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Sketch of a Theory of Statutory Interpretation

JIM EVANS*

In this article I argue that statutory interpretation is not, and should not be, determined only by the interpreter's understanding of the meaning of the legislature.It should also be shaped by the interpreter's understanding of the will of the legislature. The will of the legislature is defined as the practicaljudgment that led the legislature to approve a particularmeaning. Often understanding the will of the legislature merely assists the understandingof its meaning, but sometimes these two sources of understandingpull in different directions.Although caution is needed, in some cases in which this occurs interpretersought to prefer acting consistently with the will of the legislatureto applying its meaning.

Introduction Sketches are of different types. This is not a sketch akin to an architect's preliminary plan; it is, rather, the sort of sketch that an artist makes to capture something of the essence of an object with a few lines. My topic is the different roles in the interpretation of statutes of two things: our understanding of the intended meaning of a statutory rule, and our understanding of the will of the legislature. In each case I mean these things as they can be judged from the admissible evidence. By the will of the legislature I mean the practical judgment or decision that a certain rule should be part of the law, not the further purpose that the legislature may hope to achieve by that. For example, if Parliament decides to make a law putting a tax on cigarettes, in order to reduce the
*Emeritus Professor of Law, The University of Auckland. This article is an edited version of a valedictory address given at The University of Auckland on 10 May 2005.

[2005] New Zealand Law Review

incidence of lung cancer and hence the cost of the health system, the will of the legislature, in the sense I intend, is that there should be a rule imposing a certain tax on cigarettes, not the broader aims to reduce lung cancer and the cost of the health system. Of course, the further purposes of the legislature may help us understand which rule it decided to make, but its decision to further those purposes should not be confused with its decision to employ a particular rule as the means. This distinction between the judgment to enact a particular rule and the broader concerns that may justify thatjudgment corresponds to two different meanings of the expression "reasons for the rule" (an expression I shall often use). It may refer either to the broader concerns or to the judgment that these concerns should at least be pursued in a standard case of the type covered by the rule. (By a "standard case" I mean one in which no unexpected conflict of values is present.) When I speak of the reasons for a rule, I will intend the second of these. Given the limited notion of the will of the legislature that I have just set out, one might wonder how the content of that could ever be different from the intended meaning of a rule. For, surely, it may be said, the legislature will choose words that it expects to communicate just the rule that it has decided to enact. Of course it may come unstuck; the words may communicate a different rule; but how could its will, in my sense, ever differ from its intended meaning? If the decision to enact a rule were taken as the decision to make the content of a certain meaning the law, come what may, this would be a powerful objection to the project of this article. My response is that intelligent respect for a rule does not require respect for its meaning come what may. Further, I think it is wrong-headed to equate the will of the legislature with the intention to make the meaning of a rule the law, come what may. The basic point here is that laws are a species of directives, by which I mean any form of instruction or grant of permission or authority. Because the point of directives is to shape action, in deciding how they were intended to do so we naturally take account of the way people reason in deciding on the merits of action. So, for example, we may recognise that an author would not have wanted us to comply with an instruction if he or she had known of the circumstances present. Suppose I have a chauffeur. I ring him and say: "Drop whatever you are doing and come to pick me up immediately. I have just arrived at the airport and it is cold." He does not come because just as he is about to leave a fire breaks out in my house that he stops to extinguish. When I complain about his tardiness he says, "I assumed you would not have wanted me to come immediately under those circumstances." He is justified. If I complain about his conduct to the court of public opinion, I will not get much sympathy. In a similar way, we often recognise that someone who gives another

Sketch of a Theory of Statutory Interpretation

permission to perform an act was not intending to authorise the permitted act in any manner whatsoever. If I say to someone: "You can open the window if you like", I would not normally be taken as giving her permission to open it by throwing a chair through it. Alternatively, in case you think this example turns on a special sense of the words "open a window", I would not normally be taken as authorising her to swing it back on its hinges so roughly that it breaks. But, of course, I said nothing about these limitations and I probably did not think of the need for them. It is, then, an important part of my argument that respect for the meaning intended by the legislature and respect for the will of the legislature are two different things. However, I do not intend to imply that they always lead in different directions. In fact, in most cases they work together for the following two reasons. First, unless there has been some blunder in the making of a rule, it will accurately express the will of the legislature for most cases. More exactly, it will do so for all cases in which the reasons for the rule apply, and no question arises of their having to be weighed against other values that were not considered at the time. Second, it will often be necessary to understand the reasons for a rule in order to understand its meaning, or to see how it should be applied in a difficult case. Nevertheless, at times our understanding of the meaning of a rule and our understanding of the reasons for it do pull in different directions. For such cases we need understandings that determine intelligently which we ought to pursue. Much of the discussion below will be concerned with the form those understandings ought to take. In still other cases - although there will be no time to say anything about these - understanding the reasons for a rule can help us settle questions that the text of a statute does not deal with at all: for example, what are the consequences of an undeniable breach of a rule when nothing at all is said about this in the statute.1 Before I proceed I shall deal briefly with two points that might otherwise cause confusion. The first is that, now we are able to look at Hansard,it is plain that cases could occur in which it appears that different understandings of the meaning of a rule, or of its justification, prevailed at different stages of the legislative process. I will not try to deal here with the difficulties raised by these possibilities, as it would take too much time, but I have discussed them elsewhere.2 In practice, these difficulties will rarely arise, for the information in Hansardis normally too blunt to yield that type of
1 One issue of this type is the distinction between mandatory and directory rules. See Evans, "Mandatory and Directory Rules" (1981) 1 Legal Studies 227, and Evans, Statutory Interpretation:Problemsof Communication (1988) ch 11. 2 Evans, "Controlling the Use of Parliamentary History" (1998-1999) 18 NZULR 1, 10. For an important comment on some of the conceptual difficulties associated with using Hansard,see Steyn, "Pepper v Hart: A Re-examination" (2001) 21 OJLS 59.

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information. So, for the present, it will do to assume that we are dealing with cases in which no difficulties of this type arise. The second point is that, when I speak of the reasons for a rule, this is to be understood as referring to the reasons that were apparently thought to justify it, not to the motives that individual members of the legislature may have had in voting for it.3 I shall now develop my topic in three sections. In the first, I will make a quick survey of some relevant parts of the history of statutory interpretation within the common law system. This will serve to place the issues I am concerned with in a social context. In the second section I will discuss respect for the meaning of the legislature and, in the third, respect for its will. I will then finish with a brief conclusion. Some Points From the History of Statutory Interpretation in Common Law Systems Up until 1340, the interpretation of statutes focused on the judgment that a statutory provision evidences rather than on its meaning.4 Three points are significant. The first is that judges often made exceptions to statutes during this period, and did so without relying on any theory of interpretation. Here is one case to illustrate the sort of decision I am talking about. In 1325, a defendant put forward an argument that a writ issued against him to recover land should be struck out.' He relied on a rule in Magna Carta that a writ of that type should not be issued against someone except in his own county. The writ, which was to recover a lordship in the Marches of Wales, had been issued in the neighbouring county of Gloucester. The plaintiff then explained that if the writ had been issued in the defendant's own county, the defendant, as lord in that county, would himself have been the judge and hence a judge in his own cause. The judges in London who heard the case held the writ good, despite the terms of the rule. The report contains no account of any theoretical discussion. Indeed, no cases in this period in which judges made exceptions to rules contain any such discussion. Exceptions that seem obviously required are just made, without any sense of theoretical difficulty.
3 See Evans, above note 2 at 19. 4 A review of statutory interpretation in this period is contained in Evans, "A Brief History of Equitable Interpretation in the Common Law System" in Goldsworthy and Campbell (eds), Legal Interpretationin Democratic States (2001) 67, 71-74. For an extensive study of the period, see Plucknett, Statutes and Their Interpretationin the First Halfof the Fourteenth Century (1922). 5 Anon Fitz Abridg, Assize, 382; 2 Inst 22. For other examples of decisions in this period allowing exceptions, see Evans, above note 4 at 72-73.

Sketch of a Theory of Statutory Interpretation

The second point is that for most of this period judges extended writs allowed by statutes to like cases in just the same way as they extended writs allowed by the common law.6 The third point is that, very occasionally, when the judges discerned that those who had framed a rule overlooked a point that would make it absurd to carry the rule into effect, they refused to apply a rule at all, although they normally applied some substitute rule as a repair.7 None of the cases that illustrate these processes suggest that judges were willing to cross the will of the King. They respected the judgment of the King, but they carried this judgment into effect in a commonsense way without worrying too much about the exact terms of the text.8 Given that quite often they did not have the exact text in front of them, and that, anyway, different handwritten copies of the statute often differed, this was not surprising.9 From 1340, a notable strictness appeared in the treatment of statutes. The
maximprivilegiastatuti est strictijuris("statute law is strict law"), imported

from the continent, is recited by counsel in 134310 and from the bench in 1346. " One reason for the change is that judges were no longer part of the King's Council and so did not have the close knowledge of the decisions behind statutes that their predecessors had. Very likely, another reason was that the judges preferred general principles of the common law as a basis for the extension of the law.2 However, the strict approach of the 1340s could not last- it would have yielded too many irrational decisions - and it did not last. One reason is that many statutes merely restated parts of the common law and, of course, these statutes had to be extended in the same way that common law could be extended. Eventually, the doctrine developed that statutes affirming the common law could be extended, "on their equity", as it was put, meaning by reference to their underlying point, while statutes in derogation of the common law were to be taken strictly. Nevertheless, there was never any
6 See Evans, ibid at 73-74 (discussing Deveraux v Tuchet (1310) YB 3 Ed II (Selden Society Vol 20, 16-19), and Stirkeland v Brunolfshead(1310) YB 3 Ed II (Selden Society

Vol 20, 106-109). 7 These cases, which are not confined to this period, are reviewed in Plucknett, "Bonham's
Case and Judicial Review" (1926) 40 Harv LR 30, 35-45.

8 Plucknett, above note 4 at Part 2 (especially ch 11).

9 See Richardson and Sayles, "The Early Statutes" (1934) 50 LQR 201 and 540, 548; Baker, An Introductionto English Legal History (4th ed, 2002) 206. 10 LeWarde v Wullesthorpe (1343) YB 17 Ed III (Rerum Britanicarum(Rolls Series) 31b/9,

140).
11 Waghan v Anon (1346) YB 20 Ed III (Rerum Britanicarum(Rolls Series) 31b/15, 196).

See Evans, above note 4 at 74. 12 Thorne, "Statuti in the Post-Glossators" (1936) 11 Speculum 452.

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full turning back. From this time onwards, statutes were always treated differently from common law. Let us turn now to the other side of the process of communication we are discussing: the making of statutes. Starting in the 14th century, changes occurred in the making of statutes that eventually had a permanent effect on their interpretation. During the early part of the reign of Edward III, which commenced in 1327, representatives of the commons, meaning the knights, burgesses, and free citizens of the realm, set up a house in London to establish their political influence. 3 In 1340, Edward III agreed that no taxation should be imposed without their consent. 4 In 1407, Henry IV agreed that the proper procedure for making statutes was that a petition be agreed by the commons and the lords separately, and then submitted to the King. 5 This was an important step towards representation in lawmaking, but a problem still existed. The King's Council drafted the Act that resulted from such a petition, and it often differed in important respects from the petition. Consequently, a practice emerged of attaching to petitions draft Bills that contained the proposed text of a statute. Towards the end of the century, it became accepted that the King could only accept or reject such a Bill and not change it.' 6 In 1481, another important change occurred: the first printing of the statutes. Now multiple copies of exactly the same text could be distributed throughout the kingdom. So, by close to 1500, something like the modern situation with regard to statutes existed in England. A detailed text, the exact wording of which had been worked over with care within a complex institutional process, was printed 7 and then widely distributed. 8 There were now two new reasons to take this text as stating the law exactly on the topics that it covered: (1) it reflected a detailed agreement; and (2) it would be widely relied on. That did not lead to a system of interpretation based only on meaning. However, what did develop in the next century was a growth in theory about when it is legitimate to depart from the meaning of a statutory text. As I have already noted, during the 15th century, lawyers had already developed a theory about when statutes could be extended on their equity. In 1524, St German injected a new idea: Aristotle's theory of equity. As St German recognised, this was different from interpretation on the equity of a statute,

13 14 15 16 17

Baker, above note 9 at 205. Ibid. Ibid. Plucknett, "Ellesmere on Statutes" (1944) 60 LQR 242, 248. Not always exactly, for until 1810 there was no official issue of the statutes, only private ventures, and mistakes were still sometimes made. 18 Plucknett, above note 16 at 248. See also Plucknett, A Concise History of the Common Law (5th ed, 1956) 323.

Sketch of a Theory of Statutory Interpretation

as it justified exceptions to statutes not extensions. 9 Exceptions to statutes had often been made in earlier times; but now they fell under a theory. The new learning quickly had an influence. Again, one example will have to suffice. In the 1550 case ofReniger v Fogossa, Reniger, the Comptroller of Customs at Southampton, had seized on behalf of the King 1,693 kintals of green woad (a plant for making dye) that had been landed by Fogossa, a Portuguese merchant. Reniger claimed the woad was forfeit by a statute that required that goods not be landed until an agreement to pay custom duty had been made with the customs officers. Fogossa had shipped 4,500 kintals of woad from Portugal, but during the voyage the sailors threw a large quantity overboard in a high sea to save the ship. Because Fogossa did not know how much woad was left, he agreed to pay for 2,000 kintals and any extra that he might be shown to have landed when the woad was landed and then weighed by the King's beam. The 1,693 kintals seized was the excess landed. Counsel for Fogossa argued first that a conditional agreement to pay would satisfy the statute. However, because the Comptroller did not accept that, he then turned to equity. Here is part of his argument:2' [1]n every law there are some things which when they happen a man may break the words of the law, and yet not break the law itself; and such things are exempted out of the penalty of the law, and the law privileges them although they are done against the letter of it, for breaking the words of the law is not breaking the law, so as the intent of the law is not broken. And therefore the words of the law of nature, of the law of this realm, and of other realms, and of the law of God also will yield and give way to some acts and things done against the words of the same laws, and that is, where the words of them are broken to avoid greater inconveniences, or through necessity, or by compulsion, or involuntary ignorance. He argued on this ground that even if the statute required an unconditional agreement, the conditional agreement should be judged sufficient since no other agreement was possible because of the necessities that had arisen. The case was settled when the King withdrew the claim; but the Reporter (Plowden) notes that most of the judges were in favour of the defendant, and that it was when the King was advised of this that he gave instructions to withdraw the case. From early in the 17th century, common law learning about interpretation decayed. The two forms of equity - equitable exceptions and interpretation 19 Evans, above note 4 at 67-78.
20 (1550) 1 Plowd 1; 75 ER 1. 21 1 Plowd 18; 75 ER 29. Note the careful attempt to state conditions for the application of equity.

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on the equity of the statute - became amalgamated into one loose concept of equitable interpretation, and the proper boundaries of that were never explored. In practice, exceptions continued to be made when needed, just as they had been in the past. As to extensions, the term "the equity of a statute" was very often used, but the extensions made in the name of that doctrine were modest. Most extensions merely brought the words of a statute into accord with its obvious intent when that had failed because of some oversight. (I shall call these "corrective extensions". 2 ) This combination of unexamined theory and loose practice continued until near the end of the 18th century. However, during the 1790s, judges 3 From showed a marked reluctance to engage in equitable interpretation. 2 1819, the old learning came under open attack2 4 and it very quickly came to be seen as an historical anachronism. 25 The new learning, which has lasted almost until the present time, was that courts should apply a statutory provision to all and only the cases within its meaning, unless an established doctrine justified some modification of this meaning. Despite the new learning, judges at times made what were, in effect, equitable exceptions or corrective extensions that were not covered by any established doctrine. The difference was that these decisions now had to be justified in terms that accorded with the orthodox theory.2 6 The result is that for the last 180 years we have had to deal with such cases within a theory that does not allow us to understand clearly what is involved in them. A first step towards clarity is to disentangle the issues in these cases from issues of meaning. I now turn to that.

Legislative Meaning In the introduction, I said that understanding the reasons for a rule can often help us understand its meaning. I want now to say something about why this is so. The point I wish to make can be summarised in a slogan: "Language does not work by conventions alone." People often assume something like the following picture of how language works. Words have conventional meanings. When we construct a sentence we use those conventions, together with grammatical conventions, to
22 More detailed treatment of the period from 1530-1818 is contained in Evans, above note 4 at 77-80. 23 A dramatic example is Warne v Varley (1795) 6 TR 443; 101 ER 639. 24 R v Turvey (1819) 2 B & Aid 520; 106 ER 456. 25 For more detailed discussion of the change, see Evans, above note 4 at 79-85. 26 For examples, see ibid at 82-85.

Sketch of a Theory of Statutory Interpretation

construct a meaning of the sentence. Usually there is only one such meaning, although there may be more than one if more than one set of conventions can fit the words and their order. If there is only one such meaning this may not be what an author meant to convey by the words, or it may not be all that an author meant, but it is normally the plain grammatical meaning of the words. I think it is plain that this picture is false. I shall rely here upon two reasons. The first is that there are far more "plain grammatical meanings" out there than we realise. It is just that most of them are stupid, so we do not recognise them. When we interpret an utterance, we screen for "plausible candidates"- those that it is sensible to think the author could have intended us to understand in the context. My favourite illustration of this point comes from Stephen Pinker.27 He tells us that when linguists at Harvard were trying to develop computer programs in the 1960s to parse sentences grammatically they fed into their program the sentence: "Time flies like an arrow." The linguists assumed it had only one meaning. To their surprise, the computer produced five meanings: 1. Time proceeds as quickly as an arrow proceeds (the expected reading); 2. Measure the speed of flies in the same way that you measure the speed of an arrow (an instruction); 3. Measure the speed of flies in the same way that an arrow measures the speed of flies (an instruction); 4. Measure the speed of flies that resemble an arrow (an instruction); 5. Flies of a particular kind (namely, "time flies") like an arrow. You may think this is an unusual case. However, start looking for crazy grammatical meanings for sentences and you will often find them. The second reason the picture is wrong is that, in speaking or writing, we do not so much use conventions as exploit them. Of course, one way of exploiting them is just to use them, but often we exploit them creatively to convey a meaning that goes beyond any literal meaning. Since it is always possible that an author (which I shall take to include speakers and writers) is doing this, we can never rely on a plain grammatical meaning, if there is one, being the meaning of an utterance unless it appears that the author intended this meaning. Further, it is often not necessary for an interpreter to recognise a literal meaning of an utterance as a whole before recognising the non-literal meaning that the author apparently intended a component of it to bear. So in these cases it cannot be said that the interpreter is expected
27 Pinker, The LanguageInstinct (1995) 209.

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to recognise a plain grammatical meaning of the words used as a step on the way to recognising the author's different or additional meaning. Let me illustrate these points with an example ofjust one of the ways in which we exploit conventions creatively. Elsewhere I have called the phenomenon involved the use of "specialised meanings", 28 but a more evocative title would be "cases in which there is a gap between meaning and idea". Consider an example from the philosopher Charles Travis. 29 Odile says to Hugo: "There's milk in the fridge." In fact, there is only a puddle of milk on the bottom of the fridge. Is what Odile says true or false? Travis imagines two different settings. In the first, Hugo is sitting looking woefully at his cup of black coffee and the empty milk jug. In the second, it is Hugo's job to clean the fridge and he has just completed a hurried attempt. Odile utters the words rather crossly. Travis suggests that, although there is no relevant ambiguity in the words, we would normally say that what Odile said was false in the first case but true in the second. I agree. Unless the setting was most unusual, that is exactly what we would say. The trick, however, is to identify what is happening here. Although I am not sure Travis would agree, I think that, in both cases, the words are literally true. 30 Yet they clearly indicate different ideas in the two contexts. How is it that we recognise these different ideas? In my view, the answer is obvious: in each case we recognise the idea that fits with the point of the utterance. If the point is to tell Hugo where he can get milk for his coffee, then the puddle of milk is irrelevant. In contrast, if the point is to complain about the standard of Hugo's fridge cleaning, it is very relevant. Because we are used to taking account of the point of utterances in interpreting them, we have no difficulty in understanding what it is that Odile is saying in each case. Further, in a natural setting, we would recognise this meaning immediately, and not after first contemplating a literal meaning of the utterance. The phenomenon this example illustrates is just one of many ways in which an author can use a component of an utterance in a non-literal sense and expect that meaning to be recognised directly by the interpreter, without expecting the interpreter to first contemplate a literal meaning of the utterance as a whole.3' Given this creative potential in language, the idea that language works by conventions alone is plainly wrong. In interpreting an
28 Evans, "Reading Down Statutes" in Bigwood (ed), The Statute: Making and Meaning (2004) 123, 129. 29 Travis, The Uses of Sense: Wittgenstein 'sPhilosophy ofLanguage (1989) 18. 30 In this context the idea of "literal truth" depends, I suggest, on commonplace processes of confirmation. So it would not include molecules of milk floating in the air, or indiscernible molecules adhering to the inside surface of the fridge. 31 For other illustrations, see Evans, above note 28 at 125-130. Even that list is far from complete.

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utterance we rely on conventions, but we always also take account of what we take to be the author's point in making it. Let me now give an example to show that this phenomenon of ordinary communication matters in the interpretation of statutes. In the 1993 case of Smith v UnitedStates, 32 the United States Supreme Court ruled on an appeal in which a defendant had been given a mandatory 30 years' imprisonment for a drug trafficking crime. Federal law provided that a defendant who "during and in relation to any ... drug trafficking crime, uses or carries a firearm" must receive a mandatory term of imprisonment. When, as in this case, the firearm was a machine gun, the term was 30 years. The facts were that the defendant had offered his machine gun to a pawnbroker in exchange for cocaine. The majority held that, yes, the defendant had used a firearm during and in relation to a drug trafficking crime, since trading was one form of use. Accordingly, the mandatory term stood. Justice Scalia, who was in the minority, argued that this interpretation was absurd. He held that, in the context, "uses a firearm" meant "uses a firearm as a weapon". Although he does not say this explicitly, that obviously could include threatening to shoot as well as actually shooting. I agree with Justice Scalia. The meaning he adopted is the natural understanding of the words in this context. It was surely the use of a firearm for this, its designed purpose, that the authors thought made a drug trafficking offence more serious and hence deserving of greater punishment. The majority in the Supreme Court were guilty of missing that more goes into the communication of meaning than just the conventional meanings of words. In summary, the lesson from this section is that taking account of the reasons for a rule in order to understand its meaning is just a special application of a process that we uniformly employ in the interpretation of language. Respect for the Will of the Legislature In this section I turn to circumstances in which the will of the legislature and its meaning pull in different directions. I shall discuss two topics: the making of exceptions to rules and the imposition of side-constraints.
A Exceptions

In my discussion of the history of interpretation I noted that, by about 1500, the need to protect reliance on the text of statutes had become an important value in our legal system. This value remains important, and
32 (1993) 508 US 223; 124 L Ed 2d 138.

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making exceptions to the meaning of a provision runs the obvious danger of damaging it. However, I believe the history also shows that refusing to allow any exceptions other than those justified by established doctrines is not an acceptable policy. We would suffer too many absurd decisions. Moreover, attempting to follow that policy merely leads to distortions in the justification for decisions. So what is to be done? How do we allow exceptions without undermining the reliability of statutes? The answer, I think, is to allow exceptions only when it would be obvious to an informed interpreter that the case lies outside the will of the legislature. This strategy allows exceptions to be made while also protecting reliance on the text.33 Subject to that threshold test of obviousness, exceptions should normally be made when in some unexpected case the reasons that apparently weighed in the judgment favouring the rule do not apply to a case within its meaning, or, when they apply, they are nevertheless outweighed.3 4 Let me now give you an illustration of each type of case. A simple instance of the first type is Saunders v The Liquidatorof Woodware Products Ltd.35 Section 199 of the Companies Act 1955 required a director to declare his interest, at a meeting of directors, if he or she had a stake in a contract that the company proposed to conclude. In this case, there was only one director. Hardie Boys J held that the rule did not require a sole director to call a "meeting of himself" in order to disclose to himself what he already knew.36 Plainly, the reasons for the rule did not apply in Saunders. 3 7 A case of the second type is R v Registrar-General,ex parte Smith. In Smith, the United Kingdom Registrar-General (of births, deaths, and marriages) refused to allow an adopted person to have a copy of his birth certificate despite a statutory rule that gave any such applicant a right to a copy. The certificate would have disclosed the identity of Smith's natural mother. The problem was that Smith had been convicted of the murder of a stranger and, while in prison, had killed his cellmate in the belief that his cellmate was his adopting mother. He was currently detained in a secure mental hospital. The Registrar-General had received two medical reports suggesting that Smith was still mentally unstable and that, were he to regress into a psychotic state, he might become hostile towards his natural mother
33 For more extensive discussion, see Evans, above note 28 at 135-139. 34 Hybrid cases can occur. For example, inan unanticipated case, the reasons for a rule may not be fully present (or present with full force) and, on that account, may be outweighed by something else. 35 (1982) 1 NZCLC 98,341. 36 Ibid at 98,345.
37 [1991] 2 QB 393.

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and present her with a serious threat of harm. The English Court of Appeal upheld the decision of the Registrar-General. The reader will recognise that in this second type of case the court is holding that one value, or set of values, outweighs another. You might ask in what terms this assessment is to be undertaken, given that, by definition, the legislature did not address the conflict of values before the court. Two points must be made. The first is that if the decision is to be consistent with the will of the legislature, it must be made from the perspective of a lawmaker who remains committed to the rule for the reasons that were apparently thought to justify it. We can assume that the lawmaker is otherwise reasonable, but commitment to the rule, whether reasonable or not, is a datum we cannot avoid. The second is that to protect the reliability of statutes we must work within both commonly understood values and common understandings of priority between values. You might ask where this understanding can come from. My answer is that normally it should come from the values, and the priorities between values, already imbedded in the law. Occasionally, however, the source can be just the common understandings of humankind or the common understandings of our society.

Side-constraints

Let me first clarify what side-constraints are. The idea will be easier to understand if I start by making a simple point about the way we reason when we plan to act. The relevant point is that when we contemplate acting, we necessarily contemplate a type of act. This is because the particular concrete act that we will actually perform if we carry out our plan will always have detailed qualities that we did not plan. Suppose I plan with exquisite detail how to perform a particular dance movement. Still, I will not plan just which set of micro-organisms I will stand on during the dance, or how many windows will be open in the building at the time. If, for some extraordinary reason, I did plan these things, there would still be other detail that I did not plan. So here is a useful datum: when we plan to act we plan to perform some instance of a type of act. Plainly, however, we do not want just any instance of the relevant type, for there are always many bad ways of performing an act. I plan to put out the rubbish. What I want is not just any way of doing it, but a way that does not bark my shins, spill dirty water on my clothes, wake the neighbour's noisy dog, or have other adverse qualities that I have not accepted as unavoidable. I may not be able to eliminate the risk that my act will have such qualities. However, within sensible limits, I will do my best. It is now easy to define side-constraints. Side-constraints are not reasons for or against an act. They are reasons for not doing it in a certain way if there

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are otherwise good reasons for doing it. From what has been said above, it will be clear that almost any time we act, we observe side-constraints. Sometimes we reflect on side-constraints consciously. Often we do not: they are simply the "taken-for-granted", background values that shape our actions as we act. Think of the many side-constraints a driver observes while driving to a destination. When the legislature permits or authorises an act, the courts sometimes take it as permitting or authorising the act only for those ways of performing it that observe appropriate side-constraints. Let me give some illustrations. One set of examples comes from the law of tort. An interesting case is 3 8 The corporation had a statutory liberty, Bond v Nottingham Corporation. and indeed a duty, to demolish a certain building under a clearance order. However, demolishing the building would have removed the support from the adjoining building, which had a legal right to support from the condemned building. Although there were no words to that effect in the statute, the Court held that the corporation could not demolish the condemned building without providing alternative support for the adjacent building. If the corporation had been entitled to carry out the demolition without regard to the neighbouring building, it would have been entitled to inflict property loss on the owner of that building without compensation. That the legislature intended its law to have this effect is unlikely. So, here the goals that the legislature had when it passed its law - presumably promoting public health and safety - have unexpectedly come into conflict with a value - protecting private property from uncompensated damage by public authorities - that one might expect the legislature to respect. No doubt it did not think of this conflict of values. However, if it had, and we assume it to be a reasonable lawmaker, it would surely have resolved it by imposing the very side-constraint that the Court imposed in Bond. So, in imposing such a constraint the Court was supplementing, but not crossing, the will of the legislature. Bond is similar to those cases where, in response to an unexpected situation, courts make an exception to a rule because the reasons for it are outweighed in that case. The only difference is that the right solution in Bond was to impose a side-constraint rather than to make an exception. A different illustration from the law of tort of the imposition of sideconstraints on a statutory liberty is the long line of cases holding that when a statute gives some person or body permission to carry out work on private land, the work must be carried out with care to avoid unnecessary harm to the landowner. Many of the cases involve requirements of care imposed on canal companies, railway companies, electricity authorities, and the like, who are authorised to do such work for the common good. Even though
38 [1940] 1 Ch429.

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nothing is said in the statute, courts take such work to be permitted only when it avoids unnecessary harm.3 9 These cases are similar to Bond because the courts impose a sideconstraint that is not expressed in the bare terms of the statute. However, they differ from Bond in that the cause of the omission of the side-constraint from the statute is not that the case that has occurred is unexpected. To the contrary, the prospect of careless work is not an unusual possibility likely to be overlooked by those passing these statutes. A more likely reason that the authors of such laws do not deal with unnecessary damage is that they take for granted that the rule will be understood as authorising only careful work. I do not mean that they are likely to think about including a limitation to this effect and then decide that it does not need to be expressed (although that might occur). I mean that it will not normally occur to them that such a limitation is needed because they assume that reasonable people will take it as understood. Another set of examples comes from administrative law. Not all, but a substantial range, of the constraints imposed by administrative law on the statutory grant of powers to public authorities can be seen as the imposition of side-constraints. I have time here only to sow the seed of an idea, so I shall mention just two cases. They are both old, which shows that the imposition of side-constraints is not a novelty in our legal system. The first is Rookes Case, decided in 1598.40 Commissioners for sewers (which word in that time meant rivers and drains) had the power to levy charges on owners of properties adjacent to a riverbank to raise money for its repair. They levied a charge on just one owner rather than all those who would benefit. The Court held they could not do this, but rather must apportion the charge among all who would benefit. The Commissioners had authority to levy a charge, but not, the Court said, in this unfair manner. The effect of the decision was thus to impose a side-constraint on the power given. The second case is Cooper v Wandsworth Board of Works,4 decided in 1863. The Court held that although the Board of Works had statutory authority to demolish a building being erected without its consent, it could not do so without first giving the offending builder a right to be heard. Famously, Byles J said: "... although there are no positive words in a statute requiring that a party shall be heard, yet the justice of the common law will supply the omission of the legislature".42
39 For a review of the cases, see X(Minors) v Bedfordshire County Council [1995] 2 AC 633, 728-729 per Lord Jauncey of Tullichettle, and 732-733 per Lord Browne-Wilkinson. 40 (1598) 5 Co Rep 99b. 41 (1863) 14 CB (NS) 180; 143 ER 414. 42 Ibid at 194; 420.

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I do not think that Byles J meant that the common law would cross the will of the legislature on this point. Rather, he meant that it would supplement the expression of that will by spelling out what could reasonably be understood as taken for granted by the legislature. The value involved in Rookes Case was impartiality. In Cooper, it was procedural fairness. Other basic values have been treated the same way in administrative law. They include that a power should not be used corruptly, either to obtain a private gain 43 or to intentionally harm another,44 that freedom of opinion and speech should be respected, and that subjects should not be barred from the courts.47 Is this process interpretation? In my view it clearly is. First, this is because there is a restraint. Administrative law constraints ought not to be imposed on statutory powers if that is inconsistent with the point of the relevant law. Secondly, I believe that it is not unrealistic to think that most legislators would assume that these values should apply to the exercise of public powers, as side-constraints, when that is not inconsistent with the point of the law.

Conclusion Let me now draw the threads together. Both the meaning and the will of the legislature play a role in the interpretation of statutes. For most cases, our task is simply to understand and apply the meaning of the text as that appears from the admissible evidence. One reason for this is that, in most cases, the meaning intended by the legislature will accurately express its will - so long, of course, as that is understood as the will to enact a certain rule, rather than the will to pursue some broader purpose or give effect to some broader value. A second reason is that important social values require courts to protect reliance on the apparent meaning of rules. Of course, understanding the will of the legislature will normally be essential to recognising such a meaning. Nevertheless, cases occur in which the legislature's meaning and its will pull in different directions. When confronted with an apparent case of this type a court should exercise caution before departing from meaning, especially when exceptions are involved. The issues may be slightly different for the imposition of side-constraints, but a threshold test of obviousness
43 44 45 46 47 See, See, See, See, See, eg, R v Port Talbot Council, exparte Jones [1988] 2 All ER 207. eg, Roncarelli v Duplessis (1959) 16 DLR (2d) 689. eg, Wheeler v Leicester City Council [1985] AC 1054 (HL). eg, R v Home Secretary,ex parte Brind [1991] 1 AC 696 (HL). eg, Raymond v Honey [1983] 1 AC 1 (HL).

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should apply to the making of exceptions. However, in some cases, courts should follow their understanding of the will of the legislature rather than its meaning. In such circumstances, a court is not free to act as it chooses: it must still behave consistently with the will of the legislature. It is a useful insight to recognise that, in some of these cases, courts must go beyond the judgment actually made by the legislature. However, it is equally important to recognise that this should be done only in ways compatible with respecting that judgment.