Thanks Anon for alerting me to the previous thread. I thought I would add some of the issues discussed there to the current thread.
The original question was whether it would be helpful when enacting law to include a statement of the purpose of the law. To some extent it would be. But on the other hand, it would be additional language which could introduce new ambiguities. Legislatures sometimes try to do this, and, sometimes, it creates ambiguity. Legislatures sometimes do this when they don’t like court interpretations of prior legislation. But then the question often becomes a question of how much of the prior interpretation the legislature is trying to eliminate.
I doubt there is a law that does not have at least some ambiguity as to what was intended.
An obvious example would be the first amendment:
What is “the freedom of speech”. Congress is not allowed to pass laws that will “abridge” the “freedom of speech”. Justice Douglas argued that the “freedom of speech” means complete freedom of speech and thought that was obvious. A lot of other people thought that “freedom of speech” was a limited right with an established history in the common law at the time the US Constitution was ratified. The latter view prevailed. That is why you are not allowed to yell “fire” in a crowded theatre, why limited regulation of commercial speech is allowed, why campaign financing can be regulated to some degree but is also partially protected from regulation, and why obscenity and child pornography are subject to regulation while other speech and entertainment related to sex is not subject to regulation.
As the questions arose as to how the First Amendment applied to each of these subject matters, there was honest disagreement about the extent of “freedom of speech”. Many related issues have not been entirely resolved because Courts generally do not attempt to write comprehensive decisions that give complete resolution of all issues relating to a topic, but instead, they confine themselves to deciding only those issues that must be decided in order to decide the case.
That is just one example. In my job I frequently work on deciding how to interpret ambiguous law. In our Court, 90% to 95% of cases settle. When cases don’t settle it is because there is either a disagreement about interpretation of the law or about the probability that one side or the other will prevail on evidentiary issues (issues about what the facts are).
If there are significant legal issues, the parties will probably file motions to try to get the Judge to decide those issues before trial so they can either settle the case, or clarify what set of facts that they will actually have to prove at trial to prevail. They brief the issues and it is my job to do the legal research, advise the Judge as to those legal issues, and draft decisions on the motions. So, questions about what the intent of a law is do exist, and the existence of those issues is one of the main reasons that Courts hire people like me to assist judges.
The ambiguities in the law result in part from the inadequacies of language to express intentions, but also from the nature of intentions themselves. An intention is not entirely there like a rock: a solid thing with a definite shape. Intentions are not even entirely obvious to those who possess them.
A person may only have pre-reflective awareness of his intention, or even if he has some reflective awareness, that does not entail complete awareness because many elements of an intention are more implied than actual.
To explore an intention, one may have to start by clarifying the purpose being pursued by asking questions like: Would factual state of affairs F1 satisfy my purpose? Would factual state of affairs F2 satisfy my purpose? Even if one extensively explores the purpose in this manner, unless one has a very good imagination, one is probably not going to think of all the potential situations that might plausibly satisfy the purpose in order to demarcate the exact scope of the purpose. Consequently, even a very reflective person is likely to be left with some ambiguities and vagaries in his/her purposes.
But the purpose is only a part of the intention. An intention has a structure something like “I will do act X to accomplish purpose P in situation S. Even after we have explored our purpose P, to fully understand the intention we must reflect on what possible actions could constitute an X: Would I be doing X if I did A1? Would I be doing X if I did A2? And so on. X must be something that the person with the intention believes will serve purpose P. It must also be something I would be willing to do in situation S.
The third step in reflecting on an intention involves asking about what constitutes situation S: would I do X for my purpose P in situation S1? Would I do X for purpose P in S2? And so on.
I am not saying that one is likely to have no sense of the obvious things that would count as act X, purpose P, or situation S. The hard questions have to do with borderline issues.
Legal interpretation involves the attempt to determine the intentions of lawmakers and judges who set legal precedent. Thus, for purpose of legal interpretation, act X was the enactment of a law or issuance of a precedent that is at least partially ambiguous or vague. In either case certain physical words are added to the larger body of physical words that make up the law.
The issue for the interpreter of law is to determine the meaning of those new words. The first and primary source the interpreter turns to is the ordinary meanings of the words used, or some technical meanings that appear applicable. But, neither ordinary nor technical language is perfectly unambiguous or clear. When the language by itself is inadequate to eliminate all ambiguity and vagueness, one looks to context to try to determine what was intended by the lawmaker or judge.
We consider the purposes they would have had and the range of situations they would have meant their language to apply to given those purposes. In the case of Court precedent, we look at the facts of the case in which the decision was made to see what situation the Court was intending its language to apply to. In the Case of lawmakers, we look to the legislative history (the debate and testimony leading to the legislation) to try to find out what they were trying to accomplish and what sorts of situations they were concerned with affecting. In both cases, we look to the wider context of the law to discern the public policy purposes that are generally endorsed by the law on the assumption that those policies are important to the judge or the lawmaker, or at least should have been. If we err on the side of assuming lawmakers and judges are fulfilling their duties, that is not as bad as erring on the side of assuming they were not acting appropriately.
In my jurisdiction, we also have a statute that requires that we assume that the intent of any statute was to have a reasonable result.
The evidence regarding what public policy is often ambiguous. That ambiguity leaves questions as to how to interpret ambiguous language of the law. That brings us to my proposal. By identifying the ultimate purpose of the law within the nation, that will clarify some of the ambiguity as to what the public policies are, which will then help to eliminate some of the ambiguity in the language of statutes, regulations, and case precedents.
Sometimes the legislation is ambiguous because certain legislators will only support the legislation if the issue is left to the courts to decide. So, sometimes, these ambiguities are intentional. When a court has a case, it must decide the case. What is the court supposed to do?
And this is only an instance of the problem of finding the “intent” of the legislature. What if the different legislators had different reasons for supporting the legislation and as a consequence had different notions of how the legislation should be interpreted? The only thing the legislators have to agree on is the language of the legislation. What is a court supposed to do if there is no shared intention? The court still has to decide the case before it.
The Court must turn to public policies to determine what the legislation should mean. It can do that better if public policy is made clearer by the constitutional amendment I have proposed.
I am currently listening to some recorded lectures covering Philosophy of Law and the current topic is Dworkin’s theory of legal interpretation which, is described as requiring that interpretation is guided by the pursuit of “integrity”. I am jumping ahead of what the lectures have said, but what this suggests to me is that the interpreter is not free to impose his/her own moral framework on the law, but on the other hand, he/she is interpreting the law as a consistent body of law arising from a consistent set of public policies that are ultimately consistent because they arise out of a shared moral foundation emerging from reason and the human situation. As Jefferson put it in the Declaration, Governments are created to serve a specific moral purpose. Law is created by Government in it’s attempt to serve that purpose. All legislation and all legal interpretation must ultimately serve that purpose by fitting in with the project as it has been carried forward to date, but without losing site of the ultimate purpose.