The Literary Intentions of the Law

It feels like we are constantly being told to “seize the moment” and to “appreciate the present”, but when we try to get ahold of what is right now, it slips right through our fingers. By what “is”, I mean what is true, real, and staring you back in the face. Society often tries to tell us that we need to live in the moment, but that is inherently impossible because everything is ever-changing. New wars start, new politicians take office, new environmental disasters occur. These types of changes often cause instability in the world that can make it hard to govern and maintain order, but we have law to keep us in check. The law is supposed to tell us what we can and cannot do when faced with certain circumstances. The language we call law has created a governing body that appears to have control over many aspects of our lives, such as what taxes we pay and where we can fire our guns. Upon further investigation, however, every word that we use to make law can be interpreted in different ways, making its practical application seem impossible.

While our capacity to communicate our thoughts through writing is something extraordinary, it is also something that we can negatively take advantage of because we often take creative license over writing. Reading literature is interpreting what someone else has written, and the act of reading law is no different. As individuals, we come up with our own meanings for everything that we read, and our interpretations stem from a number of factors. One crucial factor is the society in which we live, because our thoughts are immensely susceptible to the power of the situation. But society is a concept that is ever-developing and dynamic, which consistently changes our ways of thinking. So how does this fit into the law? And why is it even important? To start, even though law may be proven to be part of literature, no one other than literary critics care if they cannot convince anyone of their interpretations. It may be sad, but there are no real-life detriments. In contrast, the judge has the responsibilities of the literary critic to pull meaning out of written language, of the moral philosopher to decide what is right and wrong, and of the Pope to be someone that actually has an influence on daily life. But there are literally thousands of judges in the United States alone, each with their own moral code from their own upbringing, and the literary aspects of language allow each to make their own separate interpretation. This seems like a recipe for disaster. However, it is actually good in the wake of an ever-changing world.

The base of my argument requires proof that law can truly mean different things to different people. The example I am going to use is the Fourth Amendment to the Constitution from the Bill of Rights. The Fourth Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I can start with what “the people” means; in the 1700’s when these laws were first written, only protestant, property owning, white males had the respect of the community. If you were a woman, non-white, or had a disability or different religion, you were not an intended recipient of the rights given by these laws. If you still think that this law could be beneficial to you, I could argue that being “secure” means giving the government control over everything, including your personal life and property. Then there is the question of what is an “unreasonable” search or seizure. Essentially anything, including race and gender, could cause suspicion, and with that, having to make an oath or to “affirm” your beliefs bears little weight. The word “probable” has the same ambiguity as unreasonable. Probable cause could come out of anything, including looks, ethnicity, past crimes, friends and family with past crimes, a zombie scare, or a full moon. Following this logic, the Fourth Amendment says that the government can search and seize you and your personal property for looking the wrong way and pissing someone off.

This is, of course, an extreme interpretation, but the exact opposite argument could be made as well. In that case, the Fourth Amendment could almost completely handcuff government law enforcers, potentially jeopardizing public safety. To make matters worse, many laws, including the Fourth Amendment, become even more ambiguous when applied to cases involving modern technology unimaginable to the framers of the Constitution. Consider the case of an American citizen with Fourth Amendment rights talking over the phone to someone in another country that does not grant the same rights, and imagine that the U.S. government has access to the recordings. Should they be able to search the recordings without probable cause, or even with probable cause ,but without a warrant? One interpretation says that,

Communicating with a person who lacks Fourth Amendment rights should not waive the rights of the person who has those rights. The Fourth Amendment should continue to fully protect the U.S. person who communicates with those lacking Fourth Amendment rights.

I would argue, on the other hand, that if you want to communicate with someone who does not have the same rights, then you risk your rights being frozen. There are many people abroad who want to do harm to America and its citizens. Does it not morally make sense to forgo some individual liberties to save even one life? The rapidly changing times and contexts necessitate very open and interpretable language, especially given the rate of technological advancement. Not once does the Constitution or Bill of Rights mention computers, online data, or international servers because those were not things when these laws were written, so we are left to our own devices to decide how these laws apply to modern situations. If my perception of the world were different, my interpretation might be different as well, and this is my point. We must make judgements and the ones we do make are influenced by our environments, and while this may seem problematic because everyone is free to use their own processes to come to their own decisions, this actually functions to keep laws relevant.

There is no way that everyone in the world would be able to agree upon how to handle some of the most controversial topics in existence. “The very existence of written constitutions with substantive limitations on future conduct is evidence of skepticism, if not outright pessimism, about the moral character of future citizens.” That is to say, humans will always be testing their limits and the law needs to draw the line between what is acceptable and what is illegal. The law, therefore, grows out of what is decided to be bad or unlawful. In the case of the Fourth Amendment, the government arresting you for no reason without a warrant is the described mistake, and someone then has to face the consequences. But everyone has their own idea about what they think the law should say, and each thinks they are more right than the other.

The point that is relevant here is not only that private lawmaking takes place through religious authority, contract, property, and corporate law (and of course through all private associational activity), but also that from time to time various groups use these universally accepted and well-understood devices to create an entire nomos – an integrated world of obligation and reality from which the rest of the world is perceived…We witness normative mitosis.

This process could launch us into indecisive lawlessness, but it is our ability to consolidate and interpret law that keeps us in check.

All words still have meaning that should not and cannot be ignored. Any piece of text not written in complete gibberish can convey an intended meaning even if there is ample room for interpretation. This is especially true for the law; although there may be some breathing room, we know that each law was written with a purpose in mind. In his book Sonnet LXV and the “Black Ink” of the Framers’ Intention, Charles Fried takes a solid stand for the recognition of and respect for the framers of law. His argument is that you cannot interpret any law in any way that you want because this makes you a framer as well. Each word in a piece of legal writing has a reason for being there, much like in poetry. They all strive to come together to say what is lawful and what is not, so we cannot all become our own personal framers of law if there is any chance of maintaining order. Quite simply, not everyone should be free to interpret the law.

While one interpretation cannot satisfy all, it should be the ultimate goal to not disregard any substantiated opinions. The literary aspects of legal language allow us to do just that, and this is my main point. “General terms are not mere compendia of the specific instances imagined by those individuals who first enunciated them. What the miracle of language requires is that words, ideas, and concepts reach new instances.” The general terms are the ones that not only make law literary, but that also make it viable through time. The ambiguities in legal language save laws from going obsolete with every change in society. Having unclear laws is actually a blessing in disguise because it allows them to stand up against shifts in society and new challenges. It is important to understand that law does not have the capacity to rule everything we do in our daily lives, and it should not be able to. The better function of law, the one that comes out of its literary qualities, is to tell us not exactly what we will do in a very specific situation, but rather what we should do when faced with a set of circumstances. Our literary-law system saves us from spending our time and resources constantly coming up with new laws for every given situation and gives us a way to recognize and react to crime more efficiently because established laws can be applied to different yet related sets of circumstances.

Works Cited

Cover, Robert M. ‘Foreword: Nomos and Narrative’. Harvard Law Review 97


Fried, Charles. “Sonnet LXV and the ‘Black Ink’ of the Framers’ Intention.” Harvard Law Review, vol. 100, no. 4, 1987.

Kerr, Orin S. “The Fourth Amendment and the Global Internet” Stanford law review 67.2 (2015): 285-329. ProQuest. Web. 14 Nov. 2016.

Levinson, Sanford, and Steven Mailloux. Interpreting Law and Literature: A Hermeneutic Reader. Evanston, IL: Northwestern UP, 1988. Print. 168

U.S. Const. amend. IV