"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Tuesday, November 4, 2008

Erosion of Law by Courts

Based on a true story, this piece starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen." What follows is a series of rulings by Judges - father, babysitter, grandma (a liberal jurist, of course), etc. - who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen. Ultimately, the supreme lawmaker reacts and clarifies.The piece is meant to demonstrate the following:* We all regularly use the basic tools and modes of statutory interpretation;* When we interpret pronouncements in real life, we resort to a mix of textualist, literalist, purposivist, legal process, precedent, and other techniques and sources;* Although the various tools seem perfectly reasonable individually, in the aggregate, they can lead to ridiculous results;* Even when we agree that the ultimate results are ridiculous, it is sometimes hard to pinpoint exactly where the error occurred;* The legislature can sometimes clean up after bad judicial opinions, but it often takes a long time.
[An interesting article which portrays how courts read and limit the applicability of a provision of law]

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