Statutes in Court: The History and Theory of Statutory Interpretation

Statutes in Court: The History and Theory of Statutory Interpretation

by William D. Popkin

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How do judges determine the meaning of laws? The extent to which judges should exercise their discretion in interpreting legislation has been a contentious issue throughout American history, involving questions about the balance of power between the legislature and the judiciary. In Statutes in Court William D. Popkin provides an indispensable survey of the history of American statutory interpretation and then offers his own theory of “ordinary judging” that defines the proper scope of judicial discretion.
Popkin begins by discussing the British origins of statutory interpretation in this country. He then maps the evolving conceptions of the judicial role in the United States from Revolutionary times through the twentieth century before presenting his “ordinary judging” theory—one that asks the judge to use modest judicial discretion to assist the legislature in implementing good government. Claiming that theory cannot account for everything a judge does when determining statutory meaning or writing an opinion, Popkin shows how judges who strive to be conscientious in interpreting the law are often hampered by the lack of both a framework in which to fit their approach and a well-understood common vocabulary to explain what they do. Statutes in Court fills that gap.
This work will be valuable to anyone concerned about the judicial role in the interpretation of laws—from judiciary officials and law professors to legal historians and political scientists.

Product Details

ISBN-13: 9780822398202
Publisher: Duke University Press
Publication date: 06/29/1999
Sold by: Barnes & Noble
Format: NOOK Book
Pages: 352
File size: 798 KB

About the Author

William D. Popkin is Walter W. Foskett Professor of Law at Indiana University and author of Materials on Legislation: Political Language and the Political Process.

Read an Excerpt

Statutes in Court

The History and Theory of Statutory Interpretation

By William D. Popkin

Duke University Press

Copyright © 1999 Duke University Press
All rights reserved.
ISBN: 978-0-8223-9820-2


English History

Early Tradition

By the time of the American Revolution, England had a long tradition of statutory interpretation. Just how much of this tradition entered into the American bloodstream will be explored in chapter 2, but there is no doubt that previous English approaches influenced legal thought in this country. We therefore begin with a review of how the English bench and bar conceptualized the judge's interpretive role. The story is familiar in its broad outline, but we need to mine it for those features that continue to shape our thinking about statutory interpretation.

The most obvious point is that statutory interpretation could not exist until legislatures developed a sense of separation from judging. Until that sense was achieved, nothing was "out there" to interpret. Separation occurred gradually from the thirteenth to seventeenth centuries. Initially, in the thirteenth century, Parliament was a shifting group of powerful people summoned and discharged by the king. Parliament's job included agreeing to pay taxes (it did not legislate taxes so much as assent to requests for money), dealing with matters of state (often foreign affairs), responding to petitions (what we would call private legislation), and passing some general rules (often prompted by petitions). Parliament was not so much a body as an occasion at which people met to parley or speak with the king as they saw fit. As Thorne notes: "Who could then say what a statute was, or be certain that any particular document was a statute? Who could say, even, what the actual words of any acknowledged statute really were?"

In this environment, English judges simply did the best they could to decide cases with whatever materials were available, including whatever Parliament had done. A shared sense of a common enterprise between Parliament and the courts, based on the common training and political experience of judges and legislators, reflected this blurring of institutional authority. Judge Hengham could, with reason and authority, tell counsel in 1305: "Do not gloss the statute; we understand it better than you, for we made it."

During the following centuries, Parliament gradually separated itself from judging, acquiring the attributes of a modern lawmaking institution. By the middle of the seventeenth century, it had successfully asserted the right to determine its members' qualifications, to impeach officials, and to avoid arrest. Parliament's developing affirmative sense of lawmaking authority was evidenced by general legislation, publishing sessions laws, writing preambles for statutes, initiating legislation, keeping journals (the House of Lords beginning in 1509; the House of Commons in 1547), and conducting business by formal internal procedures. Finally, Parliament established its right to convene and remain in session without depending on the king's pleasure.

Parliament's growing sense of institutional competence was eventually accompanied by the acquisition of sovereignty at the end of the seventeenth century. In response to the Stuart monarchy's claim to sovereignty in the early seventeenth century, Parliament asserted its rights—eventually initiating a civil war in 1642, disposing of Charles I in 1649 (by beheading), and setting up a nonmonarchical commonwealth from 1649 until 1660. The Interregnum even witnessed that traditional harbinger of legislative lawmaking potency—a serious political movement for codification of the entire law (including common law). Thereafter, England restored the monarchy, but further conflict with the Crown resulted in the Glorious Revolution of 1688, which established the principle of parliamentary sovereignty.

These changes in Parliament's organization and legal authority had some effect on the relationship of legislation to judging, including statutory interpretation—or at least it had an effect on the rhetoric used to explain how judges interpreted legislation. It would be premature, however, to view the institutional separation of Parliament from judges by the end of the seventeenth century against a background of modern separation of powers doctrine in the sense of separate institutional roles for the judicial and legislative branches. Throughout this period the serious rival to Parliament was the Crown, not the courts. Parliament and the courts both appealed to the common law in their battles with the Crown, and the common law was viewed as Parliament's source of privilege and authority. Despite the fact that Parliament was obviously making law, the idea persisted, long after the reality was otherwise, that it was only declaring what customary common law had been.

Moreover, the shared sense of common enterprise of which Judge Hengham spoke in the early fourteenth century never completely left English judges. They continued to share membership with legislators in a close-knit ruling elite and to serve as both judges and legislators, sometimes simultaneously. Even the judges' practice of claiming privileged knowledge of what the statute meant because they drafted the legislation had not died out entirely in the late seventeenth century. And the House of Lords did not clearly relinquish its power to make legal decisions to a specialized group of Law Lords until the 1800s.

In sum, both Parliament and courts in theory were under the law, and, for the most part, judges continued to view themselves as the senior partners in the collaborative effort to identify what that law was.

Equitable Interpretation


There was, however, enough separation between the English Parliament and the English courts for judges to require a theory of statutory interpretation that would still preserve the dominant judicial role. That theory was known as "equitable interpretation." Judges came to think of statutes as both letter and spirit; and the "spirit" was referred to as the "equity of the statute." "Equity" had two meanings: (1) the statute's objective and (2) substantive background considerations, usually derived from the common law. Courts could limit or expand the statute beyond what the letter appeared to say to implement "equity" in either sense of the term. Thorne argues that judges were more likely to limit than to extend statutes, reflecting their jealous attachment to the common law that was threatened by legislation, but no sign of that distinction is given in the best-known explanation of equitable interpretation in the late sixteenth century, Plowden's Commentaries.

Plowden appended commentaries to his reports of decided cases, and his comments reporting the 1574 case of Eyston v. Studd dwelt at length on statutory interpretation. The clear message is that something underlying the text is the "real" law—what he calls the "soul of the law." "[O]ur law (like all others) consists of two parts, viz. of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law...." Consequently, Plowden says, you may know the letter, but not the sense, "for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive." It is "equity" which "enlarges or diminishes the letter according to its discretion.... And this correction of the general words is much used in the law of England...."

Moreover, the soul of the law is what the judge should seek when interpreting a statute. Plowden analogizes law to a nut that has a shell (the letter) and a kernel (the sense), and "the fruit and profit of the nut lies in the kernel, and not in the shell [and] the fruit and profit of the law consists in the sense more than in the letter." Furthermore, "if there is any defect in the law, it should be reformed by equity, which is no part of the law, but a moral virtue which corrects the law."

Plowden describes the judge as someone who carries on a conversation with the hypothetical lawmaker, an image that we will see revived in Judge Learned Hand's twentieth-century writings about statutory interpretation: "[I]n order to form a right judgment when the letter of a statute is restrained, and when enlarged, by equity, it is a good way, when you peruse a statute, to suppose that the law-maker is present, and that you have asked him the question you want to know touching the equity, then you must give yourself such an answer as you imagine he would have done, if he had been present."

Several important observations should be made about Plowden's approach which invite historical comparison to later approaches to statutory interpretation. First, he does not shy away from the word "discretion" to describe judging. Second, statutes are not their texts. Third, equitable interpretation is good: it is a "moral virtue" that "corrects" the law.

Fourth, and most important, judges have an unself-conscious sense of their legal competence, which is apparent in the following quotation from another lesser-known observation by Plowden. Although this short quotation appears to pay judicial deference to the intent of absent legislative drafters (to their "minds"), it affirms that it is judicial "sage"-like "talent" that is required to perform the task of construing legislative words when legislators are (inevitably) "dispersed":

For words, which are no other than the verberation of the air (emphasis added), do not constitute the statute, but are only the image of it, and the life of the statute rests in the minds of the expositors of the words, that is, the makers of the statutes. And if they are dispersed, so that their minds cannot be known, then those who may approach nearest to their minds shall construe the words, and these are the sages of the law whose talents are exercised in the study of such matters.

Plowden is not alone in emphasizing sagelike judicial competence. Another sixteenth-century treatise on statutory interpretation, written by Lord Chancellor (Sir Christopher) Hatton, first notes that legislators are not available to explain the statute they passed, and then describes judicial power in these terms: "For the sages of the law ... have the interpretation in their hands, and their authority no man taketh in hand to control: wherefore their power is very great, and high, and we seek their interpretation as oracles from their mouthes."


To our modern ears, attuned to separation of powers concerns, the judicial claim to sagelike oracular wisdom is too arrogant, but that may be an anachronistic judgment. Although sixteenth-century judges evinced a confidence in their abilities that we would find excessive, they operated in a very different legal environment. Neither statutes nor legislatures were anything like what they are today. Statutes were understood to provide partial rather than comprehensive solutions. And legislatures were engaged in a shared responsibility to determine the law along with judges. Nothing like a modern doctrine of separation of powers deprived judges of the power to fit statutes into the law, and it would be inaccurate to label judges arrogant when they made the attempt.

At least some of the examples used by commentators to illustrate equitable interpretation suggest that judicial "sages" were engaged in a relatively modest task. Plowden's examples reveal an innocent judicial objective of helping the legislature achieve its more or less obvious goal. His first two examples limit the reach of the criminal law: a statute defines a crime in general language, but the court exempts infants and people of unsound mind from the letter; and a statute defines as an accessory to a crime anyone who gives food to the criminal, but the court interprets the law to excuse the wife who feeds her husband. These are commonsensical exceptions, providing relief from the overbreadth of general language, and implementing traditional common law rules about criminal responsibility and spousal relationships.

Moreover, Plowden was not adopting any special rule to limit the reach of criminal statutes (known today as the rule of lenity). In his comments to Eyston v. Studd, he rejects any special rule for penal laws, stating: "[E]quity knows no difference between penal laws and others, for the intent, (which is the only thing regarded by equity ...) ought to be followed and taken for law, as well in penal laws as in others." The actual judicial practice of the time regarding penal statutes is unclear. Thome suggests that penal statutes could not be extended by equity, but they could be limited (e.g., "park" cannot be extended to include "forest"). But Hatton states that some penal statutes can be extended by equity when they remedy a great mischief; however, equitable extension is improper if the law inflicts "grevious punishments" unless "the words may bear an equity itself" (as when murder of a "master" also applies to murder of a "mistress").

Other examples from Plowden reveal an unself-conscious judicial effort to help the legislature achieve its goals—by expanding as well as limiting the text, (i) A statute aimed at preventing jailers from extorting money from inmates was interpreted not to apply to a traditional award of money to pay for certain services performed by the jailer; (z) a requirement that the sheriff retain and not sell goods from a shipwreck, so that ownership could be determined later, did not apply to perishables; (3) "executors" includes administrators; and (4) the phrase "life or for years" also applied to a transaction of only one year.

Many of Hatton's examples of equitable interpretation were also similarly unremarkable. A statute that prohibited giving alms to a beggar was interpreted as not applying if the beggar would die before reaching another town where relief might be afforded; a law prohibiting breaking out of prison would not apply if the prison was on fire; executors included administrators; and a statute applying to "officers" was limited to the king's officers, based on what the statutory preface said about the scope of the statute.

Some examples of equitable interpretation will not, however, strike us as unremarkable exercises of judicial power. A likely illustration is the most famous statutory interpretation case from the sixteenth century—Heydon's Case (1584). The court was faced with a statute that listed transfers of specific types of property which could not be used to avoid Henry VIII's seizure of church property. The statute failed to list a "copyhold" interest, however, and transfers of this type of interest were being used to evade the law. The court extended the statute to cover copyholds.

The report of the opinion contains a statement about how to interpret statutes. After listing three interpretive criteria—the prior common law, the mischief for which it failed to provide, and the legislative remedy—the court invoked the "true reason of the remedy," arguing that "the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief...." Reliance on the "true reason of the remedy" is another version of "equity," allowing the judge to rely on the spirit rather than the letter of the law. And it is this bold claim to implement the "reason of the remedy" that might strike us as an excessive assertion of judicial power.

Thorne suggests that we should be cautious in characterizing Heydon's Case as an example of bold judging. In his view, it was little more than the judge engaging in equitable interpretation to help the legislature out by allowing for "the strict, literal meaning of a statute [to] be extended, but only slightly extended" (emphasis added). Samuel Thorne makes this point in part to disagree with a claim by James Landis that the twentieth-century interpretive practice of relying on legislative purpose—where the court exercises judgment about whether the statute's purposes should be enthusiastically embraced—had a secure foundation in Heydon's Case. Because other cases undermine Thome's claim, it would be unproductive for us to try to decide whether Heydon's Case is only a "slight" extension or whether it foreshadowed modern purposivist interpretation (explained in chapter 4).

For example, Thorne cites the case of applying a law dealing with the "death of a husband" to a case of a dissolved marriage, which (despite Thome's characterization) can hardly be viewed as a slight extension. Moreover, other examples of sixteenth-century statutory interpretation are similar to modern purposivism, where the court "liberally" interprets a statute. An example from the turn of the seventeenth century is the case law that grew up around a statute protecting creditors from the debtor's efforts to frustrate debt collection by property transfers. In Twyne's Case, the court dealt with an exception in a statute that otherwise voided transfers in fraud of creditors. The exception allowed "bona fide" transfers, but the court construed this exception not to apply to any transfers in which the debtor retained possession of the transferred property. "[B]ecause fraud and deceit abound in these days more than in former times, ... all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud."


Excerpted from Statutes in Court by William D. Popkin. Copyright © 1999 Duke University Press. Excerpted by permission of Duke University Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Contents Preface Introduction Part I. The Evolution of Statutory Interpretation: English Antecedents and United States Experience 1. English History 2. The United States: From the Revolution to the Founding 3. The United States: Nineteenth Century 4. From 1900 to the 1960s: Purposive Interpretation Part II. Contemporary Statutory Interpretation 5. Giving Judges as Little to Do as Possible: The Rise of Modern Textualism 6. Giving Judges Something to Do: Republicanism and Substantive Canons 7. Ordinary Judging Notes Index of Cases Index

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