On Interpretation and Judging

I have written extensively about legal issues and indeed questions of interpretation of legal texts. There is a much-cited article of mine in the Irish Bar Review on Historical Interpretation of the Constitution of Ireland. Or at least much cited in Ireland. Over time this knowledge base has deepened, and I believe the key to understanding of how legal texts are interpreted is the key to understanding how judges operate and how decisions are made and what influences them in determining issues at hand and at bar.

If we look at the question of statutory interpretation, then the traditional rules are:

1: The Literal Approach.

2: The Golden Rule or Harmonious Interpretation.

3: The Rule against Mischief.

The literal approach or as the Americans term it a textualist is to be bound by the strict interpretation of the literal meaning of a statue. Plain words should be given plain meanings. All well and good but a literal meaning is often far from clear and mostly opaque and capable of different levels of interpretation.

This technique of literalism is closely allied to judicial conservatism and in the view of former Supreme Court Judge Harlan in America becomes strict constructionism of a constitution. In statutory and constitutional terms, it is self-denial and the prevention of a judge from engaging in what is perceived to be legislative activity.

However, this is a dodge for language is infinitely manipulable and what might in fact seem plain to one judge may be far from plain to another.

The leading philosopher of law Dworkin called literalism the plain fact theory of law. In his view it falls at the first hurdle as law is ultimately a question of interpretation not just about the application of plain facts if such can be ascertained.

The second statutory rule is the golden rule or what is often termed the purposive approach. That in determining what a statue means we look to the purpose or intent of a statue. This approach often gets to the heart of the matter. A broad just based solution but one that invites a judge into the dangerous to some territory of putting his own opinions and views into the strict language of a text.

The broad approach to some is judicial law making and associated with progressive behaviour which is most definitely not in the interests of a conservative agenda.

The third rule in statutory terms is the rule against mischief. What perceived harm was the statue attempting to avoid?

Now such are positivistic considerations. The assumption is that the judge uses these criteria but that negates the elephant in the room policy which is supposed to be beyond his remit.

A judge is often in fact influenced by pragmatism and by a multiplicity of biases, prejudices and filters often the product of his upbringing. His attitude towards a case is conditioned by his attitude towards the litigants or the witnesses or indeed the texture of the case.

Thus, In Ireland I did a case representing the Anti-Austerity Alliance a left-wing party who were barred from collecting money with an election upcoming. The sophisticated constitutional arguments about rights of association, political representation et al were met with the rebuke by the judge that he did not like such people coming to his door! At least the prejudices were to the fore.

Constitutional interpretation or rights driven interpretation is often influenced by such policy considerations. When judges must deal with seismic issues of policy and social order and public morality then since such concepts are open ended it is their subjective and prejudiced instinct that will govern outcomes.

A realist judge called Hutchinson called this the judicial hunch. Other ways of framing it are touch and feel or if we are commonplace instinct.

There is other doctrine of interpretation that are also political.

In America there is the lunatic method of original intent or historicism also endorsed by the late great Hardiman J in Ireland but peddled by two deeply right-wing American Judges Scalia and Bork. It is that we look to what words of a text or a constitution meant when it was originally drafted. This reaches the nth degree of absurdity when it arrives at the point that Scalia upheld the right to have handguns the new millennia because in 1776, they needed muskets and the right to bear arms to fend off the British!

Gazing backwards is often dangerous as Dworkin intimates. We cannot be certain of intent then or what was intended nor can we reconstruct same. More to the point the constitution is a living instrument and not a text frozen in time. Why should the dead hand of history govern the unfettered use of handguns today?

Historicism is indeed deeply allied with reactionary behaviour and deep-seated conservatism. Hand in glove with the handmaidens of world evil the neo cons and extreme right.

Allied to this is the doctrine of separation of powers which indicates that a judge should not intervene in legislative processes and most certainly should not create or invent new rights such as those to housing or health care.

Yet these perspectives are in the ascendant. That is the problem. Lord Sumption for example in his recent memoir urges judicial restraint and emphasises the rudderless nature of human rights.

Now a crucial realisation is that judge is armed with different techniques and can select which to employ in a given set of circumstances. So of course, is an advocate. But an advocate is merely a persuader not a power. A judge has power over fate and the lives of others so what he or she is likely to do is of less than inconsequential interest. Certainly, if you are specifically affected or part of a bandwidth of people effected then that ought to be of significant concern to you.

Once the collective processes of interpretation of a court particularly a powerful court such as Supreme Court are consensus driven and the wrong consensus at that then Houston, we have a problem.

So, In America the Republican right have in effect stacked the court and the liberal judges are dying out. More to the point it is difficult to see how liberal judges will be appointed in the future. A similar dynamic is at work in Ireland.

In the UK there is more diversity and courts do not have to grapple as much with abstract constitutional ideas and on occasion the anarchist collective that are the higher judges in the UK buck the system as they did with Brexit leading to the golden raspberry treatment by The Daily Mail and the headline (Enemies of The People).

Nonetheless, there are discernible and awful patterns developing. Increasingly judges are being politically appointed and the agenda is deep seated conservatism. Also, a new generation of by the book or tick box judges is now in evidence. The flexibility and the ability to bend and manipulate rules to achieve socially just outcomes less in evidence.

The agenda thus is to endorse draconian legislation and to not implement rights driven criteria which would unsettle established authority. To defer to such nebula as the common good, public order to undermine rights. Not to fly the flag for human rights but to trumpet state fascism or authoritarianism.

Such policy driven decisions as are made thus have effects both by restraint and inaction as well as by purposive right-wing action in achieving the following in many jurisdictions:

The upholding of the interests of transnational corporations, law firms and banks. The division and cartelisation of the world into a one percent and everybody else.

The legitimisation of state fascism and authoritarianism and the suppression or criminalisation of dissent or deviance.

The victimisation and deportation of the other and the immigrant.

And where can you buck the system. Well not with judges often but you can still win with juries and If a fourth estate that is critical still exists, then you can win.

So often I have found that the court of public opinion rather than the law courts is the path to victory.

But the dominant interpretative tendencies are literalism, separation of powers, policy driven state authoritarianism, deferring to the interest of big business and the corporatocracy and negating human rights protection.

Very few judges now are Denningesque and in favour of the little guy though the diversity of British life permits a degree of wriggle room. A measure of latitude. A small divergence. The occasional blip in the system.

The great liberal judges and indeed liberal lawyers now well-nigh over despite the contention of Sumption. Rights driven principle driven adjudication and determination an increasing thing of the past in an age of moral relativism and state and religious extremism and tribalism.  And if the jury room is one of the last vectors left or the trial courts well for how much longer even in the UK as the burden of proof is reversed, bad character admissions broadened, or show trials or trial by media more and more common such as recently occurred in Madrid as the leaders of the Catalan referendum were prosecuted for treason.

And a worrying final thought the classifications I have just made of judicial modes of interpretation are infinitely manipulable to suit the interests of the powerful.

David Langwallner, barrister

David Langwallner is a graduate of the Harvard Law School and the London School of Economics and is a barrister at 1MCB. He is a published author and writes monthly columns in the Village magazine in Ireland and the website Cassandra Voices. David was 2015 Irish Lawyer of the Year for his work as director of the Irish Innocence Project.


Share this post