Posted by: yarbel | 25th Nov, 2015

Interpretation and construction 3: Arthur Linton Corbin — Greg Klass

Post by Greg Klass

In this third post on the interpretation-construction distinction, I introduce the hero of my story: Arthur Linton Corbin. Corbin builds on Francis Lieber’s and Samuel Williston’s work (which I have discussed here and here) to articulate more perspicacious conceptions of interpretation and construction. Whereas both Williston and Lieber viewed construction as supplementing interpretation, Corbin sees the two activities as complementary. He gets there by collapsing Williston’s three categories of rules into two.

Corbin’s 1951 treatise on contract law provides, as far as I know, the first clear articulation of the complementary conception. Corbin describes interpretation and construction as interlocking activities, both necessary to determine what the law requires. It is worth quoting the relevant passage in full:

By “interpretation of language” we determine what ideas that language induces in other persons. By “construction of the contract,” as the term will be used here, we determine its legal operation—its effect upon the action of courts and administrative officials. If we make this distinction, then the construction of a contract starts with the interpretation of its language but does not end with it; while the process of interpretation stops wholly short of a determination of the legal relations of the parties. (§ 534 at 7).

Whereas Williston distinguished between, on the one hand, legal rules that resolve ambiguities or fill gaps and, on the other, determining the legal effect of an unambiguous speech act, Corbin here recognizes that those two activities are not different in kind. Both are means of determining the legal effect of what the parties said and did. Both are therefore properly called rules of construction.

This more expansive view of construction—the activity of determining the legal effect of what a legal actor said and did—allows Corbin to view construction as complementing rather than supplementing interpretation. Lieber and Williston conceived of construction as stepping in only when interpretation runs out. Corbin, on the contrary, suggests that construction is always required. “[T]he process of interpretation stops wholly sort of a determination of the legal relations of the parties,” because interpretation tells us only what some persons said, meant or intended. We require rule of construction to determine which sayings, meanings or intentions of what legal actors have what legal effects. Rules of construction determine not only unintended legal consequences, as Lieber and Williston maintain, but also intended ones.

This broader conception of construction casts new light on the common saying that the primary goal of contract interpretation is to ascertain the parties’ intent. Though often treated as a rule of interpretation, the rule is in fact one of construction. What the rule says is that when adjudicators are determining contracting parties’ legal obligations, they should look first to the parties’ intentions and agreement. Generally speaking, contract law enforces the agreement that the parties intended. Such a rule is a rule of construction.

Of course that is only generally speaking. Other rules of construction—the ones Lieber and Williston emphasize, and that Corbin also discusses—hew less closely to the parties’ (or a legislature’s, judge’s, or group of constitutional framer’s) expressed intent. In the law of contracts, these include generic rules of construction like contra proferentem and the rule favoring interpretations that accord with public policy. Also in this category are the many default rules that determine parties’ legal obligations absent their contrary expression. Such extratextual rules of construction are required when a legal text is ambiguous, contradictory or gappy, when the situation is one that, we believe, lawmakers did not foresee, or when the text’s meaning contravenes some higher legal authority.

Corbin’s complementary conception of interpretation and construction also suggests taking care when using Solum’s idea of a “construction zone.” The term is a nice way to describe the situation when interpretation produces no result—when an authoritative text contains gaps or ambiguities. But the idea of a “construction zone” should not mislead us into thinking that that is the only place where construction happens. That would be to fall back into Lieber and Williston’s overly narrow, supplemental conceptions of construction. Drawing conclusions about what the law is from a legal text—or more generally, from what legal actors say and do—always requires construction. In this sense, we are always in the construction zone. This is not a criticism of Solum. As he writes, “construction also occurs in situations where it is overlooked or invisible, because interpretation has already done the work. Theoretically, this occurs when doctrine mirrors the semantic content of the text.” The Interpretation-Construction Distinction, 27 Const. Comment. 95, 107 (2010). But “doctrine only mirrors the semantic content of the text” when a rule of construction says it does. Even when a text’s meaning appears to fully determine the legal rule, it does so only because a rule of construction says it should.


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