Statutory Interpretation- Then And Now

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Statutory Interpretation- Then andNowR I CH A RDH .H E L M HO L Z*D E L L OY D J. G UT H V I SI T IN GL E CT UR E IN L E G AL H IS T OR Y :M A RC H 2 3 , 2 0 1 7Acommon contemporary opinion, shared by academics and manypracticing lawyers, holds that neither judges nor teachers of lawhave produced an adequate theory of statutory interpretation.Critics of the current situation maintain that the existing approaches areoverly complicated and sometimes internally inconsistent. This criticalopinion seems to be shared, for example, by three prominent Americanjudges who began their careers as academics: the late Supreme Courtjustice, Antonin Scalia, and current federal circuit court judges, GuidoCalabresi and Richard Posner.1 They have all criticized existing approachesand they have all made suggestions for improvement.This negative view is not peculiar to academic lawyers and judges inthe United States. It is shared by thoughtful Canadian observers. A recent*Ruth Wyatt Rosenson Distinguished Service Professor of Law, University of Chicago.1Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1997)at 16 (“So utterly unformed is the American law of statutory interpretation that notonly is its methodology unclear, but even its very objective is.”); Richard Posner,“Statutory Interpretation – in the Classroom and in the Courtroom” (1983) 50:2 UChicago L Rev 800 at 802 & 817 (describing his attack on current approaches tostatutory interpretation as a “Jeremiad” and suggesting a better approach based onjudicial “imaginative reconstruction” of the legislative intent). See also GuidoCalabresi, Common Law for the Age of Statutes (Cambridge, MA: Harvard UniversityPress, 1982) at 146-66 (advocating adoption of a “common law approach” underwhich judges could modify or even abandon obsolete statutes).

2 MANITOBA LAW JOURNAL VOLUME 41 ISSUE 1study based on the opinions of the Canadian Supreme Court during the1990s, for example, concluded that the judges had taken “seven differentapproaches to statutory interpretation, many of which are inconsistent.”2The author concluded by recommending a fuller consideration of thestrengths and weaknesses of each of these seven approaches in search ofmore satisfactory ways of construing statutes. He is not alone amongCanadian commentators in thinking that courts could do better than theyhave so far.3This subject is also an appropriate one in a Lecture Series devoted tothe history of law. Statutory interpretation itself has a long history. Thereis nothing new about controversies revolving around the question of howthe texts of statutes should be read and applied in contested cases. Interestin statutory interpretation, including its past, is widely shared, and Ireacted to the kind invitation to speak in a Lecture Series honoringProfessor DeLloyd Guth by considering what light history might shed onthis much disputed subject. In my case, the invitation provided anopportunity to examine modern Canadian approaches to this subject andto compare them with those applied in the legal system in forcethroughout Europe before 1800.42See David Elliott, “Khosa – Still Searching for that Star” (2009) 33:2 Man LJ 211; seealso Geoff R Hall, “Statutory Interpretation in the Supreme Court of Canada: TheTriumph of a Common Law Methodology” (1998) 21:1 Advocates’ Q 38; Anver MEmon, “On Statutory Interpretation and the (Canadian) Rule of Law: InterpretivePresumptions as Boundary Setting” (2015) 3:1 Theory & Practice of Legislation 45.3See Pierre-André Côté, The Interpretation of Legislation in Canada, 4th ed (Toronto:Carswel, 2011) at 469-548 (describing a “Pragmatic Method”); Randal N Graham,Statutory Interpretation: Theory and Practice (Toronto: Emond Montgomery Publications,2001) at 31-41 (describing a “Dynamic Interpretation”); Stéphane Beaulac, Handbookon Statutory Interpretation: General Methodology, Canadian Charter, and International Law(Markham, Ont, LexisNexis, 2008) at 1-3.4Encouraging also is the successful use of a comparative approach reaching acrossdifferent countries: D Neil MacCormick & Robert S Summers, Interpreting Statutes: AComparative Study (Aldershot: Ashgate Publishing Co 1991).

Statutory Interpretation3I. THE EUROPEAN IUS COMMUNEThat legal system was the ius commune.5 An amalgam of Roman law,canon law and general custom, it governed legal education and shapedlegal practice in courts throughout Western Europe before the era ofCodification.6 It was the ius commune that furnished the basic source of lawin courts and in university law faculties throughout most of Europe,beginning with the recovery of the Roman law’s Digest at Bologna in theeleventh century,7 and continuing with the expansive growth in the canonlaw, the law of the church, that began with the compilation of Gratian’sDecretum in the twelfth century and reached its early maturity with theGregorian Decretals in the thirteenth.8 The ius commune was not withoutinfluence even in England.95See Manlio Bellomo &Lydia G Cochrane trans, The Common Legal Past of Europe 10001800, (Washington, DC: Catholic University of America Press, 1995); Harold JBerman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge,MA: Harvard University Press, 1983) at 85-224.6The following abbreviations are used herein to refer to the basic texts of the Romanand canon laws:78Dig 1.1.1Digestum Justiniani, Lib 1, tit 1, lex 1Cod 1.1.1Codex Justiniani, Lib 1, tit 1, lex 1Auth 1.1Authenticum, Coll 1, tit 1Dist 1 c 1Decretum Gratiani, Distinctio 1, can 1C1q1c1------------, Causa 1, quaestio 1, can 1X 1.1.1Decretales Gregorii IX, Lib 1, tit 1, cap 1VI 1.1.1Liber Sextus, Lib 1, tit 1, cap 1Gl. ord.Glossa ordinaria (standard commentary on texts).vreference to word used to mark location in commentarySee, e.g., Michele Graziadei, “Comparative Law as the Study of Transplants andReceptions” in Mathias Reimann & Reinhard Zimmermann eds, Oxford Handbook ofComparative Law (Oxford: Oxford University Press, 2006) at 441-75.Gratian is known as the compiler of the Concordia discordantium canonum (c 1140), thefirst systematic collection, coupled with juristic commentary, of the canons of themedieval and early church. It formed the first half of the Corpus iuris canonici, the basicsourcebook of the canon law throughout the period covered by this essay. For adescription and coverage of controversial recent developments in our understandingof its compilation, see Anders Winroth, The Making of Gratian’s Decretum (Cambridge:Cambridge University Press, 2004) and Peter Landau, “Gratian and the Decretum

4 MANITOBA LAW JOURNAL VOLUME 41 ISSUE 1The ius commune provides a suitable subject for examination foranother reason. The thirteenth and fourteenth centuries experienced anoutpouring of statutes that gradually displaced local customs as theprincipal source of law on the European continent.10 It is sometimesassumed that problems of interpreting statutes are a unique product of thehuge numbers of statutes that have become typical in modern legalregimes.11 So it may seem. However, although it is certainly true that thescale of statutory change is much greater today than it was in 1300, theproblem itself is not new. Medieval rulers and representative assembliesenacted statutes regulating many areas of commercial and social life.12 Newenactments also came from medieval popes and church councils. From thethirteenth century forwards, European courts therefore faced many of thesame problems of statutory interpretation that courts face today.13Comparing the approaches to that task taken by these two legal systemsmight, I thought, produce insights into the possible ways of dealing withan enduring problem.9Gratiani,” in Wilfried Hartmann & Kenneth Pennington eds, History of MedievalCanon Law in the Classical Period, 1140-1234: From Gratian to the Decretals of PopeGregory IX (Washington, DC: Catholic University of America Press, 2008) at 22-54.See, e.g., Basil Markesinis, “Our Debt to Europe: Past, Present and Future” in BMarkesinis ed, The Clifford Chance Millennium Lectures: the Coming Together of theCommon Law and the Civil Law (Oxford and Portland, OR: Hart Publishing, 2000) at37-66.10Armin Wolf, Gesetzgebung in Europa 1100-1500: Zur Entstehung der Territorialstaaten, 2ded (Munich: C H Beck Verlagsbuchhandlung, 1996). It contains a full bibliographylisting the printed editions of statutes and a bibliography of modern scholarship onthe subject.11Calabresi, supra note 1 at 3-7.12See Mario Ascheri, The Laws of Late Medieval Italy (1000-1500): Foundations for aEuropean Legal System (Leiden: Brill, 2013); Randall Lesaaffer, Jan Arriens trans,European Legal History: A Cultural and Political Perspective (Cambridge: CambridgeUniversity Press, 2009) at 275-78.13See Ennio Cortese, “Ėquité et Justice: La dynamique bipolaire du droit au MoyenÂge” in Bernard d’Alteroche et al eds, Mélanges en l’honneur d’Anne Lefebvre-Teillard(Paris: Ėditions Panthéon-Assas, 2009) at 299-313.

Statutory Interpretation5II. THE IUS COMMUNE AND PRINCIPLES OF AUTHORITYAt first sight, however, the starting point of at least the Roman lawhalf of the ius commune appears to have been very different from that ofmodern law. It actually appears to have excluded statutory interpretation.The Emperor Justinian, by whose authority and in whose name the Corpusiuris civilis was compiled and promulgated in the 530s, specificallyprohibited the creation and use of interpretive commentaries on the lawsfound within its books.14 So complete and accurate had been the work ofTribonian and his co-workers, the Emperor asserted, that nothing shouldbe added to or subtracted from it. And if any imperfections were to befound within it, which seemed unlikely, they were to be remedied byrecourse to imperial authority, not by consulting the views of jurists. Thisprinciple was summed up by the maxim: “The power to interpret the lawbelongs to the one who establishes the law” – a bedrock principle of theseparation of powers.15 The texts in the Justinianic compilation weremeant to be authoritative statements of the law, and the Emperor assumedthey had done so fully. No more would be needed. This statementappeared to preclude statutory interpretation in Roman law, andsomething quite close to that same statement of principle would alsoappeared later in the texts of the medieval canon law.16In this case, initial appearances created by these texts turned out to bedeceptive. The prohibitions against juristic interpretation did notdetermine what actually happened. In fact, seeds that sprouted and in timegave rise to a complex body of law of statutory interpretation appearedwithin the Corpus iuris civilis itself. The first book of the Digest contains aseparate title devoted to the definition and proper understanding ofstatutes and other laws.17 What it contained might even be described as adistant ancestor of the current Federal and Provincial Interpretations Act in14See the Constitution Tanta, Dig Proem III, nos 18 and 21. Its text with translation isalso found in Alan Watson, Digest of Justinian, vol 1 (Philadelphia, PA: University ofPennsylvania Press, 1985) at lxi, lxiii.15Cod 1.14.12: “Eius est interpretari cuius est condere”.16C 25 q 2 c 19 (establishing the inviolability of the statuta patrum).17Dig 1.3.1-41.

6 MANITOBA LAW JOURNAL VOLUME 41 ISSUE 1force in Canada.18 The two embody some quite similar provisions,19 aswell as some that appear to be dissimilar.20 The general characteristic theydo share is that both lay out the principles meant to be used ininterpreting statutes. Subsequent experience also shows that both of themleft a wide opening for creative interpretation by lawyers and judges. It isnot off the mark to say that if there ever was a legal system dominated bythe views of academic commentators, that system was the European iuscommune. Whatever the Emperor Justinian himself may have wished, laterexperience showed that the jurists within the traditions of the ius communedid indulge in quite extensive statutory interpretation. They faced many ofthe same tasks of interpreting statutes that judges do in Canada today, andthey responded to the challenge in several ways that invite comparison oneto the other.III. THE PLAIN MEANING RULEA comparison of these two legal regimes should begin with a featurethey shared: the “plain meaning” rule.21 The two systems both adopted andmade use of it. This rule means simply that judges should look no furtherthan the words of the text itself in interpreting statutes, giving statutoryterms the meaning they have in ordinary discourse. Dictionaries andcommon understandings should be the basic guides. Of course, someroom had to be left for obvious drafting errors,22 but under this rule,recourse to scientific complications, policy arguments, speculation about18See Interpretation Act, RSC 1985, c 1-21; for juristic commentary on this Act, see MDavid Keeshan &Valerie Steeves eds, Federal and Ontario Interpretation Acts (Toronto:Carswell Publishing, 1996).19E.g., RSC 1985, c I-23, s 11 (remedial acts to be given liberal construction to assurethat they attain their purpose); Dig 1.3.12 (use of analogical reasoning to secure thepurpose of the act).20E.g., Dig 1.3.31 (the emperor not bound by the texts of the laws).21It is also described as “the ordinary meaning” or “the literal meaning” of a statute.See Halsbury’s Laws of Canada, 1st ed (Markham, ON: LexisNexis Canada, 2008)HLG-58-59.22See, e.g., United States of America v Allard [1991] SCJ No 30 at 867, [1991] 1 SCR 861,at 867 (SCC); see also the discussion in F A R Bennion, Understanding Common LawLegislation (Oxford: Oxford University Press, 2001) 47-52.

Statutory Interpretation 7probable legislative intent – that is anything extraneous to the generallyaccepted understanding of the words of a statute itself – is bothunnecessary and illegitimate.23 Only if the words themselves admit ofdoubt as to their accepted meaning so that they themselves are inherentlyambiguous, are judges free to look further. This has been called “thecardinal rule of statutory construction” in the United States,24 and supportfor that view can also be found in decisions of the Canadian SupremeCourt.25Though subject to academic criticism on both sides of the border, therule is regularly invoked in modern judicial opinions. Thus, the word“nut” used in the Canadian Customs Act has been held to include peanutsdespite the fact that several botanists, who testified at length during acourt’s hearing on the subject, instructed the court that peanuts are moreaccurately classed as fruits or vegetables. According to the experts, theywere not nuts at all.26 This argument failed. Only if the words used in thestatutes were ambiguous, the Exchequer Court held, should recourse behad to anything else in interpreting the act. In common ways of speaking,the meaning of the term “nut” was not ambiguous. It included peanutsand the legislature therefore must have been meant to include them in theCustoms Act.The sensible character of this case’s result has not insulated the“plain meaning” approach from criticism. Commentators have repeatedlycriticized its overuse, sometimes even its existence.27 They say it rests on afalse premise. It supposes that judges can distinguish ambiguous fromunambiguous texts. Critics have also said that it overlooks an importantfeature of legislation, namely that societal norms and broader purposes2324252627So formulated in Black’s Law Dictionary 10th ed, v Plain-meaning rule (St. Paul, MN:Thomson Reuters, 2009) 1336.Western Union Tel Co v FCC, 665 F 2d 1126 at 1137 (DC Cir 1981).See e.g. Canada v Antosko, [1994] 2 SCR 312 at 326-27 (rejecting alternate methods ofinterpretation “where the words of the statute are clear and plain”). The basic guide toand exploration of this approach, together with the exceptions to it derived fromCanadian and English precedents, is E A Driedger, Construction of Statutes, 2d ed(Toronto: Butterworths, 1983) 1-87.R v Planters Nut and Chocolate Co Ltd [1951] Ex CR 91, 1951 CarswellNat 250.See Sherwin Lyman, “The Absurdity and Repugnancy of the Plain Meaning Rule ofInterpretation” (1968-69) 3:2 Man LJ 53; William Baude & Ryan D Doerfler, “The(Not so) Plain Meaning Rule” (2017) 84:2 U Chicago L Rev 539.

8 MANITOBA LAW JOURNAL VOLUME 41 ISSUE 1almost always lie behind statutory enactments.28 There can, therefore, beno legitimate reason “to exclude them from consideration” in the processof statutory interpretation. Application of a “plain meaning” rule is acomparatively easy rule for judges to invoke, but at least in the view of itsmany critics, there can be “no justification” for its use to exclude a morethoughtful judicial approach, one based on a consideration of the law’sunderlying purpose. They propose a “modern contextual approach”instead.29 Maybe so, but it is fair to say that academic criticism like this hashad only a limited impact on the case law. The “plain meaning” approachto statutory interpretation has been difficult to dislodge from the opinionsof judges. They must find it useful.When we look to the subject’s history, it is clear at once thatsomething like the same rule was applied in the ius commune. The generalprinciple was stated clearly in the Roman law Digest. In ordinarycircumstances, the Roman held, “it is not right to depart from themeaning of the words without manifest proof that something else hadbeen intended.”30 The canon law contained a similar statement ofprinciple. Statutes were to be applied without regard to the speculations ofacademic jurists.31 They were to be understood “according to the ordinaryway of speaking.”32 This approach to statutory interpretation wassupported in the most influential medieval treatise on procedural law, onecompiled by William Durantis (d 1296).33 Introductory legal worksdesigned for the use of law students also stated it – later compilations likethe commentary on the Roman law’s Institutes by Joannes Schneidewein(d 1569). “Statutes,” he wrote “are to be properly and strictly interpreted”282930313233See the lengthy discussion in Pierre-André Côté, Mathieu Devinat & StéphaneBeaulac, The Interpretation of Legislation in Canada, 4th ed (Toronto: ThompsonReuters, 2011) at 301-315; see also Ruth Sullivan, Sullivan on the Construction ofStatutes, 6th ed (Markham, ON: LexisNexis Canada, 2014) at §1.20.See Manulife Bank of Canada v Conlin [1996] 3 SCR 415 at 438, 1996 CanLII 182(SCC), L’Heureux-Dubé, J (dissenting).Dig 32.69.1: “Non aliter a significatione verborum recedi oportet, quam cummanifestum est aliud sensisse testatorem.”C 25 c 2.11.X 2.1.9 and Panormitanus (Nicholaus de Tudeschis) (d 1445/53), Commentaria inlibros decretalium, ad id, no 2: “Statuta intelliguntur secundum usum loquendi.”(Venice 1615).Speculum iudiciale, Lib II, Pt 2, tit. De requisitione consilii, no 14, v. Quid si est statutum(Basel 1574).

Statutory Interpretation 9by applying their normal meaning whenever suits are brought to enforcetheir terms.34 Statements to that effect also appeared in the context of thecriminal law, where the judicial policy of lenity might have been regardedas more appropriate. The accepted view held that no one should beconvicted of a crime without a clear statutory warning that specificconduct constituted a crime. The “plain meaning” approach to statutoryconstruction fit within this category,35 because it assumed that defendantswould have read criminal statutes in their commonly accepted sense. Sounderstood, that is what they were obliged to obey.The same “plain meaning” rule – that statutes should be interpreted asthey were commonly understood – was applied outside the criminalcontext. So, for example, a Genoese statute in the sixteenth centuryrequired the loser in a prior lawsuit was obliged to pay the winner’s costseven if the loser had had a legitimate cause for taking the position he had.This provision was challenged in a case that ca

the history of law. Statutory interpretation itself has a long history. There is nothing new about controversies revolving around the question of how the texts of statutes should be read and applied in contested cases. Interest in statutory interpretation, including its past, is widely shared, and I

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