terrain has not been previously occupied by either the federal government or a province. This contrasts with other federal jurisdictions, notably the United States and Australia, where it is presumed that if legislation is not enacted pursuant to a specific provision of the federal Constitution, the states will have authority over the relevant matter in their respective jurisdictions.
[edit] Internal and external consistency
It is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The sui generis rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. For example, in Criminal Law, a statute might require a mens rea element of "unlawfully and maliciously". Whereas the word "maliciously" is well-understood, the word "unlawfully" in this context is less clear. Hence, it must be given a meaning of the "same kind" as the word of established meaning. This is particularly the case when the two or more words are conjoined, i.e. linked by the word "and", as opposed to placed in a disjunctive relationship, i.e. linked by the word "or", where the interpretation of the two or more words might be different depending on the circumstances (sometimes courts have to attribute a conjunctive intention to the legislature even though the list is disjunctive because, otherwise, no sensible overall interpretation can be ascribed).
A statute shall not be interpreted so as to be inconsistent with other statutes. Where there is an inconsistency, the judiciary will attempt to provide a harmonious interpretation.
[edit] Canons of Statutory Interpretation
Canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.
[edit] Textual Canons
Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.
- Ejusdem generis (Of the same kinds, class, or nature)
- Where general words follow an enumeration of specific items, the general words are read as applying to other items akin to those specifically enumerated.
- Expressio unius est exclusio alterius (The express mention of one thing excludes all others)
- Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes."
- In pari materia (Upon the same matter or subject)
- When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.
- Noscitur a sociis (A word is known by the company it keeps)
- When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.
- Reddendo singula singulis (Refers only to the last)
- When a list of words has a modifiying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.
- Plain Meaning
- The legislature intended to use ordinary English words in their ordinary senses.
[edit] Substantive Canons
Substantive canons instruct the court to favor interpretations that promote certain values or policy results.
- "Charming Betsy" Canon
- National statute must be construed so as not to conflict with international law.
- Interpretation in Light of Fundamental Values
- Statute does not violate fundamental societal values. (Holy Trinity Church)
- Rule of Lenity
- In construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant.
[edit] Deference Canons
Deference canons instruct the court to defer to the interpretation of another institution, such as an administrative agency or Congress. These canons reflect an understanding that the judiciary is not the only branch of government entrusted with constitutional responsibility.
- Deference to Administrative Interpretations (US Chevron deference)
- If the statute grants power to an administrative agency and is ambiguous with respect to the specific issue, the courts will defer to the agency's reasonable interpretation of the statute. This rule of deference was formulated in the US by the United States Supreme Court in Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984).
- Avoidance Canon (Canon of Constitutional Avoidance)
- If a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems. In the US, this canon has grown stronger in recent history. The traditional avoidance canon required the court to choose a different interpretation only when one interpretation was actually unconstitutional. The modern avoidance canon tells the court to choose a different interpretation when another interpretation merely raises constitutional doubts.
- Avoiding Absurdity
- The legislature did not intend an absurd or manifestly unjust result.
- Clear Statement Rule
- When a statute may be interpreted to abridge long-held rights of individuals or states, or make a large policy change, courts will not interpret the statute to make the change unless the legislature clearly stated it. This rule is based on the assumption that the legislature would not make major changes in a vague or unclear way.
- Last in Time
- When two statutes conflict, the one enacted last prevails.
[edit] Criticism
Critics of the use of canons argue that canons impute some sort of "omniscience" to the legislator, suggesting that it is aware of the canons when constructing the laws. In addition, it is argued that the canons give a credence to judges who want to construct the law a certain way, imparting a false sense of justification to their otherwise arbitrary process. In a classic article, Karl Llewellyn argued that every canon had a "counter-canon" that would lead to the opposite interpretation of the statute.
However, it could be argued that the fundamental nature of language is to blame for the problem of "for every canon, a counter." Interpreting whether a statute applies to a given set of facts often boils down to analyzing whether a single word or short phrase covers some element of the factual situation before the judge. The expansiveness of the English language necessarily means that there will often be good (or equally unconvincing) arguments for two competing interpretations. A judge is then forced to resort to documentation of legislative intent, which may also be unhelpful, and then finally to his or her own judgment of what outcome is ultimately fair and logical under the totality of the circumstances. Canons of statutory construction give judges the ability to decide questions of statutory interpretation that necessarily rely on an element of judicial discretion.
Modern-day legislative process, the latest symbol of which is a Congress that barely worked three days a week, exacerbates the problem. A low legislative workrate naturally leads to inartfully drafted legislation that may have the additional problem of not logically fitting into the existing statutory scheme, the tax and immigration code being the worst offendors. Judges have no choice but to decide what vague statutory language means when properly presented with the question, as sending the case over to Congress to ask what was meant is not an option.
[edit] Philosophies of Statutory Interpretation
Over time, various methods of statutory construction have fallen in and out of favor. Some of the better known rules of construction methods are:
- The Golden rule
- The Literal rule
- The Mischief rule
- The Purposive approach
[edit] Related reading
- The multi-volume Sutherland Statutory Construction is the authoritative text on the rules of statutory construction.
- Karl Llewellyn, Remarks on the Theory of Appellate Decisions and the Rules or Canons About How Statutes Are to Be Construed 3 Vand. L. Rev. 395 (1950).
- United States of America v. William C. Scrimgeour 636 F.2d 1019 (5th Cir. 1981) discusses most aspects of statutory construction.
- Brudney & Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning
- Sinclair, Michael, "Llewellyn's Dueling Canons, One to Seven: A Critique". New York Law School Law Review, Vol. 51, Fall 2006 Available at SSRN: http://ssrn.com/abstract=780424
- Statutory Construction Blog at http://www.lawprofessors.typepad.com/statutory/
- Corrigan & Thomas, “Dice Loading” Rules Of Statutory Interpretation, 59 NYU Annual Survey Of American Law 231, 238 (2003). Available at SSRN: http://www.nyu.edu/pubs/annualsurvey/articles/59%20N.Y.U.%20Ann.%20Surv.%20Am.%20L.%20231%20(2003).pdf
