There are different ideas about jurisprudence, and legal interpretation. The following is what I personally believe to be the true principle of legal interpretation, which is an extension of the popular idea that “an unjust law is no law at all”.
The principle
The principle is that there are no bad laws. Any bad judicial decision was an illegal decision; any good decision is legal. The blame for all bad actions ever performed by all legal systems falls squarely on the judges, and in no circumstance can the judges be excused as being the mere executors of a bad law. The law was good, although the legislators may be blamed for writing it in an unclear way.
Suppose, for instance, that the text of a law is simply, “Eating ice cream is hereby a crime, and shall incur the death penalty.” Whatever this means when said in the text of a law, it is not what a normal person would mean when saying this sentence in an ordinary context. For certainly it is unjust to criminalize, and give the death penalty to, eating ice cream. Therefore, this is not what the law says. We must interpret it charitably. The intent of the legislator is certainly to advance the common good, and it is inconsistent with that intent to give the death penalty to eating ice cream; hence, this is not what this law does.
Objections and replies
Some people will have objections, such as those that follow.
“But the law literally says such-and-such. You can’t say it doesn’t say it.”
Actually researchers can’t agree on what “literal meaning” even means. It’s not a well-defined notion at all. You shouldn’t rest any arguments on it.
Even conceding it, though, we can grant that the letter of a law says such-and-such, and claim instead that nevertheless it is against the spirit of the law to do such-and-such, and hence illegal in that sense. Nothing really hinges on what the law “literally” says.
“Laws won’t be changed if they always get interpreted as a good thing.”
They could be changed for clarification, and besides, it seems much more important that the legal system never does anything bad in effective practice, regardless what the laws say. Laws are just pieces of paper.
“In many cases, there is no death-of-the-author for laws. We can talk to the legislator and hear further clarifications of his intent. This is less feasible when the law was written by a collective, but for the sake of argument we can consider a single legislator who answers questions consistently with having meant to enact something bad by the law.”
For the sake of argument, we can consider this. Although normally we accept it when individuals give us clarifications of their meaning, there is a difference here: when enacting the law, the legislator was acting as a legislator, whereas his additional clarifications are mere answers from an individual who has some opinions about what the legislator meant. When acting as a legislator, what someone always really means is to further the common good, regardless what he thinks he means.
“This is unfalsifiable.”
Yes, all theories of jurisprudence are normative, not descriptive.
“Ordinarily it seems helpful to distinguish law and morality, and this theory prevents us from doing that.”
It does seem helpful in ordinary contexts, but this seeming helpfulness is entirely borrowed from the distinction between de jure and de facto. In ordinary contexts, we usually do not apply a theory of jurisprudence to talk about laws: by “law” we commonly mean de facto law, what we expect will actually be enforced regardless of what’s jurisprudentially correct. As soon as we begin to think of what is de jure the case, even if all judges may be wrong about it, that’s when we’re applying a theory of jurisprudence, and then a theory that doesn’t allow for bad laws is at least as good as, if not better than, a theory that does allow for bad laws.
“If laws are just what’s morally right, then no one can agree on what the laws mean, since no one can agree on what’s morally right.”
Even people who accept the concept of bad laws can’t agree on what the laws mean. Why expect hermeneutics to be more reliable than morality? If judges required consensus on what the laws mean, they would never make any decisions.
“Why write laws at all, then?”
They are reminders of what’s correct in various circumstances, although often they are confusingly written.
“But why have complex democratic legislatures, and regulatory bodies, etc.? Legislative and regulatory institutions seem to be constituted in a way that is at odds with this theory.”
Yes, that is a problem with the institutions. It should be no surprise that we live under unjust institutions.
“Language collapses if the correct interpretation of a statement does not depend on what it says, and on clarifications from the author.”
It does collapse in the specific case of laws. This is because a law, properly understood, is “an ordinance of reason for the common good, made by him who has care of the community, and promulgated”. (ST I-II.90.4)
“That’s not what a law means, though. Like, that’s just not how the word is used. No one talks like this, you’re inventing a new meaning for a word and pretending that’s what it always was.”
No, I understand that people don’t normally understand laws this way. But it would obviously be wrong to enforce laws if laws ever diverged even slightly from what’s morally good. And a judge is acting in the business of enforcing laws. Hence, to a judge who is doing the right thing, laws can’t be anything else; a judge who interprets the concept of laws differently is morally blameworthy. When I talked about the meaning of the word “law”, I was talking about its jurisprudentially normative meaning, not any of its linguistic meanings.
“It seems dishonest to interpret laws as always being a good thing, such as in your example about the ice cream.”
It can seem that way, but that’s due to unfamiliarity with legal contexts. Words mean different things in legal contexts and in ordinary contexts. We should always be aware of context when deciding whether a given communication was honest.
“Can’t a malicious judge claim he was earnestly acting for what he thought was right, and hence shouldn’t be blamed?”
Yes, but judges can also claim this if you believe in the concept of bad laws, this is no difference between the theories. Again, in an objection, you should focus on problems that are unique to the theory at hand.
“If this theory is right, don’t legislators seem to be always blameless for (what are ordinarily called) bad laws?”
No, they can be blamed for writing misleading or confusing laws, possibly guided by malicious intentions held by themselves as individuals or as citizens – but they can’t have held such bad intentions as legislators. As legislators, their intentions were good, or else they weren’t legislators and their apparent writing of laws was illegal. If we are used to saying that an unjust law is not a law at all, then we must get used to saying that a bad legislator is no legislator at all.
“In law, there is the principle of ‘fair notice’, which means that citizens must have fair warning of what is criminal and what is required of them. But if laws are just what’s morally right, then a citizen may be punishable who did not violate any ordinary understanding of the written text of a law, and then it seems he wasn’t given fair notice, at least not by the text.”
I think the idea of “fair notice” can seem correct because of the reasonable idea that “you can’t be blamed for failing to obey an order that you didn’t know was given”, and it seems like you shouldn’t be punished unless you can be blamed.
But if laws are just what’s morally right, then you obviously can be blamed for failing to obey a law, since you can always be blamed for doing morally wrong things, anyhow.
Besides, “fair notice” is already applied far short of the intuitive appeal of this idea, given how ordinary citizens do not really know about every law that may affect them. At least with true moral rules, we really can blame people for failing to know them.
“Doesn’t this give judges unlimited power?”
Judges have unlimited power either way, regardless of the truth of this theory. Judicial review is already a thing, even for people who believe in bad laws. Again, objections should focus on problems unique to the theory.
“Some laws seem to be morally neutral; their role seems to be to establish a convention, in the Lewisian sense of a solution to a coordination problem.”
I think in any concrete case, moral reasoning can determine what a good judicial decision is, and that’s what’s legal in that case, even if sometimes this does involve applying local arbitrary conventions. Although moral laws are universal, universal laws may require following relevant local conventions.
Sometimes these conventions are settled largely by ordinary readings of the legal text, and that’s fine; this just means that the true legal meaning depends on a common, non-legal reading of the text. In other words: the legal text, read in its proper legal meaning, cannot establish a convention, although it can rely on an established convention, and this convention may have been established partly by the non-legal meaning of the text.
These cases inherit the usual problems about how written texts by dead authors (or by authors who are otherwise unavailable) can’t actually have determinate meanings when pressed very hard about edge cases, although living authors can be consulted, and in these cases (unlike in cases about the legal meaning) consulting the living authors is relevant.
