I was watching a C-span debate between Justice Scalia and Breyer about various aspects of the law. Breyer made a very interesting, and scary, point about how judges ought to handle ambiguity and impreciseness in laws. To illustrate, he talked about a case where the intention of a law is circumvented by strict adherence to the law. The intention may be that wages are fair, but because of impreciseness in the language, wages are unfair even though the law is followed to a T. In Breyer's opinion, when ruling in these types of situations, judges ought to take into account the intention, fair wages, and base their decision off of that. In essence, amending the law to "fill in the gaps". This is dangerous.
Think about this: you want to follow the law; you adhere to the law; but if you fail to anticipate what someone intended instead of what the law states, you could be breaking the law. This is a perversion of justice. It is not the responsibility of an individual to behave as one thinks he ought to behave. He must live by the rules of the game, and those rules are written down for everyone to see. Rules which no one knows, which are intentional, are not rules that can or should be enforced.
Breyers is trying to use the wrong tool for his purpose. Law by it's very definition is imprecise, lacking. It cannot account for all possibilities. It is not a means for codifying intentions and desires. You cannot write a law that states society will be fair and judges ought not whimsically attempt the practice of engineering a fair society. They should interpret the law.
Sunday, April 4, 2010
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5 comments:
Breyer is a typical liberal in that they think judges should invent law rather than interpret it. We already have a legislative branch for that.
I absolutely agree with the principle that judges ought not amend the law to "fill in the gaps." We (our Constitution) explicitly vested the power to make law into the hands of duly elected legislators.
However, I have a difficult time reconciling that position with what it means for judges to "interpret the law." What does that mean to you?
On the one hand you argue that one "must live by the rules of the game, and those rules are written down for everyone to see," and then you state that "It [the law] cannot account for all possibilities." I agree. What role should judges have (if any) in this paradox?
You write that "[Law] is not a means for codifying intentions and desires." What else is it for? It seems to me that that is EXACTLY what "law" is. I contend that writing law to codify intentions is just really, really hard to do, but I believe that it is incumbent upon LEGISLATORS to do the hard work (revise and/or repeal) necessary to make our code of laws as precise as possible. In my view, legislators are abdicating their sworn oath to uphold the Constitution when they write laws that are intentionally broad and imprecise.
One final point: you often point to The Federalist Papers to bolster your views on the Constitution and the framers intent. How do you justify that? If language is so imprecise, what makes The Federalist Papers precise? If The Federalist Papers are precise, why is "Law by it's [sic] very definition imprecise, lacking?"
Geoff, that's a lot to take in. I do not see a paradox between acknowledging that no law can account for all situations and that the law ought to be known by all participants. In my view these are separate ideas. In one case, the point is that if the law is not written down, but only a vague notion in someone's head, then it is not possible for others to know what the law is. The other case simply acknowledges that laws cannot be constructed, whether written down, or not, which can account for all possibilities. That fact does not justify therefore ignoring the plain text/meaning of any law.
As far as the purpose of the law, I don't believe that the law's purpose is to codify intentions and (especially) desires. The purpose of the law in my opinion is to formalize contractual relationships among parties. We have the practice of law as a tool for that purpose. To use this tool as a means for implementing a better society by enacting a law which says "be good", is a misuse of the tool. While legislators could enact a law which says just that, it would be meaningless as we would have to define what "be good" means. It would be perfectly justifiable in my opinion for a judge to simply state that this law cannot be enforced as written because the meaning cannot be determined.
As far as referencing the Federalist Papers, it has nothing to do with language being precise or not. First, I am referencing ideas that are still valid today. If the Federalist Papers didn't mention these ideas, they would not lose their validity. It's the ideas expressed within the text which is important, not some mindless repitition to these Papers or the founders. Second, language being imprecise is a reality. You are making the perfect the enemy of the good. Should I or anyone else refrain from citing ideas because they are not perfect? If that be the case then no ideas would be cited.
A judges job is to interpret the law as it is written, and not as it was intended. They are referees and when the rules (laws) allow them to make the right call, then they should. When the laws are so vague, that no one can possibly figure them out, they should state that. In no case ought they go out of their way to create law based on what they perceive as the intentions of those who wrote it.
Hayden,
Thanks for your comment (even though you have subsequently removed it).
Adam
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