article 8 - jim evans sketch of a theory of stat interpretation.pdf

Citation: 2005 N.Z. L. Rev. 449 2005

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Sketch of a Theory of StatutoryInterpretation

JIM EVANS*

In this article I argue that statutory interpretation is not, and

should not be, determined only by the interpreter's understandingof the meaning of the legislature. It should also be shaped by the

interpreter's understanding of the will of the legislature. The willof the legislature is defined as the practical judgment that led thelegislature to approve a particular meaning. Often understandingthe will of the legislature merely assists the understanding of itsmeaning, but sometimes these two sources of understanding pullin different directions. Although caution is needed, in some casesin which this occurs interpreters ought to prefer acting consistently

with the will of the legislature to applying its meaning.

Introduction

Sketches are of different types. This is not a sketch akin to an architect'spreliminary plan; it is, rather, the sort of sketch that an artist makes to capturesomething of the essence of an object with a few lines.

My topic is the different roles in the interpretation of statutes of twothings: our understanding of the intended meaning of a statutory rule, andour understanding of the will of the legislature. In each case I mean thesethings as they can be judged from the admissible evidence.

By the will of the legislature I mean the practical judgment or decisionthat a certain rule should be part of the law, not the further purpose thatthe legislature may hope to achieve by that. For example, if Parliamentdecides to make a law putting a tax on cigarettes, in order to reduce the

*Emeritus Professor of Law, The University of Auckland. This article is an edited version of

a valedictory address given at The University of Auckland on 10 May 2005.

[2005] New Zealand Law Review

incidence of lung cancer and hence the cost of the health system, the will ofthe legislature, in the sense I intend, is that there should be a rule imposing acertain tax on cigarettes, not the broader aims to reduce lung cancer and thecost of the health system. Of course, the further purposes of the legislaturemay help us understand which rule it decided to make, but its decision tofurther those purposes should not be confused with its decision to employ aparticular rule as the means.

This distinction between the judgment to enact a particular rule and thebroader concerns that may justify thatjudgment corresponds to two differentmeanings of the expression "reasons for the rule" (an expression I shall oftenuse). It may refer either to the broader concerns or to the judgment that theseconcerns should at least be pursued in a standard case of the type covered bythe rule. (By a "standard case" I mean one in which no unexpected conflictof values is present.) When I speak of the reasons for a rule, I will intendthe second of these.

Given the limited notion of the will of the legislature that I have just setout, one might wonder how the content of that could ever be different fromthe intended meaning of a rule. For, surely, it may be said, the legislature willchoose words that it expects to communicate just the rule that it has decidedto enact. Of course it may come unstuck; the words may communicatea different rule; but how could its will, in my sense, ever differ from itsintended meaning? If the decision to enact a rule were taken as the decisionto make the content of a certain meaning the law, come what may, thiswould be a powerful objection to the project of this article. My response isthat intelligent respect for a rule does not require respect for its meaningcome what may. Further, I think it is wrong-headed to equate the will of thelegislature with the intention to make the meaning of a rule the law, comewhat may.

The basic point here is that laws are a species of directives, by which Imean any form of instruction or grant of permission or authority. Becausethe point of directives is to shape action, in deciding how they were intendedto do so we naturally take account of the way people reason in deciding onthe merits of action. So, for example, we may recognise that an author wouldnot have wanted us to comply with an instruction if he or she had known ofthe circumstances present. Suppose I have a chauffeur. I ring him and say:"Drop whatever you are doing and come to pick me up immediately. I havejust arrived at the airport and it is cold." He does not come because just ashe is about to leave a fire breaks out in my house that he stops to extinguish.When I complain about his tardiness he says, "I assumed you would not havewanted me to come immediately under those circumstances." He is justified.If I complain about his conduct to the court of public opinion, I will not getmuch sympathy.

In a similar way, we often recognise that someone who gives another

Sketch of a Theory of Statutory Interpretation

permission to perform an act was not intending to authorise the permitted actin any manner whatsoever. If I say to someone: "You can open the window ifyou like", I would not normally be taken as giving her permission to open itby throwing a chair through it. Alternatively, in case you think this exampleturns on a special sense of the words "open a window", I would not normallybe taken as authorising her to swing it back on its hinges so roughly that itbreaks. But, of course, I said nothing about these limitations and I probablydid not think of the need for them.

It is, then, an important part of my argument that respect for the meaningintended by the legislature and respect for the will of the legislature aretwo different things. However, I do not intend to imply that they alwayslead in different directions. In fact, in most cases they work together forthe following two reasons. First, unless there has been some blunder in themaking of a rule, it will accurately express the will of the legislature for mostcases. More exactly, it will do so for all cases in which the reasons for therule apply, and no question arises of their having to be weighed against othervalues that were not considered at the time. Second, it will often be necessaryto understand the reasons for a rule in order to understand its meaning, or tosee how it should be applied in a difficult case.

Nevertheless, at times our understanding of the meaning of a rule and ourunderstanding of the reasons for it do pull in different directions. For suchcases we need understandings that determine intelligently which we oughtto pursue. Much of the discussion below will be concerned with the formthose understandings ought to take. In still other cases - although there willbe no time to say anything about these - understanding the reasons for arule can help us settle questions that the text of a statute does not deal withat all: for example, what are the consequences of an undeniable breach of arule when nothing at all is said about this in the statute.1

Before I proceed I shall deal briefly with two points that might otherwisecause confusion. The first is that, now we are able to look at Hansard, it isplain that cases could occur in which it appears that different understandingsof the meaning of a rule, or of its justification, prevailed at different stagesof the legislative process. I will not try to deal here with the difficultiesraised by these possibilities, as it would take too much time, but I havediscussed them elsewhere.2 In practice, these difficulties will rarely arise,for the information in Hansard is normally too blunt to yield that type of

1 One issue of this type is the distinction between mandatory and directory rules. SeeEvans, "Mandatory and Directory Rules" (1981) 1 Legal Studies 227, and Evans,Statutory Interpretation: Problems of Communication (1988) ch 11.

2 Evans, "Controlling the Use of Parliamentary History" (1998-1999) 18 NZULR 1, 10.For an important comment on some of the conceptual difficulties associated with usingHansard, see Steyn, "Pepper v Hart: A Re-examination" (2001) 21 OJLS 59.


information. So, for the present, it will do to assume that we are dealing withcases in which no difficulties of this type arise. The second point is that,when I speak of the reasons for a rule, this is to be understood as referringto the reasons that were apparently thought to justify it, not to the motivesthat individual members of the legislature may have had in voting for it.3

I shall now develop my topic in three sections. In the first, I will makea quick survey of some relevant parts of the history of statutory interpret-ation within the common law system. This will serve to place the issues Iam concerned with in a social context. In the second section I will discussrespect for the meaning of the legislature and, in the third, respect for itswill. I will then finish with a brief conclusion.

Some Points From the History of Statutory Interpretation inCommon Law Systems

Up until 1340, the interpretation of statutes focused on the judgment that astatutory provision evidences rather than on its meaning.4 Three points aresignificant.

The first is that judges often made exceptions to statutes during thisperiod, and did so without relying on any theory of interpretation. Hereis one case to illustrate the sort of decision I am talking about. In 1325, adefendant put forward an argument that a writ issued against him to recoverland should be struck out.' He relied on a rule in Magna Carta that a writ ofthat type should not be issued against someone except in his own county.The writ, which was to recover a lordship in the Marches of Wales, hadbeen issued in the neighbouring county of Gloucester. The plaintiff thenexplained that if the writ had been issued in the defendant's own county,the defendant, as lord in that county, would himself have been the judgeand hence a judge in his own cause. The judges in London who heard thecase held the writ good, despite the terms of the rule. The report containsno account of any theoretical discussion. Indeed, no cases in this periodin which judges made exceptions to rules contain any such discussion.Exceptions that seem obviously required are just made, without any senseof theoretical difficulty.

3 See Evans, above note 2 at 19.4 A review of statutory interpretation in this period is contained in Evans, "A Brief History

of Equitable Interpretation in the Common Law System" in Goldsworthy and Campbell(eds), Legal Interpretation in Democratic States (2001) 67, 71-74. For an extensivestudy of the period, see Plucknett, Statutes and Their Interpretation in the First Half ofthe Fourteenth Century (1922).

5 Anon Fitz Abridg, Assize, 382; 2 Inst 22. For other examples of decisions in this periodallowing exceptions, see Evans, above note 4 at 72-73.


The second point is that for most of this period judges extended writsallowed by statutes to like cases in just the same way as they extended writsallowed by the common law.6

The third point is that, very occasionally, when the judges discerned thatthose who had framed a rule overlooked a point that would make it absurdto carry the rule into effect, they refused to apply a rule at all, although theynormally applied some substitute rule as a repair.7

None of the cases that illustrate these processes suggest that judgeswere willing to cross the will of the King. They respected the judgmentof the King, but they carried this judgment into effect in a commonsenseway without worrying too much about the exact terms of the text.8 Giventhat quite often they did not have the exact text in front of them, and that,anyway, different handwritten copies of the statute often differed, this wasnot surprising.9

From 1340, a notable strictness appeared in the treatment of statutes. Themaximprivilegia statuti est strictijuris ("statute law is strict law"), importedfrom the continent, is recited by counsel in 134310 and from the bench in1346. " One reason for the change is that judges were no longer part of theKing's Council and so did not have the close knowledge of the decisionsbehind statutes that their predecessors had. Very likely, another reason wasthat the judges preferred general principles of the common law as a basisfor the extension of the law.2

However, the strict approach of the 1340s could not last- it would haveyielded too many irrational decisions - and it did not last. One reason isthat many statutes merely restated parts of the common law and, of course,these statutes had to be extended in the same way that common law couldbe extended. Eventually, the doctrine developed that statutes affirming thecommon law could be extended, "on their equity", as it was put, meaningby reference to their underlying point, while statutes in derogation of thecommon law were to be taken strictly. Nevertheless, there was never any

6 See Evans, ibid at 73-74 (discussing Deveraux v Tuchet (1310) YB 3 Ed II (SeldenSociety Vol 20, 16-19), and Stirkeland v Brunolfshead(13 10) YB 3 Ed II (Selden Society

Vol 20, 106-109).7 These cases, which are not confined to this period, are reviewed in Plucknett, "Bonham's

Case and Judicial Review" (1926) 40 Harv LR 30, 35-45.8 Plucknett, above note 4 at Part 2 (especially ch 11).9 See Richardson and Sayles, "The Early Statutes" (1934) 50 LQR 201 and 540, 548;

Baker, An Introduction to English Legal History (4th ed, 2002) 206.10 LeWarde v Wullesthorpe (1343) YB 17 Ed III (Rerum Britanicarum (Rolls Series) 31 b/9,

140).11 Waghan v Anon (1346) YB 20 Ed III (Rerum Britanicarum (Rolls Series) 31b/15, 196).

See Evans, above note 4 at 74.12 Thorne, "Statuti in the Post-Glossators" (1936) 11 Speculum 452.


full turning back. From this time onwards, statutes were always treateddifferently from common law.

Let us turn now to the other side of the process of communication weare discussing: the making of statutes. Starting in the 14th century, changesoccurred in the making of statutes that eventually had a permanent effecton their interpretation. During the early part of the reign of Edward III,which commenced in 1327, representatives of the commons, meaning theknights, burgesses, and free citizens of the realm, set up a house in Londonto establish their political influence. 3 In 1340, Edward III agreed that notaxation should be imposed without their consent. 4 In 1407, Henry IVagreed that the proper procedure for making statutes was that a petition beagreed by the commons and the lords separately, and then submitted to theKing. 5 This was an important step towards representation in lawmaking,but a problem still existed. The King's Council drafted the Act that resultedfrom such a petition, and it often differed in important respects from thepetition. Consequently, a practice emerged of attaching to petitions draftBills that contained the proposed text of a statute. Towards the end of thecentury, it became accepted that the King could only accept or reject sucha Bill and not change it.' 6 In 1481, another important change occurred: thefirst printing of the statutes. Now multiple copies of exactly the same textcould be distributed throughout the kingdom.

So, by close to 1500, something like the modern situation with regardto statutes existed in England. A detailed text, the exact wording of whichhad been worked over with care within a complex institutional process, wasprinted 7 and then widely distributed. 8 There were now two new reasons totake this text as stating the law exactly on the topics that it covered: (1) itreflected a detailed agreement; and (2) it would be widely relied on.

That did not lead to a system of interpretation based only on meaning.However, what did develop in the next century was a growth in theory aboutwhen it is legitimate to depart from the meaning of a statutory text. As Ihave already noted, during the 15th century, lawyers had already developeda theory about when statutes could be extended on their equity. In 1524,St German injected a new idea: Aristotle's theory of equity. As St Germanrecognised, this was different from interpretation on the equity of a statute,

13 Baker, above note 9 at 205.14 Ibid.15 Ibid.16 Plucknett, "Ellesmere on Statutes" (1944) 60 LQR 242, 248.17 Not always exactly, for until 1810 there was no official issue of the statutes, only private

ventures, and mistakes were still sometimes made.18 Plucknett, above note 16 at 248. See also Plucknett, A Concise History of the Common

Law (5th ed, 1956) 323.


as it justified exceptions to statutes not extensions. 9 Exceptions to statuteshad often been made in earlier times; but now they fell under a theory.

The new learning quickly had an influence. Again, one example will haveto suffice. In the 1550 case of Reniger v Fogossa,° Reniger, the Comptrollerof Customs at Southampton, had seized on behalf of the King 1,693 kintalsof green woad (a plant for making dye) that had been landed by Fogossa, aPortuguese merchant. Reniger claimed the woad was forfeit by a statute thatrequired that goods not be landed until an agreement to pay custom duty hadbeen made with the customs officers. Fogossa had shipped 4,500 kintals ofwoad from Portugal, but during the voyage the sailors threw a large quantity

overboard in a high sea to save the ship. Because Fogossa did not know howmuch woad was left, he agreed to pay for 2,000 kintals and any extra that hemight be shown to have landed when the woad was landed and then weighedby the King's beam. The 1,693 kintals seized was the excess landed. Counselfor Fogossa argued first that a conditional agreement to pay would satisfythe statute. However, because the Comptroller did not accept that, he thenturned to equity. Here is part of his argument:2'

[1]n every law there are some things which when they happen a man maybreak the words of the law, and yet not break the law itself; and such thingsare exempted out of the penalty of the law, and the law privileges themalthough they are done against the letter of it, for breaking the words of thelaw is not breaking the law, so as the intent of the law is not broken. Andtherefore the words of the law of nature, of the law of this realm, and ofother realms, and of the law of God also will yield and give way to someacts and things done against the words of the same laws, and that is, wherethe words of them are broken to avoid greater inconveniences, or throughnecessity, or by compulsion, or involuntary ignorance.

He argued on this ground that even if the statute required an unconditionalagreement, the conditional agreement should be judged sufficient since noother agreement was possible because of the necessities that had arisen.The case was settled when the King withdrew the claim; but the Reporter(Plowden) notes that most of the judges were in favour of the defendant,and that it was when the King was advised of this that he gave instructionsto withdraw the case.

From early in the 17th century, common law learning about interpretationdecayed. The two forms of equity - equitable exceptions and interpretation

19 Evans, above note 4 at 67-78.20 (1550) 1 Plowd 1; 75 ER 1.21 1 Plowd 18; 75 ER 29. Note the careful attempt to state conditions for the application

of equity.


on the equity of the statute - became amalgamated into one loose conceptof equitable interpretation, and the proper boundaries of that were neverexplored.

In practice, exceptions continued to be made when needed, just as theyhad been in the past. As to extensions, the term "the equity of a statute" wasvery often used, but the extensions made in the name of that doctrine weremodest. Most extensions merely brought the words of a statute into accordwith its obvious intent when that had failed because of some oversight. (Ishall call these "corrective extensions". 2)

This combination of unexamined theory and loose practice continueduntil near the end of the 18th century. However, during the 1790s, judgesshowed a marked reluctance to engage in equitable interpretation. 23 From1819, the old learning came under open attack2 4 and it very quickly cameto be seen as an historical anachronism. 25 The new learning, which haslasted almost until the present time, was that courts should apply a statutoryprovision to all and only the cases within its meaning, unless an establisheddoctrine justified some modification of this meaning. Despite the newlearning, judges at times made what were, in effect, equitable exceptionsor corrective extensions that were not covered by any established doctrine.The difference was that these decisions now had to be justified in terms thataccorded with the orthodox theory.26 The result is that for the last 180 yearswe have had to deal with such cases within a theory that does not allow usto understand clearly what is involved in them.

A first step towards clarity is to disentangle the issues in these cases fromissues of meaning. I now turn to that.

Legislative Meaning

In the introduction, I said that understanding the reasons for a rule can oftenhelp us understand its meaning. I want now to say something about why thisis so. The point I wish to make can be summarised in a slogan: "Languagedoes not work by conventions alone."

People often assume something like the following picture of how lan-guage works. Words have conventional meanings. When we construct asentence we use those conventions, together with grammatical conventions, to

22 More detailed treatment of the period from 1530-1818 is contained in Evans, above note4 at 77-80.

23 A dramatic example is Warne v Varley (1795) 6 TR 443; 101 ER 639.24 R v Turvey (1819) 2 B & Aid 520; 106 ER 456.25 For more detailed discussion of the change, see Evans, above note 4 at 79-85.26 For examples, see ibid at 82-85.


construct a meaning of the sentence. Usually there is only one such meaning,although there may be more than one if more than one set of conventionscan fit the words and their order. If there is only one such meaning this maynot be what an author meant to convey by the words, or it may not be allthat an author meant, but it is normally the plain grammatical meaning ofthe words.

I think it is plain that this picture is false. I shall rely here upon tworeasons.

The first is that there are far more "plain grammatical meanings" outthere than we realise. It is just that most of them are stupid, so we do notrecognise them. When we interpret an utterance, we screen for "plausiblecandidates"- those that it is sensible to think the author could have intendedus to understand in the context. My favourite illustration of this point comesfrom Stephen Pinker.27 He tells us that when linguists at Harvard were tryingto develop computer programs in the 1960s to parse sentences grammaticallythey fed into their program the sentence: "Time flies like an arrow." Thelinguists assumed it had only one meaning. To their surprise, the computerproduced five meanings:

1. Time proceeds as quickly as an arrow proceeds (the expectedreading);

2. Measure the speed of flies in the same way that you measure thespeed of an arrow (an instruction);

3. Measure the speed of flies in the same way that an arrow measuresthe speed of flies (an instruction);

4. Measure the speed of flies that resemble an arrow (an instruction);5. Flies of a particular kind (namely, "time flies") like an arrow.

You may think this is an unusual case. However, start looking for crazygrammatical meanings for sentences and you will often find them.

The second reason the picture is wrong is that, in speaking or writing,we do not so much use conventions as exploit them. Of course, one way ofexploiting them is just to use them, but often we exploit them creatively toconvey a meaning that goes beyond any literal meaning. Since it is alwayspossible that an author (which I shall take to include speakers and writers)is doing this, we can never rely on a plain grammatical meaning, if thereis one, being the meaning of an utterance unless it appears that the authorintended this meaning. Further, it is often not necessary for an interpreterto recognise a literal meaning of an utterance as a whole before recognisingthe non-literal meaning that the author apparently intended a component ofit to bear. So in these cases it cannot be said that the interpreter is expected

27 Pinker, The Language Instinct (1995) 209.


to recognise a plain grammatical meaning of the words used as a step on theway to recognising the author's different or additional meaning.

Let me illustrate these points with an example of just one of the ways inwhich we exploit conventions creatively. Elsewhere I have called the phe-nomenon involved the use of "specialised meanings",28 but a more evocativetitle would be "cases in which there is a gap between meaning and idea".Consider an example from the philosopher Charles Travis. 29 Odile says toHugo: "There's milk in the fridge." In fact, there is only a puddle of milk onthe bottom of the fridge. Is what Odile says true or false? Travis imaginestwo different settings. In the first, Hugo is sitting looking woefully at hiscup of black coffee and the empty milk jug. In the second, it is Hugo's jobto clean the fridge and he has just completed a hurried attempt. Odile uttersthe words rather crossly. Travis suggests that, although there is no relevantambiguity in the words, we would normally say that what Odile said wasfalse in the first case but true in the second. I agree. Unless the setting wasmost unusual, that is exactly what we would say. The trick, however, is toidentify what is happening here. Although I am not sure Travis would agree,I think that, in both cases, the words are literally true.30 Yet they clearlyindicate different ideas in the two contexts. How is it that we recognise thesedifferent ideas?

In my view, the answer is obvious: in each case we recognise the ideathat fits with the point of the utterance. If the point is to tell Hugo where hecan get milk for his coffee, then the puddle of milk is irrelevant. In contrast,if the point is to complain about the standard of Hugo's fridge cleaning,it is very relevant. Because we are used to taking account of the point ofutterances in interpreting them, we have no difficulty in understanding whatit is that Odile is saying in each case. Further, in a natural setting, we wouldrecognise this meaning immediately, and not after first contemplating aliteral meaning of the utterance.

The phenomenon this example illustrates is just one of many waysin which an author can use a component of an utterance in a non-literalsense and expect that meaning to be recognised directly by the interpreter,without expecting the interpreter to first contemplate a literal meaning of theutterance as a whole.3' Given this creative potential in language, the idea thatlanguage works by conventions alone is plainly wrong. In interpreting an

28 Evans, "Reading Down Statutes" in Bigwood (ed), The Statute: Making and Meaning(2004) 123, 129.

29 Travis, The Uses of Sense: Wittgenstein 's Philosophy of Language (1989) 18.30 In this context the idea of "literal truth" depends, I suggest, on commonplace processes

of confirmation. So it would not include molecules of milk floating in the air, orindiscernible molecules adhering to the inside surface of the fridge.

31 For other illustrations, see Evans, above note 28 at 125-130. Even that list is far fromcomplete.


utterance we rely on conventions, but we always also take account of whatwe take to be the author's point in making it.

Let me now give an example to show that this phenomenon of ordinarycommunication matters in the interpretation of statutes. In the 1993 case ofSmith v United States, 32 the United States Supreme Court ruled on an appealin which a defendant had been given a mandatory 30 years' imprisonmentfor a drug trafficking crime. Federal law provided that a defendant who"during and in relation to any ... drug trafficking crime, uses or carries afirearm" must receive a mandatory term of imprisonment. When, as in thiscase, the firearm was a machine gun, the term was 30 years. The facts werethat the defendant had offered his machine gun to a pawnbroker in exchangefor cocaine. The majority held that, yes, the defendant had used a firearmduring and in relation to a drug trafficking crime, since trading was one formof use. Accordingly, the mandatory term stood. Justice Scalia, who was inthe minority, argued that this interpretation was absurd. He held that, in thecontext, "uses a firearm" meant "uses a firearm as a weapon". Although hedoes not say this explicitly, that obviously could include threatening to shootas well as actually shooting.

I agree with Justice Scalia. The meaning he adopted is the natural under-standing of the words in this context. It was surely the use of a firearm forthis, its designed purpose, that the authors thought made a drug traffickingoffence more serious and hence deserving of greater punishment. Themajority in the Supreme Court were guilty of missing that more goes into thecommunication of meaning than just the conventional meanings of words.

In summary, the lesson from this section is that taking account ofthe reasons for a rule in order to understand its meaning is just a specialapplication of a process that we uniformly employ in the interpretation oflanguage.

Respect for the Will of the Legislature

In this section I turn to circumstances in which the will of the legislature andits meaning pull in different directions. I shall discuss two topics: the makingof exceptions to rules and the imposition of side-constraints.

A Exceptions

In my discussion of the history of interpretation I noted that, by about1500, the need to protect reliance on the text of statutes had become animportant value in our legal system. This value remains important, and

32 (1993) 508 US 223; 124 L Ed 2d 138.


making exceptions to the meaning of a provision runs the obvious dangerof damaging it. However, I believe the history also shows that refusing toallow any exceptions other than those justified by established doctrines is notan acceptable policy. We would suffer too many absurd decisions. Moreover,attempting to follow that policy merely leads to distortions in the justificationfor decisions.

So what is to be done? How do we allow exceptions without undermin-ing the reliability of statutes? The answer, I think, is to allow exceptions onlywhen it would be obvious to an informed interpreter that the case lies outsidethe will of the legislature. This strategy allows exceptions to be made whilealso protecting reliance on the text.33

Subject to that threshold test of obviousness, exceptions should normallybe made when in some unexpected case the reasons that apparently weighedin the judgment favouring the rule do not apply to a case within its meaning,or, when they apply, they are nevertheless outweighed.34 Let me now giveyou an illustration of each type of case.

A simple instance of the first type is Saunders v The Liquidator of Wood-ware Products Ltd.35 Section 199 of the Companies Act 1955 required adirector to declare his interest, at a meeting of directors, if he or she had astake in a contract that the company proposed to conclude. In this case, therewas only one director. Hardie Boys J held that the rule did not require a soledirector to call a "meeting of himself" in order to disclose to himself whathe already knew.36 Plainly, the reasons for the rule did not apply inSaunders.

A case of the second type is R v Registrar-General, ex parte Smith.37

In Smith, the United Kingdom Registrar-General (of births, deaths, andmarriages) refused to allow an adopted person to have a copy of his birthcertificate despite a statutory rule that gave any such applicant a right to acopy. The certificate would have disclosed the identity of Smith's naturalmother. The problem was that Smith had been convicted of the murder ofa stranger and, while in prison, had killed his cellmate in the belief that hiscellmate was his adopting mother. He was currently detained in a securemental hospital. The Registrar-General had received two medical reportssuggesting that Smith was still mentally unstable and that, were he to regressinto a psychotic state, he might become hostile towards his natural mother

33 For more extensive discussion, see Evans, above note 28 at 135-139.34 Hybrid cases can occur. For example, in an unanticipated case, the reasons for a rule may

not be fully present (or present with full force) and, on that account, may be outweighedby something else.

35 (1982) 1 NZCLC 98,341.36 Ibid at 98,345.37 [1991] 2 QB 393.


and present her with a serious threat of harm. The English Court of Appealupheld the decision of the Registrar-General.

The reader will recognise that in this second type of case the court isholding that one value, or set of values, outweighs another. You might ask inwhat terms this assessment is to be undertaken, given that, by definition, thelegislature did not address the conflict of values before the court. Two pointsmust be made. The first is that if the decision is to be consistent with the willof the legislature, it must be made from the perspective of a lawmaker whoremains committed to the rule for the reasons that were apparently thoughtto justify it. We can assume that the lawmaker is otherwise reasonable, butcommitment to the rule, whether reasonable or not, is a datum we cannotavoid. The second is that to protect the reliability of statutes we must workwithin both commonly understood values and common understandingsof priority between values. You might ask where this understanding cancome from. My answer is that normally it should come from the values, andthe priorities between values, already imbedded in the law. Occasionally,however, the source can be just the common understandings of humankindor the common understandings of our society.

B Side-constraints

Let me first clarify what side-constraints are. The idea will be easier tounderstand if I start by making a simple point about the way we reasonwhen we plan to act. The relevant point is that when we contemplate acting,we necessarily contemplate a type of act. This is because the particular con-crete act that we will actually perform if we carry out our plan will alwayshave detailed qualities that we did not plan. Suppose I plan with exquisitedetail how to perform a particular dance movement. Still, I will not plan justwhich set of micro-organisms I will stand on during the dance, or how manywindows will be open in the building at the time. If, for some extraordinaryreason, I did plan these things, there would still be other detail that I did notplan. So here is a useful datum: when we plan to act we plan to perform someinstance of a type of act. Plainly, however, we do not want just any instanceof the relevant type, for there are always many bad ways of performing anact. I plan to put out the rubbish. What I want is not just any way of doingit, but a way that does not bark my shins, spill dirty water on my clothes,wake the neighbour's noisy dog, or have other adverse qualities that I havenot accepted as unavoidable. I may not be able to eliminate the risk that myact will have such qualities. However, within sensible limits, I will domy best.

It is now easy to define side-constraints. Side-constraints are not reasonsfor or against an act. They are reasons for not doing it in a certain way if there


are otherwise good reasons for doing it. From what has been said above, itwill be clear that almost any time we act, we observe side-constraints. Some-times we reflect on side-constraints consciously. Often we do not: they aresimply the "taken-for-granted", background values that shape our actions aswe act. Think of the many side-constraints a driver observes while drivingto a destination.

When the legislature permits or authorises an act, the courts sometimestake it as permitting or authorising the act only for those ways of performingit that observe appropriate side-constraints. Let me give some illustrations.

One set of examples comes from the law of tort. An interesting case isBond v Nottingham Corporation.38 The corporation had a statutory liberty,and indeed a duty, to demolish a certain building under a clearance order.However, demolishing the building would have removed the support from theadjoining building, which had a legal right to support from the condemnedbuilding. Although there were no words to that effect in the statute, the Courtheld that the corporation could not demolish the condemned building withoutproviding alternative support for the adjacent building.

If the corporation had been entitled to carry out the demolition withoutregard to the neighbouring building, it would have been entitled to inflictproperty loss on the owner of that building without compensation. That thelegislature intended its law to have this effect is unlikely. So, here the goalsthat the legislature had when it passed its law - presumably promotingpublic health and safety - have unexpectedly come into conflict with avalue - protecting private property from uncompensated damage by publicauthorities - that one might expect the legislature to respect. No doubt itdid not think of this conflict of values. However, if it had, and we assume itto be a reasonable lawmaker, it would surely have resolved it by imposingthe very side-constraint that the Court imposed in Bond. So, in imposingsuch a constraint the Court was supplementing, but not crossing, the will ofthe legislature.

Bond is similar to those cases where, in response to an unexpected situ-ation, courts make an exception to a rule because the reasons for it areoutweighed in that case. The only difference is that the right solution in Bondwas to impose a side-constraint rather than to make an exception.

A different illustration from the law of tort of the imposition of side-constraints on a statutory liberty is the long line of cases holding that whena statute gives some person or body permission to carry out work on privateland, the work must be carried out with care to avoid unnecessary harm tothe landowner. Many of the cases involve requirements of care imposed oncanal companies, railway companies, electricity authorities, and the like,who are authorised to do such work for the common good. Even though

38 [1940] 1 Ch429.


nothing is said in the statute, courts take such work to be permitted onlywhen it avoids unnecessary harm.3 9

These cases are similar to Bond because the courts impose a side-constraint that is not expressed in the bare terms of the statute. However,they differ from Bond in that the cause of the omission of the side-constraintfrom the statute is not that the case that has occurred is unexpected. To thecontrary, the prospect of careless work is not an unusual possibility likelyto be overlooked by those passing these statutes. A more likely reason thatthe authors of such laws do not deal with unnecessary damage is that theytake for granted that the rule will be understood as authorising only carefulwork. I do not mean that they are likely to think about including a limitationto this effect and then decide that it does not need to be expressed (althoughthat might occur). I mean that it will not normally occur to them that sucha limitation is needed because they assume that reasonable people will takeit as understood.

Another set of examples comes from administrative law. Not all, but asubstantial range, of the constraints imposed by administrative law on thestatutory grant of powers to public authorities can be seen as the impositionof side-constraints. I have time here only to sow the seed of an idea, so I shallmention just two cases. They are both old, which shows that the impositionof side-constraints is not a novelty in our legal system.

The first is Rookes Case, decided in 1598.40 Commissioners for sewers(which word in that time meant rivers and drains) had the power to levycharges on owners of properties adjacent to a riverbank to raise moneyfor its repair. They levied a charge on just one owner rather than all thosewho would benefit. The Court held they could not do this, but rather mustapportion the charge among all who would benefit. The Commissionershad authority to levy a charge, but not, the Court said, in this unfair manner.The effect of the decision was thus to impose a side-constraint on the powergiven.

The second case is Cooper v Wandsworth Board of Works,4 decidedin 1863. The Court held that although the Board of Works had statutoryauthority to demolish a building being erected without its consent, it couldnot do so without first giving the offending builder a right to be heard.Famously, Byles J said: "... although there are no positive words in a statuterequiring that a party shall be heard, yet the justice of the common law willsupply the omission of the legislature".42

39 For a review of the cases, see X(Minors) v Bedfordshire County Council [ 1995] 2 AC 633,728-729 per Lord Jauncey of Tullichettle, and 732-733 per Lord Browne-Wilkinson.

40 (1598) 5 Co Rep 99b.41 (1863) 14 CB (NS) 180; 143 ER 414.42 Ibid at 194; 420.


I do not think that Byles J meant that the common law would cross the willof the legislature on this point. Rather, he meant that it would supplement theexpression of that will by spelling out what could reasonably be understoodas taken for granted by the legislature.

The value involved in Rookes Case was impartiality. In Cooper, it wasprocedural fairness. Other basic values have been treated the same way inadministrative law. They include that a power should not be used corruptly,either to obtain a private gain 43 or to intentionally harm another,44 thatfreedom of opinion and speech should be respected, and that subjectsshould not be barred from the courts.47

Is this process interpretation? In my view it clearly is. First, this isbecause there is a restraint. Administrative law constraints ought not tobe imposed on statutory powers if that is inconsistent with the point of therelevant law. Secondly, I believe that it is not unrealistic to think that mostlegislators would assume that these values should apply to the exercise ofpublic powers, as side-constraints, when that is not inconsistent with thepoint of the law.

Conclusion

Let me now draw the threads together.Both the meaning and the will of the legislature play a role in the

interpretation of statutes. For most cases, our task is simply to understandand apply the meaning of the text as that appears from the admissibleevidence. One reason for this is that, in most cases, the meaning intendedby the legislature will accurately express its will - so long, of course, asthat is understood as the will to enact a certain rule, rather than the will topursue some broader purpose or give effect to some broader value. A secondreason is that important social values require courts to protect reliance onthe apparent meaning of rules. Of course, understanding the will of thelegislature will normally be essential to recognising such a meaning.

Nevertheless, cases occur in which the legislature's meaning and itswill pull in different directions. When confronted with an apparent case ofthis type a court should exercise caution before departing from meaning,especially when exceptions are involved. The issues may be slightly differentfor the imposition of side-constraints, but a threshold test of obviousness

43 See, eg, R v Port Talbot Council, exparte Jones [1988] 2 All ER 207.44 See, eg, Roncarelli v Duplessis (1959) 16 DLR (2d) 689.45 See, eg, Wheeler v Leicester City Council [1985] AC 1054 (HL).46 See, eg, R v Home Secretary, ex parte Brind [1991] 1 AC 696 (HL).47 See, eg, Raymond v Honey [1983] 1 AC 1 (HL).

Sketch of a Theory of Statutory Interpretation 465

should apply to the making of exceptions. However, in some cases, courtsshould follow their understanding of the will of the legislature rather thanits meaning. In such circumstances, a court is not free to act as it chooses: itmust still behave consistently with the will of the legislature. It is a usefulinsight to recognise that, in some of these cases, courts must go beyond thejudgment actually made by the legislature. However, it is equally importantto recognise that this should be done only in ways compatible with respectingthat judgment.

article 8 - jim evans sketch of a theory of stat interpretation.pdf

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