• 11 January 2010

Codified Canons and the Common Law of Interpretation

Jacob Scott

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Statutory construction generally involves rules of thumb that are said to allow readers to draw inferences about the meaning of a particular statute.  These “canons of construction” (also known as maxims of interpretation) guide the methods and sources used in statutory interpretation and are usually deployed according to an interpreter’s preferred methodology.

The Common Law of Interpretation

Such interpretive rules of thumb are judge-made.  I argue, therefore, that the common law should be understood to encompass interpretive methodology in addition to the traditional substantive common law subjects, such as the law of torts.  Judge-made rules of interpretation develop because methods of legal reasoning attach to results and weakly constrain judges in future cases.  Thus, the canons form a body of interpretive common law that legitimizes sources and methods of legal reasoning, all with an eye toward how the legislature would want its intent to be effectuated.  The common law canons do more to limit the sources of legal reasoning than they do to order them with precision: resorting to context is fine, resorting to statutory purpose is fine, but employing outlandish extrinsic sources of meaning is not.  However, the common law of interpretation has no prevailing rules for when an interpretation based on statutory purpose should trump a conflicting interpretation based on context.  In this sense, though the “canons of construction are no more than rules of thumb that help courts determine the meaning of legislation,”1 they do, in fact, constrain and direct interpretive approaches to statutory construction, albeit weakly.

Judges, however, are not the only players in the development and ordering of canons of construction.  When a legislature enacts statutes, its members have certain ideas about how those words convey meaning.  To economize language and the legislative process, the legislature may rely on prevailing rules of interpretation extrinsic to that particular statute.  Legislatures may even prescribe rules and methods by which they wish their statutes to be construed.  Scholars and commentators often discuss “legislative preferences,” as expressed in statutes, with respect to particular policies.2 But “legislative preferences,” as expressed in statutes, with respect to interpretive method remains an uncharted subject.

The Codified Canons

Every legislature in the United States has codified canons—interpretive rules of thumb—to guide statutory interpretation, but these codifications have received virtually no attention in the academy.  By comparing the code-wide interpretive preferences of each legislature in the United States with the common law canons,3 I ask whether the common law canons, and the dominant theories of statutory interpretation underlying them, are consistent with how legislatures want their statutes to be interpreted.

I have classified common law canons as codified or rejected by a particular statute.  The principle I have used to determine whether there is a codification or rejection is whether a codification forecloses or endorses the use or nonuse of a particular canon.  These classifications should be treated as signposts to the common law canons rather than fully textured enactments.  It is crucial to consult the source codification because whenever complicated and diverse rules are forced into simplified boxes, resolution is lost; as is clear from the large variety of codifications quoted in the full paper, the rules are complex and multifarious.  This is what the catalog of general interpretive directives looks like: http://www.georgetownlawjournal.org/issues/pdf/98-2/Scott_AppendixB_FullColor.pdf.4

Interpretive Methodology in an Age of Codified Canons

These legislative interpretive directives, however, are not expressed in a vacuum—the enactments often ratify or reject judge-made canons of construction.  Because the canons are nothing more than methodological common law, legislative enactments that repudiate or support canons should not only be included in any conversation about the canons, but also considered important and controlling.

The codified canons, therefore, provide a measure against which a particular common law canon can be compared.  The three dominant theories of how statutes should be interpreted—new textualism, intentionalism, and pragmatism—are each comprised of a collection of assertions about which interpretive rules are appropriate or legitimate sources of meaning.  Each theory claims individually to be the most appropriate method for construing statutes in a democracy.  Just as the legitimacy of a particular common law canon is tied to each theory’s normative claim that it is the most appropriate method for construing statutes in a democracy, conversely, the legitimacy of each theory depends on whether legislatures have ratified or rejected the interpretive rules upon which the theory relies.  Because the three dominant theories of statutory interpretation are comprised of particular rules (and in some cases a hierarchy of those rules), the codification patterns permit conclusions to be drawn about the extent to which each of the three major theories can vindicate their claim of being the most appropriate interpretive method for democratically enacted statutes.

The codifications suggest that the prevailing interpretive toolbox should be revised and recalibrated, and that the three currently dominant theories of statutory construction—and their claims to being the most appropriate approach for construing statutes in a democracy—should be re-evaluated in light of legislative choices. In short, legislative preferences (1) validate intentionalism despite critical concern about what constitutes dispositive legislative intent, (2) vindicate textualism’s commitments to plain meaning, context, integrity, and coherence, but not textualism’s embargo on extratextual sources, which runs contrary to the law of many jurisdictions, and (3) support pragmatic theory’s elevation of concrete methods of reasoning over abstract methods and its organization of sources of meaning in a hierarchical fashion (for example, statutory text, legislative purpose, specific and general legislative history, the evolution of the statute, and finally, current policy), but legislative preferences do little to create a finely variegated list of which canons trump each other.

These general conclusions, however, should not obscure the fact that interpretive method is jurisdictional; it depends on how the jurisdiction’s legislature directs its statutes to be construed.  In jurisdictions where there are no codified canons and no relevant constitutional provisions, the common law canons—insofar as those baseline rules can be identified—prevail.  But in the absence of legislative or constitutional directives, the common law of interpretation should at least be informed by prevailing legislative preferences.  In the development of the common law generally, courts will look to other jurisdictions for new developments.  As a result, when a judge approaches the common law of interpretation, the interpretive rules of similar jurisdictions should matter in some degree.  Even though “such legislative expressions may not be directly applicable or binding,” in the exercise of their common law jurisdiction “courts should be responsive” to canons codified elsewhere as expressive of legislative interpretive preferences, which “can serve to shape and add content to the common law.”5 This is especially so where some codification patterns shake the underlying assumption of common law canons: that they reflect legislative interpretive preferences.  Each time a judge deploys a common law canon, the selected interpretive method should be carefully scrutinized to determine whether it is sound.  The common law judge can either dismiss a canon codified elsewhere as foolish or ill advised—legislatures, after all, can be wrong—or conclude that the codified canon is a sensible aid to statutory interpretation. But legislative preferences in this area should not simply be ignored or ruled out of bounds.

Therefore, interpreters in jurisdictions where common law canons have not been displaced by interpretive statutes or constitutional directives should note the pattern of codifications.  They should resist interpreting statutes in ways that have been widely rejected by legislatures (such as strict constructionism).  Where a canon has been uniformly rejected, even if by only a few legislatures (such as the last antecedent rule or expressio unius), or is fraught by disagreement between jurisdictions that have spoken on the issue (such as the difference between “and” and “or”), an interpreter must do more work to justify its use.

Conversely, interpreters in jurisdictions without interpretive codifications should more freely rely on common law canons that have been vindicated by legislative preferences (such as reference to context, construing statutes liberally, interpreting ambiguous statutes so as to best carry out their purposes, and using legislative history).  Reliance, however, does not mean blind and dispositive acceptance.  The eclecticism reflected in the codifications demands that interpreters evaluate many sources of statutory meaning before settling on the most plausible interpretation.  A legislature should get the type of interpretation it wants, subject to constitutional limitations.  The particular interpretive philosophy of individual judges may matter less where legislatures have codified the methodology they prefer.

Finally, the high degree of legislative activity seeking to control both interpretive method and sources of meaning exposes the lurking constitutional question of whether legislative control over judicial interpretive methodology is consistent with a jurisdiction’s constitution.  The power struggle between courts and legislatures over interpretive methodology is already, in some jurisdictions, a live issue.6 At all events, the mass of legislative preferences should play a role in statutory interpretation unless and until courts declare that legislative activity in this area is unconstitutional.dingbat



Copyright © 2010 Georgetown Law Journal.

Jacob Scott is an associate in the Boston office of Ropes & Gray LLP.

This Legal Workshop Editorial is based on the following Article: Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 GEO. L.J. 341 (2010).

  1. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992).
  2. See, e.g., EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR LEGISLATION 8 (2008) (interpreters should strive to maximize “the satisfaction of enactable political preferences” with respect to a particular policy).
  3. The California Civil Code’s interpretive rule section was used in lieu of a code-wide interpretive rule section.
  4. A printer-friendly version is available here: http://www.georgetownlawjournal.org/issues/pdf/98-2/Scott_AppendixB_Charts.pdf.
  5. See, e.g., CJS Common Law § 11. See also Am. Jur. Common Law § 13 (“it is the duty of the courts to bring the law into accordance with present-day standards of wisdom and justice, and to keep it responsive to the demands of a changing scene”).
  6. See Abbe R. Gluck, Statutory Interpretation Beyond the Supreme Court: State Courts, Interpretive Clarity and the Emerging “Modified Textualism,” 119 YALE L.J. (forthcoming April 2010) (describing interpretive methodological developments in five states and state court responses to legislated interpretive directives).

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