Authors: Proteek Debnath & Shivam Hargunani ((Students of Law, NLU, Odisha)).
There have been several attempts in history to end the use of Intentionalism approach to interpret texts but the concept has still refused to be buried. Today the theory of intentionalism is largely accepted by the legal society. This paper intends to analyze the doctrine of Intentionalism in Indian judicial context and its scope of applicability and provide a desired harmonious approach towards interpretation based on doctrine of Originalism.
The problem arises when the interpreter of the legal text tries to look into the intention of legislators. The authors in the first place have tried to look into the various types of authorities namely, Inspirational, Influential, Practical and Theoretical, and what part does Intentionalism play to determine the legal interpretation of the text, to display that Intentionalism is necessarily implicit, in one form or another, by all of the standard theories of legal authority. Also, the paper will proceed by answering what are linguistic motivations and semantic intentions of the authority and the importance of the same to interpret a legal text.
In the next part of the article the authors will discuss the doctrine of Intentionalism at length to understand the scope of its applicability. The doctrine of Intentionalism in modern world is accepted at a very large scale by the legal society, especially among judges. This hypothesis is still used to interpret a law so as to adjudicate by delivering a better judgment. The authorities who try to interpret the law frequently attempt to find the original intent of the legislators; this in-turn justifies the doctrine of Intentionalism because it is then considered to be legitimate basis for true and fair adjudication.
Intentionalism is unavoidably implicit if an authority tries to legally interpret some text. It is a legal doctrine and is restricted in scope of applicability because such analysis can be done only by reference to the original aim of the legislators.
The Indian judiciary do not exercise strict Intentionalism but follow the theory of Intentionalism, but additionally equal importance has been given to the text of the statute along with intention of the legislators. It is a mixture of Intentionalism and Textualism, which helps the judges to adjudicate a specific situation more aptly. The paper will then analyse the doctrine of Intentionalism in Indian judicial context and its scope of applicability and conclude by providing a harmonious way of interpretation with the help of other prevailing doctrines of law.
Traditional theories of Legal Interpreting Authorities
The authors in this chapter have tried to understand the traditional theories of legal interpreting authorities and what part does intentionalism play in shaping the legal interpretation of the text. Intentionalism is the doctrine that the actual intentions of artists are relevant to the interpretation of the artworks they create – just as actual intentions are relevant to the interpretation of the everyday words and deeds of other people ((Noël Carroll, Interpretation and Intention: The Debate between Hypothetical and Actual Intentionalism, 31 Metaphilosophy 75 (2000).)). The authors have tried to demonstrate that intentionalism is necessarily implied if an authority tries to legally interpret some text. There are four types of standard legal authorities: Inspirational, Influential, Practical and theoretical; so the authors have basically tried to display in this chapter that intentionalism is necessarily implied, in one form or another, by all of the standard theories of legal authority ((Heidi M. Hurd, Interpreting Authorities, in Andrei Marmor, Law and interpretation: Essays in Legal Philosophy, (1st ed. 1995).)).
Inspirational Authority ((‘The Term inspirational authority was coined by Joseph Raz for those people who are our friends, family, mentors etc. and exercise control over us.’, in Joseph Raz, The Morality of Freedom, 32 (1st ed. 1986).))over someone is stated to happen when a person exercises authority over another by asking the other person to do something and the other person has reasons to do it because his friend values doing it for the same reasons ((Joseph Raz, Between authority and Interpretation: On the theory of law and Practical Reason, (1st ed. 2009).)). If A asks B to do something and B does it not because A has asked to do so and values doing the same but because B has his own reasons then A does not have inspirational authority over B or, in other words, B has failed to act on A’s inspirational authority. This type of authority is also attributed as authority attributed to God. In that case, a follower of a certain God could be said to be acting on his God’s inspirational authority if he follows all the teachings of his God for the same reasons as valued by God otherwise not.
The main crux of reasons due to which B’s actions will depend of the directives of A is given by the intentions of A and if the reasons for the directives of A to B are unclear ((Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal. L. Rev. 50 (1994).))in nature due to which B fails to follow them in the exact manner and for the same intentions then B will be said to be in violation of A’s inspirational authority. Here, plea of defence against the concerned violation cannot be said to be the assertive nature of authority’s words ((P. St. J Langan, Maxwell on The Interpretation of Statutes, (12th ed. 2008).)).
To act under the inspirational authority one must act for only those reasons with which the authority desires one to act ((M. N Rao & Amita Dhanda, N.S Bindra’s Interpretation of Statutes, (10th ed. 2007).)). When legislature makes the law and the citizens follow the law for the same reasons that motivated the lawmaker to make the law ((Id.)), the citizens are said to be under inspirational ((Andrei Marmor, Theories of Statutory Interpretation: The Immorality of Textualism, 38 Loy. L.A. L. Rev. 2063 (2005).))authority of the law. Therefore, to associate inspirational authority with the law would bind the interpreter to the Intentionalist theory ((Cheryl Boudreau, Mathew D. McCubbins & Daniel B. Rodriguez, TheoriesOf Statutory Interpretation: Statutory Interpretation and the Intentional(ist)Stance, 38 Loy. L.A. L. Rev. 2131 (2005).))of legal interpretation as here the person would do what the law asks him to do for the reasons that motivated the lawmaker to bring the law into existence ((Peter C. Schanck, An Essay on the Role of Legislative Histories in Statutory Interpretation, 80 Law. Libr. J. 391 (1988).)).
The second type of authority is Influential authority. This type of authority does not issue directives due to which one has to act as per the authority’s motivations rather in this case, the person is said to be under the influential authority if he weighs his own reasons and authority’s reasons, and decides to do the act for he has a new reason to do so. The person in this case can bring in his rationale to decide whether or not he should do the act as said by the authority. This theory of legal authority depends on the acknowledgment that requests are instruments of morality ((A. Raymond Randolph, Dictionaries, Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 71 (1994).)).
Such kind of authority serves the purpose of charity in the society. A person in need of money may or may not like you to support him financially so by requesting that person can signal you to act on whatever reason you may feel fit to act to help him. Every request does not give you a new reason to act. The request should come from morally significant person ((Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 Geo. L. J. 281 (1989).))for it to be influential authority providing a new reason.
In order to accord influential authority to legislation, one must consider that the will of majority is morally considerable in order to protect the attribution of influential authority to a democratic legislature ((Heidi M. Hurd, Challenging Authority, 100 YALE L. J. 1611 (1991).)). When an influential authority asks a person to do something, the person need not look into the linguistic motivations ((Hurd, Supra note 2.))of the authority because now it does not matter why the authority wants the work to be done and what purpose does it seek to achieve.
To be under the inspirational authority it is necessary to do what the authority semantically intend for the reasons that linguistically motivated the authority. In case of influential authority since there is a stipulation of moral significance, a search for linguistic motivations of authority is not necessary ((G.P Singh, Principles of Statutory Interpretation, (12th ed. 2010).)).
Thus, to associate influential authority with law would bind the interpreter to consider authority’s semantic intentions ((Hurd, Supra note 2.))although the interpreter can forget about the linguistic motivations with which the law was enacted. The moral significance of the authority’s request is left only if semantic intentions are deciphered.
So, the people who associate influential authority with law would bind the interpreter to be intentionalists although very less of intentionalism prevails here as compared to inspirational authority attribution ((Marmor, Supra note 9.)).
Another form of standard legal authority is Practical Authority. Such kind of authority supersedes all the reasons of acting differently. If A has Practical Authority over B then B has sufficient reason to act in accordance with what A says. Also, B has sufficient reason to not be affected by any other reasoning to act differently. B will be left with one and only action which is to obey what A says; if not then A does not have practical authority over B. The reason for B’s actions will not depend on linguistic motivations of the A’s commands. Possible examples of such a setup could be parent-child relationship, a religious person’s blind faith in God etc ((Larry Alexander, The Gap, 14 Harv. J. L. & Pub. Poly 695 (1991).)).
The significant difference Practical authority and other two authorities is that one’s practical authority over other cannot be justified by moral significance of the authority over the person ((G. P. Singh, Supra note 16.)), unlike other two.
Joseph Raz has defended the association of practical authority to law as he says that if people have practical authority over other and they issue directives make the person (taking orders) to do the right thing more often than him acting on his own accord then the most sensible thing to do would be to substitute those directives in place of one’s own reasons ((Joseph Raz, The Morality of Freedom, 53 (1st ed. 1988).)). Moreover, this way the person acting as per the directives of the practical authority would be act more morally than before as he would just be doing what he is told to do ((Kim Lewison, The Interpretation of Contracts, (4th ed. 2004).)). Also, Andrei Marmor said that if a person’s considers another as a practical authority over him in belief that the authority knows better on the issue at hand, then it would practically be more rational to take authority’s semantic intentions into account when its’ commands require interpretation ((Marmor, Interpretation and Legal Theory, 178 (2nd ed. 2005).)).
This is how Marmor explained intentionalist approach to Practical authority’s actions. As per him arguments, the legislature being better observer of societal needs and situation would exercise informed choice and is likely to issue better directives and individual citizen’s rationale. In situations where the authority’s commands are unclear and confusing ((Peter M. Tiersma, The Ambiguity of Interpretation: Distinguishing Interpretation from Construction, 73 Wash. U. L. Rev. 1095 (1995).)), authority’s intentions and motivations which directed it to issue such directives shall be resorted to.
It is only when the directives of the authority’s commands are unclear and confusing ((Id.))the question of intentionalist ((Boudreau, Supra note 10.))interpretation pops up, because here, the linguistic intentions of authority are truly represented in directives issued by the authority ((William N. Eskridge, Legislation and Statutory Interpretation, (2nd ed., 2006).)). Practical authority prevents a person from taking into account the reasons which account the morality of its actions therefore, there is a paradox generated here.
Intentionalist ((Boudreau, Supra note 10))theory of interpretation shall be employed in situations where practical authority’s command lack a clear cut meaning ((Jeremy Waldron, Vagueness in Law and Language: Some Philosophical Issues, 82 Cal.L.Rev.50 (1983).)), to understand the semantic intentions and linguistic motivations behind the issuing of such commands by the practical authority.
The next legal authority is Theoretical Authority. Law gives a person grounds to believe that the actions of an authority are backed by reasons but actually those reasons are told to us by morality and not the law ((M. N Rao, Supra note 7.)). A theoretical authority can tell you about the existence of a fact. The theoretical authority is casually related to the primary evidence of existence of the fact. Primarily the evidence is what concerns us. It is just the accurate utterance of that evidence by the theoretical authority makes it authoritative over the person to whom the command is issued ((Harold P. Southerland, Theory and Reality in Statutory Interpretation, 15 St.Thomas L. Rev. 1 (2002).)). For example, when a doctor records the number of your heart beats per minute using his stethoscope, the number so recorded is the evidence and the accurate utterance of that evidence makes the doctor a theoretical authority over the patient. Thus, the words of a theoretical authority are actually observations in which the actual theoretical authority lies.
The linguistic motivations and semantic intentions of the theoretical authority serve as the best evidences to the beliefs of the authority ((G. P. Singh, Supra note 16.))and therefore we should seek them and understand them.
‘Doctrine of Intentionalism’: An Analysis
Intentionalism and scope of its applicability
Intentionalism is a concept arising out of authoritative jurisprudential perspective on the nature and sources of law ((John J Gibbons, Intentionalism, History, and Legitimacy, 140 U. Pa. L. Rev. 613 (1991).)). The theory of intentionalism is a touchstone to judge a particular law, a law should be an expressed will of some authoritative sovereign or else it cannot come under the scope of law’s definition ((Id.)). Thus while interpreting a particular law one should look into the ‘expressed will’ or the intention of the authoritative sovereign, i.e. the legislators. The concept of intentionalism is a subset of jurisprudence of originalism, ((“Originalism is given impetus by the healthy desire to restrain judges from freely reading modern value preferences into the law through judicial interpretation…Originalism is also inspired by a belief that fidelity to the original understanding of the law is one of our most powerful protections from abuses of government.”, Gregory Leyh, Toward a Constitutional Hermeneutics, 32 Am. J. Pol. Sc. 369 (1988).))which seeks the original meaning of a particular law as the basis of present-day adjudication ((Powell H. Jefferson, The Original Understanding of Original Intent, 98 Harv. L. Rev. 885 (1985).)).
The theory of intentionalism is largely accepted by the legal society, particularly among judges, although it has criticized by many eminent legal scholars ((Id.)). Despite of many criticisms the theory is still used to interpret a law for the purposes of adjudication as the authorities always searches for legislative intention to deliver better judgments. The theory of intentionalism is followed because of its advantages; i.e. firstly, it answers the essential question about the content of law and helps the interpreter to identify the general meaning of the law and what the law meant to be ((Mark Alfano, Hypothetical Intentionalism in statutory interpretation, 6 US-China L. Rev. 54 (2009).)); secondly, it solves problems of under determination and forces the interpreter to look beyond the legal text to the context of the law and intention of the lawmaker ((Id.)).
The problem arises when the interpreter looks into the intention of legislators; there are a number of questions which goes unanswered. Firstly, if there were a group of legislators whose intention should be relied on, intention of the majority or the intention of the dissenting group ((Hurd, Supra note 2.)). However this question was answered by eminent legal jurist Joseph Raz that the legislative intent of a particular statute should be construed from the intention shared by majority of the legislators at the time of enactment ((Joseph Raz, Authority, Law and Morality, 68 Monist 295 (1985).)). Although Joseph Raz while forwarding the solution presumed that there would be a majority but what if there is no majority among the legislator as such, the question goes unanswered. Secondly, in case of overlapping intentions which intention should be considered as the governing intention? ((Hurd, Supra note 2.))Thirdly, what will happen when the motivation of the legislators while passing a law was same but they all diverge from one another in their semantic intention or when the semantic intention was same but they all want to explore different aspects while passing the final legislation? ((Hurd, Supra note 2.))As legal scholars could not be able to answer these questions in a satisfying manner the problem with interpreting the legislative intent continues. Thus intentionalism alone should not be considered by the authorities for the purpose of proper adjudication.
Intentionalism as a legal doctrine has a very limited scope of application for the obvious reason that interpretation can be done only by reference to the actual intention of the legislators, some interpreters adhere to counterfactual intention test in order to justify their reliance on a particular kind of intention ((Natalie Stoljar, Countrfactuals in Interpretation: The Case against Intentionalism, 20 Adel. L. Rev. 29 (1998).)). However the counterfactual statements have a tinge of vagueness that cannot be ruled out as it can be both true and false ((David Lewis, Counterfactuals, (2nd Ed. 2001).)). Counterfactuals requires to look into legislator’s mental state at the time of drafting or to transport the historic authors into a present situation and see how they would have applied the law in a particular situation, both of which are logically not possible ((Id.)).
The authorities who try to interpret the law often attempt to find the original intent of the legislators and try to justify the doctrine of intentionalism, as they regard this approach as a legitimate basis for proper adjudication ((Robert H. Bork, Original Intent, 26 Judges J. 13 (1987).)). However this attempt to justify intentionalism has to be disregarded as it is not possible for an interpreter to find out the original intent and adjudicate on the basis on such findings. Original intent has to found from the historical records and the interpreter will apply his subjective understanding to such historical record ((Samantha Miller, Interpreting Intent: An analysis of the Doctrine of Originalism, 5 Dartmouth L. J. 226 (2007).)). Thus the original intention of the legislators which is used by the interpreter will be nothing but the interpreter’s subjective understanding. Additionally, the interpreter disregards the fact that it is not possible to know what the legislators would have done to apply the law in a specific modern situation ((Robert Bork, The Constitution, Original Intent and Economic Rights, 23 San Diego L. Rev. 823 (1986).)). If also the interpreter found the original intent, it is not necessary that the same intent behind the law will be apt for the society in the present time. ((Matyas Bodig, Legal Interpretation, Intentionalism, and the Authority of Law, 48 Acta Juridica Hungarica 125 (2007).))Thus interpreting a law on the basis of original intention is not a proper way of interpretation because of its subjective nature.
Intentionalism and Indian Judiciary
The Indian judiciary is also governed by the doctrine of intentionalism as the judges before applying a particular law in a situation always cross-references to the legislative intent behind such law. The Supreme Court of India in the case of ‘Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers’ ((Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj Developers, (2003) 6 SCC 659))while referring to statutory interpretation has observed that,
“It is a well-settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the legislature enacting it. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided ((Id.)).”
In another judgment also the Supreme Court has expressed the same viewpoint regarding supremacy of legislator’s intention. In the case of ‘Padma Sundara Rao v. State of Tamilnadu’ ((Padma Sundara Rao v. State of Tamilnadu, (2002) 3 SCC 533.))the court observed that,
“The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself ((Id.)).”
Both of the above observations made by the Supreme Court can be evidence for the Indian judiciary’s view towards interpretation of a statue, which is mostly derive from the intention of the legislators. Thus the interpretation made by the court in certain instances is not free from the criticism. However the law commission in its 183rd report has made clear that all laws should not be interpreted in the lights of intentionalism, only ambiguous laws should be interpreted in that way. Although the report has made the fact clear that the interpreter should look into the literal meaning of the law as it is along with finding out the object and purpose of the law, i.e. legislative intent ((“The intention of legislature assimilates two aspects; one aspect carries the concept of ‘meaning’, i.e., what the word means and another aspect conveys the concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute. The process of construction, therefore, combines both the literal and purposive approaches. However, necessity of interpretation would arise only where the language of a statutory provision is ambiguous, not clear or where two views are possible or where the provision gives a different meaning defeating the object of the statute. If the language is clear and unambiguous, no need of interpretation would arise.”, Law Commission of India, 183rd Report on A Continuum on the General Clauses Act, 1897 with special reference to the Admissibility and Codification of External Aids to Interpretation of Statutes (Aug. 19,2013), http://lawcommissionofindia.nic.in/reports/183rpt.pdf.)). The Supreme Court has affirmed the view of ‘Law Commission of India’ and stated, “If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of the words used in the provision.” ((R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684))In a recent case also the court has followed the same principle and observed, “Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for Court to take upon itself the task of amending or altering the statutory provisions ((Grasim Industries Ltd. v. Collector of Customs, Bombay, (2002) 4 SCC 297)).”
The judiciary in India does not practice strict intentionalism but they also follow the principle of intentionalism, but additionally equal importance has been given to the text of the statute along with intention of the legislators. It is a mixture of intentionalism and textualism, which helps the judges to adjudicate a specific situation more aptly.
The doctrine of intentionalism cannot be ruled out completely as a theory of interpretation but interpreters should not apply the doctrine in a blindfolded manner. It is not necessary to look into the intention of legislator every time while interpreting a law. Context of the situation should also be given importance while applying a law for derivation of the meaning of law ((Miller, Supra note 48.)). The object and the purpose of the law should not be narrowed down while applying a particular law rather it should be broadened. The interpreter must look into the purpose of the statute and any subsequent development and amendment, and then the word of the statute should be interpreted in such a manner so that the purpose of the law is satisfied ((Earl M. Maltz, Statutory Interpretation and Legislative Power: The Case for a Modified Intentionalist Approach, 63 Tul. L. Rev. 1 (1988-1989).)).
A better understanding of the proposition can be described with help of a situation. Suppose there is a law which increases the degree of penalty for drug trafficking crime if the person in question uses a firearm in the process. Mr. A went to drug peddler to buy some drug and he used an empty pistol to buy the drug from the peddler, which was a barter agreement between Mr. A and the peddler. Now, Mr. A is been punished by the court on the basis of the above mentioned law for using firearm. The purpose of the statue was to prevent drug trafficking but the ‘firearm’ clause was used by the legislators was to prevent use of ‘firearm’ as a weapon but not as an instrument of a barter agreement. The above situation it should be an example of strict following of any of the one part, i.e. the legislator’s intent or the interpretation of text of the statute can mould the purpose and object of the legislation. Thus the interpretation of a law should be based on both intention of the legislator and the word of the statute read and applied together on a particular situation for the best possible adjudication.