Saturday, June 12, 2021

Do not attach the word "law" to anything that you wouldn't want people to mistake for an authentic form of law

In the following passage from his Manual of Political Ethics (1838), Francis Lieber observes (and laments) that when unjust and illegal conduct comes to be known by a name with the word “law”* in it (such as “Lynch law”, in the example that he discusses), people more readily accept it and think of it as legitimate than they otherwise would.  They may even come to think of it as having the authority of law.  In truth, these are as much a form of law as “fool’s gold” is a form of gold.

“No offender would hesitate to acknowledge and claim state punishment as his right, if choice were left him between the state punishment, which, because it is state punishment, requires formal trial, on the one hand, and, on the other hand, those summary proceedings against criminals caught in flagrante delicto, which we find in perhaps all early codes, and sometimes acknowledged to a very late period (Blackstone, IV, 308), or to which an excited people sometimes return, when the regular trial appears too slow for their inflamed passions, as has been the case in those riotous and illegal inflictions of death or other punishment, so unfortunately called Lynch law, in our own country.  I say, unfortunately called Lynch law, for it is ever to be deplored, if any illegal procedure receives a regular and separate name of its own.  By this very application of a technical term it assumes an air of systematised authority, which has an astonishing effect upon the multitude, and in fact upon most men.  Give a separate and technically sounding name to a thing, and you take from it much of its harshness for the human ear.  Many a member of trade’s-unions in Scotland would not have been willing to commit outrages upon the person of his neighbors or even murder, had it not been called slating, or by some other technical term.  The same principle applies to errors in science, religion, the arts.”

* “Law” is not the only word that has this effect, however.

Tuesday, May 4, 2021

Few rules of construction are absolute

If you happen to encounter anyone invoking the well-known (and reasonable, so long as the use of it remains reasonable) canon of legal construction (or "interpretation") that when one thing is specifically expressed, it tends to exclude the rest, keep in mind that that rule, like most of the established rules of construction in the law, is not meant to be applied without any regard for the circumstances and whether that application makes any sense.

The aim of legal construction or interpretation is to ascertain the true meaning of whatever is being interpreted or construed, which is also the paramount (and, probably, the only absolute) rule of construction.  When a given use of "Expressio unius est exclusio alterius" does not help us to ascertain that meaning faithfully, it serves no useful purpose, and giving it a forced and unnatural application is nothing more and nothing less than an abuse of it.

The same can be said for the other established canons of construction -- that they are useful when they are used sensibly but should not be treated as if they were universal, absolute rules that are always right and always binding.  However, at the moment, I'm focusing on the one identified above: that the affirmation of one thing is the negation of all the rest.

And by "focusing" on it, I mean that I am going to let the words of Joseph Story, who was a justice of the Supreme Court of the United States, tell you how indiscriminately invoking and applying that canon is a quick, easy path to absurdity and error.

“§ 448. XIII.  Another rule of interpretation deserves consideration in regard to the constitution.  There are certain maxims, which have found their way, not only into judicial discussions, but into the business of common life, as founded in common sense, and common convenience.  Thus, it is often said, that in an instrument a specification of particulars is an exclusion of generals; or the expression of one thing is the exclusion of another.  Lord Bacon's remark, ‘that, as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated,’ has been perpetually referred to, as a fine illustration.  These maxims, rightly understood, and rightly applied, undoubtedly furnish safe guides to assist us in the task of exposition.  But they are susceptible of being applied, and indeed are often ingeniously applied, to the subversion of the text, and the objects of the instrument.  Thus, it has been suggested, that an affirmative provision in a particular case excludes the existence of the like provision in every other case; and a negative provision in a particular case admits the existence of the same thing in every other case.  Both of these deductions are, or rather may be, unfounded in solid reasoning."

"Thus, it was objected to the constitution, that, having provided for the trial by jury in criminal cases, there was an implied exclusion of it in civil cases.  As if there was not an essential difference between silence and abolition, between a positive adoption of it in one class of cases, and a discretionary right (it being clearly within the reach of the judicial powers confided to the Union) to adopt, or reject it in all or any other cases.  One might with just as much propriety hold, that, because congress has power ‘to declare war,’ but no power is expressly given to make peace, the latter is excluded; or that, because it is declared, that ‘no bill of attainder, or ex post facto law shall be passed’ by congress, therefore congress possess in all other cases the right to pass any laws.  The truth is, that in order to ascertain, how far an affirmative or negative provision excludes, or implies others, we must look to the nature of the provision, the subject matter, the objects, and the scope of the instrument.  These, and these only, can properly determine the rule of construction.”

Tuesday, April 27, 2021

Francis Lieber explains when and why the judiciary is a fit institution for the assessment of constitutionality

“The supremacy of the law requires that where enacted constitutions form the fundamental law, there be some authority which can pronounce whether the legislature itself has or has not transgressed it in the passing of some law, or whether a specific law conflicts with the superior law, the constitution.   If a separate body of men were established to pronounce upon the constitutionality of a law, nothing would be gained.   It would be as much the creature of the constitution as the legislature, and might err as much as the latter.  Quis custodet custodes?  Tribunes or ephori?  They are as apt to transgress their powers as other mortals.

 “But there exists a body of men in all well-organized polities, who, in the regular course of business assigned to them, must decide upon clashing interests, and do so exclusively by the force of reason, according to law, without the power of armies, the weight of patronage or imposing pomp, and who, moreover, do not decide upon principles in the abstract, but upon practical cases which involve them—the middle-men between the pure philosophers and the pure men of government.   These are the judges—courts of law.

“When laws conflict in actual cases, they must decide which is the superior law, and which must yield; and as we have seen that according to our principles, every officer remains answerable for what he officially does, a citizen, believing that the law he enforces is incompatible with the superior law, the constitution, simply sues the officer before the proper court as having unlawfully aggrieved him in the particular case.  The court, bound to do justice to every one, is bound also to decide this case as a simple case of conflicting laws.  The court does not decide directly upon the doings of the legislature.  It simply decides, for the case in hand, whether there actually are conflicting laws, and if so, which is the higher law that demands obedience, when both may not be obeyed at the same time.  As, however, this decision becomes the leading decision for all future cases of the same import, until indeed proper and legitimate authority should reverse it, the question of constitutionality is virtually decided, and it is decided in a natural, easy, legitimate and safe manner, according to the principle of the supremacy of the law and the independence of justice.  It is one of the most interesting and important evolutions of the government of law, and one of the greatest protections of the citizen.  It may well be called a very jewel of Anglican liberty, one of the best fruits of our political civilization.”