Yes indeed,  that is the purpose of Anglo-Saxon jurisprudence to allow flexibility in interpretation.

Case precedent needs to be flexible to prevent its immediate ossification.  It also needs to encompass several considerations at a time to be relevant.  Our seminal precedents stand the test of time because of the penumbra doctrine 

Thanks for invitation, but this topic is out of my research domain so I can not present a scientific feedback.

Regards, Emad

I apologize for the answer, because I have no information on this topic

I agree with Mr.Turner, it is the basis of our legal system. 

I definitely agree. There is almost always a range of possible interpretations of terms and language in virtually any legal document, be it a statute, a regulation, a court opinion, a contract, etc., and that range can broaden or shift over time, especially as common usages, meanings, or understandings of terms and language evolve--and as political context evolves.

I would note that in my opinion, interpretation and re-interpretation of legal language is something of a conjuring trick that judges perform (and they trick themselves as well as the wider public in so doing) by declaring legal language to have a certain particular meaning in this case, and perhaps a somewhat different meaning in that other or later case, and so on. The trick is to create the appearance that something is firmly settled, forever, when in fact nothing in human affairs, politics, or language ever really is. So the law creates the illusion of permanence and stability even while it, like everything else in human life, is always in fact changing, whether gradually or more abruptly. The law changes, but it likes to hide the fact that it does indeed change behind a cloak of apparent permanence and stability--that, more than anything, I think is the point of the endless appeals to precedent.

So, for example, the U.S. Supreme Court can come out with bizarre examples of abrupt major changes or even about-faces in policy--for instance, the post-1980s invention of a constitutional right under the Second Amendment to the U.S. Constitution for individuals to bear arms for purely private, non-military, non-militia purposes, even after nearly two centuries of precedents that had inexorably moved in the other direction; or the absurdity of the Citizens United decision giving corporations all the free speech rights of real living human beings--but can parade around an endless line of supposedly justifying precedents to hide their reinterpretation of the law and make it appear that the law "always said that."

Associated with all this is the important and perhaps somewhat alarming fact that, as various scholars have pointed out, the power to interpret the law is, for all practical purposes, and especially in the long term, the power to make the law. So although the legal profession in the United States generally likes to persist in maintaining the that judges (and lawyers) "find" the law rather than "making" the law, they are in fact making the law and laws that rule the rest of us all the time, and perhaps to nobody's surprise, they routinely make and re-make those laws in ways that suit the interests of the legal profession and their wealthiest and most powerful clients. ["How 'bout that?"] So, for instance, Chief Justice John Marshall's famous declaration in Marbury v. Madison (1803) that courts necessarily have the power to interpret the law ("to say what the law is"), and to engage in judicial review of acts of the legislative or executive branches, was actually a political power-grab that has, over the past two centuries, changed the U.S. federal judiciary from what the U.S. Constitution's framers intended to be the "least dangerous" (least powerful) branch of government into a de facto unelected super-legislature whose members have life tenure.

So the unavoidable fact of penumbras of meaning and interpretation, plus the power to interpret and declare meaning, plus a nation with a quasi-religious worship of the "Rule of Law," plus a legalistic society that litigates virtually every issue, equals great and largely uncabined political power for the judiciary--power which must then be hidden behind the cloak of apparent permanency and stability of the Law (in order to maintain the further illusion of democracy).

Kirk -

Are you interested in general theory of statutory interpretation or in particular privacy cases? It doesn't sound right to say that there is a general claim that legal terms have a penumbra of meaning. While I am not a specialist in Constitutional Law, the overview in Wikipedia, https://en.m.wikipedia.org/wiki/Penumbra_(law), seems to give a good general descritption of penumbra theory and the bill of rights. This is a special doctrine separate from general theories of legal interpretation - although it is inconsistent with at least the "don't go beyond the plain language" school. (So I am disagreeing with people who are identifying the penumbra doctrine with general ideas of common law reasoning or general theories of statutory interpretation.)

As to the "agree or disagree" part of your question - as a matter of description, SCOTUS has used penumbral reasoning.

As a matter of prescription, were those cases rightly decided? Well, that depends on factors like whether you think the Constitution should protect the rights those cases found and what role the courts should play in identifying legal rights as opposed to Congress. Generally opponents of these decisions make all sorts of arguments, but never really persuade you that their opposition is based on the rationale as opposed to disliking the result. Proponents, on the other hand, may be uncomfortable with the squishiness of "penumbra," but like rights being identified and protected.

Is the "penumbra" justification the one the court should have adopted? I am sure there is a large scholarly literature on those topics - but it is as much a matter of choice as anything else. Judicial decisions are not acts of scholarship, and it is a mistake to read one as a scholarly claim about how to read a legal text. Rather, a judicial decision is a decision to read a text in a certain way from now on.

Dear Kirk,

there is a descriptive and normative part to your question.

Regarding the descriptive part, i.e. do legal terms have a penumbra of meaning? the answer is: certainly yes. Any lawyer, a practitioner or academic, can give you countless examples. The most famous one is a "vehicle", used by H.L.A. Hart in his "Concept of Law", when discussing a seemingly simple "no vehicles in the park" rule (what about baby trolleys? ambulances? etc.). Why is this the case? Four major reasons. Firstly, since the Enlightenment, we want our laws to be general and abstract, as opposed to specific and individual. That is why the lawmaker posits rather vague rules, to be adjusted to a case at stake. Secondly,  the lawmaker simply cannot foresee all the potential cases to come about in the future. Thirdly, the social reality transforms, and new phenomena, previously not denoted by the legal terms, come about. Fourthly, lawmakers sometimes are simply sloppy.

Regarding the normative part, i.e. can the penumbra of meaning be determined by the courts? the answer is: sometimes it just MUST be - since the case is in court - and the question is rather, how should they go about it? Here there are different views. Hart would say that judges have full discretion. Posner would say that they should maximise social welfare (roughly speaking, see "How Judges Think"). Dworkin would say that there is no discretion actually, since the right answer is present in the totality of legal material ("Law's Empire"). 

Whether the two cases you cite were *actually* decided using penumbra doctrine, or whether that was just the argument used to justify hidden law-making by the Supreme Court, is a question to be debated. Theoretically it is a hard one, since emotions caused by them usually override the cold reasoning. To give you an example: on a technical level, what the Supreme Court did in Lochner was the same move as it did in Roe, just with the opposite normative motivation. So depending on a case to be discussed, once the conservatists will criticise Supreme Court's 'hidden law-making' and the liberals praise it, in other times the other way round. Ultimately, the question boils down to a shape of a particular political system (is that allowed by constitutional law of a given country), and to an answer to a pragmatic question: even if we did not want to allow that, what to do about the fact that cases of this type will necessarily keep coming about?

“Our common law system consists in the applying to a new combination of circumstances those rules of law which we derive from legal principles and judicial precedents;…and we are not at liberty to reject them, and to abandon all analogy to them.”

                                                  Mirehouse v Rennel [1833] 1 Cl & Fin 527

Can you clarify your question a bit? There are some good responses here, but they're all a little garbled because they seem to be responding to different "notions." Are you asking whether we personally agree with using the 'penumbra' interpretation as a canon of judicial construction, or whether this is something that courts have used correctly? 

Philadelphia, PA

Dear MacGregor & readers, 

You ask:

Do you agree or disagree with the notion that legal terms have a penumbra of meaning whose range can be determined by the courts?

As a general matter, regarding meanings of terms, I would say that every term of any general use will have clear cases of application and other cases to which is clearly does not apply. But every term is also vague to some extent--there will be unclear cases in which the application of a term is not clear, is doubtful or perhaps controversial. 

It follows from this that every legal term will be vague to some extent; and the diversity of human practices often runs ahead of the law and relevant legislation. As new circumstances arise, the courts are often called upon to clarify the meaning of the law, and some of this work will be well reasoned and compelling, while in other cases it may appear doubtful--such as to require new legislation. 

I think it beyond any reasonable doubt that the law may be vague in application to actual problems arising before the courts. In consequence, the answer to your question is "Yes" --understanding the idea of a "penumbra" as a matter of vagueness.

The question in the offing, however, is whether needed clarification of the law is reasonably or best viewed as, in some sense a matter of arbitrary extension or elaboration. This is a locus of criticism of the judiciary for excessive activism. Though people may reasonably differ regarding such criticism over decisions in particular legal cases, in general, it is contrary to the spirit of the law, and our belief in the rule of law to accept a general doctrine of arbitrary extensions or elaborations of the law either judicial or legislative.

H.G.Callaway 

There may be an issue here of generalists trying to write in a specialized field. The question asks about "legal terms" having a "penumbra" of meaning. But that formulation does not capture the legal discussion. It then mixes in specific SCOTUS cases.

There is a special doctrine discussed in various SCOTUS cases concerning privacy. The doctrine is not about all legal terms, or indeed any legal term in isolation. It is specifically a metaphor used in these cases to illustrate how rights explicitly identified in the text of the Constitutution imply other rights that are not explicitly identified. (It appears that prior to this current meaning dating from Griswold, penumbra may have been used in different ways by courts.)

On the other hand, there is a branch of jurisprudence/philosophy of law that discusses textual interpretation. This branch is related to general philosophy of language and literary theory on the one hand and specific legal doctrines on the other. HLA Hart and Dworkin (maybe) engaged in this kind of scholarship. But a scholar would have to make an argument from their general theories to what they would have said about the specific SCOTUS penumbra doctrine.

Apparently Hart talked about "penumbra" cases of the meanings of particular terms as opposed to core meanings. But that theoretical concept is a different concept from the SCOTUS concept that a whole bunch of text about different rights implies non-stated rights. The whole mass of text is not a single term and the new penumbral right is not contrasted with old "core" rights as being more peripheral.

Similarly, Dworkin's theory that (roughly) principles underlie and justify all of our law together and we can infer new decisions from these principles is a different way of justifying a right to privacy than the SCOTUS penumbra metaphor (although you could argue whether it is a more precise way of stating the metaphor or just different).

اوافق

Iagree