Method Before Power

An old inheritance

Long before anyone thought to write a constitution for an imaginary planet, lawyers had been handing one another the tools for reading law. Some of those tools still carry Latin names, and the names are a fair indication of their age. The rule that the specific provision governs the general one, lex specialis derogat legi generali, is among the classical conflict rules of the civilian and common-law traditions alike. The presumption that a word is known by the company it keeps, the presumption that statutes on the same subject are to be read together, the presumption that the express mention of one thing excludes another: each has passed from one generation of the bar to the next, much as a craft passes its instruments from master to apprentice.

Our own era has been diligent in cataloguing this inheritance. When Antonin Scalia and Bryan Garner published Reading Law in 2012, they gathered fifty-seven principles of interpretation, five of them described as fundamental and the remainder as canons, in the hope of making interpretation less indeterminate and less unpredictable. It was a considerable work of stewardship, and it stands in a long line of such works.

Yet the inheritance has always carried a peculiar limitation, and it is worth stating plainly. The canons have come down to us as advice. They are reasons an interpreter may invoke, not rules an interpreter must obey, and nothing in the tradition tells the interpreter which canon to reach for when two of them point in different directions. Karl Llewellyn made the point with some relish in 1950, when he set out twenty-eight pairs of canons as "thrust" and "parry," each pair apparently pointing in opposite directions. Later scholarship has shown that the pairs are less contradictory than they first appear; Michael Sinclair's patient study concluded that only one of the twenty-eight came close to a genuine contradiction. William Eskridge, reviewing Reading Law, pressed the more durable form of the concern: in any hard case, many valid canons will cut in different directions, and the interpreter remains free to choose among them.

The difficulty, then, is not that our canons are wrong. It is that the choice among them has always been left to the person holding the power the canons were meant to discipline.

The question beneath the question

That observation invites us to consider the matter at a higher level. The perennial debate about interpretation is usually conducted as a contest among methods: text against purpose, fixed meaning against evolving meaning, rule against standard. Those are serious questions, and they will not be settled here. Beneath them, however, lies a question of sequence that receives far less attention. When is a method chosen, and by whom?

On Earth, the answer has generally been that method is chosen by the institutions that interpret, in the course of interpreting. A court announces a canon while deciding a case the canon will govern. Its successors adopt the canon, refine it, or quietly set it aside. The method grows up inside the exercise of power, and it bears the marks of the disputes in which it was formed. There is nothing sinister in this. It is simply how legal orders that grow, as distinct from legal orders that are designed, come to know their own minds.

Ross Brodskiy's Canons of Constitutional Interpretation of Gibsonia ask what would follow if the sequence were reversed. Gibsonia is a fictional planet, and its founders are imagined at the one moment Earth almost never supplies: before there is a court, a council, a faction, or a first dispute. At that moment they enact twenty-three canons, arranged in eight layers, and they preface them with a principle stated in Latin, De Modo, Non De Potestate: concerning method, not power. The canons govern how Gibsonian law shall be read. They do not say who shall read it. Whoever is later empowered to interpret, whether a court, a council, a chamber, or some body not yet imagined, is bound by them. In the preamble's own phrase, the canons travel with Gibsonian law wherever Gibsonian law travels.

Why a people would choose this

It is fair to ask why a civilization would bind its interpreters before it had even chosen them. I would suggest four reasons, each of which has an ancestor in our own history.

The first is the old wisdom of choosing rules before one knows one's place under them. John Rawls asked what principles of justice people would select behind a veil of ignorance about their own position in society. The Gibsonia materials adapt that idea to a narrower question. The founders do not know which institution they will come to control, or whether a given canon will someday protect the government, a dissenter, a merchant, or a minority. They cannot tailor the method to a quarrel they have not yet had. The veil is imperfect, and later commentary on the canons concedes as much; sophisticated founders can forecast, in a general way, whom a presumption of liberty is likely to inconvenience. But an imperfect veil is still preferable to none.

The second reason concerns what may fairly be called compound discretion. An interpreter who may choose both the method and the result holds two powers at once, and the first can quietly serve the second. Text may be found clear when clarity is convenient, and purpose invoked when it is not. None of this requires bad faith. It is the ordinary tendency of human reasoning to adapt its instruments to the stakes in view. An enacted method interrupts that tendency by fixing the instruments before the stakes are known.

The third reason is institutional modesty. Because the canons allocate no authority, the founders remain free to debate, on the merits, whether a court, a council, or some other body ought to have the final word, without reopening the question of how that body must read. The method belongs to no institution, and so it cannot be claimed as the prerogative of any one of them.

The fourth reason is the oldest, and it is the one I find most persuasive. Our tradition has long insisted that law must be knowable before it is applied. The prohibitions on ex post facto laws in Article I of the United States Constitution, the non-retroactivity principle of Article 7 of the European Convention on Human Rights, and Lon Fuller's account of the internal morality of law all rest upon that insistence. Gibsonia extends it one level further. The rules of reading, too, are to be knowable before they are used. A person who comes before a Gibsonian interpreter knows not only what the law says but how it will be read.

What the design concedes

A measured account must also record what the design gives up, and here the Gibsonia materials are commendably candid.

The motto is, in one sense, too modest. Method is itself a form of power, because it determines which arguments prevail and which sources count. Gibsonia's priority rule, Ordo Praevalet, ranks fundamental individual rights above structural constraints on government, those constraints above enumerated powers, and those powers above administrative and procedural provisions. That is a substantive commitment to a liberty-oriented order, and no one should mistake it for neutrality. Its virtue lies in being written down, where it can be seen and argued with, rather than in any pretense of standing above the argument.

Closure carries its own risk. A closed set of canons can preserve a poor choice as faithfully as a good one, and Jeremy Waldron's warning against entrenching contested answers in conditions of reasonable disagreement applies here with full force. Gibsonia's answer is not to deny the risk but to route all change through a single, visible channel. Under Mutatio per Emendationem, the instrument evolves only through its prescribed amendment process, and, as the canon puts it, changing times are not a license for changing meanings. A later generation may reject the founders' method. It must simply do so in the open.

The duties the canons impose

It would be a mistake to read the Gibsonia canons chiefly as a set of constraints on outcomes. Read with care, they are a statement of the duties an interpreter owes, and in that respect they belong squarely to the professional tradition from which they were drawn.

There is, first, the duty of fidelity. Prohibitio Manipulationis forbids the use of interpretation as a pretext, and it states the distinction with memorable economy: good faith interpreters follow the text to where it leads, while bad faith interpreters lead the text to where they wish to arrive. Bona Fide Interpretatio adds that the text is to receive its fair meaning, neither stretched to expand power nor shrunk to defeat rights.

There is, second, the duty of explanation. The canons do not forbid every departure from the ordinary course. They permit precedent to be overturned and absurdity to be avoided. But each departure must be earned, and earned in writing. An overruling must show manifest error under the canons, provide fairly for the reliance built upon the old rule, and be reasoned under the canons rather than by appeal to changing preferences. An interpreter who invokes absurdity must identify it explicitly and explain why no other canon resolves the matter. Disagreement with an outcome, the canons observe, is not manifest error.

There is, third, the duty of memory. Dissensus Servandus requires that reasoned dissents and alternative readings offered in good faith be preserved in the permanent interpretive record, so that no interpretive tradition is extinguished merely by disuse or by the dominance of a contrary view. Charles Evans Hughes wrote in 1928 that a dissent in a court of last resort is "an appeal to the brooding spirit of the law, to the intelligence of a future day." The long passage from Justice Harlan's solitary dissent in Plessy v. Ferguson to the unanimous Court in Brown v. Board of Education is the example every student of the law comes to know. Gibsonia makes that ethos a rule, while taking care, in its completed form, that a preserved dissent carries no binding force of its own and may displace precedent only through the ordinary conditions for overruling.

And there is, finally, the duty of restraint concerning one's own power. An interpreter bound by these canons is not the author of the law's meaning. The interpreter is its reader, answerable to a method that was settled before the interpreter took office and that will outlast the interpreter's tenure.

A charge to the profession

We cannot enact Gibsonia's canons on Earth. Our constitutions are accretions, our methods are contested, and any attempt to fix the rules of reading by decree would at once become a proxy for the disputes those rules would govern. That is precisely why the thought experiment had to be placed on another world.

The discipline it describes, however, is available to us, and I would commend it to every lawyer who reads, drafts, argues, or decides. Settle how you will read before you know whom the reading will favor. State your method as well as your conclusion. Disclose what you cannot resolve rather than covering it with confident prose. Treat the argument that lost with the respect owed to an argument that may one day prevail. And when you wish the law were otherwise, remember that the proper remedy is to change it openly, not to read it differently in private.

These obligations have acquired a new urgency. Legal interpretation is increasingly carried out with the assistance of machines, and a machine cannot be handed a method that lives only in professional habit. The Gibsonia materials suggest that a written and ordered method is what allows a computational system to identify, rank, and explain interpretive moves without being entrusted with the authority to decide. If that is so, the oldest inheritance of our profession is about to be asked a question it has long deferred: whether we are prepared to write down, and to be bound by, the method we have always professed to follow.

The founders of Gibsonia, being imagined, enjoyed a moment before anyone held power. We are given no such moment. We are given only the present one, and with it a choice that is renewed each time we open a text: to put method first, and to accept the duties that come with it.