Introduction
Law students quickly learn that many legal texts are vague or open-textured. Words like "reasonable" and phrases like "freedom of speech" may not provide bright-line rules for their application. This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules (the legal doctrines that courts use to apply the text to particular cases). If we distinguish between "interpretation" (which discovers meaning) and "construction" (which determines legal effect, we can call these zones of underdeterminacy "construction zones."
This entry in the Legal Theory Lexicon provides a short introduction to the idea of a "construction zone." As always, the Lexicon is aimed at students, especially first-year law students, with an interest in legal theory.
The Interpretation-Construction Distinction
The idea of a "construction zone" is based on the interpretation-construction distinction. The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:
Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.
Construction is the activity that determines the legal effect of text. For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.
This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse. The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.
Underdeterminacy
The idea of "underdeterminacy" is best explained by comparison with two contrasting ideas, "determinacy" and "indeterminacy." A legal text is "indeterminate" if it provides no guidance at all, permitting judges reach any result they wish. A legal text is "determinate" if it fully determines application. "Underdeterminacy" applies when a legal text is consistent with more than one outcome, but rules out other outcomes. In other words, a legal text is underdeterminate with respect to the legal rules that implement that text if and only if it allows for some possible rules but rules out others.
Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text. For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine. The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech. These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.
There are many reasons for the underdeterminacy of legal texts. Here is a brief catalog:
Vagueness and Open Texture: Some legal texts are vague because they create borderline cases: for example, the word "tall" is vague, because there is no bright-line between persons who are tall and those who are not. Other texts include "open textured" provisions. Typically, an open-textured legal rule has a core of determinate application and an equally determinate core of nonapplication, but creates a set of cases where the rule may or may not apply. H.L.A. Hart used the term "penumbra" to designate this set of cases.
Irreducible Ambiguity: Many words and phrases are ambiguous: they have more than one meaning. "Bank" can refer to a financial institution or the soil that adjoins a river. Usually, we can resolve ambiguity by context, but some terms may be irreducibly ambiguous. For example, a legislature may decide to use ambiguous language if a compromise cannot be reached on some issue: this kind of ambiguity "kicks the can down the road," creating a construction zone to be resolved by judges or officials at some future date.
Gaps: Some legal texts may contain "gaps." For example, a statute may create a legal question but provide no legal rule to govern that question. The resulting "gap" creates a construction zone.
Contradictions: Complex statutes sometimes contain contradictions, provisions that conflict with each other. Again, the contradictory provisions create a construction zone, where the resolution of the conflict must be done by officials or courts when they implement the statute.
When a legal text is vague, open-textured, irreducibly ambiguous, has gaps, or contains contradictions, it creates a "construction zone." The legal effect of the constitutional clause, statutory provisions, or contract clause will underdetermine its legal effect. In this zone of underdeterminacy, construction will be required to determine legal content and application to particular cases. In other words, underdeterminacy creates construction zones.
Interpretation Zone versus Construction Zone
Now that we have the idea of a construction zone, we can introduce a contrasting notion. The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate. Some legal texts are fully determinate: once we know what they mean, we know how to apply them. For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.
The notion of an interpretation zone is relative to theories of interpretation and construction. For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone. But purposivists may not accept this idea. Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.
Methods of Construction
Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue. The next step is to determine what methods of construction are appropriate for the determination of legal effect. This step involves theories of construction: such theories provides methods for choosing implementation rules.
There are many possibilities. For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision. Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate. Precedent or historical practice might play a role in the construction zone.
The law is full of doctrinal techniques for resolving cases in the construction zone. For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test. Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision. Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.
Conclusion
The idea of a construction zone is a powerful tool for analyzing questions about the interpretation and construction of legal texts. I hope that this entry in the Legal Theory Lexicon has provided a basic introduction to this idea and the complementary notion of an interpretation zone.
Related Lexicon Entries
- Legal Theory Lexicon 026: Rules, Standards, and Principles
- Legal Theory Lexicon 030: Textualism
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 050: Default Rules and Completeness
- Legal Theory Lexicon 063: Interpretation and Construction
- Legal Theory Lexicon 071: The New Originalism
- Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
- Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
- Legal Theory Lexicon 079: Communicative Content and Legal Content
Bibliography
- Jack Balkin, Living Originalism
(Harvard University Press 2011).
- Randy E. Barnett, Restoring the Lost Constitution: The Presumptions of Liberty (Princeton University Press 2003).
- Randy E. Barnett, Interpretation and Construction, 34 Harvard Journal of Law and Public (2011).
- Lawrence Solum, The Interpretation-Construction Distinction, 27 Constitutional Commentary 95 (2010 ).
- Lawrence Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
- Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (New ed. University Press of Kansas 2001).
- Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (Harvard University Press 2001).
(Last updated on October 2, 2022.)
