Friday, April 21, 2017

Spirit And Letter Of The Law


Question: is there such a thing as the spirit of the law and if so what can it functionally mean? 

There may be such a thing, i.e., it may be something we can speak coherently about.

I'd say, if I had to try to define it, it's what the law aims at, its purpose or its intent, as derived from what the law says.

So in this sense, I can see talking about the letter and the spirit of the law: to take a dull example, there are complicated laws governing what equipment vehicles need to meet emission standards, the letter, the larger purpose of which is to curb air pollution, the spirit. 

I don't see anything controversial in any of this. 

But the bite can come, for examples: when the letter of the law seems inconsistent with the spirit of the law--say it can be shown that certain emission prescriptions don't curb emissions; or when someone violates the letter of the law but meets its spirit, say unprescribed emissions controls that work but still leave the driver non compliant with what's prescribed but can be shown ineffective. 

The examples are endless. 

With these examples, textualists, of which I'm one, will say, "Spirit me no spirit. If the plain language of the law points to a clearly understood meaning, then that ends the question of what the law is/means." 

Mind you, if the language in question is ambiguous, capable of being read reasonably more than one way, recourse to overall language, structure, context and purpose are indispensable means of resolving the ambiguity. Judges, citizens, will want to favor the reasonably possible meaning that fits with the language structure, context and purpose of the overall law. 

But the difference between my two examples and reasonably read ambiguity is that in the first cases there is a tension or gap between meaning and purpose with a proposal that the latter trump the former, while in the case of ambiguity, the effort is to try as much as possible to harmonize meaning and purpose, to try to make them seamless. 

So my argument is that when literal meaning, the letter, seems at odds with overarching purpose, spirit, the former must prevail and in the sense of ostensible friction or a contest between the two, there is no prevailing meaning that can be given to the idea of the spirit of the law.

There is a doctrine of absurdity, which is to say, the law is not be read so as to lead to absurd results. While I'm not well schooled in this doctrine, my general, unnuanced understanding is that it's confined to evident drafting errors, "the scrivener's error," which is to say, manifestly the legislature cannot have intended provisions that are distinctly opposite, in fact countermanding of, what the law as a whole clearly intends. This is a very narrow doctrine. 

If anyone wants to amplify, refine, raise questions about, or disagree with any of this, I'd be happy to consider any such.

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