Francis Lieber (1839) on Interpretation

An interesting and influential passage, most recently quoted by Judge Posner in United States v. Phillips (7th Cir. Sept. 4, 2013), but long discussed in the legal interpretation literature (some paragraph breaks added):

Let us take an instance of the simplest kind, to show in what degree we are continually obliged to resort to interpretation. By and by we shall find that the same rules which common sense teaches everyone to use, in order to understand his neighbor in the most trivial intercourse, are necessary likewise, although not sufficient, for the interpretation of documents or texts of the highest importance, constitutions as well as treaties between the greatest nations.

Suppose a housekeeper says to a domestic: “fetch some soupmeat,” accompanying the act with giving some money to the latter; he will be unable to execute the order without interpretation, however easy and, consequently, rapid the performance of the process may be. Common sense and good faith tell the domestic, that the housekeeper’s meaning was this: 1. He should go immediately, or as soon as his other occupations are finished; or, if he be directed to do so in the evening, that he should go the next day at the usual hour; 2. that the money handed him by the housekeeper is intended to pay for the meat thus ordered, and not as a present to him; 3. that he should buy such meat and of such parts of the animal, as, to his knowledge, has commonly been used in the house he stays at, for making soups; 4. that he buy the best meat he can obtain, for a fair price; 5. that he go to that butcher who usually provides the family, with whom the domestic resides, with meat, or to some convenient stall, and not to any unnecessarily distant place; 6. that he return the rest of the money; 7. that he bring home the meat in good faith, neither adding anything disagreeable nor injurious; 8. that he fetch the meat for the use of the family and not for himself.

Suppose, on the other hand, the housekeeper, afraid of being misunderstood, had mentioned these eight specifications, she would not have obtained her object, if it were to exclude all possibility of misunderstanding. For, the various specifications would have required new ones. Where would be the end? We are constrained then, always, to leave a considerable part of our meaning to be found out by interpretation, which, in many cases must necessarily cause greater or less obscurity with regard to the exact meaning which our words were intended to convey….

The British spirit of civil liberty induced the English judges to adhere strictly to the law, to its exact expressions. This again induces the lawmakers to be, in their phraseology, as explicit and minute as possible, which causes such a tautology and endless repetition in the statutes of that country that even so eminent a statesman as Sir Robert Peel declared, in Parliament, that he “contemplates no task with so much distaste as the reading through an ordinary act of parliament.”

Men have at length found out that little or nothing is gained by attempting to speak with absolute clearness and endless specifications, but that human speech is the clearer, the less we endeavor to supply by words and specifications that interpretation which common sense must give to human words. However minutely we may define, somewhere we needs must trust at last to common sense and good faith…. The more we strive in a document to go beyond plain clearness and perspicuity, the more we do increase, in fact, the chances of sinister interpretation.

Naturally, this is hardly dispositive of various debates, such as about textualism vs. purposivism (textualists are generally open to reading the text in light of certain kinds of context), nor does it tell us how much detail we should include in any particular contract or statute. But it does point out, I think, some realities about how human communication works that we need to consider in making decisions about interpretation and about drafting.