UDC 316


Rokhvadze R.F.

This paper is dedicated to the issues of legal process, law interpretation and judges position in decision-making. The main arguments are taken from the N. Cardozo’s and L. Carter’s view of law and justice in the USA.

Keywords: decision-making, interpretation, law, legal reasoning, the USA.

Category: Sociology

Article reference:
Law and its interpretation // Psychology, sociology and pedagogy. 2013. № 1 [Electronic journal]. URL: https://psychology.snauka.ru/en/2013/01/1587

View this article in Russian

N. Cardozo considers any law-text within the space and time contexts: “the principles that have served their day expire and new principles are born” (N. Cardozo). For a judge to be impartial and just means to be an absolute, ideal “third party” [2 p. 56]. But the outcome of the case depends on the values, believes and individual understanding and interpretation of the law-texts. This is what Carter and Cardozo are concerned about. Widely accepted ideas and morals of society within the time influence judge’s decision. Is a legal process a “discovery” or “creation”? This issue is rooted in the question should a law be regarded as an original intent or as a “living and breathing entity”.

First, we describe the types of law in the USA. There are three basic types of law in America, which judges apply for in terms of case resolution and legal reasoning. First of all, the Constitutional Law, which is “a supreme law of land” and no law can be enacted that contravenes the provisions of the USA Constitution.
Second of all, statutory law, which is enacted by legislature. It is created through a formal lawmaking process and codified in official text. According to L.H. Carter, “statutes are the skeleton of the body politic” [2]. They are the primary levelers that authorize those who govern to take our property, our freedom or our lives. In matters of statutory interpretation, judges must follow the legislature’s policy to resolve the case.
Last type is a common law. It derives from England, story of William the Conqueror. Peculiarity about this type of law is that it includes judge-made laws and relies on judicial precedents. Judges in their decisions are bound by precedents, that is the rulings of other judges in similar cases decided earlier. Judges do not decide what the official rules written in Constitution mean.
N. Cardozo speaks about “pale and glimmering reflections in my own vacillating mind and conscience”. He is concerned about uncertainty of judge’s decision, “it is not solid” [1]. Any written text can be interpreted and an interpretation implies the personal understanding and decoding of the encoded text. Law is written text and, consequently, it is a subject of interpretation (This is why it is not “solid”). Cardozo-Carter’s concern is that law is not certain since it is a subject of interpretation. Uncertainty of law and individual interpretation of law-text are reflected in different outcomes of similar cases (at this point some judges would say that there are no similar cases in a judicial experience, each case is unique in its own way). Courts are a law-interpreting organizations and law, according to L.H. Carter, only becomes “the rule of law” when courts have a power to resolve the legal claims. For example, the Constitution is so vague and ambiguous that people with the best intentions do not necessarily reach the same interpretation.
Coming back to discovery and creation, L.H. Carter is right that a judicial process is not solid and it is a creation. Precisely because “the Constitution is always open to new constructions”. Cardozo’s experience shows that legal process is uncertain and creative. His pint is that it is changing, but the value of judge, according to Carter, is stability. This is a Change vs Stability conflict in law interpretation. L.H. Carter’s point is stability, through which he sees the intent of law. But the ambiguity, change and creation are facts of life in the legal processes. “Because the Constitution is supreme and because we believe we should follow it, we have throughout the many turbulent changes in our history worked very hard to make the Constitution fit and harmonize with what we believe” [2 p. 111].
The interpretation of statutes, constitution is basically the same, their cannot be seen any great difference. They are the same because the principles the judges apply for avoiding the creation of public policy are doomed to fail. Techniques of statutory commands interpretation and constitutional interpretation fail as well. It is obvious that the techniques do not work, because of language’s ambiguity. The law-texts lack uniformity. For example, what exactly are “equal protection, due process of law, cruel and unusual punishment, just compensation” (Constitution of the USA). The words constructing the legal texts are mostly abstract. For example, “law” is an abstract noun and it has more than 15 definitions, according to Oxford English Dictionary. The peculiarity about these words in law-texts is that they get an individual’s understanding.
L.H. Carter presents his issue in terms of “literalism and intent”. If judge “sticks to words” (literalism), he / she prevents him / herself from understanding what was the intent of law. Thus to interpret the Constitution only according to what its words actually say seems to defeat its purpose” [2 p. 110].
The main idea of Cardozo and Carter is that the law must be a mathematical formulae and judges ought to avoid personal believes and understanding in decision-making process. The main point for judges is to set standards of governance that “transcend individual moral feelings” [2 p. 112]. “Moral righteousness” is a vague concept, and there is no high ruler to say what is moral and what is not. And the rule of law must substitute legal reasoning for moral righteousness. According to L.H. Carter, legal reasoning serves as “a velvet glove covering the fist of the judicial power and the sincerest expression of our ideals of justice and of community” [Ibid. p. 120] It is true that statutory, common and constitutional laws’ interpretation might be false, but the law-text is basic for outcome. Carter encourages judges to use legal reasoning: “Legal reasoning question is not whether we like the result but whether the judge has given reasons we find trustworthy” [Ibid. p. 117] Judges must write opinions that justify their decisions or impartial grounds.
The question of law interpretation is vital, because it can sustain or ruin the image of courts as the supreme justice. “When people believe that judges cynically manipulate legal language to reach partisan and self-interested political ends, faith in fairness becomes nasty and brutish” [Ibid. p. 106].
The law is a language that lawyers and judges use when fight a case. The legal reasoning helps to avoid the misinterpretation and analyze the law and the case within the contexts: common, statutory, constitutional law, time, and space. Carter and Cardozo urge judges to see the legal process as settling the legal reasons of the case outcome. Rules tell judges what facts to seek. The case tells the judges what kind of facts would justify such defense. The heart of the reasoning part of law lies in not figuring out what has happened but in analyzing what facts the rules allow the judges to use to seek and what to do with these facts once they know them [Ibid. p. 121]. ndoubtfuly, the facts are not less important in a decision-making process but the extended study of them shows that facts are not that trustworthy as the judges and lawyers think of them [3; 4; 5; 6; 7].
The view of a just legal process contains the following elements the established facts (discovery), the rules that bear on this particular case, social background facts, and widely shared values. An impartial judge will persuasively harmonize or coherently fit together these elements. Carter calls it the language of legal reasoning, but legal reasoning contains sources of generality, vagueness, and ambiguity to generate objectively correct answers to legal questions. According to Carter, judges should stick to stability in law, legal reasoning, impartiality.
Finally, it should be mentioned that L.H. Carter provides strong arguments and statements of what a judge ought to do, but the issue of due legal process is not about them, mostly it is about the law-text interpretation. It is a threat to due legal process, because the judges may dramatically increase the speed of change and deliberately broaden the lengths of the legal jumps they take from old laws to new [Ibid. p. 97].
As for statutory interpretation, Carter influences judges, saying that the most important point in due legal process is to limit the role of courts in interpreting statutes. The aim of the statutory interpretation is to neatly separate policymaking from judging. Any single right formula ensures judges that they do exactly what the law commands. Despite this idea of statutes by Carter, there are still issues – statutes are written in words, which are often ambiguous and troublesome. Process of lawmaking is complex and multilayered. Statutes are written in general terms and do not neatly resolve the particular dispute. They do not anticipate every conflict that might arise under this or that statute. Despite all of these, Carter encourages judges to seek first the guidance of earlier case precedents dealing with the same problem. The good thing is that in constitutional, common law and statutes the judges can be guided by the principle of stare decisis and legal reasoning. Judges ought to interpret statutes when they pay attention to the purposes of legislation (purposivism). According to Carter, the purpose-oriented approach strikes the best balance between legislature and judicial power is statutory interpretation. In statutory interpretation judge should analyze two contexts: legislative context – what is the general problem and rules the legislature has created for this problem, case context.
Another problem is a constitutional interpretation. The issue of the Constitutional law, according to L.H. Carter, is that the language is divided rather than united. In statutory, constitutional interpretation, the concept of “intent” is muddled. But even the intent is relatively clear, judges ignore them sometimes.

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  2. Carter L. H. Reason in Law. – Glenview, Ill.: Scott, Foresman and Co., 1988. – 270 p.
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