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Often one sees judges attempting speculatively to infer legislators' intents by reasoning about their language. Yet nonetheless the objective seems to be to ascertain the legislators' original intentions.

If they really wanted to do this, it seems as though the most reliable and non-speculative method would be simply to ask the authors of the language what had been meant.

While the purpose of a separate judiciary is independence and checks and balances to ensure rule of written law, it would seem fair for the judiciary to quiz and challenge the authors as to the plausibility of their clarifications, given the actual written and assented words, in order to prevent them from misadvising the judges if it suits their political purposes after the fact.

So my question is simply: in any jurisdiction, but particularly common law ones like the UK as US, is it ever heard of for a judge to ask legislative authors for clarifications? Why, or why not?

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    Of relevance: Pepper (Inspector of Taxes) v Hart: "The court established the principle that when primary legislation is ambiguous then, in certain circumstances, the court may refer to statements made in the House of Commons or House of Lords in an attempt to interpret the meaning of the legislation. Before this ruling, such an action would have been seen as a breach of parliamentary privilege." Aug 7 at 15:16
  • What would have been "parliamentary privilege"?
    – Joseph P.
    Aug 7 at 16:09
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    Parliamentary privilege (in the UK, at least) means that members of Parliament cannot face legal consequences for what they say in Parliament. I suppose if an MP (or former MP) was involved in a court case which they themselves had helped to draft the relevant legislation for, and the judge considered the defendant's words in Parliament during the drafting of the legislation in order to interpret the law and issue a judgement, then by one interpretation that would be a "legal consequence", violating parliamentary privilege.
    – kaya3
    Aug 7 at 18:42
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    @JosephP. In particular, from the Bill of Rights 1688: "That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament." The Wikipedia article on the aforementioned court case mentions that examining (in court) what was said in Parliament might infringe on this part of the Bill of Rights. Aug 7 at 19:37

4 Answers 4

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For the same reason you can’t ask the parties to a contract what they meant

Legislation, once enacted, stands on its own independent of the people who drafted it, introduced it to Parliament and voted for or against it. These are not the same people in any event and since the legislation might have been passed anywhere between the 13th and 21st centuries, a lot of them will be dead.

There’s a fundamental issue of fairness here. The people who are obliged to comply with the law (you and I) can’t ask the politicians so neither can the judges who have to decide if we did.

Further, the judiciary cannot interact with the executive or the legislature in this way without violating the principle of separation of powers. Imagine you are charged with a crime and your guilt or innocence turns on the interpretation of the statute. Do you really want politicians who are looking at how the case plays out on Twitter telling the judge which interpretation to use i.e. effectively telling them whether you are guilty or not?

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    Also consider how a dispute between the legislative and executive branch would be resolved if the legislators could dictate what the law is saying.
    – user541686
    Aug 8 at 2:07
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    The answer sounds reasonable, but I'm not sure about the boldened "takeaway" you start your post with. In my experience, it is commonplace for parties to a contract to ask what exactly is meant, typically when encountering a previously unforeseen situation and they want to know how exactly that situation is handled by the contract. Aug 8 at 15:15
  • @O.R.Mapper sure - but the judge can’t ask.
    – Dale M
    Aug 8 at 22:08
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A judge could not ask a legislator to get a clearer idea of the legislative because the latter is the product of a majority consensus among the former. A single legislator can speak for their own intent, but the only thing that can speak for the intent of the legislative body is legislation. (This all assumes that the legislator is acting in good faith, which is by no means guaranteed.) In the US, legislation also makes some level of consideration for executive desires/intent.

What legislators can do, as a group or individually, is file briefs with the court expressing their beliefs on how a bill should be interpreted. These briefs are publicly-available, on the record, and are understood to reflect the view of the individual(s) who filed them, not the intent of the legislative body as a whole.

From the judiciary's point of view, if the legislature wishes to clarify its intent based on judicial misinterpretation, it should do so by updating the law through the normal legislative process.

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  • The second part of your answer is better but in general I don't like this answer because the choices of words and phrases are voted on and passed by the elected pridelegislators but not authored by them. I'm talking about the people who actually craft the words of the laws. Are they ever called on by courts to file clarifying declarations of their original intentions when choosing certain words?
    – Joseph P.
    Aug 6 at 22:07
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    They would not be called by the court. They might be called as an expert witness by one of the parties arguing the case. Since there's no guarantee that what the authors understood a passage to mean is what the people voting on it understood it to mean, that testimony would only go so far. The only objective measure for legislative intent is the body of a bill.
    – Michael
    Aug 6 at 22:10
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    As far as I know, Amicus-Briefs by the legislative are usually not accepted. Instead, the briefs and discussions that lead to the legislation are called upon to try and find Legislator intent if needed.
    – Trish
    Aug 7 at 10:23
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    @JosephP. Individual parliamentarians don't read the bills themselves but some of the people they represent will, and amendments to the original text of the bills will be lobbied, debated in committee and voted on.
    – richardb
    Aug 7 at 10:53
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    It's also quite likely that any particular legislator's desire might be explicitly different from what some passage says, and it does not say that because it was a result of a negotiated compromise that went against that particular legislator's desire even if they voted for the bill in total; so you can't simply treat the desired outcome of some legislator as more valid than the voted-upon wording even if they personally wrote the particular sentence. They wrote that thing the way they did with the goal to get others to support it, not necessarily in perfect agreement with their own intent.
    – Peteris
    Aug 8 at 17:21
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I would say there are two issues here:

1) What is legislative intent?

It's not immediately clear what is legislative intent. Do all legislators in the House of Commons or US Congress have the same idea when they pass a law? Do only certain members' opinions matter? Are explanatory documents (often written by staffers rather than legislators) authoritative?

One can answer these questions, but the answers are not perfect and asking individual legislators doesn't seem to get around these questions easily.

2) Does a focus on the opinions of actual legislators undermine the rule of law?

The Rule of Law is an important concept in common law jurisdictions. It's not a clearly defined concept and you can look at a number of different expositions of it (Joseph Raz, Lon Fuller, and Lord Bingham come to mind) but basically the idea is that law is meant to guide people's behavior and so the law must be available to people at the time at which they act.

If the meaning of a law depends on some legislator's opinion, delivered long after the imputed act occurred, then it could be seen as a kind of ex post facto legislation, which was inaccessible to people at the time that they were doing whatever is claimed to violate the law.

The use of actual legislator's opinions also raises the cost of understanding the law and so makes the law harder to follow because it is no longer enough to just read the law (or even the surrounding documents), you need to also interview legislators etc...

All of this means that if you do plan to use the idea of legislative intent, you need to circumscribe the number of materials on which legislative intent can be based or you might press the Rule of Law more than you would like.

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  • Well hold on. It may be helpful to know that this question was inspired by an article on the service of digital notices, the link to which I will fetch in a moment. It described a decision given by a judge which pointed to the fact that certain sections of an act of parliament had referred to serving notice to another party while noting that numerous other places in the act refer to serving "copies" of notices. The judge then inferred from this that the authors of those words, that is, we may understand, the individuals whose particular brains chose to use the word notice in some
    – Joseph P.
    Aug 7 at 17:59
  • places and the phrase copies of notice in others, intended for the Party subject to the sections to be required to serve physical paper notice in the section in question in contrast with the other places in the act for which digital "copies" may suffice. I've seen other instances of judges trying to deduce the originally intended meanings of documents by looking at the contextual wording etc and perhaps even to some of the authors' other writings for insights on their stylistic idiosyncrasies etc. One example that readily cones to mind is the declaration of independence which isn't legally
    – Joseph P.
    Aug 7 at 18:03
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    Oh, I don't think that's exactly what they are doing. Generally reading a legal document means assuming that differences between different sections mean something. It's not as much about getting into the brains of legislators as much as it is just engaging in legal interpretation, which assumes that textual differences between different sections of a law (or contract) matter. That doesn't impact the rule of law much because it's available to everyone when the law comes into effect (and this method of interpretation is well known) and doesn't require looking further than the law itself. Aug 7 at 18:55
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    It might be phrased as "legislative intent" but the intent of Parliament isn't so much the minds of the legislators as much as it typically is the words in the Act of Parliament (Pepper v Hart, which another commentator mentioned would probably have a pretty substantial discussion of this). It's worth adding that an Act of Parliament isn't just an Act of Parliament but also requires royal consent to be effective, which complicates intent as the mind of a particular UK legislator. Aug 7 at 18:58
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    "What is legislative intent?" Ephemeral, subjective, and generally reverse engineered from the desired outcome. =P
    – Michael
    Aug 7 at 19:24
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The other answers explain why this can't happen in the course of a trial. However,

This can occur as part of an Advisory Opinion

In sone countries, such as the UK and Canada, the government can send questions to the Supreme Court, usually about the constitutionality or interpretation of legislation that they are preparing to present to parliament. The specifics vary by country, so I'll use Canada as an example.

In Canada, the government or the provinces have the authority to send "reference questions" to their respective high courts through their Attorneys General. These reference questions will generally relate to issues about the interpretation or constitutionality of legislation the the government is preparing to present to Parliament. The court will then decide whether or not to hold a hearing relating to those questions (the court has the power to modify, or to refuse to answer any questions that are presented to it.) Then the government, as well as the provinces and 3rd party interveners, as applicable, will file written briefs detailing their positions on the issues in question, and oral arguments will follow after all of the parties have submitted their written arguments. At the end of the hearings the court will usually reserve its decision and later release a detailed written judgement. Like an actual trial, the individual judges may offer differing opinions, but the decisions laid out in the reference decision are not legally binding and the court may decide differently in a real trial.

In the United States, the constitution implicitly prohibits federal courts from issuing advisory opinions, but some states do allow it for their supreme courts.

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