Abstract
The chapter explores the idea of an “immanent” ratio legis and assesses possible impacts of this conception for statutory interpretation. It asks if and how it is possible to extend a view of law as immanently rational to the understanding of ratio legis in the context of statutory interpretation, and tries to establish the outline of a method of interpretation responding to the specific requirements and challenges presented by an “immanent” ratio legis.
I begin by an exploration of the notion of ratio legis as it can be commonly encountered in statutory interpretation. I retrace the grounding of the prevalent interpretive methodology and show how it is based on a view of purpose and rationality as (necessarily) extrinsic to law.
I then introduce the idea of law as immanently rational as it is put forward by the Formalist theory developed in the work of Ernest J. Weinrib. An account of his Formalist approach to law focusing on legal forms, coherence, law’s immanent rationality, and immanent intelligibility will provide the necessary basis for further assessment of the impact of an “immanent” ratio legis on interpreting posited norms.
In a final step, I then try to apply this account of Legal Formalism to the interpretation of positive law, and tentatively sketch out an interpretive methodology in line with the theory. I will highlight its potential but equally point out some of the challenges that such an approach might face.
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Notes
- 1.
- 2.
For instance under the label of “purposive interpretation”, see only compilation offered by Barak (2005), pp. 87–89 mapping the connection between telos, purpose and ratio. I do not intend to neglect the existing differences between what the German lawyer refers to as “teleological” and what her Anglo-American colleague will mean by “purposive” interpretation [see for a more detailed depiction of purposive interpretation in Anglo-American law: Fikentscher (1975)], notably when it comes to the possible existence of an “objective” telos (see further: below at 6) and the impacts of an “originalist” understanding in the context of constitutional interpretation. However, I consider it to be sufficient here to point out that both share their orientation to some “purpose” the law serves to achieve and pursues (be this identified from an objective or from a subjective standpoint) and that this purpose—once identified—indicates how to best understand the provision. I therefore view it as permissible to leave it open for another occasion to further explore the exact relation of “purposive” and “teleological” interpretation.
- 3.
I do not ignore the vivid discussion about the relation of different methods of interpretation (i.e. how the approach looking at the provision’s wording relates to the ones looking at its legislative history, the provision’s systematic context or: its telos etc.; see only for the different positions defended in German-speaking context: Zippelius (2005), p. 62; Larenz (1979), pp. 334 seq.). Nevertheless, it should be noted that all too often, the way in which arguments based on the ratio legis are de facto treated lets them appear as superior indicators of an unclear provision's correct understanding.
- 4.
- 5.
See for example: Wank (1997), p. 29: identification of “meaning” as the overall goal of interpretation.
- 6.
Cf. Larenz (1979), p. 298. For the present purposes, an analysis of one particular method of interpretation, I hold it defensible not to turn in further detail to the question if the very determination of a situation of unclarity is not itself already the result of a first interpretive step. This question pertains to a discussion about interpretation on a more general level. In addition, sometimes matters of “gap-filling” are equally discussed under the heading of interpretation. However, as the question how to deal with scenarios that are seemingly not covered by existing legal rules indisputably calls for a further development of the law (often referred to as “construction”), I will not examine this issue here.
- 7.
- 8.
For a more detailed description of the history of ideas underlying methodological considerations of legal interpretations, see notably: Schröder (2012), pp. 62, 64, 145–146, 236 highlighting important aspects of the development of the idea of ratio legis and legal interpretation.
- 9.
For a more moderate position developed in the German-speaking context that refers to an “objectified” will rather than only to a legislator's subjective will, see below at 6.
- 10.
See only Schröder (2012), p. 365.
- 11.
See for example Zippelius (2005), p. 41.
- 12.
Cf. notably Schröder (2012), p. 366. This position likening the “will” to the overall goal of interpretation: the meaning of law is particularly present in German methodology.
- 13.
This view falls together with what the German debate labels as the—overall—“subjective” view of interpretation. For a more detailed analysis of the relation of the respective canones in the German-speaking tradition to the overall aim of legal interpretation, see Larenz (1979), pp. 302–305; Zippelius (2005), pp. 21–24; Reimer (2016), pp. 123–124. In other traditions, the idea of identifying a subjective will is referred to as “purposive” interpretation and we encounter it rather as a specific method than as a statement about the overall goal of interpretation.
- 14.
By “rational” in this context, I do not necessarily mean “reasonable”, but merely as “disposing of reason”.
- 15.
See Schröder (2012), p. 368 for a compilation of different conceptions of the “objective” understanding. For example: Larenz (1979), pp. 336–337 argues that law’s objective-teleological dimension can even result in a ratio legis carved out from systemic considerations ex post facto and thus is impossible to make for the legislator. In the same vein, Bydlinski (1982), p. 454 suggests to look at objective-teleological elements for interpretation in cases when the legislative will is obscure. This understanding of teleological interpretation corresponds to an objectively conceived “will of the law” interpretation aims at identifying. The currently predominant view on the role of legislative will in interpretation shared by most academics and German courts is to resort to an “objectified” legislative will. It is acknowledged that the subjective will of the particular historical legislator is decisive as a starting point but that—especially over time—law’s purpose gains some degree of independence, see for example Federal Court BGH (decision rendered 30.06.1966), BGHZ vol. 46, p. 76, Wank (1997), p. 32.
- 16.
Such as “efficiency”, “wellbeing”, or more generally: “the attainment of the social good”, see Larenz (1979), p. 322.
- 17.
Cf. Weinrib (2012) pp. 49–50.
- 18.
See only: Zippelius (2005), pp. 24– 27.
- 19.
See for example Bydlinski ((1982), p. 473) who speaks of “rationes legis” and so presumes the possibility of a multiplication and variance.
- 20.
Weinrib’s basic claim that there can be a level of law lying beyond the posited law makes very transparent that his Formalist position is grounded in a view of law closer to “Idealism” than to “Voluntarism” as described above (see supra note 8).
- 21.
As it has been pointed out elsewhere, the exact meaning of “Formalism” is not unequivocally clear, resulting in a too large variety of approaches to law being grouped together as “Formalist”. (See only the overview provided by Schauer (1988), pp. 509–520, Stone (2012), pp. 170–171, Weinrib (1993a), p. 583 with further references; but also discussion of “positivist” and “natural law” definitions of Formalism, Weinrib (1988), p. 954 fn. 14). However, not all of those approaches explore the dimension of Law’s immanent rationality to the same extent. What is more, in the attempt to draw out the “major common denominator” of the set of Formalist theories, they have often been boiled down, sometimes oversimplified and on a few occasions simply derided, as exemplified in the labeling as theories of “mechanical jurisprudence” by Roscoe Pound. This is not to deny that there are features clearly distinguishing all “Formalist” approaches to law from other lines of thought, in particular the idea that law is an autonomous discipline (see below at 11). I do however not intend to provide an exhaustive account of Formalism, but am interested in the connection between immanent rationality and legal interpretation and it is in this respect that Weinrib’s Formalism provides a suitable starting point for my inquiry.
- 22.
In this paper, I want to concentrate on the “Formalist” side of Weinrib’s theory and leave further considerations with respect to the appropriate forms of justice and the implication of Kantian Right aside. Especially against the background that it is suggested that legal formalism is one of the three theses constituting “The Idea of Private Law” (see Weinrib 2012, p. 18), separating the theory in this way seems to be defensible.
- 23.
Weinrib (1988), p. 952.
- 24.
Weinrib (1988), p. 952.
- 25.
- 26.
Superposing a theory of law developed in a common law context and against the background of tort law as an area of Private Law (still strongly permeated by case-law-oriented reasoning, focusing on underlying ideas), with a methodological canon developed in a civil law context (expressing the “civilian”, more “textual” mode of reasoning) presents an acknowledged challenge to my undertaking. I will still attempt to establish dialogue where there seems to have been much “talk at cross purposes” in the past. The observations I will make are of overarching pertinence, encompassing both the common law, as well as the civilian tradition.
- 27.
Weinrib (1988), p. 957 fn. 27.
- 28.
- 29.
See below at 13–14 on how the critical, evaluative character of the formalist view plays out in the interpretive practice.
- 30.
Weinrib (1988), p. 1013.
- 31.
See for example: Weinrib (1988), pp. 950 and 952.
- 32.
I will refrain, for the purpose of this analysis, from entering into a discussion about the exact definition of a “discipline”—it will presently suffice to say that by characterizing law as an autonomous discipline, the Formalist wants to put forward the idea that there is a clear and impermeable line delimiting legal from non-legal considerations.
- 33.
Weinrib (1988), pp. 951–952.
- 34.
See Weinrib (1988), p. 957 fn. 28. The Formalists make the juridical relationship the basic unit of their analysis. This idea can be retraced to the the influence of Kantian Legal Philosophy, according to which governing a person’s external relationships is the very domain of law (cf. Kant (transl. Gregor (1996), pp. 20–21: “Duties in accordance with rightful lawgiving can only be external duties.”), see further for this idea: Weinrib (1987), p. 487. For a criticism of the relationship as the basic unit of analysis in Weinrib’s theory of Private Law, see: Menke (2015) questioning its apolitical character, p. 37: (translation by KvS): “The normativity of the private law relationship is … not, as claimed by the correlational theory, autonomous, but made – an effect of the [posited] law. Consequently, the normativity of the private law relationship has a political basis.”
- 35.
See Weinrib (1987), p. 480 on the systematizing function of reason.
- 36.
Weinrib (1988), p. 954 referring to a formulation offered by Roberto Unger.
- 37.
Weinrib (1988), p. 956.
- 38.
Weinrib (1988), p. 956.
- 39.
Weinrib (1988), p. 956.
- 40.
Weinrib (1988), p. 956.
- 41.
Weinrib (1988), p. 965.
- 42.
Weinrib (1988), p. 957.
- 43.
Weinrib (1988), p. 958.
- 44.
See for example Weinrib (2012), pp. 22 and 27.
- 45.
- 46.
- 47.
See Weinrib (1988), p. 960.
- 48.
Weinrib (2012), p. 29.
- 49.
Weinrib (1988), p. 1000 fn. 106.
- 50.
See for the exposition of the normative dimension of forms: Weinrib (1988), pp. 995–999.
- 51.
It is clear that the requirements of the Formalist theory equally apply to judge-made law. Within the realms of a court’s authority, any decision equally has to ensure the proper expression of the underlying legal forms, see below at 19.
- 52.
Weinrib (1988), p. 952.
- 53.
Weinrib (2012), p. 35.
- 54.
The idea of coherence is intricately intertwined with justification. “Law is a justificatory enterprise” (Weinrib 2012, p. 12), among other things because it ultimately allows, authorities to enforce decisions. Consequently, all considerations justifying a particular decision must cohere (in their entirety)—otherwise they do not provide the justification they claim to. See for the constitutional dimension of this aspect below note 94.
- 55.
Weinrib (1987), p. 478.
- 56.
Weinrib (2012), p. 35.
- 57.
Despite some parallels with the “systematic” method of interpretation, the notion of coherence in this context extends beyond the sphere of posited norms. It aims to harmonize those posited norms with the structure of the juridical relationship to which they apply and moreover looks for coherence, not mere consistency.
- 58.
Weinrib (1988), p. 970. For possible challenges presented by this fact, see below at 23.
- 59.
Weinrib (2012), p. 12. Contrary to the externally oriented conception of a possible telos held by the views presented above, the aim for a coherent expression of the underlying legal form is an internal one. It looks (only) to itself, refers to itself, and hereby implements the position of law as an end in itself.
- 60.
See for example Weinrib (1993b), p. 697.
- 61.
See for example Weinrib (2012), p. 13.
- 62.
See Weinrib (1988), p. 972.
- 63.
Weinrib (1988), p. 985.
- 64.
See for example Weinrib (2012), p. 38.
- 65.
- 66.
Weinrib (1988), p. 955.
- 67.
Weinrib (1988), p. 952.
- 68.
Weinrib (1988), p. 956.
- 69.
At least as a starting point. On the need to supplement this perspective with further elements and ensuing challenges, see below at 20–22.
- 70.
Weinrib (1993a), p. 592.
- 71.
Weinrib (1988), p.963.
- 72.
Weinrib (1988), p. 957.
- 73.
Weinrib (1988), p. 1000 and below at 23 for a critical assessment of forms’ universal character.
- 74.
Weinrib (1988), p. 962.
- 75.
Weinrib (1988), p. 962. The examples for such concepts that provided (cause, remoteness, duty, consideration, offer and acceptance) raise doubts concerning the universality of legal forms. Can we really say that the lawyer from a tradition that does not know the concept of consideration is not “doing” law? Respectively: What are possible consequences of differing sets of fundamental concepts for the Formalist view? See further on this issue below at 22–23.
- 76.
Weinrib (2012), pp. 23–24.
- 77.
Weinrib (1988), p. 957.
- 78.
Weinrib (1988), p. 964.
- 79.
Weinrib (2012), p. 23.
- 80.
For difficulties resulting from an understanding of “legal system“ as synonymous with “jurisdiction”, see below at 23–24.
- 81.
See Weinrib (2012), p. 35.
- 82.
See Weinrib (1988), p. 956. Operating as a court of law, non-legal considerations are out of reach. The court is bound to “discover”, respectively, “give expression” to legal forms. Interestingly, this idea of a discovery of what the law is resonates with the formula German courts use to introduce their judgments: “für Recht erkannt” (literally translated as: “As recognized for right”). Furthermore, the lawmaking court faces its own institutional boundaries—the institutional arrangements of a given legal system are part of what constitutes the abstract legal form. The court has to give expression to law’s immanent rationality—not only as its interpreter, but also in its legislative function: any “gap-filling”, or “innovation” can equally only look to the preexisting body of legal material that it must coherently develop. This point touches upon fundamental questions of the separation of powers, and reflects a particular concern: the “retrospectivity-problem”. It describes the puzzle arising from a court potentially seen as “making” law by adjudicating a particular dispute—but without the rule as later declared by the judge being known to the parties beforehand in a way that would have allowed them to adjust their conduct accordingly (Weinrib 1988, p. 999). The Formalist view of law tries to prevent such scenarios: as any positive law, so equally any rule established in what will later become a precedent, has to express law’s preexisting immanent rationality, the task also of the lawmaking judge is to “discover”, not to “create” (see also Weinrib 1988, p. 956).
- 83.
See Weinrib (2012), p. 209.
- 84.
Weinrib (1988), p. 1014 with reference in particular to R. Dworkin.
- 85.
See above at 13.
- 86.
Weinrib (2012), p. 13. This idea might at first sight be perceived as in tension with the conception of the “internal to law”-view. As, however, legal forms are considered to be universal, the Formalist position does not leave it to the interpretive community to design the basic modes of ordering, for a criticism see below at 23.
- 87.
Here, I adapt an example provided by Weinrib (2012), pp. 36–38 to the context of statutory interpretation.
- 88.
Cf. Weinrib’s layout of the essential institutional and conceptual features of Private Law in Weinrib (2012), pp. 9–10.
- 89.
- 90.
This idea is closely interconnected with—in particular—Kantian Right as the second theoretical pillar of Weinrib’s theory. Furthermore, the identification of corrective justice as the underlying legal form of private law enables to think about this area of law in the absence of a decision about a particular “good”, see notably Weinrib (1988), p. 988; Weinrib (2012), p. 210. Both these aspects can only be hinted at for present purposes. With respect to the possibility of the universal application of a method of interpretation grounded in the Formalist understanding, see below at 24.
- 91.
Cf. Weinrib (2012), p. 22 fn. 37 with the example of different possibilities of legislative design for employer liability.
- 92.
This raises the question if and how the other interpretive methods can have a place in the Formalist interpretive framework. A clear answer in the positive seems particularly difficult as the further methodological canones (wording, legislative history, systematic context) are all looking to the identification of “will” (see above). A detailed analysis of their respective compatibility with the Formalist theory of law would however go beyond the scope of my inquiry in this chapter. I will therefore refer it to another occasion.
- 93.
See above at 15.
- 94.
At the same time, there is strong reason to assume that the very requirement of internal coherence is grounded in the respective constitutional orders that bind the legislative authorities, be it as a manifestation of “Rechtsstaat”, “rule of law” or in any other way. Incoherent, and unintelligible legislation violates these fundamental constitutional principles of the highest order and can in exceptional scenarios entitle interpreting courts to give expression to fundamental constitutional principles in their dealing with “incoherent” positive law. I am highly indebted to Ernest J. Weinrib for bringing this utterly important point to my attention.
- 95.
In these scenarios it is in fact even questionable if there is need for interpretation at all.
- 96.
See Weinrib (1988), p. 953.
- 97.
Weinrib (1988), p. 962.
- 98.
Insofar as the Formalist approach argues that the forms of corrective and distributive justice are universal, it would be possible to identify the correct “benchmark” even in an entirely incoherent system. It nevertheless matters to point out the presumption for the Formalist “pillar” of the theory as such.
- 99.
See for example Weinrib (1988), p. 983: “Corrective and distributive justice are the most abstract forms that render juridical relationships intelligible.”
- 100.
Anglo-Canadian Common Law, Private Law, in particular tort law.
- 101.
Weinrib (1988), p. 969.
- 102.
See only: Weinrib (2012), pp. 13 and 206–207.
- 103.
For instance: consumer protection laws and/or rules on contractual Terms and Conditions—Do they belong to Private Law or Public Law ordering? Does it—consequently—belong to the realms of the legal form of corrective of rather of distributive justice?
- 104.
While we can learn that complete loss of coherence might lead to the loss of the legal character of the system (cf. Weinrib 2012, p. 31), it is not as clear to which extent the system needs coherence to stay as such, nor to which degree a loss of coherence is acceptable for a “legal” system.
- 105.
Weinrib (1988), p. 968.
- 106.
See Weinrib (2012), pp. 13 and 206–207.
- 107.
See only Weinrib (1988), pp. 988–992 on the conceptual necessity for an “external” consideration under distributive justice governing public law. An interpretation of positive law in systems of distributive justice appears to require the indispensable “look to the outside aim” that the Formalist Theory refused in the context of private law.
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Acknowledgements
I thank the participants and guests of the Special Workshop at the XXVIII IVR World Congress in Lisbon for their most helpful questions and comments. I equally thank E. J. Weinrib for introducing me to the fascinating world of his Legal Formalism and discussing my thoughts and ideas about it, as well as J.-C. Bédard Rubin for providing valuable hints and advise at different stages during the development of this chapter. Notwithstanding, all remaining errors and omissions are obviously mine only.
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von Schütz, K. (2018). Immanent Ratio Legis? Legal Forms and Statutory Interpretation. In: Klappstein, V., Dybowski, M. (eds) Ratio Legis. Springer, Cham. https://doi.org/10.1007/978-3-319-74271-7_8
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