In constitutions and legal systems like that of America , Australia and India (and other states with separation of powers), if a statute has more than one possible interpretation, then can and should a statute be interpreted only according to the intent of the drafters? How are interpretations and disagreements over interpretations of legal language generally handled?


4 Answers 4


There are two points you should bear in mind here.

The first is that where points of interpretation arise, the original intent of the drafters of a law is often unknown because the drafters themselves had not considered the issue. For example, in British planning law there is an implicit assumption that every house has a front, as the law allows certain types of extensions 'to the rear' of a house. In practice there are many examples of houses that are so unusual that it is impossible to say which face of the house is the front and which is the rear. Clearly the people who drafted the law didn't think about that possibility, so it is left to planning inspectors and judges to try to find a way to resolve the problem.

The second is that in most countries the operation of the courts is subject to a system of appeals, is heavily scrutinised by the press, and is ultimately subject to the power of government, so judges do not have a free hand in deciding to interpret laws. Any judge who interpreted a law in a way that was manifestly inconsistent with its intention would soon find her decision challenged and overruled.

  • aren't judges supposed to be impartial ? Feb 19, 2023 at 11:43
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    @NoThing that is irrelevant. The question is about the extent to which judges can interpret law, not about whether they do so impartially. Feb 19, 2023 at 11:52
  • what did you mean that "it is ultimately in the government's hand" ? isn't the process of removing judges tedious and has to have justifiable grounds. the job of judges is to interpret law , not interpret it completely based on legislative intent Feb 19, 2023 at 12:35
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    What I mean is that if a judge interprets an ambiguous law in a certain way, the government has the power to update the law to remove the ambiguity so that it can no longer be interpreted in that way. Feb 19, 2023 at 14:36

Go to a big law library at a University, perhaps your own University law library, and get some books on this subject. It’s an eye opener.

Our US Supreme Court has a lot of power to interpret statutes, speaking of the American context. Now they should follow certain conventions and traditions, but they don’t have to do so.

If they don’t, if people think the highest court went too far on a Constitutional issue, then we can even Amend the Constitution. At the end of the day the American people can make the highest law, but we have been trained to be passive.

American kids were lied to in high school that we should not amend the Constitution too often. I think Jefferson would strongly disagree with what we were taught. But I have not studied his position carefully.


In theory the constitution would be the "social contract" and the structural backbone of the state and the society/nation that forms said state.

So it's usually a collection of basic rights and duties, the procedure how things are organized, the goals and identificational values of that nation and so on.

And among it there should also be rules on how to make, change, amend or remove said rules or whether that is or should be possible.

So popular rules for rules changing are, 2/3 majority in parliament, public referendum and/or plebiscites, 2/3 majority of constituent states (in case of a federation) and so on.

Now as said the constitution is the backbone of the state, while the legislature is supposed to flesh it out with more fine grained laws and the executive branch is supposed to actually implement those laws in practical ways.

So the legislature kind has to interpret the constitution to make laws and the executive kinda has to interpret the laws in order to implement them. While the juridical branch is supposed to check (either by themselves or when appealed to) whether those implementations and interpretations comply with the law and the constitution.

So it's (amendment process) > constitution (juridical) > law (legislative) > implementation of law (executive).

Now the question is how you interpret the role of the supreme/constitutional court. Whether it's just to check what the law says or to interpret what it is meant, has meant, is supposed to mean... Like depending on how old that law is and how good the decision making process was documented or not documented the will of the drafters is quite nebulous. Also mind you in a democracy it's not about the will of the person who wrote the law but rather about the intention of the people who championed it to make it an actual law. So it's even more complicated.

Now when in doubt the process seems to be quite clear: It's a prompt to the respective bodies to fix this problem by making an amendment and get the required 2/3 majority, referendum, etc...

... or the supreme court issues a ruling/interpretation that serves as a intermediate before that is being done. Which is quite interesting and dangerous as well as it would constitute another way to legally amend the constitution which requires much fewer consensus of the people. As it would make a default that can only be repealed by a 2/3 majority. That being said the "legal gray area" of "we don't actually know what to do here" is controversial as well, as that would also constitute a shadow law that would be fleshed out by the executive, legislative or juridical branch through implementation rather than constitutional support.

Likewise legislature could draft a law dealing with that issue in the mean time, but if anyone were to appeal to court, this might be nullified by court, leading you back to square one.

So technically there's a clear way on what to do in that case: amend the constitution or specify the law so that this ambiguity is dealt with. While for the intermediate time a body could pass law with constitutional power that isn't supposed to do so.

Now in practical terms it comes down to "how the respective country" handles that issue. Not really a question of philosophy I guess, but rather of the legal practice.


The short answer is it depends on your philosophy of law. The doctrine you mention is originalism. There are other philosophy positions such as textualism and intentionalism that have significantly different claims. Which view to adopt is a metaphilosoohical argument and is contested.

In fact, to understand law, one has to study the philosophy of law (IEP), which is often neglected by philosophy hobbyists in their dabbling. According the philosopher Raymond Wacks, some important positions in the philosophy of law are:

  • natural law
  • legal positivism
  • Ronald Dworkin and his criticisms of legal positivism
  • rights
  • justice
  • law and society
  • critical legal theory

My personal views are that while many judges claim they're objective and have no bias, law is a very political affair; that's because objectivity in the sense of being wholly independent of bias itself is very doubtful in light of the philosophical views on intersubjectivity. Right now, for instance, the Supreme Court of the United States is essentially an institution which reflects the politics of division that animate US politics more broadly. Both radical progressives and reactive conservatives are essentially exercising politics through language-games, in the Wittegensteinian sense. But there are true believers on both sides who claim their language is the only language that represents reality (SEP).

  • are courts in countries like India required to use originalism ? Feb 20, 2023 at 8:57
  • Any sovereign country is free to choose their own legal doctrine or rather is free to struggle among itself as to what legal doctrine is chosen. Like it's not a question of requirements and being bound to something, it's about priorities and things you value. Constitutional rights are usually foundational and rather important so most often you'd want some consensus when meddling with those, so countries often have a 2/3 requirement to change them. So if you allow for "reinterpretation" you have a loophole to get around that. Which can be shady if you want to make law without consent.
    – haxor789
    Feb 20, 2023 at 10:52
  • @NoThing How courts function is usually itself a very complicated matter, and varies from country to country. The specifics of India can be found to start in WP's Judiciary of India.
    – J D
    Feb 20, 2023 at 16:27
  • Revised because my initial response was from my phone.
    – J D
    Feb 20, 2023 at 17:59