A Skeptics Guide to Statcon
Legal Interpretation: A Skeptic’s Guide to Statutory Construction 1. The Application-as-Interpretation Principle
The application of a law to a particular case is an interpretation. “A sentence that seems to need no interpretation is already the product of one.”
Stanley Fish
This principle is not found in traditional textbooks. It is based on new researches in linguistic and literary theory which have been imported into legal theory. The modern view is that language is made up of signs which are composed of a signifier and a signified. The relationship between this signifier (sound) and signified (meaning) is not fixed and meaning is produced only by difference between signifiers. We only recognize the difference between a cat and a dog because of the difference between the sound or word “dog” from “cat.” But the word “dog” has no inherent relation to that four-legged animal we often see making love on the sidewalk. When this view of language is applied to legal interpretation, it may now be argued that there is no law whose meaning is “clear” and calls only for application. Words may have several literal meanings and readers only choose “the meaning” within the context of a particular sentence. This process of choosing the “literal” meaning is but an interpretation of the text. As a consequence, the maxim that tells us “Where the law is clear and free from ambiguity, there is no room for construction or interpretation” should now be confined to the archives. It has no practical value except that it is often used as a rhetorical ploy to insist that one’s interpretation is superior to other readings. Those who use this maxim seem to argue that they are merely applying and not interpreting the law. The assumption of course is that the law is superior to its interpretation as if one can apply the law without interpreting it. Theoretically speaking, this assumption is no longer acceptable. As Frank E. Horack Jr. would say,
The application of a law to a particular case is an interpretation. “A sentence that seems to need no interpretation is already the product of one.”
Stanley Fish
This principle is not found in traditional textbooks. It is based on new researches in linguistic and literary theory which have been imported into legal theory. The modern view is that language is made up of signs which are composed of a signifier and a signified. The relationship between this signifier (sound) and signified (meaning) is not fixed and meaning is produced only by difference between signifiers. We only recognize the difference between a cat and a dog because of the difference between the sound or word “dog” from “cat.” But the word “dog” has no inherent relation to that four-legged animal we often see making love on the sidewalk. When this view of language is applied to legal interpretation, it may now be argued that there is no law whose meaning is “clear” and calls only for application. Words may have several literal meanings and readers only choose “the meaning” within the context of a particular sentence. This process of choosing the “literal” meaning is but an interpretation of the text. As a consequence, the maxim that tells us “Where the law is clear and free from ambiguity, there is no room for construction or interpretation” should now be confined to the archives. It has no practical value except that it is often used as a rhetorical ploy to insist that one’s interpretation is superior to other readings. Those who use this maxim seem to argue that they are merely applying and not interpreting the law. The assumption of course is that the law is superior to its interpretation as if one can apply the law without interpreting it. Theoretically speaking, this assumption is no longer acceptable. As Frank E. Horack Jr. would say,
Cited: in Antonin Scalia and Bryan Garner, Reading Law 53 (2012). [ 5 ]. Fish, at 272. [ 6 ]. Id. at 284. [ 7 ]. 415 SCRA at 283. [ 8 ]. 605 SCRA at 659. [ 9 ]. Id. at 644. [ 10 ]. Id. at 658. [ 11 ]. Reading Law, 53 (2012).