Post by Greg Klass
In several posts on DIRECTV v. Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, e.g., here, here and here.) I’ve been working on a larger project on contract interpretation and construction, and want to use a few posts here to share some of what I’ve learned about the history and development of the distinction. What I have only scratches the surface. The history is a rich vein waiting to be mined. These posts describe only the outlines of the story as I currently understand it. In my telling, it has three protagonists: Francis Lieber, Samuel Williston and Arthur Linton Corbin.
The distinction between interpretation and construction is commonly traced to Lieber’s 1839 book, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics. Though Lieber’s account is not entirely satisfactory, it is a good place to start.
Successful communication, for Lieber, is the transmission of ideas from one person to another through the use of words or other signs. Interpretation is the activity of discovering those ideas. “Interpretation is the art of finding out the true sense of any form of words: that is, the sense which their author intended to convey, and of enabling others to derive from them the very same idea which the author intended to convey.” (23) Lieber suggests that with respect to authoritative legal texts, successful interpretation suffices to give us the legal rule, which is the rule intended by the legal authority who authored or authorized the text. (Throughout the book, Lieber assumes a command theory of law.)
But interpretation alone is not always enough to discover the correct legal rule. In the course of the book, Lieber identifies several situations in which the “true significance,” of a legal text might not fully determine the legal rule: (1) when the text contains internal contradictions (55-56); (2) “in cases which have not been foreseen by framers of those rules, by which we are nevertheless obliged, for some binding reason, faithfully to regulate, as well as we can, our actions respecting the unforeseen case” (56); and (3) when the simple meaning of the text contravenes “more general and binding rules, [such as] constitutional, written and solemnly acknowledged rules, or moral ones, written in the heart of every man.” (166) In each of these situations interpretation does not suffice to tell us what the legal rule is. We require supplemental rules or principles to reach the right legal result. Lieber terms these rule of “construction.”
In politics, construction signifies generally the supplying of supposed or real imperfections, or insufficiencies of a text, according to proper principles and rules. By insufficiency, we understand, both imperfect provision for the cases, which might or ought to have been provided for, and the inadequateness of the text for cases which human wisdom could not foresee. (57)
Construction is unavoidable because “[m]en who use words, even with the best intent and great care as well as skill, cannot foresee all possible complex cases, and if they could, they would be unable to provide for them, for each complex case would require its own provision and rule.” (121)
Construction, for Lieber, therefore serves a gap-filling and equitable function. Lieber maintains that “interpretation precedes construction” because construction steps in when interpretation, for one reason or another, runs out. Lieber therefore sees a continuity of purpose between the two activities. “Construction is the drawing of conclusions respecting subjects, that lie beyond the direct expression of the text, from elements known from and given in the text—conclusions which are in the spirit though not within the letter of the text.” (56) When extending a law to unforeseen cases, one should look for parallels to those cases that the law does cover. “Construction is the building up with given elements, not the forcing of extraneous matter into a text.” (144) That said, Lieber also recognizes that in order to arrive at the correct legal rule, it is sometimes necessary to go beyond the “spirit” of the text. This is the case when construction is required to cure some injustice in the law or conform it to some superior authority, such as a statute to a constitution. (58-59)
The most interesting feature of Lieber’s theory, for my purposes, is that he views construction as supplemental. It operates only in what Larry Solum has called the “construction zone”: “the zone of underdeterminacy in which construction that goes beyond direct translation of semantic content into legal content is required for application” of the rule. The Interpretation-Construction Distinction, 27 Const. Comment. 95, 108 (2010). I think this supplemental view of construction is inadequate. In the next two posts I’ll explore subsequent developments and say why.