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On the Interpretability of Law: Lessons from the Decoding of National Constitutions

Abstract

An implicit element of many theories of constitutional enforcement is the degree to which those subject to constitutional law can agree on what its provisions mean (call this constitutional interpretability). Unfortunately, there is little evidence on baseline levels of constitutional interpretability or the variance therein. This article seeks to fill this gap in the literature, by assessing the effect of contextual, textual and interpreter characteristics on the interpretability of constitutional documents. Constitutions are found to vary in their degree of interpretability. Surprisingly, however, the most important determinants of variance are not contextual (for example, era, language or culture), but textual. This result emphasizes the important role that constitutional drafters play in the implementation of their product.

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Department of Political Science, University College London (email: j.melton@ucl.ac.uk); Department of Government, University of Texas at Austin; Law School, University of Chicago; and Institute for Computing in the Humanities, Arts, and Social Science, University of Illinois at Urbana-Champaign, respectively. The authors wish to thank Manuel Balán, Sara Birch, Abby Blass, Rui de Figueiredo, Brian Gaines, Ran Hirschl, Jeffrey Isaacs, Simon Jackman, Roger Noll, John Sides and two anonymous reviewers for helpful comments. They have appreciated financial support from the National Science Foundation (SES 0648288) and the Cline Center for Democracy. James Melton thanks the IMT Institute for Advanced Studies, Lucca, for additional financial support. Replication data are available on the Comparative Constitutions Project website: https://www.comparativeconstitutionsproject.org.

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1 Such efforts to clarify language at the end of constitutional negotiations are not unprecedented. The framers of the US Constitution created a Committee on Style to ‘revise the style of, and arrange, the articles which have been agreed to by the House’. The Committee, however, made substantive proposals, such as to include a bill of rights, and most of its suggestions were rejected.

2 Steinberg Erwin ed., Plain Language: Principles and Practice (Detroit, Mich.: Wayne State University Press, 1991)

Barnes Jeffrey, ‘The Continuing Debate About “Plain Language” Legislation: A Law Reform Conundrum’, Statute Law Review, 27 (2007), 83132

Voermans Wim, ‘Styles of Legislation and Their Effects’, Statute Law Review, 32 (2011), 3853

3 Guran Milton ed., O Processo constituinte, 1987–1988 (Brasilia: AGIL/UNB, 1988)

4 Gibbons John, ‘Language and the Law’, Annual Review of Applied Linguistics, 19 (1999), 156–73

5 Tushnet Mark, ‘Defending the Indeterminancy Thesis’, Quinnipiac Law Review, 16 (1996), 339–56

6 Sunstein Cass R., ‘Incompletely Theorized Agreement’, Harvard Law Review, 108 (1995), 1733–72

Louis M. Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (New Haven, Conn.: Yale University Press, 2001

7 One might argue that it is the interpretability of the constitutional order that really matters, not the interpretability of the constitutional text. By this logic, our whole enterprise would seem trivial. We disagree. Not only is it impractical to assess each countries’ constitutional order over time, but more importantly, the constitutional text is the foundation of the larger constitutional order. As a result, one can learn much about the constitutional order from a systematic study of constitutional texts. At the very least, whether the interpretability of the constitutional text or the constitutional order should be given priority is an empirical question that requires a firm understanding about the causes of both.

8 Felsenfeld Carl, ‘The Plain English Movement’, Canadian Business Law Journal, 408 (1981–82)

9 Fuller Lon, The Morality of Law (New Haven, Conn.: Yale University Press, 1964)

10 Voermans, ‘Styles of Legislation and Their Effects’, p. 40.

11 Fuller, The Morality of Law, p. 63.

12 Hayek Friedrich A., The Road to Serfdom (Chicago, Ill.: University of Chicago Press, 1944)

13 Hardin Russell, Grofman ‘Why a Constitution?’ in Bernard and Wittman Donald eds, The Federalist Papers and the New Institutionalism (New York: Agathon Press, 1989)

Ordeshook Peter C., ‘Constitutional Stability’, Constitutional Political Economy, 3 (1992), 137–75

Weingast Barry, ‘Democracy and the Rule of Law’, American Political Science Review, 91 (1997), 245–63

Figueiredo Rui de and Weingast Barry, ‘Self-enforcing Federalism’, Journal of Law, Economics, and Organization, 21 (2005), 103–35

Weingast Barry, ‘Designing Constitutional Stability’, in Roger Congleton and Birgitta Swedborg, eds, Democratic Constitutional Design (Cambridge, Mass.: MIT Press, 2006)

14 Schelling Thomas, The Strategy of Conflict (Cambridge, Mass.: Harvard University Press, 1980)

Przeworski Adam, Democracy and the Market: Political and Economic Reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991)

15 To be sure, though, substance matters: very clear rules that generate many losers are unlikely to be effectively self-enforced.

16 Seidman, Our Unsettled Constitution.

17 Sunstein, ‘Incompletely Theorized Agreement’.

18 Mark Tushnet, ‘Defending the Indeterminacy Thesis’.

19 Fallon Richard H., ‘A Constructivist Coherence Theory of Constitutional Interpretation’, Harvard Law Review, 100 (1987), 1189–286

20 Feldman Noah, ‘Imposed Constitutionalism’, Connecticut Law Review, 37 (2005), 857–89

21 Rubenfeld Jed, Freedom and Time: A Theory of Constitutional Self-Government (New Haven, Conn.: Yale University Press, 2001)

22 Thomas Jefferson, Letter to James Madison, 6 September 1789.

23 Minorities at Risk Project, Minorities at Risk Dataset, available from: http://www.cidcm.umd.edu/mar/data.asp, (2009).

24 Elkins ZacharyGinsburg Tom and Melton James, The Endurance of National Constitutions (New York: Cambridge University Press, 2009)

25 Of course, one could argue that longer, more detailed texts are easier to interpret, because the rules of the game are more fully specified.

26 Voermans, ‘Styles of Legislation and Their Effects’, p. 50.

27 Elkins, Ginsburg and Melton, The Endurance of National Constitutions, p. 179.

28 Goldstein Joseph, The Intelligible Constitution: The Supreme Court's Obligation to Maintain the Constitution as Something We the People Can Understand (Oxford: Oxford University Press, 1992)

29 Elkins, Zachary, Tom Ginsburg and James Melton, Chronology of Constitutional Events, Version 1.1 (Comparative Constitutions Project, last modified: 12 May 2010) – available at: http://www.comparativeconstitutionsproject.org/index.htm.

30 We have employed a set of graduate students (both in law and political science) and highly competent undergraduates to assist in the data collection. In total, 97 individuals have worked with us as coders, and of this group, 18 have become reconcilers. The coders and reconcilers include a number of graduate students from foreign countries, and native speakers of more than a dozen languages.

31 We exclude codings of slightly more than 250 constitutions that have not yet been reconciled.

32 For the most part, the rulings are treated as settled law, although on several occasions a principal investigator has overturned a prior decision, an action which has then precipitated the retroactive coding of affected cases.

33 A full description of the coding procedures used by the CCP is available on the project's website – http://www.comparativeconstitutionsproject.org/.

34 John Henry Merryman and Rogélio Pérez-Perdomo, The Civil Law Tradition, 3rd edn (Stanford, Calif.: Stanford University Press, 2007)

35 Andrew C. Bradley, Shakespearean Tragedy: Lectures on Hamlet, Othello, King Lear, and Macbeth, 2nd edn (London: Macmillan, 1955 [1920])

Leavis Frank R., ‘Diabolic Intellect and the Noble Hero: or the Sentimentalist's Othello’, in The Common Pursuit (London: Chatto & Windus, 1952 [1937])

36 Tinsley Howard E. A. and Weiss David J., ‘Interrater Reliability and Agreement’, in Howard E. A. Tinsley and Steven D. Brown, eds, Handbook of Applied Multivariate Statistics and Mathematical Modeling (San Diego, Calif.: Academic Press, 2000), pp. 95124

Lombard MatthewSnyder-Duch Jennifer and Bracken Cheryl Campanella, ‘Content Analysis in Mass Communication: Assessment and Reporting of Intercoder Reliability’, Human Communication Research, 28 (2002), 587604

37 Dewey Michael E., ‘Coefficients of Agreement’, British Journal of Psychiatry, 143 (1983), 487–9

Bakeman Roger, ‘Behavioral Observation and Coding’, in Harry T. Reis and Charles M. Judge, eds, Handbook of Research Methods in Social and Personality Psychology (New York: Cambridge University Press, 2000), pp. 138–59

38 Data on official language are from Thierry Mayer and Soledad Zignago, ‘CEPII's Distance Measures’, available from: http://www.cepii.fr/anglaisgraph/bdd/distances.htm (2006). The source of translations varies: some are official government texts while others are produced by academics and others.

39 Data on legal tradition are from the University of Ottawa, ‘JuriGlobe: World Legal Systems Research Group’, available at: http://www.juriglobe.ca/index.php (2010).

40 Elkins ZacharyGinsburg Tom and Melton James, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009)

41 We include the Bill of Rights as a single amendment, since all ten amendments included in the Bill of Rights were passed at the same time.

42 Some aspects of context are measured at the country level and some at the constitution level.

43 Snijders Tom and Bosker Roel, Multilevel Analysis: An Introduction to Basic and Advanced Multilevel Modeling (Thousand Oaks, Calif.: Sage, 1999)

44 Equation 3 suggests that we use a three-level model, with random intercepts for both the country and the constitution. We do not report the results from a three-level model, because when we did estimate such a model, the country-level random-intercept was statistically insignificant.

45 The language variables are also jointly insignificant (Pr(χ 2 = 0) = 0.87).

46 Scalia Antonin, ‘The Rule of Law as a Law of Rules’, University of Chicago Law Review, 56 (1989), 1175–88

* Department of Political Science, University College London (email: ); Department of Government, University of Texas at Austin; Law School, University of Chicago; and Institute for Computing in the Humanities, Arts, and Social Science, University of Illinois at Urbana-Champaign, respectively. The authors wish to thank Manuel Balán, Sara Birch, Abby Blass, Rui de Figueiredo, Brian Gaines, Ran Hirschl, Jeffrey Isaacs, Simon Jackman, Roger Noll, John Sides and two anonymous reviewers for helpful comments. They have appreciated financial support from the National Science Foundation (SES 0648288) and the Cline Center for Democracy. James Melton thanks the IMT Institute for Advanced Studies, Lucca, for additional financial support. Replication data are available on the Comparative Constitutions Project website: https://www.comparativeconstitutionsproject.org.

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British Journal of Political Science
  • ISSN: 0007-1234
  • EISSN: 1469-2112
  • URL: /core/journals/british-journal-of-political-science
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