Judges draft no legislation, but they create law nevertheless, through their powers of judicial interpretation. Judges determine the outcome of particular cases by interpreting the meaning of a single phrase, and sometimes, a single word within the applicable statute. By creating legal precedents, jurists sometimes decide entire lines of future cases merely by how they choose to interpret a single word, or to resolve a singe apparent ambiguity in the language of a statute.
American judges have developed numerous "canons" of jurisprudence that are supposed to operate as rules against arbitrary interpretation, such as:
The expression of one thing constitutes the exclusion of others."
Statutes that change the common law must be strictly construed."
Penal statutes must be construed narrowly to protect the accused."
Legislative intent in penal law must be found in the language actually used in the statutes."(Carter p.67)
Regardless of any rules or principles of statutory construction or judicial interpretation, it is simply not possible to regulate or control how a given judge decides to interpret a crucial word or phrase when the choice lies completely with him to select between or among different possible interpretations. Likewise, there is comparative freedom on the part of judges to allocate as much weight (or as little) to competing principles of construction, where the outcome of a case turns on which is deemed more important or weighed more heavily against the other.
It is completely unrealistic to suggest that judges always interpret laws and weigh the applicable canons of judicial construction objectively, because judges are human beings with ethical philosophies and moral beliefs of their own. While few jurists wear their personal moral views on their sleeves and misuse their positions to proselytize their religious beliefs in the manner of (former) Alabama Chief Judge Roy Moore, they all entertain private beliefs and moral philosophies that play some role in every decision they make, whether on the bench or in their personal lives and relationships.
Judges are expert at the art of using words to justify decisions that could have been decided (and justified equally convincingly) either way. Often enough, two judges sitting in the same court reach diametrically opposite conclusions given the identical set of facts, hearing the same evidence, and interpreting the same set of applicable statutes. In those instances, only the breakdown of how many judges concur determines which view becomes law, and which view is in effect, at least), relegated to the law library as a "dissenting opinion."
Ultimately, each judge must develop his own philosophy of statutory interpretation, precisely because he answers to nobody but himself (and if he believes in one, his God) in matters of choosing one viable interpretation over another equally viable interpretation or definition. It is naive to suggest that judges interpret without considering the effect of their ruling; more often than not, it is probably the case that judges choose one interpretation or favor other criteria within their purview in order to issue a ruling that they believe constitutes "justice" in a particular case, or in subsequent cases, where their ruling is likely to influence adjudication of that issue in the future.
According to professor Richard Taylor (1919-2003). A preeminent metaphysical philosopher, the issue of judicial interpretation boils down to the notion of the casuistry of all human decisions and judgments. Casuistry is defined as the procedure of determining "the moral quality of particular actions by the subsumption of them under true general rules or principles of morality."(Taylor p.161)
In Taylor's view, moral principles form the basis and origin of all codified laws, but there exists no objective moral principle for which an exception cannot be found, justifying its suspension in that particular case. Since the language of a written law is sometimes (or often) too inflexible to account for objectively justifiable exceptions to the general rule, it is up to judges to use the tools of creative interpretation and "persuasive definition" to achieve justice. (Taylor p.181)
The American legal system is replete with definitions and judicial constructions that originated purely in the minds of judges, for which codified laws left absolutely no provisions despite their necessity. Those definitions and constructions relied on the life experiences, and sentiments, or feelings of the judges who defined them when hearing cases that necessitated a new) conceptual definition.
Examples of arbitrary judicial constructs include scienter, specifically when it encompasses the notion of what a party "should have known," reasonable prudence, presumptions, such as the presumed mindset of a "reasonable five-year-old," what was or was not within the contemplation of the parties" to a contract, and the all encompassing and ubiquitous interests of justice."
B. Judicial Nullification
An "extra-legal" concept is one that is neither recognized nor permitted under the legal system, but that sometimes operates, nevertheless. One example is "jury nullification," which include any instance whereby jurors (either individually, or as a group) vote for dismissal despite plethora of inculpating evidence, where the defendant particularly arouses their sympathies, or where they simply abhor the consequences of a guilty verdict in the case.(Haskell p.35) Casuistry exists in the minds of jurors, and sworn oaths notwithstanding, nobody can ever challenge the reasons in the mind of any particular juror casting a vote one way or the other.
Prosecutorial nullification also exists in the form of the discretion to prosecute or decline prosecution of a given case. As long as his decision represents the prosecutor's "good faith" rather than collusion, corruption, or malice), his decision is the ultimate form of "nullification," since cases that he declines to prosecute never reach any judge or jury.
Judicial nullification" encompasses the myriad ways that judges employ theories of construction, definition, choice of language, precedent, legislative history and other intellectual tools of interpretation to achieve whatever they believe are the ends of "justice." Unlike juror nullification (which is an overtly extra-legal concept), both prosecutorial and judicial nullification are simply inherent features of any system in which decisions are left to human thought, subject only to the requirement of "good faith" and honesty.
C. Judicial Latitude
Ultimately, judges have the freedom to interpret the law (almost) any way they wish, subject only to their ability and linguistic creativity to justify their interpretations and decisions.
When estate laws defining and setting forth the legal justification for invalidating a will failed to address the situation of a testator's murder at the hands of a beneficiary of the will, judges of one state simply concluded that the murder invalidated any claim by the guilty party to the will, in direct violation of the statute articulating the (only) legal grounds for invalidation. Their reasoning was simply that the rule would have been included within the intent of the legislature, had it occurred to them. (Taylor p.179) Likewise, the landmark case of Griswold v. Connecticut
381 U.S. 479 (1965)] established a constitutional "right to privacy" through the judicial creation of the concept of a "penumbra" extending over aspects of life that the judges decided lie outside the domain of legislation. In other instances, judges have resorted to using the words in the title of a statute known as the Mann Act to contradict the literal meaning of the words contained within the statute: In the case of Mortenson v. United States [322 U.S. 369 (1944)] the U.S. Supreme Court effectively changed the law, originally passed in 1910. The original federal statute was intended to criminalize the forced interstate transportation of white women enslaved into prostitution, but the broad wording of the statute (ex. "...for any illegal or immoral purpose...") inspired a line of cases resulting in the criminal prosecution of men who had crossed state lines with their wives or girlfriends for the "immoral purpose" of gambling, or to participate in criminal activities unrelated to involuntary servitude, and so forth.(Carter p.34) In changing the law through the creative use of judicial interpretation, the Court eventually reasoned that the use of the word slavery" in the original title of the Mann Act indicated that the legislative purpose of the law was obviously to limit its application to involuntary transportation, despite no such reference within the statute itself.
Doing The Right Thing"
My personal theory of judicial interpretation is simply "Doing The Right Thing" by means of any and all legal and philosophical resources available to a jurist. It is fundamentally opposite the strict constructionist theories advanced by Supreme Court Justice Antonin Scalia in his book
Matter of Interpretation. According to Justice Scalia, the concept of a "living constitution" with a focus on considerations of legislative "intent," particularly with respect to the Framers of the Constitution, lends itself to the aims of groups hoping to create a "new order" in the manner achieved by the Nazis in post World War I Germany.
As important as The U.S. Constitution is to the history of the United States, in order for it to play a continual role in improving the lives of U.S. citizens, it must yield to modern interpretations, particularly with respect to…