From the letter to the spirit of the law: a thorny road to nowhere
The Supreme Court judge Vasul Krat and Head of the Department of Analytical and Legal Work of the Supreme Court Rasim Babanly wrote the article “Principles of law in the practice of the Supreme Court: a thorny path from the letter to the spirit.” I imagined what could be at the end of that thorny path, and I don’t want to go there at all.
What are they offering us
Dear authors, it seems that for the first time in Ukraine, wrote a kind of manifesto of judicial activism and what in the civilized world is called legislating from the bench.
They openly call not to be ashamed and not to hide behind the “separation of powers”, but to recognize that the courts, like the parliament, “must be subjects that create and implement the rules of the game, which will correspond to the principle of the rule of law” (hereinafter author’s italics).
The authors explain the obvious argument that the judge’s role is only to apply the law as “because of Montesquieu”. And his principle of distribution of power” (probably the
The obvious argument that the judge’s role is only to apply the law, the authors call the “because Montesquieu” argument. And his “principle of the distribution of power” (probably the principle of the separation of powers is meant), with reference to “many scientists”, is called “as denying the very essence of the judge as a subject of law creation”.
The article can be divided into two parts: in the first, arguments are given in favor of the fact that the judge should create the law. In the second — examples from the Supreme Court practice, where the principles of law are applied
The article itself can be divided into two parts: in the first, arguments are given in favor of the fact that the judge should create the law. In the second — the authors demonstrated examples from the practice of the Supreme Court, where the principles of law are applied.
However, the given examples refer to one thing, while the appeals raise another. In my opinion, the article contains examples of the application of the fair-reading method, but at the same time carries a false general message.
The spirit of the law comes from the letter and not prevails it
The method of fair reading of normative texts is a concept that can be clearly explained. It completely contradicts the worldview where the activist judge is a rule-m
The method of fair reading of legal texts is a concept that can be clearly explained. It completely contradicts the worldview where the activist judge is a rule-maker and exclusive “feeler” of the spirit of the law.
On the other hand, such categories as “spirit of the law”, “rule of law”, “judicial activism”, “necessity in a democratic society” cannot be clearly explained. To a large extent, they boil down to the belief that judges have some special skills that allow them to “feel” these matters.
In the book Reading law, US Supreme Court Justice Antonin Scalia notes that the very question of the primacy of the spirit over the letter gives reason to doubt its validity. No one has ever formulated a preci list of principles that would determine when the spirit should prevail over the letter. Putting aside the fancy wording of justice and higher values, in practice the concept is an unspoken assertion that courts have an undefined, and therefore unlimited power to ignore what is written in the law.
Scalia also noted:
Since the mid-20th century, legal theorists have been prodding judges to make policy from the bench. […]
The problem is that although properly informed human minds may agree on what a text means, human hearts often disagree on what is right. That is why we vote (directly or through our representatives) on what the law ought to be, but leave it to experts of interpretation called judges to decide what an enacted law means.
The most famous Сhief Justice of the United States, John Marshall, often referred to the spirit of the United States constitution. But even he admitted that “although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words” (Sturges v. Crowninshield).
American lawyer Frederick J. de Slover argued that talking about the spirit of the law is even more dangerous than literalism:
The requirements of good faith and common sense . . . do not justify the interpreter . . . to seek the spirit or equitable meaning of the statute in disregard of its textual implications. These doctrines lead more often than the doctrine of literalness to spurious interpretation and to completely unforeseeable and unreasonable results
Frederick J. de Sloovère, Textual Interpretation of Statutes (1934).
The same Montesquieu, whom I would not scornfully dismiss, in his The Spirit of Laws insisted that it is the legislator, and not the court, who implements the will of the people:
The nearer a government approaches towards a republic, the more the manner of judging becomes settled and fixed […] In despotic governments . . . the judge himself is his own rule . . . . In republics, the very nature of the constitution requires the judges to follow the letter of the law […] It is an essential article that the words of the laws should excite in everybody the same ideas […] The very nature of the constitution requires the judges to follow the letter of the law. […]
It should be recognized that the judiciary is not the ministry of correcting the mistakes of the legislator. Then why should the parliament adopt quality laws, if there are judges who know better what is right? And why scrupulously select regulatory wording, if the purpose of the law can be understood from the explanatory note to the draft law?
The British judge Coleridge wrote that the application of “bad” laws is a better incentive to correct them:
Perhaps the most efficacious mode of procuring good laws, certainly the only one allowable to a Court of Justice, is to act fully up to the spirit and language of bad ones, and to let their inconvenience be fully felt by giving them full effect.
Pocock v. Pickering, 1852 (per Coleridge, J.)
Therefore, the exaltation of the “spirit of the law” looks like an attempt to normalize the attitude according to which there are “bad” laws that can be “looked broadly”. That is, to ignore. It is clear that we are talking about an actual revision of what was implemented by the parliament. At the same time, according to this logic, the will of the parliament should be annulled by lawyers who were not elected by anyone — judges.
It is difficult to agree with this perception of the role of the judge.
What is judicial activism?
The very idea is based on the fact that in some cases, when a legal problem cannot be solved in one action, the judge and his own convictions about what is right and what is wrong come to the fore.
In such cases, two techniques are usually used, well known in international law:
- Trying to understand what purpose the legislator pursued when passing a law that is difficult to “decipher” is called purposivism or, if you prefer, metavism.
- Making a decision through the prism of the consequences that it will entail for the plaintiff/defendant, future plaintiffs/defendants, the “average Ukrainian”, etc. is consequentialism.
Both of these approaches are contrary to the fair-reading method.
As far as I understand, one of the authors of the article, Judge Krat, is also a supporter of this method, as follows from the decision of the Supreme Court adopted under his chairmanship. Therefore, there is a certain misunderstanding as to how the application of the fair-reading method is reconciled with judicial activism and appeal to the spirit of the law.
The fair-reading method is to take a finite number of steps to understand a legal text. An activist judge, on the other hand, will not stop looking for justification until he reaches a result he considers correct.
The fundamental difference between these approaches is that the activist judge must like his own decision. Or it is important for him that society, the legal community, Facebook, etc. like it.
A judge, who is not an activist, does not necessarily have to like his own decision, because he understands that he was taught only the law and his job is to apply it conscientiously and professionally. A list of what is “necessary in a democratic society” is not presented at the legal department.
To say “rule of law” ≠ to argue
At the beginning of the article, V. Krat and R. Babanly somewhat marginalize the very question “Show me where it is written?”, as some kind of outdated positivist whining. They claim that it is capable of “killing” the right or significantly harming it.
However this question is absolutely fair and natural for lawyers. Text analysis is the first thing any colleague should do when solving any legal issue.
But the very phrase can really “kill” law is that something “contradicts the rule of law.”
I would like to emphasize that this is not about the rule of law as such. Instead, I mean using just one of those phrases as an independent argument in legal reasoning.
— Why is this direct norm not applicable?
— Because it does not correspond to the principle of the rule of law.
The rule of law (rule of law) is the general gold standard for building relations in society, and not their direct regulator. If you read the complex study of the Venice Commission on this topic, “The Rule of Law”, you can see that it contains very general and obvious standards that have long been enshrined in the laws of our country
When it comes to the rule of law as an independent argument, legal reasoning is usually replaced by a lofty and somewhat vague phrase that should disarm positivists and impress the general public.
The same Justice Scalia, in a dissenting opinion in Obergefell v. Hodges criticized a similar level of argument:
The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Judicial activism and the spirit of the law are not the application of well-known legal principles and customs, examples of which are given in the article by V. Krat and R. Babanly. And this is when, instead of deep immersion in the normative text, we are offered conversations about life-being, which multiply the direct norms of the law by zero.
There are no “positivists”
In the article, we can again sense the division of lawyers into positivists and “naturalists”.
Indeed, it is tempting to name those who ask “where is it written?” literalists, positivists, formalists and purists. This is a rather impressive juxtaposition, which creates a picture of a kind of wooden opponent who only knows how to ask “where is it written?” and is not interested in anything else.
The very words “positivism” and “positivist” are quite convenient to use, since they have long had a negative connotation. But “positivism” is not a method. For some reason, the words “textualism” and “originalism” are not used in our country, although they are accurate.
Textualism is not a toggle switch with two positions “on-off” that switches mechanically depending on the arrangement of letters and commas in the law. This is a complex, but understandable mechanism, which equally does not accept both judicial activism and literalism. He also takes into account the context and principles, but he takes all this from the texts of the laws, not from the ceiling.
Applying the principles of law is not judicial activism
The article of V. Krat and R. Babanly is amply supported by the practice of the Supreme Court, in which the principles of civil law are applied.
But the application of the principles (customs, canons) of law is just a component of the toolkit of the fair reading method, and not an example of judicial activism or the application of the spirit of the law.
It is also indicative that all the examples given by the authors are of private law. In this area, it is easiest to give examples of when something is not directly regulated by law and only principles can save. However, this does not require any feats and vague appeals to the rule of law. In civil law, such situations are directly regulated.
After all, as you know, civil relations can be regulated by customs (rules of conduct that are not established by acts of civil legislation, but are established in a certain sphere of civil relations). In addition, the law explicitly states that if it is impossible to use the analogy of the law to regulate civil relations, they are regulated in accordance with the general principles of civil legislation (reasonableness, justice, etc.).
All this is directly written in the Civil Code. And therefore, the application of principles (customs, doctrine) and principles of reasonableness and justice in civil law is an example of applying the letter of the law, not its spirit.
However, it is rather difficult to extend all these examples to public law relations, especially in disputes with the state. The principles that are an integral attribute of private law are hardly applicable in public law.
According to my own observations, it is precisely in disputes with the state that creativity, spirit and activism are most active in our country. Especially when you need to justify why the case is not subject to consideration in court. Unfortunately, it is precisely such cases that are a manifestation of judicial activism, and not those that are discussed in the article.
Let’s consider just one relevant example and see that it does not look elegant and does not promote judicial activism/spirit of the law at all.
Example of true judicial activism
I will tell about the well-known established practice of the Supreme Court.
“Disputes that are not subject to consideration in courts”.
This construction appeared precisely as a result of neglecting the method of fair reading, and it is easy to recognize the contours of consequentialism in it.
The bottom line is that the Supreme Court recognizes that there is a certain, not clearly defined by it, category of disputes that are not subject to consideration in any courts. In general. This practice, unfortunately, is established in all processes, except, of course, criminal.
The fallacy of this approach is that the law simply excludes the possibility of the existence of such a category of disputes, which would not be subject to the jurisdiction of the courts. The Constitution expressly states that the jurisdiction of the court extends to any legal dispute. But courts, as a rule, avoid directly stating that a specific dispute is not legal and precisely because of this does not fall under the above rules
Also, the Commercial Procedure Code, the Code of Administrative Procedure and the Civil Procedure Code have direct rules that exclude the existence of disputes that “cannot be considered in the order of any judicial proceeding”, as they establish the absolute duty of the court of any instance to decide on the appropriate court, in case of closing the proceedings on that basis , that it is not subject to consideration in the order of the relevant court proceedings.
However, the courts, represented by the Supreme Court, actually dismissed themselves from the direct obligation established by law and directly refuse to clarify anything.
Here is an example of the justification for such dismissal:
The right of access to a court is not absolute. It may be subject to limitations permitted by the content, in particular, regarding the conditions under which the court is authorized to consider the claim. Such restrictions cannot harm the very essence of the right of access to the court, must pursue a legitimate goal, and also must be justified proportionality between the means used and the goal.
This is the real manifestation of activism: with the help of an aphoristic and somewhat vague phrase, to locally cancel the direct norms of the law for the sake of what the court considers correct.
The spirit of law is indeterminacy
The solution to any legal issues should be a kind of selection of a cipher for a safe. Generally recognized principles are part of the methodology of such selection. But talk about the “predominance of the spirit over the letter” is not a professional selection of a cipher, but throwing a safe from a balcony or opening it with a crowbar.
Judges who apply the law by fair reading of the text of statutes are by definition more predictable. After all, it is clear how to convince them. Instead, the activist judge is a dark room: who knows what he will consider “correct” today.
That is why direct appeals to judges “not to be ashamed” to engage in law-making seem harmful and even dangerous.
Those who from time to time on Facebook applaud another creative decision of a “good” judge who disregarded the law in the interests of a pensioner/military/Chernobyl liquidators should understand that it works both ways. The first time a judge allows himself to disregard the law for a good purpose, he crosses the line and then we begin to depend on what he next deems worth turning a blind eye to the law.
Established principles and customs are a construction tested by the experience of mankind, which does not need to be invented: take it and apply it.
Instead, the “prevailance of the spirit of the law” is not a principle. This is a poetic excuse for ignoring the text of the law, when you have to invent something to achieve a result that personally seems more correct to the judge.
“The spirit of the law” cannot be applied systematically, it cannot be taught.
One can only believe in it as a concept designed to relieve the professional conscience in the right situation and to add healthy legal meticulousness.
(The author published the original article on his website, and we reposted and translated it with the permission of the author)
✍️Stanislav Kuniansky
