Judge Posner has a column in the Harvard Law Review forum on the issue of statutory interpretation. Having drafted legislation and worked around judges for quite some time, I highly recommend it.
He makes the case that the articulated canons of statutory interpretation are, by and large, pretense. They depend on legal fictions about how the law is made and how the law is applied. In reality, a judge is going to do his or her best to understand what the legislature was trying to do and apply it to real world situations in order to obtain reasonable results. Human brains don’t function by programming in a set of interpretative instructions, then plugging in particular data. The rules of judicial interpretation — pick any one of them that strikes your fancy — have so much wiggle room that the decision can come first and the interpretative justification made to follow.
[I]interpretation is a natural process; we do it any time we hear someone speak and any time we read anything. Interpretation can be difficult but it isn’t made easier by bringing a formal apparatus to bear; it is made easier by familiarity with the texts to be interpreted. And cases must be decided even if interpretation is impossible and the judges must bluff their way to a decision — which is often.
This was an insight I was somewhat slow to grasp. More than once, I convinced myself that victory was certain because my legal logic was impeccable. Here is the law, here is how you have to interpret it according to the rules. Forget about the people involved and the consequences. The law is the law. Now give me my judgment.
But judges are real people operating in the real world. And the law isn’t some game. In a game, there is no existence outside of the rules. You play according to the rules and follow the rules to the dictated outcome. If it was a fun game, you play again. If not, you go do something else. Life and the law aren’t like that, and so you’ll find that judges more often than not get blind to the literal and even the obvious when the outcome is arbitrary or appalling. And, if they have the time and inclination, they can usually justify their seeming departure from the law with some rule of statutory construction or other.
I’m not saying this to disparage judges. I think, almost to a person, they are trying to apply the law in a reasonable and fair way. But I do tend to agree with Judge Posner that justification based on technical rules of construction tend to be something of a parlor game.