A Message in a Bottle: Text, Autonomy, and Statutory Interpretation

Abstract

There are a number of significant differences between spoken and written language. A person stranded on a desert island may just be able to shout "help" to a passing ship and his message will be quite clear. But if there is no passing ship, and he begins to put notes in bottles, his message will have to be far more detailed and explicit. I refer to the style of the note in the bottle as autonomous. Face-to-face spoken conversation, on the other hand, is much less autonomous. With speech, much information is conveyed by devices like intonation and gesture between speakers who know something about each other and share a certain amount of background knowledge.

These observations have obvious relevance for the process of statutory interpretation. It is evident to anyone that most legal language, and particularly statutes, are quite different from ordinary speech. Statutes are, in fact, not unlike messages set adrift in the currents of the ocean. The entire message must be expressed in words. The text may not be read until months or years after it is created. It must be carefully planned out in advance, because there is little or no opportunity for the recipient to ask questions or request clarification. Thus, all communicative intentions must be in the text itself.

The relative autonomy of statutes has implications for how they are interpreted. Readers can assume that words were chosen with care, for example, and that the writer tried to place all necessary information into the text. The relatively autonomous nature of legal texts thus provides a linguistic explanation for the development of the plain meaning rule and textual approaches to interpretation.

The current debate about whether judges should be textualists or intentionalists thus addresses the wrong question. What judges should be contemplating is not whether to be textualists, but when they should concentrate on the text and when, in contrast, they should use interpretive strategies that look at other evidence of the intentions of the drafters.

I suggest that we answer this question by considering the nature of the legal text before us and how autonomous is it or ought to be. An important consideration is to whom the writing is addressed. Laws that address the public in general should be as clear and comprehensive as possible. The same is true for statutes that implicate the rule of law. Courts should require that the legislature speak clearly and place all its intentions into the text itself, and they should interpret such statutes accordingly. Penal statutes, in other words, should be relatively autonomous texts that resemble messages in a bottle.

When such values are less critical, the case for autonomous text is correspondingly less compelling. Thus, approaches that emphasize intent, purpose, or imaginative reconstruction, may be appropriate. An illustration is a statute directed at an administrative agency. Such a statute might, by design or accident, contain a gap or fail to address certain details. In that case, either the courts or the agency itself should be allowed to carry out the evident intentions of the legislature as best they can be determined, or fill in the details in light of their own experience.