Tuesday, August 18, 2009

GENERAL: Arguing in the Alternative: Spirit vs. Letter of the Law

In law, judges often face the issue of whether to follow the letter of the law or to follow the spirit. This issue is by no means a new one and has probably been around since humankind first learned to write. It is one of the major reasons to have lawyers.

Judges are supposed to interpret laws; this is their primary function. Judges generally are not supposed to create law; that is the job of the legislature. However, sometimes legislatures draft laws without really thinking about all of the potential problems with interpretation. Savvy lawyers will use these loopholes created by confusing language to influence a judge's decision.

Lawyers who say that a law is black and white do not want judges to interpret beyond the "four corners" of the statute. They will argue that if the legislature wanted the law to be different, then they should revise the wording. Until then, the judge should apply the law in the strictest sense.

Lawyers who want the spirit enforced wish to make the judge consider why the law was enacted in the first place. They argue that the motivation for the law is more important than the actual language.

By way of example, let us say a statute declares, "Any person caught drinking and driving is guilty of a misdemeanor, for a first offence, punishable of up to a year in jail, or for a second offense, is guilty of a felony, punishable of not less than one year and not more than 5 years."

Willy is pulled over by a police officer and is cited for drinking while driving. Willy was in fact drinking water out of a plastic bottle while stopped at a red light.

Willy hires me because the prosecutor wants to make an example out of him and send a message that violators will be punished. I read the statute and laugh at how stupid the legislators were in drafting the statute.

I decide that I want to influence the judge by making the judge consider the spirit of the law. The legislature wanted to punish people for drinking alcoholic beverages while driving the vehicle, but the legislature neglected to clarify this in the statute.

The prosecutor does not care about the motive. He wants a conviction because he believes that drinking anything while driving is dangerous. He tells the judge that if the legislature meant "alcoholic" beverage then it should revise the law, in the meantime Willy must go to jail.

The judge appears to believe the prosecutor's viewpoint. I can see it in the glint of his eye. The judge has been embarrassed in the past because he did not follow the statutory language to the letter and a higher judge overturned his decision. Now, I am beginning to feel like I am losing.

So I might say, "Your honor, I fully understand that the letter of the law should be applied even if the intent was to curtail alcohol consumption while driving. If we are going to look at the plain meaning of the statute and not consider the motivations of the legislature, then it is important to consider that Willy was not in fact driving when he drank. The statute clearly states that a person must be driving, however Willy was stopped at a stop light. Thus, by the very language of the statute, he is not guilty of violating the law."

The judge's grimace lightens, his face softens. He never wanted to agree with the prosecutor but felt he had to because the statute seemed clear. My argument, however weak, would be enough to get Willy off.

The prosecutor might argue that Willy simply being in the car with the motor running was "driving" but because the statute did not define the word "driving" the judge is free to interpret the word. The judge could say "driving" meant only the condition of being in motion.

So, in this example, I might have lost on the strong argument that the spirit of the law was more important than the letter of the law, however I won on a much weaker argument. This is sometimes the case.

There was a time about 2000 years ago when a group of legal interpreters focused so much on the letter of the law that challengers were killed. These scholars went through hundreds of scenarios to determine if people were guilty of violating the word of the law. Now, the really interesting thing about the words of these laws were that they were considered holy, direct from the mouth of God. Thus, the scholars wanted to make sure that they interpreted correctly. How better to make sure the word of God was followed than to strictly construe the meanings of the words?

Therefore, according to their interpretation, a person who saved his work camel from drowning in pouring rain on Saturday was guilty of working on the Sabbath and punishable.

Then came a guy who said that the spirit of the laws was more important then the literal meaning of the writing. He explained that the motive behind the laws was to create a happy life for the adherents and give believers hope and joy. The scholarly interpreters (aka "the Pharisees") did not like this obnoxious trouble maker who thought he understood better than they, so they called the police and had him arrested. Then they told the judge that he was causing too many problems with his ideas. If the government wanted peace, they would have to silence this interloper. So they did. They killed him.

Whether this story about Jesus and the Pharisees is literally true does not matter. The spirit of the story tells us that lawyers, like Jesus, can get in a lot of trouble for upsetting the time-honored ways of doing things.

Lawyers know that whether you argue for letter or for spirit, you must be prepared to suffer the consequences, so, they argue for both. You will note that in my example about drinking and driving, I explained how I would use both tactics. I argued spirit first and word second because my goal in this one instance was not to change the stupidly drafted law. Nope--my goal was to free Willy.

Lawyers are often accused of speaking out of both sides of their mouths. Incidentally, most politicians are lawyers too. There is a reason for it. We want to cover all of our bases. If one argument won't win, try another even if it seems contradictory. Its called, "arguing in the alternative". Have a nice day!

Copyright: May 2007


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  5. Please note that the example I give above about drinking and driving is completely fictional. In fact, in Nevada if you had too much to drink and you are a woman afraid of being taken advantage of in this drunken state so you go sleep in your car on a hot summer night with the AC on, you can in fact be charged and convicted of drunk driving even though you never moved the car or left the parking lot.

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