§ 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.