This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
(2) In the next place, where does the control of the statute stop? Is the legislative intent the sole criterion?
Here a broad field of variant views is opened. Literally hundreds of views can be found.4 Let us here note merely a few of the conventional assumptions that are questionable.
(a) One of the most interesting conventional assumptions is that there is an actual legislative will at all.
4See an interesting article by Professor M. R. Cohen, "The Process of Judicial Legislation" (American Law Review, xlviii, 161, 1914).
If there were, it would have to be somewhere existent in some persons. Now it d6es not exist in the voters at large; for only an infinitesimal number of them are beforehand acquainted with the terms of the bill; and they cannot will what they do not know; the most that they ever will, as a mass, is the general principle, e.g. to lower the tariff, not to raise it; or to abolish imprisonment for debt, not to preserve it. Nor is that will to be found in the legislators as a body; for in nine cases out of ten, they do not know or care about the terms of the bill for which they vote. In the last analysis, therefore, the only actual legislative will is the will of a few individuals belonging to the drafting committee.
The candid and realistic acknowledgment of this fact has surely some bearing on the extent to which the judiciary should be held bound to ascertain and to respect the "legislative will."
(b) Another conventional assumption is that this "legislative will" is a simple undifferentiated thing. In fact, there are distinguishable at least three suggestive elements,-the will or intent, the meaning, and the motive. There is a will or intent to use certain words. There is also a meaning or sense attached to those words. And there is a motive or object desired to be attained by those words. In the interpretation of the documents of private law this distinction is a familiar and important one.
The first element, the will or intent to use certain words, seldom gives opportunity for doubt in dealing with legislative enactments.
The second element, the meaning or sense of the words, in particular or as a whole, begins to open a wide field for speculation. By the general principle of interpretation in private law, the objective standard now becomes dominant; i.e. not the word-usage of the individual, but that of the community, may be controlling. Here the judiciary function obtains a large scope.
The third element, the motive or object desired by the legislators, opens a still wider field. Here the individual motive of the legislator or voter may cease to have any value for purposes of control, not only because it is often unascertainable, but also because it is so variant. An amusing illustration is afforded in the votes at a presidential election. The chronicles of the daily newspapers show that out of any hundred voters, of whom fifty are declaring for Mr. Wilson and fifty for Mr. Hughes, each respective fifty express the most variant and conflicting motives for their votes. Only their votes agree; their motives may have nothing in common. If the vote were to be taken on each one of the twoscore motives or objects assigned, and not on the simple choice between two men, the alignments of the hundred voters would differ on each of the two score of ballotings. What does this illustrate? That to control the judiciary by the supposed motive or object of the legislators is to prescribe a standard impossible of practical use, except in an occasional clear and undisputed instance.
(c) And this brings us to another stage of the inquiry, -to the question whether, since the legislator's subjective standard of motive or policy is an impracticable criterion, an objective standard may properly become available, viz., either the general policy as felt and conceived by public opinion at large with specific reference to the legislation in question, or the general policy of the needs of the community as determinable by the judiciary themselves.
Needless to say, public policy in one of these senses, is and has been and always will be more or less considered by the judiciary. The question for the jurist is:
Where does this criterion belong in the orderly scheme of Judiciary Interpretation? What are the just and knowable limits for its invocation?
Enough here to suggest that this question cannot be answered without first testing the validity of some of the conventional assumptions above noted.
(3) In the third place, how far is legislative language inherently incapable of controlling the judiciary?
This involves the logical nature of jural thinking. Words are but symbols. They compress into a single symbol a complex process of thought, and compression signifies exclusion. Thus the person whose duty it is to apply the words of a statute must reexpand the thought when applying it. And thus arise unlimited opportunity and necessity for the judiciary to reconstruct the thought by its own standard of experience, which may and must often differ from that of the legislators. If we recollect the differences of personality and community, and add to those the differences caused by lapse of times and change of environment, we shall realize that words are far from fixed things; they are the most fluent and indefinite of things.
There used to be an ancient milestone in the town of Cambridge, Massachusetts, opposite Harvard College; and on the imperishable granite was engraved in sturdy crude characters: "1734. Boston, 7 M." Now for the students of the college it was a perpetual wonder how that milestone-maker could have proclaimed the falsity that Boston was seven miles away; for it lay plainly in view only three miles away across the Charles River, by easy walk across the bridge. But the antiquarian could have told them that in the year 1734 Boston was seven miles by road from Cambridge; for the bridge did not exist in 1734, and the traveler must pass by a long detour up the river bank to a crossing, which made his journey seven actual miles, as the milestone-maker faithfully recorded. Time had deprived his words of any true meaning.