This blog post examines how the limitations of legal wording and the scope of judicial discretion collide and harmonize, presenting a perspective that offers a balanced understanding of the tension between democratic legitimacy and purpose rationality.
A long-standing debate exists over whether legal interpretation must be strictly bound by the text. Some affirm such binding, arguing that lawmaking and interpretation must be clearly distinguished. Others contend that, given the inherent incompleteness of lawmaking itself, interpretation that transcends the text may be preferable in certain cases.
Traditional legal methodology has discussed this issue in connection with whether to recognize interpretations that go beyond the literal text of the law or even contradict it, beyond interpretations confined within the limits of the legal text. Depending on the doctrine, these are respectively termed intralegal law formation and extralegal law formation. The former is understood as attempts to supplement defects within the original scope of a specific law, while the latter is seen as performed from the perspective of the entire legal order and its guiding principles. However, this explanation is not entirely satisfactory. While addressing legal defects not formally apparent may seem like filling gaps, it ultimately amounts to little more than overturning the conclusion presented by the law from the standpoint of the entire legal order.
Meanwhile, traditional legal-philosophical discussions have tended to focus prominently on the inherent indeterminacy of the language forming the text. Words generally possess both a core of definite meaning and a periphery of indeterminate meaning. Thus, the prevailing view holds that while matters falling within the core must be strictly bound by the text, matters in the periphery inevitably require the discretion of the interpreter. For example, consider a rule prohibiting the keeping of wild animals in residential areas. While a lion from the savanna unquestionably qualifies as a wild animal, determining whether feral dogs, stray cats, or animals created in a laboratory by combining genes from various wild species fall under this prohibition is not straightforward. Consequently, the interpreter’s discretion is ultimately required.
However, counterarguments have been raised against this view, asserting that even peripheral cases should not be left solely to the interpreter’s discretion but must be constrained by the rule’s purpose. Furthermore, the point that even in central cases, the literal wording cannot fully bind the interpreter without reference to the rule’s purpose is also gaining persuasive force. Even if one affirms that a rare frog discovered nearby could be placed in a residential facility with an environment most similar to its discovery site for research and protection, one cannot deny that the frog itself semantically qualifies as a wild animal.
Recently, attempts have emerged to overcome the difficulties raised by both sides by presenting existing legal methodological discussions and legal philosophical discussions as a single interconnected framework. According to this approach, beyond standard cases where the text provides a reasonable answer, there may exist cases where the text offers no answer at all, or where the answer provided by the text is inappropriate. These precisely correspond to the situations where interpretations beyond the text and interpretations contrary to the text are attempted, respectively. Both types of cases share the commonality of being difficult to adjudicate. However, they must be distinguished: the former is difficult to adjudicate due to the linguistic indeterminacy of the text, while the latter is difficult because, despite the text possessing linguistic determinacy, the answer it provides is difficult to accept as correct.
Does this mean that in difficult cases, the text itself no longer needs to be considered? Not necessarily. Even when the text fails to provide an answer and requires supplementation through interpretation, the language of the rule itself can guide the interpreter in discerning its purpose. Furthermore, even when the answer provided by the text seems inappropriate or foolish, it cannot be denied that such an evaluation remains confined within the interpreter’s subjective perspective. The stance demanding adherence to the text even when an obviously inappropriate result is foreseeable may appear unreasonable at first glance. Nevertheless, it is necessary to understand that the emphasis on the text is grounded in concerns about the potential for arbitrary rule by those exercising discretion and in reflections on the essence of democracy.
Laws are the outcome of arduous compromises reached by citizens’ representatives. Strictly speaking, only the literal text of the law is democratically determined; beyond that—even legislative intent or the purpose of the law—it is difficult to view as possessing equal authority to the text. From this perspective, the more significant question may be whether to grant specific interpreters the authority to judge the inappropriateness of a legal application’s outcome, rather than whether the outcome itself is inappropriate. In short, for those who view granting such authority to interpreters as undesirable, it may be more rational to insist on being bound by the text, even when an inappropriate outcome is anticipated. Considering these points, the debate over the limits of literal interpretation and the scope of discretion remains ongoing. How to reconcile the tensions between democratic legitimacy, legal stability, and the value of purpose rationality remains a crucial task for the future.
