Juris II Finale

8/2/2019 Juris II Finale

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Jurisprudence II TERM PAPER

VIII TRIMESTER

IINTERPRETATIONNTERPRETATION ANDAND CCONSTRUCTIONONSTRUCTION

Arvind Srinivas

1555

IIIrd Year B.A. LL.B (Hons.)

SUBMITTED ON 30th NOVEMBER 2010


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Strategies for Development of Port Facilities in India

TABLE OF CONTENTS

I. Introduction .................................................................................................................................3

II. Preliminary Distinctions ............................................................................................................4III. Distinction between Interpretation and Construction ..............................................................5

IV. Importance of the Distinction ..................................................................................................8

V. Theories Opposed to the Distinction .........................................................................................9

VI. Conclusion ..............................................................................................................................11

VI. Index of Authorities ...............................................................................................................12

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I. INTRODUCTION

The distinction between interpretation and construction of legal

texts has always been a contentious issue. The first use of this

distinction can be traced back to Franz Liebers 1839 text, Legal

and Political Hermeneutics.1 The distinction has been applied in

a variety of legal subjects such as contracts, patents, the law of

trusts and constitutional law.

Modern relevance to the distinction is provided by the debate

between the Originalists and the Living Constitutionalists. New

Originalists such as Keith Whittington2 and Randy Barnet3 use

this distinction extensively. The use of the distinction by the

Originalists is to make a further distinction between the

determination of the linguistic meaning of the Constitution as

propagated by them and the use of construction to understand

the Constitution as is the practice of the Living

Constitutionalists.4

In this research paper, it shall be argued that the distinction

between interpretation and construction is not only present but

also necessary for the wholesome understanding of any

authoritative legal text. It will further be argued that

interpretation and construction are distinct parts of the larger

process of deciphering a legal text.

1 For the Google Books version, see http://books.google.com/books?

id=_wwAAAAAYAAJ&dq=lieber+interpretation+construction&source=gbs_navlinks_s.2 See K.E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and

Judicial Review, (Lawrence: University Press of Kansas, 1999)

3 See, R. Barnett,Restoring the Lost Constitution: the Presumption of Liberty, (Princeton University Press, 2003)

4 L.B. Solum, The Interpretation Construction Distinction, sourced from The Social

Science Research Network available at http://papers.ssrn.com/sol3/papers.cfm?

abstract_id=1120244


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II. PRELIMINARY DISTINCTIONS

Prior to defining the terms interpretation and construction and the scope of their

operation, it is important that we examine, at this preliminary stage, two

important distinctions. The first distinction is between vagueness and ambiguity

and the second between the semantic and legal content of any legal text.

1) Distinction between Vagueness and Ambiguity5

The use of words an phrases in any form of communication can suffer from the

defects of vagueness and ambiguity. Though in common parlance these two

terms are often used interchangeably as pointing to a general lack of clarity, a

distinction exists and is important for the purposes of the ultimate distinction that

we have to make.

In a highly technical sense ambiguity signifies the multiplicity of senses in which

a word or phrase can be used. An example would be the use of the word cool.

The word can be used to denote the temperature of a place or alternatively as an

expression of something stylish.

Vagueness, on the other hand, signifies the existence of border line cases. This

means that there are cases where the term might or might not apply. The

discrepancy in the communication where vagueness exists is due to the lack of a

specific degree attached to the content of the communication. Let us take for

example the word tall. If a person is said to be tall then he just might be tall

compared to a person who is really short. Thus here the description of the person

as tall is vague.

The point can be made here, and will be explained in later chapters, that

ambiguity in legal texts can be solved through interpretation whereas to resolve

vagueness construction is needed.

5 Id.


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2)Distinction between Semantic Content and Legal Content6

The second required preliminary distinction is one between semantic and legal

content of a legal document. There are two levels to any form of communication.

One is the pure linguistic meaning which is apparent on the surface and one level

which consists of the inferences and repercussions that result from such

communication.

Semantic content of a legal document is the pure linguistic meaning of the text.

The linguistic meaning of a legal text can be said to be a fact of the world. Let us

take for example the Right to Freedom of Speech and Expression granted by

Article 19(1)(a) of the Indian Constitution. The provision states that All citizens

shall have the right to freedom of speech and expression. The semantic content

of this provision is the pure linguistic meaning, which is, that all citizens have

the right to free speech and expression. This obviously is a fact.

On the other hand the legal content of the same provision contains all the

doctrines underlying the freedom of speech and expression, and is not apparent

on a plain reading of the text. For example for the right to be availed, one must

be a citizen of India. This is not explicitly stated in the provision but has to be

inferred, thus forming a part of the legal content of the provision. Aspects such

as when, how, where and by whom the right can be exercised forms a part of the

legal content of the text. Once again the assertion can be made that the semantic

content is understood through interpretation whereas the legal content needs

construction.

III. DISTINCTIONBETWEEN INTERPRETATIONAND CONSTRUCTION

Now that the basic distinctions between ambiguity and vagueness and semantic

and legal content have been made, we can progress to observe the distinction

between interpretation and construction actually are.

What is Interpretation?

6 Supra Note 4.


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Generally speaking, interpretation explains or finds out the linguistic or semantic

aspect of an authoritative legal document. Be it contracts, patents or

constitutions, interpretation helps us to decipher the semantic meaning of the

legal text. Practically speaking, interpretation is employed in response to a host

of problem types and recurring situations in which the linguistic meaning of a

text is in doubt. One instance is where the language used in the statute is archaic.

For example the use of the term domestic violence all over the world has come to

mean violence by a spouse from its original meaning of internal unrest in a

country.7

Apart from the use of archaic words and phrases, the other major problem is the

presence of ambiguity. The solution to this ambiguity is found by attaching a

context to the words and phrases. When there are more than one sense in which a

word can be employed, interpretation functions to determine the correct sense by

attaching to the word a publicly available context. This is by far the most

common use of interpretation.8

What is Construction?

As a concept, construction can be said to discover the legal aspect of the

semantic content of a legal document. There are three types of construction

possible. These are: judicial construction, political construction and private

construction. The most common type is judicial construction, where the courts in

the normal course of adjudication are called upon to decide on the implications

of statutes and their provisions. Political construction takes place when non

judicial bodies, especially the executive, implement statutory provisions, which

are rarely subject to judicial scrutiny. Similarly, people in their everyday lives

implement o host of laws and rules which results in private construction.9

The most important characteristic of any type of construction is its normative

nature. Interpretation is done through the observation of linguistic facts and rules

7 E. Patterson, The Interpretation and Construction of Contracts, Columbia Law Review, Vol. 64, No. 5 (May,

1964), pp. 833

8 Supra Note 4.

9 Supra Note 7. at p.836


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and thus can be said to be value neutral. The correctness of interpretation has no

connection to expectations and opinions about what the law should or ought to

be. On the other hand construction can never be said to be value neutral . This is

because there are no facts to measure the correctness of the production of legal

rules. Ultimately, theories of construction are normative theories as they go

beyond the mere recovery of linguistic meaning. This also means that

justification for the construction should also include the premise for it and this

premise should necessarily be more than just linguistic facts.10

The most simple expression of the concept of theories of construction being

normative theories, can be made using H.L.A. Hart's theory of the umbra of

certainty and the penumbra of doubt.11 Simply put, a judge should follow the

clear meaning of the statute in the core of certainty, but in the penumbra of doubt

other considerations, such as the political ideology dominant in the country

should take precedence. Hart's theory also justifies the formation of the

normative judgment on the basis of the necessity for the rule of law.

The final step to understanding the concept of construction is to see it as a part of

the larger process of understanding an authoritative legal text. Interpretation and

construction can be seen as two stages of the larger process. 12 Often the linguistic

meaning is determined first through the process of interpretation. Then the core

of certainty and the area of indeterminacy are discerned. Once these areas or

issues are demarcated the theories of construction are used to make determinate

the issues lying in the area of indeterminacy. Once we have determined that the

semantic content of the text is vague and that the case to be decided lies in the

penumbra of the rule, interpretation cannot resolve the case. Simply put when

the text is vague, then the output of interpretation is vague which sets the stage

for construction. These issues form what can be termed to be the construction

zone, which differs on a text to text basis.13

10 R. Stecker,Interpretation and Construction: Art, Speech and the Law, (Wiley-Blackwell, 2003), p.58

11 B. Bix, H.L.A. Hart and the Open Texture of Language,Law and Philosophy, Volume 10, Number 1, p.52

12K.E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning, (Harvard

University Press, 1999), p.26

13See, J.B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, (Little Brown & Co.


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The Distinction in Brief

It is useful for us now to sum up the distinction between interpretation and

construction. Firstly interpretation is used to resolve ambiguity whereas

construction resolves vagueness. Secondly interpretation deals with the linguistic

or semantic content of the text whereas construction supplies legal effect to the

same. Thirdly interpretation is guided by the facts of the world and construction

is based on normative judgments. Lastly it can be said that interpretation is the

first stage of understanding a legal text and construction usually follows

interpretation.

IV. IMPORTANCEOFTHE DISTINCTION

An assertion can be made that, not only is the distinction

between interpretation and construction important, it is also

necessary. This assertion is based on the need for conceptual

clarity in examining an authoritative legal text. It can be further

asserted that in the absence of this distinction, the

understanding of any law will be muddled and confused. To

illustrate the point let us take up the debate that first gave rise

to the distinction between interpretation and construction.

As mentioned before the distinction arose from the debate

between the Originalists and the Living Constitutionalists.

Originalists claim that the meaning of the constitution is the

original public meaning of the text. Further the meaning of the

provisions are the semantic meaning that were assigned to the

words and phrases at the time of framing. On the other hand

Living Constitutionalists claim that the meaning of the

constitution changes with time and circumstances. This debate

has been going on for a long time and has reached an

1893)


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impasse.14

However it can be amply demonstrated that most of the issues

that form part of this debate can be resolved by acknowledging

the distinction between interpretation and construction exist

and that they are two parts of a larger process. As stated before

the Originalists believe that the semantic content of the legal

text should determine the legal content of the text and

therefore interpretation is the more important process. Contrary

to this the Living Constitutionalists give priority to the

adaptability of the legal content without having to be

constrained by the semantic content and thus believe that

construction is the more important process.15

If we apply the theory of the zone of indeterminacy or in other

words the penumbra of doubt we can see that Originalism and

Living Constitutionalism can exist side by side. The

interpretation preached by the originalists will fall in the core of

certainty for which in no situation is construction needed. If the

interpretation places the text in the construction zone or the

area of indeterminacy then the construction preached by the

Living Constitutionalists comes into the picture. This conciliation

is both necessary and natural.16

V. THEORIES OPPOSEDTOTHE DISTINCTION

There are two theories which have been proposed to oppose the

need for the distinction between interpretation and construction.

1) Objection based on the Identity of Semantic and Legal

14 J.Barber & S.Fleming, Constitutional Interpretation: the Basic Questions, (Oxford University Press, 2007), p.95

15 Id.

16 Supra Note 4.


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Content

The first objection to the distinction between interpretation and

construction is made on the basis that the semantic content of

the legal text is generally the same as the legal meaning of the

doctrines attached to it. Though this theory has been vigorously

propagated, it is not accepted as it would mean that the

traditional method of examining any legal text is itself wrong.

The presence of separate semantic and legal content is

undeniable and thus this objection fails.17

2) Objection based on the Irrelevance of Semantic Content

The second objection raised is on the ground that though there

are different linguistic and legal meanings of a legal text, the

linguistic meaning holds no relevance whatsoever. This ground

itself is based on provisions of law that are construed to form

doctrines which are in contradiction to the linguistic meaning of

said provision. Such provisions might exist, as seen in the cases

where the Indian Supreme Court has, delivered judgments

making Part I of the Indian Arbitration Act, 1996 applicable to

foreign awards, where the provision actually says that Part I

applies only to domestic awards.18 However such examples are

more the exception than the rule. Such cases tend to be looked

upon in an unfavorable light as they go against the grain of the

legislation. Normally the linguistic meaning forms the basis of all

further processes to understand the law. Hence tis objection is

limited in its scope and cannot negate the need for the

distinction.19

17 Supra Note 7 at p.839

18 See Satyam Computers v. Venture Global, AIR 2008 SC 1061

19 Supra Note 7 at p.839.


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VI. CONCLUSION

The paper was begun with two principal objects in mind. Firstly

to prove the presence of a distinction between interpretation

and construction and secondly to establish the necessity of thedistinction.

To achieve the first objective, two preliminary distinctions had to

be made. Ambiguity was defined to be a multiplicity of senses

and vagueness as the presence of borderline cases. Secondly

the semantic content of a legal text was defined as the linguistic

meaning whereas the legal content was seen to contain thedoctrines associated with the text. The distinction was then

established that interpretation is used as a solution for

ambiguity and construction for vagueness. The second

distinction was based on the fact that interpretation is guided by

facts whereas construction has to rely on normative judgments.

To explain the distinction H.L.A. Hart's theory of the penumbraof doubt was employed. Normally the linguistic meaning of the

text was found to be in the core of certainty as it is a fact of the

world. However when the outcome of interpretation fell into the

penumbra of doubt, in this case called the area of

indeterminacy, the process of construction took over. This also

led to the conclusion that interpretation and construction are

two distinct parts of a larger process of deciphering legal texts.

The necessity of the distinction was then established using the

example of the Originalist-Living Constitutionalist debate. The

Originalists hold for interpretation of the constitution based on

the usage of the words and phrases at the time of framing. The

Living Constitutionalist advocate the use of construction to

adapt the provisions of the constitution in a manner suitable to

current circumstances. If the theory of the area of


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indeterminacy is used to place the Living Constitutionalists in

the penumbra of doubt and the Originalists in the core of

certainty, then they can co-exist. Thus conceptual clarity and

harmony is achieved through the use of the distinction.

In conclusion and despite the objections based on the

irrelevancy of semantic content in legal texts, it can be said that

interpretation, which deals with ambiguity in semantic content

and construction, which deals with vagueness in legal content,

are distinct phases of the same process of understanding

authoritative legal texts.

VI. INDEXOF AUTHORITIES

A. Books:

B. Articles:

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