Page:The Green Bag (1889–1914), Volume 25.pdf/536

This page needs to be proofread.


Genuine and Spurious Interpretation available, we are driven into a periphrase consisting of verb and object, for the notion of a meaning to be expressed is quite as essential a part of the concept of interpretation as the act of expression itself. "To interpret" is thus, so to speak, a holophrase to be defined only by defining its component elements, and a moment's reflection will show that it is the objective element of the concept, rather than the active or verb element, which chiefly needs to be defined. The definition need not go so far as to set forth fully what "meaning" signi fies. The obscurity of the signification of the word "interpret" arises from the fact that there are two kinds of "mean ing," certain and uncertain, and that the verb "interpret" contains as its implied object undifferentiated "meaning," which may be either certain or uncer tain. In its earlier use "to interpret" seems to have signified to set forth a fixed and necessary meaning, which was the only meaning to be ascribed, as in speaking, for example, of the inter pretation of language, of dreams, or of signs. The original notion, for example, was not that a dream might mean any one of several different things, but that it had only one meaning, which it was the seer's business to explain. The usage still prevails, for if the premise be granted that this or that law can have but one meaning, we may speak of the act of setting it forth as interpretation. Interpretation is then equivalent to elucidation or analysis, synonyms which are of course not available where there is no fixed meaning to be intellectively envisaged. So clear, however, is the proposition that "interpretation," in the legal sense, usually involves much more than pure intellectual analysis that it is unneces sary to develop a treatment of this sub

505

ject. If the meaning of a statute or of any document whatsoever were a matter of purely ratiocinative demonstration, leading invariably to conclusions of in vincible soundness, even if we suppose that the technical skill of the lawyer would still be in demand for the solution of the problems of interpretation, his services would be utilized rather in con sultation than in litigation over those matters which furnish so large a propor tion of contentious questions. It is because interpretation is not pure infer ence, but a choice of expedients, that the interpretative process becomes some thing more than a purely descriptive process, and engages the judges in the exercise of a function far more momen tous than that of dragging forth obscure truths Interpretation into the light thus of day. means either of— two things: the setting forth of a fixed or certain meaning, discoverable by a purely intellectual process, or of a meaning which is indeterminate or un certain. These two varieties of inter pretation may be distinguished by using the terms Analytical (or Absolute) and Selective Interpretation. Of the two kinds of interpretation, analytical and selective, the latter is by far the more important for the reason given by Professor Gray : — 3 Interpretation is generally spoken of as if its chief function was to discover what the meaning of the legislature really was. But when the legislature has had a real intention, one way or another on a point, it is not once in a hundred times that any doubt arises as to what its inten tion was. . . . The fact is that the difficulties of so-called interpretation arise when the legis lature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is not to determine what the legislature did •Quoted by Pound, "Courts and Legislation." 7 American Political Science Review, 361, 381.