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7 Harv. J. L. & Pub. Pol'y 87 (1984)
Legal Interpretation and the Power of the Judiciary

handle is hein.journals/hjlpp7 and id is 93 raw text is: LEGAL INTERPRETATION AND THE POWER OF THE JUDICIARY FRANK H. EASTERBROOK* Judges interpret words. And words do not bind the interpreters; rather the interpreters give meaning to the words. The meaning of words is not the same as the intent of the writers. Often writers have no pertinent intent or have several intents. When they have an intent it does not control, because words are mere instruments for conveying thoughts to others. The critical people are the users, not the writers, of words. Words have meaning only to the extent there is some agreement among a community of users of language. Unless both writers and readers understand the same thing by some construction of words, the writing either fails of any purpose or, as with literary interpre- tation, liberates the reader to supply his own meaning or story. This creates a fundamental problem for understanding the appro- priate roles of courts, because courts are users of words yet are not supposed to possess much, if any, power to create legal rules. Many times written words give rise to shared interpretations. When they do, there is no great problem for judges. Indeed, when words are clear, there is not even likely to be litigation. People do not routinely spend time and money trying to persuade judges that words mean something that all fair-minded readers will conclude they do not mean. The real problem with statutes and constitu- tions is that in every interesting case - every case in which skilled users and readers of words can reach contrary conclusions from the text - there is no community of understanding among writers and readers of words, no meeting of minds. I return to this in Part II. I. THE PROBLEM OF DECISION Interpretation of words is hard even when they were written by a single person who could dictate the outcome of the product, rather than by a collectivity with many minds and desires that tug in dif- ferent directions and leave a product bearing traces of the struggle. * Professor of Law, University of Chicago. This essay makes use of ideas that have ap- peared elsewhere. See Easterbrook, Statutes' Domains, 50 U. CHI. L. REv. 533 (1983); Easterbrook, Substance and Due Process, 1982 Sup. Or. Rav. 85, 90-94; Easterbrook, Ways of Criticizing the Court, 95 HARv. L. Rv. 802 (1982).

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