Canons of Construction
February 17, 2006 12:09 PM   Subscribe

Canons of Construction and the Elusive Quest for Neutral Reasoning. The Canons are a tool Courts use to interpret statutes and consist of things just as ejusdem generis, noscitur a sociis, and wxpressio unius est exclusio alterius. The usefulness of the Canons was famously called into question by Karl Llewellyn in an influential law review article. Still today, the Canons of Construction have influential support, but some people disagree with their utility. Some have even tried to apply them in other areas.
posted by dios (20 comments total) 3 users marked this as a favorite
With rules of interpretation called the canons of construction - which have generally been criticized, indeed even mocked, by the legal commentators. Many of the canons were originally in Latin, and I suppose that alone is enough to render them contemptible. One, for example, is expressio unius est exclusio alterius. Expression of the one is exclusion of the other. What it means is this: If you see a sign that says children under 12 may enter free, you should have no need to ask the proprietor whether your 13-year-old can come in free. The inclusion of the one class is an implicit exclusion of the other. Another frequently used canon is noscitur a sociis, which means, literally, “it is known by its companions.” It stands for the principle that a word is given meaning by those around it. If you tell me “I took the boat out on the bay” I understand “bay” to mean one thing; if you tell me “I put the saddle on the bay” I understand it to mean something else. Another canon - perhaps representing only a more specific application of the last one - is ejusdem generis, which means “of the same sort.” It stands for the proposition that when a text lists a series of items, a general term included in the list should be understood to be limited to items of the same sort. For instance, if someone speaks of using “tacks, staples, screws, nails, rivets, and other things” the general term “other things” surely refers to other fasteners.

All of this is so commensensical that, but for the fact it is Latin, you would find it hard to believe anyone could criticize it. But in fact, the canons have been attacked as a sham. As Karl Llewellyn put it in a derisive piece in the 1950 Vanderbilt Law Review that is much cited: “[T]here are two opposing canons on almost every point. An arranged selection is appended. Every lawyer must be familiar with them all: they are still needed tools of argument.” Llewellyn appends a list of canons in two columns, the left-hand column headed “Thrust,” and the right-hand column “Parry.” But if one examines the list, it becomes apparent that there really are not two opposite canons on “almost every point”-unless one enshrines as a canon whatever vapid statement has ever been made by a willful, law-bending judge. For example, the first canon he lists under “Thrust,” supported by a citation of Sutherland, is “A statute cannot go beyond its text.” Hooray for that. He shows as a “Parry,” with no citation of either Sutherland or Black (his principal authorities throughout), the following: “To effect its purpose a statute may be implemented beyond its text.” That is not a generally accepted canon, though I am sure some willful judges have used it, the judges in Church of the Holy Trinity, for example. And even if it were used more than rarely, why not bring to the canons the same discernment that Llewellyn brought to the study of common-law decisions? Throw out the bad ones and retain the good. There are a number of other faux canons in Llewellyn’s list, particularly in the “Parry” column. For example, Parry No. 8: “Courts have the power to inquire into real - as distinct from ostensible - purpose.” Never heard of it. Mostly, however, Llewellyn’s “Parries” do not contradict the corresponding canon, but rather merely show that it is not absolute. For example, Thrust No. 13: “Words and phrases which have received judicial construction before enactment are to be understood according to that construction.” Parry: “Not if the statute clearly requires them to have a different meaning.” Well of course. Every canon is simply one indication of meaning; and if there are more contrary indications (perhaps supported by other canons) it must yield. But that does not render the entire enterprise a fraud - not, at least, unless the judge wishes to make it so.
posted by dios at 12:09 PM on February 17, 2006

Erm. The large quote just there was messed up. I was going to link to it as a general explanation of what this topic is about and why it is controversial.
posted by dios at 12:10 PM on February 17, 2006

The judges rarely buy it. Its a thin wisp to hang your client's future on.
posted by Ironmouth at 12:35 PM on February 17, 2006

On the otherhand, Ironmouth, if the judge is looking for an excuse...
posted by jaysus chris at 12:40 PM on February 17, 2006

Excellent point.
posted by Ironmouth at 12:46 PM on February 17, 2006

Now that's what I call good legal-post construction (you may start creating a canon). I haven't (obviously) read all the links, but I recommend that the curious at least read the last (a funny and enlightening use of Shakespearean criticism to illuminate the canons, or perhaps vice versa, and as an obiter dictum I hereby declare Oxfordians to be both nutty and elitist) and the Breen (the pdf linked to "usefulness of the Canons")—he has a fine writing style. I like the first two epigraphs:

No language stands alone. It draws life from its background.
K.N. Llewellyn

But in Utopia everyone’s a legal expert, for the simple reason that there are, as I said, very few laws, and the crudest interpretation is always assumed to be the right one. They say the only purpose of a law is to remind people what they ought to do, so the more ingenious the interpretation, the less effective the law, since proportionately fewer people will understand it—whereas the simple and obvious meaning stares everyone in the face.
Thomas More
posted by languagehat at 12:56 PM on February 17, 2006

This stuff reminds me of Pascal's Provincial Letters.
posted by trondant at 12:58 PM on February 17, 2006

This is some seriously interesting stuff, thanks. Wish I could magically turn the PDFs into shiny happy plaintext, though.
posted by selfnoise at 1:00 PM on February 17, 2006

Lawyers do love their pdfs.
posted by monju_bosatsu at 1:04 PM on February 17, 2006

I just did a cite check on ejusdem generis last week
posted by kensanway at 1:13 PM on February 17, 2006

Do law students routinely get exposed to speech act theory via Searles and Pinker? Or would that be outside the pale?
posted by bardic at 1:21 PM on February 17, 2006

posted by bardic at 1:22 PM on February 17, 2006

bardic, I can tell you that I received no instruction whatsoever in law school about linguistics or philosophy of language.
posted by monju_bosatsu at 1:27 PM on February 17, 2006

However, law school is an intellectually strange and wild place--halfway between graduate school with zero concentration and dental school. Remember that most law students studied something else as an undergraduate, so the class discussion can sometimes be a no man's land of discourse. (I probably heard the words "Immanuel Kant" more in law school than in undergrad, but then again, one of my law professors (who did not use these words) was a famous philosopher of language who'd studied with davidson.)
posted by kensanway at 1:43 PM on February 17, 2006

Supra: as an obiter dictum I hereby declare Oxfordians to be both nutty and elitist...

*Gasp* *sputter*... the term is Oxonian. Who are you and what have you done with languagehat?!
posted by rkent at 2:28 PM on February 17, 2006

I probably heard the words "Immanuel Kant" more in law school than in undergrad

Really? Because in my law school experience, Kant was only mentioned in this context: "Immanuel Kant was a real piss-ant..."

On point, the Canons are one of those things I learned in law school and then promptly forgot. And I do a good deal of statutory construction, albeit in regulatory practice, which is kind of Litigation Lite.
posted by fochsenhirt at 2:47 PM on February 17, 2006

Kant at least gets mentioned in criminal law when talking about retribution. And Benthem on the same day when dealing with utilitarianism. Why does the State punish? Lets look at two paragraphs from Kant to find out...

Excellent post. Thanks dios!
posted by Falconetti at 2:52 PM on February 17, 2006

Canons of construction could be viewed as a self-imposed restraint on the judiciary against incursions into the legislative sphere, but the "self-imposed" part is problematic. I haven't made it all the way through he first link yet, and I have some questions about their methodology, but it looks at least to have some good discussion about recent patterns of use, including the possible strategic use of the canons in bolstering outcomes contrary to a discoverable legislative mandate. Thanks for the links!
posted by dilettanti at 3:34 PM on February 17, 2006

Everyone's being really nice to dios.

Come on, who spiked the kool-aid with the hug-juice?

Interesting post btw. First approximation: canon is to law what axiom is to formal logical system?
posted by lalochezia at 9:22 PM on February 17, 2006

*Gasp* *sputter*... the term is Oxonian. Who are you and what have you done with languagehat?!

Oxonians are people who go to Oxford. Oxfordians are people who believe the Earl of Oxford wrote the plays attributed to Shakespeare. All clear now?
posted by languagehat at 5:25 AM on February 18, 2006

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