“Music expresses feeling and thought, without language; it was below and before speech, and it is above and beyond all words.” - Robert G. Ingersoll
Some would say that although words are the language of thought, music is the language of feeling. But Ingersoll’s quote proposes that music expresses both feelings and thoughts that words are inadequate to describe.
Given the subtle understanding of the musical process this quote conveys, I assumed the speaker was a musician. I wasn’t aware of a composer by that name, but I thought perhaps Robert G. Ingersoll might have been a composer whose work I hadn’t encountered. Imagine my surprise when I learned that Ingersoll was actually an attorney.
Born in New York in 1833, Ingersoll grew up in Peoria, Illinois and was admitted to the Illinois bar in 1854. After serving in the Union Army during the Civil War, he became Illinois’ first Attorney General.
However, Ingersoll was most famous for his oration skills, and he traveled the country, speaking on a variety of topics and advocating for science. An abolitionist, he allied himself with Abraham Lincoln’s progressive Republican party. Ingersoll also advocated for the rights of women and African-Americans.
Because Ingersoll was an orator and attorney, words were the tools of his trade. He must have had a profound understanding of how word choice and delivery can affect the listener.
As a lawyer, Ingersoll also must have known that interpretation of laws frequently requires the attorney to “read between the lines” to find meaning. He also must have known that sometimes the legal interpretation appears to go beyond the words in the law itself. This article provides a glimpse into how attorneys interpret and construe laws.
Legal Interpretation and Construction
Clients frequently ask their attorney to tell them what the law says about a situation. They view the attorney as little more than a translator from legalese into English. However, rarely is it adequate merely to change a law’s language to “plain English.” The attorney also needs to interpret the law’s intent and how it applies to the client’s circumstances.
Interpretation of laws is no small feat. Interpretation requires legal training and understanding and knowledge and applying numerous rules and concepts of how laws are to be interpreted. Often, there is no single correct answer but instead a variety of possible solutions, and it’s the attorney’s job to select the one they believe is best.
The area is so complex that Henry Campbell Black, best known as the author of Black’s Law Dictionary, authored a 600+ page Handbook on the Construction and Interpretation of the Laws. Black defines interpretation of the law as “the art or process of discovering and expounded the intended signification of the language used, that is, the meaning which the authors of the law designed it to convey to others.”
Most legal advice to clients instead involves construction of the law, which Black defines as “the art or process of discovering and expounding the meaning and intention of the authors of the law with respect to its application to a given case. . ..” However, many attorneys and statutes use the terms interpretation and construction interchangeably.
Black’s work and others like it include concepts attorneys use to interpret and construe laws. However, in addition, some laws and some jurisdictions have their own rules of construction/interpretation. A detailed review of those rules is beyond the scope of this article.
Determining Legislative Intent
At the federal level, laws are interpreted to implement Congressional (or legislative) intent. An immense amount of work, discussion, debate, and compromise is necessary before a law is passed. This result is a series of bills, resolutions, hearings, committee and conference reports, and debates called legislative history.
GovTrack.us provides free, online access to the legislative history since around 2005, as well as some information about earlier laws. Congress.gov offers similar information, including the Congressional Record back to 1951. One might have to retreat to the huge, dusty Congressional Record volumes in a local law library to find older legislative history.
Fortunately, it’s not always necessary to examine legislative history to interpret a law, however. An attorney first looks at the law itself to determine whether its meaning is clear. If the law isn’t ambiguous, then most attorneys won’t look into legislative history.
However, as with many things legal, there are multiple theories of legislative interpretation. Some believe attorneys should always examine legislative history to determine the true intent of the language in the law, and a few would never consult legislative history.
As if this weren’t confusing enough, states and local government vary in their use of legislative history. For example, in Ohio, where I started my career, there is no official legislative history. When I began practicing law, it could be challenging or even impossible to access Ohio legislative history documents. Although Ohio law permits a court to consider legislative history, many courts didn’t’ consider such documents authoritative, and I was taught not to rely upon them.
Although Ohio’s more recent legislative history now is available online, the same is not true for most local governments. It still can be next to impossible to obtain legislative history for local government ordinances and laws. While a court usually will try to implement the legislature’s intent, where legislative history is unavailable or incomplete, it isn’t useful to attorneys interpreting the law.
Rules of Construction
To add to the confusion, there are dozens and perhaps hundreds of rules of statutory construction. Blackwell’s book includes some 300 pages of rules of common law rules construction.
Jurisdictions may have their own rules that take precedence over the common law rules. Ohio has robust statutory rules of construction with about 60 rules of construction generally applicable to all laws. In contrast, Maryland, where I currently practice, has only a handful of rules of interpretation.
Besides state statutes, some laws or include their own interpretation rules. This article discusses some of the commonly used interpretation rules attorneys use when the statutes and laws don’t have explicit rules. Since these are common law rules, many state courts will apply them. However, in some states, case law has modified traditional common law rules.
Construing Statutes as a Whole
Many people read a single sentence in a statute and try to apply it to their situation. However, sentences should be interpreted in context. As the common law Latin maxim states, “Ex tota materia emergat resolutio”–the construction should arise out of the whole subject matter.
Construing a statute as a whole also requires giving meaning to every word. There is a presumption that the legislature intended for every word to have meaning. Therefore, an interpretation that renders a word superfluous isn’t correct.
Sometimes statutes have general and specific terms that appear inconsistent. When this occurs, the common law maxims “generalia specialibus non derogant”–the general provision may not detract from the specific one. This concept, sometimes expressed as “lex specialis derogate legi generali” requires that the specific law govern.
Finally, statutes should be construed “in pari materia,” together with other statutes covering the same general subject matter. A construction that renders one statute meaningless or inconsistent with a general legislative framework isn’t the correct one.
Giving Effect to the Entire Statute
Ohio’s rules of construction outline several presumptions, which restate common law rules courts are likely to apply even in states where those rules aren’t explicitly stated:
In enacting a statute, it is presumed that:
(A) Compliance with the constitutions of the state and of the United States is intended;
(B) The entire statute is intended to be effective;
(C) A just and reasonable result is intended;
(D) A result feasible of execution is intended.
Although some might disagree, the legislature is assumed to have acted reasonably and rationally. An interpretation that yields an absurd, unfair, or unreasonable result isn’t the correct one.
Mandatory and Permissive Language
Statutes may either require or prohibit an action by using mandatory language. Or they may all but not require an action by using permissive language. Some people may believe that “may” and “must” mean the same thing in a statute, but they don’t.
Words like “shall” and “must” indicate an action is mandatory. “May,” “is authorized,” and “is lawful” indicate the action is allowed but not required.
However, an action might be prohibited by “not” to either a mandatory or permissive term (e.g., “shall not,” “is not lawful”). Maryland’s rules of interpretation address this by stating that “’may not’ has a mandatory negative effect and means the action is prohibited.
Laws Affirming or in Derogation of Common Law
Traditionally, statutes in derogation (which negate) common law are to be strictly construed. There is a presumption that the legislature did not intend to modify common law beyond the express words of the statute. Those laws are construed narrowly.
Liberal and Strict Construction
Depending upon its purpose, a statute may be strictly or liberally construed. Although I could write an entire article on the types of statutes, generally, a statute that grants a right will be liberally construed in favor of someone having the right. Ohio’s rules require that remedial laws be liberally construed “in order to promote their and assist the parties in obtaining justice.”
A statute that takes away a right will be strictly or narrowly construed so that the right is taken away only where the statute clearly applies. So, laws that impose criminal or civil penalties are strictly construed, as are tax laws.
Sometimes two statutory provisions appear to conflict. In those circumstances, Maryland’s rules of interpretation include a “last in time” rule, which follows the common law principle. When two amendments to the same section can’t be reconciled, the amendment enacted most recently governs. Ohio has a similar rule for “harmonization” of statutes and amendments.
Ingersoll’s Political Career
Although Ingersoll was nationally known due to his brilliant oratory skills, his political career faltered. His wish to run for governor of Illinois and his potential as a Republican presidential candidate never happened due to his religious beliefs.
Ingersoll was raised in a staunchly Christian household with a harsh father. Perhaps in response, Ingersoll embraced humanism and criticized the Bible. His beliefs, combined with his oratory skills, earned him the nickname “the great agnostic,” a death noll to his political career in that era.
Ingersoll’s understanding of the subtleties of language and skillful word choice to convincingly convey his then religious beliefs may have led to his political downfall. However, his knowledge of language likely served him well in interpreting statutes and made him a better attorney.
This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.