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43 HVLR 886 Page 1
43 Harv. L. Rev. 886
Harvard Law Review
April, 1930
*886 A NOTE ON “STATUTORY INTERPRETATION”
James M. Landis
Harvard Law School
Copyright © 1930 Harvard Law Review Association; James M. Landis
A PASSING acquaintance with the literature of statutory interpretation evokes sympathy with the emin-
ent judge who remarked that books on spiritualism and statutory interpretation were two types of literary
ebullitions that he had learned not to read. Mr. Radin's plea for realism in the science of interpreting statutes
must thus fall on not unwilling ears. With such a slogan, volunteers for the fray should readily spring to his
standard. But to learn, when the smoke of battle has cleared away, that the prize of victory is but
Gefühlsjurisprudenz savors too much of the saddening process of making the world safe for democracy.
Surely what Broom, Coke, Bacon, Austin, and Lieber dignified with the conception of a science deserves a
better fate than the surrender implicit in the resort to Gefühlsjurisprudenz.
The Anglo-American scheme of government conceives of lawgivers apart from and at times paramount
over courts. Such a function, commonly vested in a legislature, presupposes an intelligible method of mak-
ing known to the organs of administration, courts or otherwise, its desires and hopes. That method centuries
ago crystallized into the formalism of passing statutes. It is from such a conception that one derives the rule
of statutory interpretation emphasizing the intent of the passer of statutes. [FN1]
The fact that in the name of such a rule fictitious intents of legislatures have been derived by courts to
conceal the fact that they, rather than the legislature, were in this instance the lawgivers, does not impeach
the validity of the rule, but merely demonstrates an inapposite case for its application. The more multitudin-
ous such cases, the more necessary the insistence upon the limits of such a rule. A hundred years ago Austin
sought to define its boundaries by distinguishing between genuine and spurious interpretation, [FN2] always
a nice and often an elusive distinction. Even this distinction fades in the face of Mr. Radin's attack that re-
gards the intent of the legislature as undiscoverable, and if discoverable, *887 irrelevant, [FN3] and thus
limits legislative power to the crypticism of “passing statutes.”
That a discoverable intent — record evidence that a particular determinate underlay a general determin-
able [FN4] — is irrelevant to the judge called upon to decide the same concrete case theretofore presented to
the legislature in a hypothetical form, [FN5] disregards not only theoretical but practical considerations of
Anglo-American government. It is a commonplace of our political thought that it is the task of the legis-
lature to express the state's *888 changing conceptions of legal relationships and to make these conceptions
effective. The tenure of the legislator, his parochial interests, his opportunities for extended investigation
and debate, his unlimited powers of choice between competing devices, the numbers that he must convince,
and the ephemerality of his conclusions, all make for emphasizing the importance of his intent. One further
consideration, especially significant to those who advocate the principles of Gefühlsjurisprudenz, and point-
ing to the necessity of preferring from the sociological standpoint the Gefühl of the legislator to the Gefühl
of the judge, is epigrammatically summed up by Dicey when he says: “If a statute ... is apt to reproduce the
public opinion not so much of today as of yesterday, judge-made law occasionally represents the opinion of
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the day before yesterday.” [FN6]
The real difficulty is not that the intent is irrelevant but that the intent is often undiscoverable, especially
when the passer of statutes is, in most cases, a representative assembly. Intent is unfortunately a confusing
word, carrying within it both the teleological concept of purpose and the more immediate concept of mean-
ing — the assumption that one or more determinates are embraced within a given determinable. Purpose and
meaning commonly react upon each other. Their exact differentiation would require an extended philosoph-
ical essay. But it may be noted that intent when used to mean purpose usually will be found to accompany
the process of spurious interpretation, whereas intent when used as equivalent to meaning commonly accom-
panies the process of genuine interpretation, although, as I have said, the distinction between these processes
is a nice one.
The assumption that the meaning of a representative assembly attached to the words used in a particular
statute is rarely discoverable, has little foundation in fact. The records of legislative assemblies once opened
and read with a knowledge of legislative procedure often reveal the richest kind of evidence. To insist that
each individual legislator besides his aye vote must also have expressed the meaning he attaches to the bill
as a condition precedent to predicating an intent on the part of the legislature, is to disregard the realities of
legislative procedure. [FN7] Through the *889 committee report, [FN8] the explanation of the committee
chairman, [FN9] and otherwise, [FN10] a mere expression of assent becomes in reality a concurrence in the
expressed views of another. A particular determinate thus becomes the common possession of the majority
of the legislature, and as such a real discoverable intent.
Legislative history similarly affords in many instances accurate and compelling guides to legislative
meaning. Successive drafts of the same act do not simply succeed each other as isolated phenomena, but the
substitution of one for another necessarily involves an element of choice often leaving little doubt as to the
reasons governing such a choice. [FN11] The voting down of an amendment or its acceptance upon the
statement of its proponent again may disclose real evidence of intent. [FN12] Changes made in the light
*890 of earlier statutes and their enforcement, [FN13] acquiescence in a known administrative interpreta-
tion, [FN14] the use of interpreted language borrowed from other sources, [FN15] all give evidence of a real
and not a fictitious intent, and should be deemed to govern questions of construction. The real difficulty is
twofold: that strong judges prefer to override the intent of the legislature in order to make law according to
their own views, [FN16] and that barbaric rules of interpretation too often exclude the opportunity to get at
legislative meaning in a realistic fashion, [FN17] The latter, originating at a time when records of legislative
assemblies were not in existence, *891 deserve no adherence in these days of carefully kept journals, de-
bates, and reports. Unfortunately they persist with that tenaciousness characteristic of outworn legal rules.
Strong judges are always with us; no science of interpretation can ever hope to curb their propensities. But
the effort should be to restrain their tendencies, not to give them free rein in the name of scientific jurispru-
dence.
When the intent or meaning of the legislature is discoverable, statutory interpretation posits no serious
problem except the political one of insistence upon judicial humility. The real problems arise where the
meaning of the legislature is not discoverable. Here the gravest sins are perpetrated in the name of the intent
of the legislature. Judges are rarely willing to admit their role as actual lawgivers, and such admissions as
are wrung from their unwilling lips lie in the field of common and not statute law. To condone in these in-
stances the practice of talking in terms of the intent of the legislature, as if the legislature had attributed a
particular meaning to certain words, when it is apparent that the intent is that of the judge, is to condone
atavistic practices too reminiscent of the medicine man. No compromise can be had on this issue. But is the
alternative Gefühlsjurisprudenz or, better, Freiegesetzfindung? [FN18]
A statute rarely stands alone. Back of Minerva was the brair of Jove, and behind Venus the spume of the
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ocean. So of the statute, it is the culmination often of long legislative processes, too rarely understood by the
mere lawyer, and too rarely studied to have been lifted from the contempt bred of ignorance. Such material
frequently affords a guide to the intent of the legislature conceived of in terms of purpose. To deal, for ex-
ample, with the Trade Disputes Act of 1906 without regard to the fact that it followed upon a Liberal-Labor
victory, would be to thwart known legislative hopes and desires. [FN19] It is done unquestionably. The *892
mutilated Clayton Act bears ample testimony to the “day before yesterday” that judges insist is today.
[FN20] But this is simply the price we pay for judicial independence. To ignore legislative processes and le-
gislative history in the processes of interpretation, is to turn one's back on whatever history may reveal as to
the direction of the political and economic forces of our time.
It must be insisted that the legislative purposes and aims are the important guideposts for statutory inter-
pretation, not the desiderata of the judge. And there is a world of difference between an attitude of mind that
honestly seeks to grasp these and give them effect, and one that cavalierly throws them overboard and leaves
us to the mercy of the judge's “day before yesterday.” The so-called rules of interpretation are not rules that
automatically reach results, but ways of attuning the mind to a vision comparable to that possessed by the le-
gislature. The vision of itself rarely actually grasps the particular determinate, but the eye once aligned in
the same direction will more probably place a particular determinate in its appropriate spot. The despised
rules of expressio unius exclusio alterius, [FN21] presumptions of strict and liberal interpretation, are of this
character. They predicate attitudes of mind more likely to recreate the atmosphere surrounding the statute in
its passage and thus more likely to give effect accurately to the real legislative purpose. Like most “rules of
law,” they solve only the obvious case, and give a direction for profitable *893 thinking about the difficult
ones. And it is true of them, as of most “rules of law,” that occasions will arise when they must be broken.
The use of extrinsic aids to statutory interpretation thus has real and not illusory significance. Hopeful
developments toward a science of statutory interpretation must be in the direction of devising means of
properly evaluating the effectiveness to be given such extrinsic aids. Of course, guessing will not thereby be
eliminated; but what science, natural or otherwise, has eliminated the necessity for guesswork? Nevertheless
the emphasis must lie upon the honest effort of courts to give effect to the legislature's aims, even though
their perception be perforce through a glass darkly. There will and must remain that group of cases — smal-
ler than is generally supposed — where no meaning, aim, or purpose of the legislature is at all capable of ap-
perception. Here and here alone does talk of the intent of the legislature become meaningless and barbaric.
And here society and the legislature both entrust themselves to the law-making powers of courts. No science
of law has yet done away with the need for such occasional legislation; a science of statutory interpretation
can hardly hope to fare better. But the insistence of both must be that judicial legislation shall concern itself
only with the interstitial tissues of the body politic and not its gristle.
[FN1]. This phrase is used to avoid the ambiguities inherent in the “lawgiver.”
[FN2]. AUSTIN, JURISPRUDENCE (5th ed. 1885) 989. See also Pound, Spurious Interpretation (1907) 7
COL. L. REV. 379.
[FN3]. To illustrate his point that the intent or will of the legislature is irrelevant, Mr. Radin asserts that a
statute made in Latin is at the present time no statute. The case cited, In re Lockett, 179 Cal. 581, 178 Pac.
134 (1919), held unconstitutional a statute punishing the crime of “fellatio,” but rested on the peculiar provi-
sions of the California constitution (art. IV, § 24) requiring all laws to be published in no other than the Eng-
lish language. A criminal statute so framed might also fall afoul of the American constitutional doctrine of
United States v. Cohen Grocery Co., 255 U. S. 81 (1921). Obviously such authorities can not support the
broad statement. Mr. Radin is, of course, aware that many early English statutes were framed in Latin, and
that some of these as common law statutes are still the law of many American states, to say nothing of Eng-
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land. Mr. Radin himself uses the term “ipso facto” in a hypothetical statute of his own making. P. 869. Of
course, the answer is that such a phrase, although italicized, has been Anglicized. But in view of the fact that
WEBSTER, REVISED UNABRIDGED DICTIONARY OF THE ENGLISH LANGUAGE carries the
phrase only in its Glossary of Foreign Words, its use should be avoided by the careful draftsman of a Cali-
fornia statute.
Mr. Radin also insists that statutes must be phrased in words, and consequently that an attempt to con-
vey the legislature's meaning by pictorial representation would be nugatory. For this he offers no authorities.
But many statutes and ordinances of this character are to be found in the books, whose effectiveness as stat-
utes has never been questioned. See, e.g., Idaho Laws 1891, p. 73, § 51, making use of a diagram to illus-
trate how polling places are to be constructed; Detroit Comp. Ordinances 1920, 227, using a diagram to il-
lustrate how a gasoline test is to be conducted; Louisville Gen. Ordinances 1919, p. 529, §§ 17, 18, using
diagrams to illustrate traffic regulations; Chicago Mun. Code 1922, § 4090, fixing boundaries by reference
to a map which is expressly attached to and made part of the ordinance; 4 & 5 GEO. 5, c. 50, pp. 203-06
(1914), using the dot-dash system to establish international marine signals; or DEL. REV. CODE (1915) §
387, establishing the official seal of the state by reference to a recorded design. This list might be indefin-
itely extended.
[FN4]. These terms are borrowed from Mr. Radin and sought to be used in the manner in which he employs
them. P. 868.
[FN5]. Mr. Radin's objection to the impossibility of interpreting in advance from hypothetical determinates
is, to me, unintelligible. Pp. 871-72. It is true that any hypothetical determinate will not exactly correspond
with a later actual determinate. But if differences are to be regarded to the exclusion of similitudes, one is
driven to the neo-Aristotelian fallacy of being unable to find more than one rose.
[FN6]. DICEY, LAW AND OPINION IN ENGLAND (1926) 369.
[FN7]. Mr. Radin is correct in his assumption that even in a large representative assembly the debate on stat-
utes passed by it will not call forward external utterances or significant behavior on the part of “hundreds of
men.” Pp. 870-71. Rarely does a debate evoke more than a handful, and the yea and nay votes of the non-
participants by every reasonable intendment must be taken to adopt their views. Of course, no such assump-
tion can be indulged in where the variance between the views of the participants is impossible of such bi-
furcation as legislative procedure demands. See, e.g., the varying views of the intent of the First Congress
upon the President's power of removal. Taft, C. J., and Brandeis, J., in Myers v. United States, 272 U. S. 52,
123-27, 285 (1926); CORWIN, THE PRESIDENT'S REMOVAL POWER (1927) 12-13.
[FN8]. Cf. Tagg Bros. & Moorhead v. United States, 50 Sup. Ct. 220 (U. S. 1930); Shaik Moosá v. Shaik
Essá, 8 Ind. L. R. (Bomb.) 241, 247 (1884).
[FN9]. Cf. St. Louis S. W. Ry. v. United States, 262 U. S. 70, 76 (1923); United States v. St. Paul M. & M.
Ry., 247 U. S. 310 (1918).
[FN10]. Cf. Penn Mut. Life Ins. Co. v. Lederer, 252 U. S. 523, 534 (1920).
[FN11]. Cf. United States v. Pfitsch, 256 U. S. 547 (1921); Hood Rubber Co. v. Commissioner of Corpora-
tions, 167 N. E. 670 (Mass. 1929). See also the light thrown upon the interpretation of § 34 of the Judiciary
Act of Sept. 24, 1789, by the discovery of the original draft of that section, in Warren, New Light on the His-
tory of the Federal Judiciary Act of 1789 (1923) 37 HARV. L. REV. 49, 85.
[FN12]. An illustration of this will be found in the debate on the Trade Disputes Act of 1906. Sir Charles
Dilke moved the amendment of § 3 of that act so as to make non-actionable an act done in furtherance of a
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trade dispute “on the ground only that it induces some other person to break a contract of employment.” 162
PARLIAMENTARY DEBATES (4th ser. 1906) 1678. Mr. Rufus Isaacs rightly objected to the ambiguity in-
herent in the phrase, inasmuch as it was uncertain whether the immunity extended to malicious inducements
of breach of contract — malicious in the wide sense in which courts theretofore had used that term as illus-
trated by South Wales Miners' Fed. v. Glamorgan Coal Co., [1905] A. C. 239 — and thus whether the
amendment extended any further than restating the existing law. Ibid. at 1679. Sir Frederick Banbury then
moved to incorporate the Glamorgan doctrine by amending the amendment so as to insert after “induces” the
words “otherwise than maliciously.” Ibid. at 1685. Sir John Walton, attorney-general and spokesman for the
administration, refused to accept the Banbury amendment because in his opinion the purpose of the Dilke
amendment was to abrogate the rule of the Glamorgan case. Ibid. at 1686, 1691. With the voting down of the
Banbury amendment and the acceptance of the Dilke amendment, Mr. Isaacs' original query was answered
— “malice in law” was insufficient to make actionable inducing a breach of contract in furtherance of a
trade dispute. Whether “malice in fact” would make such inducement actionable was, however, left open to
“interpretation.” It is significant in the light of these events that the later English cases, though hesitant in
their conception of the meaning of “trade dispute” and “contract of employment,” have never doubted but
that mere malice in law was insufficient to make such conduct actionable. Cf. Conway v. Wade, [1909] A.
C. 506; Valentine v. Hyde, [1919] 2 Ch. 129; White v. Riley [1921] 1 Ch. 1; Brimelow v. Casson, [1924] 1
Ch. 302; Hodges v. Webb, 89 L. J. Ch. (N.S.) 273 (1920); Dallimore v. Williams, 30 T. L. R. 432 (1914);
Long v. Larkin, [1914] 2 Ir. R. 285.
[FN13]. Cf. Brandeis, J., dissenting, in Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 299 (1921).
[FN14]. Cf. Patterson v. Louisville & Nashville R. R., 269 U. S. 1 (1925).
[FN15]. See Note (1930) 43 HARV. L. REV. 623, for an analysis of the realities of this situation.
[FN16]. See, e.g., the protest of Brandeis, J., against the adoption of such methods. Railroad Comm. v. Los
Angeles Ry., 50 Sup. Ct. 71, 76 (U. S. 1929).
[FN17]. For example, in Queen-Empress v. Bal Gangadhar Tilak, 22 Ind. L. R. (Bomb.) 112, 126-28 (1897),
counsel sought to read the speech of the Legal Member of the Legislative Council, Sir James Stephen, pro-
posing the enactment whose construction was in issue. The court ruled the speech inadmissible but added:
“Mr. Pugh can, of course, read any passages from Sir James Stephen's speech as a part of his address, and as
stating his own argument in words which he adopts as his own, but he cannot cite them as Sir James Steph-
en's opinion and as authority showing the construction to be put upon the section.” Or compare Fuller, C. J.,
in Dunlap v. United States, 173 U. S. 65, 75 (1899): “Without questioning the doctrine that debates in Con-
gress are not appropriate sources of information from which to discover the meaning of a statute passed by
that body, United States v. Trans-Missouri Freight Ass'n, 166 U. S. 290, 318, it is nevertheless interesting to
note that efforts were made in the Senate to amend the bill ....” Literal interpretation is scarcely to be expec-
ted of the text, “... let not thy left hand know what thy right hand doeth.”
[FN18]. No better evidence of the dangers inherent in Freierechtsfindung need be adduced than that in Rad-
in, The Good Judge of Château-Thierry and His American Counterpart (1922) 10 CALIF. L. REV. 300.
[FN19]. What hearings, departmental reports, committee reports, and the then state of public opinion can
furnish as to the direction of legislative purpose, is well illustrated by Omaechevarria v. Idaho, 246 U. S.
343 (1918). Compare the method of construing § 611 of the Revenue Act of 1918, of Mack, J., in Regie
Coal Co. v. Bowers, 37 F.(2d) 373 (S. D. N. Y. 1929), with that of Foster, J., in United States v. Burden,
Smith & Co., 33 F.(2d) 229 (C. C. A. 5th, 1929). See also Piedmont Coal Co. v. Seaboard Fisheries Co., 254
U. S. 1 (1920).
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[FN20]. See FRANKFURTER AND GREENE, THE LABOR INJUNCTION (1930) 176; Powell, The Su-
preme Court's Control Over the Issue of Injunctions in Labor Disputes (1928) 13 ACAD, OF POL. SCI.
PROC. 37, 56.
[FN21]. Mr. Radin's contention that this maxim is in direct contradiction to the habits of speech of most per-
sons may or may not be right. But it neglects the fact that the maxim deals with the speech of the legislature
and not that of most persons. The speech of the legislature is directed towards a moving scene in the effort to
affect its direction. The illustration that a statement that all men are mortal does not mean that all women are
not, has consequently no relevance. A better illustration is that of a football game. The announcer's state-
ment that X has taken the place of A at left end would ordinarily not imply that Y also takes the place of B at
right end. True, the announcer may have been mistaken, or the spectator's desire to see Y take the place of B
may be so overpowering that to his mind such a substitution has taken place. It is in this latter class of cases
that the maxim expressio unius is broken by the judge who conceives the announcer to have been mistaken,
or whose eagerness runs away with his powers of understanding.
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