“The Canons Of Statutory Interpretation: A Tale of Duelling Factions” by Abdul Hafez Mahamah.

A number of special rules have been adopted to govern the interpretation of statutes. These rules are intended to aid both lawyers and courts to interpret the language of a statute which appears to be clothed with uncertainty. Generally, these rules are referred to as ‘canons of interpretation’ or ‘canons of construction’.  Under our laws and in other common law jurisdictions, the mandate to interpret the constitution or any act of parliament or instrument of the executive rests in the Supreme Court.

It would be impossible for this piece to even scratch the surface of what these canons of interpretation constitute, and the manner in which they operate. On this blog, I will admit, I cannot do justice to this rather broad topic which has been dealt with in various volumes of legal writings. This piece only seeks to state to a little extent what these canons are and how they have been ‘mocked’ by Karl Llewellyn in terms of their conflicting nature.

Frederick Schauer posits that, ‘If there are so many canons of statutory construction that one is virtually always available to support any side of any contested case of interpretation, then the canons turn out to be scarcely more than supplements to arguments made on other grounds, failing totally to provide the guidance that was their original aim.’

The rule of linguistic statutory interpretation is that which provides that a statute should be interpreted in accordance with its plain meaning. In other words, the words are seen as bearing no unusual meaning. Textualists, like Justice Scalia, oppose the use of extrinsic evidence such as legislative history or intent in interpreting statutes. They posit that often, different legislators have different goals in mind, so it is not so clear, they say, just whose intentions have been recorded. Furthermore, they add the fact that it is only the text that was voted on by the legislature. Treating the un-voted-upon legislative history as part of the legislation is profoundly undemocratic.

Next, are those who argue that every word or phrase in a statute is very important and hence must be given effect. No word or phrase, they say, should be regarded as redundant or of no effect, and the courts should reject any such exercise.

Another canon is that the language of a rule is presumed to be exhaustive. This is expressed in the Latin maxim “expressio unius est exclusio alterius”, meaning, “the expression of one thing is the exclusion of another”. Thus if a statute states instances to which it will apply, the court will presume that the legislature meant to exclude any other instance which has not been captured. An example could be Order 11 Rule 8 of the High Court (Civil Procedures) Rules, 2004 (CI 47), which requires a party in any pleading subsequent to a statement of claim to plead specifically any matter, which the party alleges thwarts any claim or defense of the opposite party, or which, if not specifically pleaded, might take the opposite party by surprise, or which raises issues of fact not arising out of the preceding pleading. It has been held by application of the expressio unius maxim that pleading of any other claim need not be detailed. (See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (193).)

A fourth canon states that when a statute contains a list of situations to which it applies followed by general language indicating other situations, the statute will be presumed to apply to other situations only if they are of the same type as those listed. The Latin maxim for this rule is ejusdem generis and it means “of the same kind”. For example, a statute that authorized an investigator to inspect “voter IDs, passports, and other national IDs” would authorize inspection only of other records that were like voter IDs and passports. (See Circuit City Stores, Inc. v. Adams 532 U.S. 105 (2001).)

A somewhat similar canon, the noscitur a sociis rule, which means “let it be known by its associates” provides that where a word or phrase is vague, that word or phrase must be interpreted by making reference to the accompanying words. Simply put, the words accompanying the vague word or phrase should be used to aid the interpretation of that provision.

Generalia specialibus non derogant is the next canon. It means “The general does not derogate from the particular”. This rule of interpretation provides that a specific statute prevails over a more general one. For instance, if one provision provides that an action in defamation should be brought within 6 years and another provision provides that an action of libel against a public official should be brought within 3 years, the latter would probably govern a libel suit brought by a public official against a publisher. (See the interplay between section 29 and 33 of the Sales of Goods Act, 1962 (Act 137); and Ex parte Millicom Gh Ltd & Ors Civil Motion, No. J5/43/2008, especially Atuguba JSC).

A final linguistic canon is that statutes in pari materia – a Latin phrase meaning “on the same matter” or “on the same subject”- shall be interpreted with reference to each other. For example, a term used in different statutes relating to who a chief is, should be interpreted in harmony.

Notwithstanding the above, other canons of statutory interpretation are categorized as substantive. One such canon is that a statute will not be interpreted in a way that leads to an absurd result or mischievous consequences or in a way that thwarts its manifest purpose. Here, extrinsic sources such as legislative history or the subsequent understanding of what is just or wise- the latter which Benjamin N. Cardozo describes as the method of philosophy (See “The Nature of The Judicial Process” by Benjamin N. Cardozo)- are employed. Another such canon is that an ambiguous statute shall be construed so as to be consistent with the Constitution. A third of such canon is that an ambiguous statute shall be construed against the government. Thus, a criminal statute will be interpreted, in doubtful cases, so as not to apply to the accused. Still another substantive canon provides that statutes in derogation of the common law shall be construed narrowly. Thus, a statute that alters common law rules will be interpreted, in doubtful cases, so as not to apply.

 Professor Karl Llewellyn, a lecturer at Columbia Law School from 1925 to 1951, while at the University of Chicago, wrote an article entitled, The Bramble Bush: On Our Law and Its Study 58 (1930), 1960 edition, on the canons of statutory interpretation. In examining the canons, he concluded that for every canon of statutory interpretation that said one thing, there was another that seemed to contradict it, at least in part. For example, he noted that one that provides that “if language is plain and unambiguous it must be given effect” is contradictory to another canon stating that a literal interpretation will not be adopted if it would “lead to absurd or mischievous consequences or thwart manifest purpose.” Similarly, the canon known by the Latin maxim in pari materia mandates that statutes dealing with the same subject be interpreted so as to be consistent with each other, but another provides that later statutes supersede earlier ones, et cetera.

 The allure and beauty of Llewellyn’s piece lies in the manner in which he showcases how ‘conflicting’ the canons of statutory constructions appear. He calls this the “thrust” and “parry” of duelling canons.

He concludes that the presence of legal authority on both sides of most contested legal questions meant that the actual decision was to be found in something other than the law, as traditionally understood.

Kenneth J. Vandevelde, in explaining Llewellyn’s theory states that a lawyer may attempt to interpret a statute by examining its language alone or by consulting extrinsic sources such as legislative history or the subsequent understanding of what is just or wise, which could lead to an interpretation of the statute in accordance with current notions of justice or good policy. Vandevelde further adds that, each of these theories of statutory interpretation is reflected in a variety of canons of statutory interpretation. He considers an example using the plain meaning and the consultation of extrinsic sources.

It is to this end that, Kenneth J. Vandevelde concedes that the rules of statutory interpretation are based on competing theories of statutory interpretation, that is, on different conceptions of the relative importance of rules and policies. And that, because the theories point in opposite directions, the rules also point in opposite directions. Thus, the result reached may depend upon which rules of statutory construction are applied.

It might be true that the rules of interpretations appear to be conflicting. However, interpretation of statutes must be in the welfare of “the people”. In Cardozo’s words, “the method of sociology in filling the gaps, put its emphasis on the social welfare.” It is, vis-a-vis, the conflicting picture painted by Llewellyn that I invoke the chilly words of Cardozo that:

For every tendency, one seems to see a counter-tendency; for every rule, its antimony. Nothing is stable. Nothing absolute. All is fluid and changeable. There is an endless “becoming.” We are back with Heraclitus. That, I mean, is the average or aggregate impression which the picture leaves upon the mind.

Doubtless in the last three centuries, some lines, once wavering, have become rigid. We leave more to legislatures today, and less perhaps to judges. Yet even now there is change from decade to decade. The glacier still moves.”

Bibliography

Benjamin N. Cardozo, The Nature of The Judicial Process.

Prof Karl Llewellyn, The Bramble Bush: On Our Law and Its Study 58 (1930). 1960 edition

Kenneth J. Vandevelde, Thinking Like a Lawyer.

Frederick Schauer, Thinking Like a Lawyer.