Scalia and Garner's Reading Law: The Interpretation of Legal Texts by Antonin Scalia & Bryan A. Garner

Scalia and Garner's Reading Law: The Interpretation of Legal Texts by Antonin Scalia & Bryan A. Garner

Author:Antonin Scalia & Bryan A. Garner [Scalia, Antonin]
Language: eng
Format: mobi
Publisher: Thomson West
Published: 2012-07-04T16:00:00+00:00


Thirteen Falsities Exposed

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58. The false notion that the spirit of a statute should prevail over its letter.

“There is nothing more dangerous than the common axiom: the spirit of the laws is to be considered. To adopt it is to give way to the torrent of opinions.”

Cesare Beccaria,

An Essay on Crimes and Punishments 24 (1793).

Some of the canons we have discussed apply not only to statutes but to legal texts in general; others are peculiar to statutes. Among the statute-specific canons are rules that reflect the spirit of the common law—for example, the rule of lenity (§ 49); and rules that can be said to reinforce the structure of the Constitution—for example, the rule that a federal statute will be presumed not to preempt state law (§ 47). Some authorities believe that after all these rules have been considered and applied, the resulting determination of statutory meaning can be overridden by a judicially perceived, at-large “spirit” of the law that overcomes its letter.

This interpretive notion sprang up when statutory law was sparse and spotty in the Middle Ages. An early example occurred in 1550, when a statute providing a remedy specifically against the warden of Fleet Prison was interpreted to apply to all jailers.1 In that era, the problem was more pervasive than this simple example might suggest: Some medieval lawyers took the stance that any unreasonable statute could be disregarded.2 Fortunately, even in Tudor times, this view “bore little fruit in the practice of the courts.”3

The mere statement of the spirit-over-letter concept gives reason to doubt its validity. No one has ever set forth any principles for perceiving an at-large spirit that overcomes the letter. The concept is, in practice, a bald assertion of an unspecified and hence unbounded judicial power to ignore what the law says, leading to “completely unforeseeable and unreasonable results.”4

It is true that Chief Justice John Marshall often referred to the “spirit” of the United States Constitution.5 But as even he owned, although “the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words.”6 In an 1821 case, Marshall rebuked counsel who pressed his “extravagantly absurd” point “with much ingenuity” by making an argument that was “founded, not on the words of the [C]onstitution, but on its spirit, a spirit extracted, not from the words of the instrument, but from his [counsel’s] view of the nature of our Union.”7

The common view in the 18th and 19th centuries closely equated the spirit with the letter. Here is how a noted British judge put it in 1852: “Perhaps the most efficacious mode of procuring good laws, certainly the only one allowable to a Court of Justice, is to act fully up to the spirit and language of bad ones, and to let their inconvenience be fully felt by giving them full effect.”8

Today, however, the “spirit” of laws is the unhappy interpretive conception of a supposedly better policy than can be found in the words of an authoritative text.



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