Gregory Klass on the Interpretation/Construction Distinction

Compiling three blog posts that he wrote in 2015, Gregory Klass (right) has now posted on SSRN his Short History of the Interpretation Construction Distinction. The three parts discuss Francis Lieber, Samuel Williston, and Arthur Corbin respectively, with lots of links to other posts Professor Klass has written.  It's a short piece, but if you follow the links, it's also a rabbit hole.

Lieber addressed the interpretation/construction distinction in his 1839 book, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics. Based on his Austinian positivist approach to law, Lieber regarded interpretation of the process of divining the intentions of the lawgiver.  But sometimes interpretation does not suffice and then we must use principles of construction to arrive at the meaning of the legal text.  His version of construction sounds something like 1990s "new originalism" (and Professor Klass acknowledges his debt to Larry Solum's work) -- there is an acknowledgment that sometimes interpretation (or original meaning) runs out and one has to have recourse to supplementary modes of analysis that give effect to the spirit rather than the letter of the text.  Lieber goes farther still, allowing that construction can sometimes go beyond the spirit, when the law must yield to some superior legal principle.

From Klass's perspective, Williston (left) improved on Lieber in two ways. First, for Williston, discerning the "spirit" of the text is still an act of interpretation.  Construction arises, for Williston, only when one brings to the matter something beyond the intentions of the parties like, for example, a public policy constraint on a contract's meaning.  Second, while Williston retains Lieber's concept of construction as supplemental to interpretation, he adds a third component -- the legal effect of a contract, which is determined according to the substantive law of contracts.  So, for example, interpretation might tell us what a penalty clause means, but the law of contracts tells us that it has no legal effect.  Klass notes that Williston thus needs to move beyond J. L. Austin's command theory of law to something more like H. L. A. Hart's positivism.  We need secondary rules to tell us how to apply the substantive law of contracts.

Thesis, antithesis, Corbin. Corbin's approach collapses Williston's three categories into two and treats interpretation and construction as complementary rather than treating the latter as a supplement to the former.  Based on Professor Klass's presentation of Corbin's ideas, I would say that he folds legal effect and interpretation into construction.  Construction is the process of determining the legal effect of what a legal actor said and did.  Interpretation, which gets at what a person said, meant or intended, is part of the process of construction.  But there remains room for canons of construction, like contra proferentem or public policy, that go beyond the aim of Corbin's narrower sense of construction, which gets at the intentions of the parties.  Drawing on Larry Solum's work, Professor Klass suggests that the work of construction takes place both within the process of interpretation/construction and in the separate "construction zone."