Tuesday, September 09, 2014

Chapter 5 (Law Articulated by Legislatures: Statutory Law): From "Elements of Law" to "Introduction to the Law and Legal System of the United States"--Building an Introductory Course to the Legal Curriculum for the 21st Century

(Pix (c) Larry Catá Backer 2014)

Since 2010, I have been posting on the development of a new course I have been developing for our first year law school students, "Elements of Law." The course originally had a quite modest objective--to introduce law students to legal research and reasoning through case law, statutory interpretation, and legal history, processes, and institutions. I chose to broaden its objectives within these specific parameters and development a framing and concepts course that would provide a deep foundation to law students on the legal system they were undertaking to study.
Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.

This post produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.

This post includes a draft of Chapter 5 (Law Articulated by Legislatures: Statutory Law).


Chapter 5

Law Articulated by Legislatures: Statutory Law

I. Introduction.

            “Statutes in modern liberal democracies are mandatory for courts, not advisory.  This conclusion does not tell us just how statutes should be understood or how constitutional provisions under which statutes might be held invalid should be construed.  This conclusion also does not resolve whether courts should be able to declare invalid statutes that directly offend fundamental political or moral principles.”[1]  In the United States statutes do not exist alone—the sole expression of the power of the people to govern themselves. They do not share the cultural and structural characteristics of highly integrated and self-referential codes of law that mark the essential characteristic of civil law systems—systems grounded essentially on the primacy if statutes and the rejection of law declared and administered by governmental institutions other than the legislature.  Instead they constitute just another layer within a complicated legal system. 

            This chapter considers the character of statutes as an essential form of law making in the United States.  Three principal issues are considered.  The first seeks to distinguish statutes from Common Law and equity as to form, characteristics and application.  This is particularly important for individuals seeking to conform their behavior to law and for courts seeking to apply law in disputes or actions before them.  The second seeks to consider how court administered law (Common Law and equity) and statutes work together,  Each offers a different, and perhaps autonomous set of rules.  They might sometimes produce multiple or inconsistent rules. It is important to understand how they are harmonized to at least made coherent. The third seeks to understand the culture of statutory law in the United States—to that end it is important to understand the differences between statutes as specific commands enacted by a legislature, and codes—systems of statutes organized into a coherent whole whose.  The differences are important for determining the way in which courts might interpret statutes or apply them.

II. Chapter Readings

·      Charles E. Clark, “The Union of Law and Equity,”[2] 25 Columbia Law Review 1-10 (1925)
·      P.S. Atiyah, “Common Law and Statute Law,”[3] Modern Law Review 48(1): (1985)
·      Jean Louis Bergela, Principal Features and Methods of Codification, 48 Louisiana Law Review 1073 (1988)
·      Gunther A, Weiss, The Enchantment Of Codification In The Common-Law World, 25 Yale Journal of International Law 435 (2000)



1.  One of the most interesting aspects of the discussion of the history of codification of U.S. law, and its failure, is the connection between the urge to codify and the underlying rationale of the Institutes and the codified law it sought to explain.  While U.S. law appears to have embraced many of the substantive premises of law that contributed to the law of the Institutes, U.S. law makers—courts, legislatures and voters—retained a strong and strongly conservative adherence to its mixed system of judge administered law punctuated by bursts of statutes.  These statutory bursts sometimes displaced common law and sometimes merely supplemented or modified it.  The “genius” of the U.S. system lay in the flexibility possible within a system composed bu dynamic sub systems that were in constant communication, and intermeshed, but which retained their respective autonomy.   When one speaks of statutory law in the United States, then, is it possible to speak of systems of law in the fashion of European law codes?

2. Can you describe the differences between statutory law systems in the United States and the statutory codes of European states?  How do these differences affect the way in which courts might approach the issue of interpreting and applying statutes?


III. Law Articulated by Legislatures: Statutory Law

            Our last class introduced us to the Common Law and Equity in the United States. The focus was on the origins of both. That excursion into history was important as a fairly efficient means of exposing the fundamental premises of common law and equity, premises that continue to echo in the judicial culture in the United States today, even as the structures of law common law and equity have been increasingly subsumed within a legal culture more at home with statutes, regulations and other means of governance. These fundamental premises include a relationship between law and the state, the semi-autonomous position of courts and judges with respect to the other agents of government, the passivity of courts (they receive but do not initiate actions), the use of precedent and stare decisis[66] and juries as a means of keeping law grounded, stable and predictable (core premises of justice under the Institutes), and the importance of process as a means of legitimating the role of courts to apply law. The basics of that process at the heart of the common law system, in contemporary language, include notice, an opportunity to be heard, consistency, predictability and appeal to ensure accountability. Equity added a bit of an edge to common law. It more directly interposed the state, in the form of the executive, into the management of law. It provided a means of developing systems for the resolution of disputes and opened the possibilities of more flexible systems for such resolution. But until it was regularized, that flexibility also produced a lack of accountability, certainty and predictability that detracted from its value. More, in its early days it could also be seen as a means of subverting common law at the instance of the Crown. Yet in modern form, it was tremendously liberating in its contributions both to dispute resolution process and to enlarging the scope of authority of the courts to hear private disputes and in its remedial palette which could be used increasingly not just against private but also public litigants.

            Ultimately, by the 19th century, the slow, relatively stable and case based structures of common law/equity started to experience substantial stress in the face of the Enlightenment’s emphasis on the science of management (of people and things) and the realities of the Industrial Revolution. Common law and equity proved less able to provide satisfactory means of preserving social order as social order itself was undergoing rapid transformation. And more important, science brought with it an increasing certainty that principles (immutable―recall the Institutes) of natural law based on reason (and for some powerful actors faith) must be the basis for improving society, eliminating anti-social behavior and leading society to some sort of measurable end. That power to command is distinct from the traditional authority of the Crown to command individuals (an executive or police power). Rather it is the power to substitute for traditional bases of behavior or social rules another set. For that to occur, the state requires either sufficient force (and time) or another source of legitimacy. Since the Institutes, in the Est, that additional source of legitimacy has been grounded in popular consent and in the devolution of power (including the power of individuals to consent) to representatives. In the medieval and early modern period that devolution could be vested in a single person―the Crown. In modern societies, that devolution is usually vested in representative government, operating through popularly elected representatives of the people and enabled to exercised virtually all of their power. Limitations, now understood as constitutional and international law (the superior law of nations and civil law in Institute terms we leave for later. For this class we focus on the oldest and most common modern form of commanding behavior instrumentally―statutes.

            Statutes are of a fundamentally distinct character from common law and equity. Whereas common law and equity are passive instruments applied by courts to resolve disputes among individuals litigants, and through these resolutions adding to the textures and body of law, statutes are “active” in the sense that they . Likewise, while common law and equity are essentially malleable and change to reflect the customs of the people they bind (albeit in an attenuated, formal and sometimes quite imperfect way) statutes freeze the moment of their enactment. They remain unchanged until another legislature acts or the stature is otherwise voided by higher law. Yet there are certain advantages to statutes―they cover a broad range of people, they do not have to wait to litigants to be developed, they are certain and their application predictable, they are accessible in ways that common law is not. Common law must be cobbled together by a close reading of cases to extract the precise form and application of law to facts. Statutes are quite definite in their provision (though they may be poorly written or ambiguous). Statutes can be used prospectively to solve problems, cure social ills or change behavior in quite conscious and targeted ways. Common law and equity seeks to do right to injuries that are both individual and personal. One can mold society in one’s image through statute; society molds common law-equity which it is meant to reflect.

            In civil law states, especially after the 18th century, custom and customary law and rights were viewed as primitive, antiquated, a relic of an old order usually overthrown at the cost of substantial violence. For bourgeois and industrializing societies arising in the late eighteenth and nineteenth centuries, principles of scientific development, grounded in reason, could be used to reshape society and its operation in the most efficient ways possible. The object was to eliminate social ills, but also to preserve structures of privilege which produced the social and economic stratification then equated with a “natural” order of things. When combined with the ideology of the Institutes, the result is clear: in civil law statutes all law must derive form the people. And in most civil law states elaborate mechanisms were instituted to trace the devolution of popular power into representative government whether in the form of an imperial state (Germany), a kingly presidential republic (France) or a Parliamentary monarchy (U.K.). With the legitimacy of popular consent through the institutions of representative institutions and legitimate procedures for the enactment of law, the civil law constructed what became the modern rechtsstaat (the rights or rule of law state, very roughly). There were two significant consequences for law. First, both natural law and the law of nations were subsumed under the primacy of the popular (representative) power of the state to enact a law system true to its peculiar national character (the modern version of this of course is the move today for a socialist legal order with Chinese characteristics). The immediate consequence was that the state, as popular representative and repository of popular power could structure law in any way it liked with virtually no constraints. Second, unless law was enacted legitimately by an approve state organ pursuant to the process prescribed for such enactment, there was no law. Thus no statute no law (with the exception of administrative regulation, a subject to be taken up next). This remains a fundamental premise of civil law states and has been built into the fundamental principles of the European Union. In its most traditional form (something that is changing rapidly in some civil law states as the convergence of civil and common law states proceeds under the logic of globalization) there was a consequence for the relationship between courts and law. In its classic form, courts applied by did not make law; stare decisis was incomprehensible precisely because the sole referent in every case was the statute not the case; and the presumption was that courts logically applying the law under similar facts would invariably reach the same result.[67]

            In common law states, statutory systems never replaced the ancient system of common law-equity.  As a consequence, the statutory state in the United State arose along side of rather than over the grave of common or customary law systems. Statutes were viewed as limiting or modifying those aspect of common law with which it "shared" regulatory space.  Beyond that it had no effect on the continued existence of common law-equity; statutes were enacted in "derogation" of common law. This approach was not unique to the United States--the pattern was well established in England at the time of independence (and indeed in some of the early statutes these were merged into the common law as it was received by the states).  The only exception--and it proved to be a very large one--was that statutes became the preferred means of extending law to new areas of governance unknown to the common law; and statutes were the principle means of regulating the relationships between the state and individuals.   Yet, in those states shaped by common law-equity, neither common law nor statute existed in vacuums. And the connection between statutorily and common law systems was made inseparable through the agency of courts.  Courts, steeped in the cultures of common law and equity, have been charged in the United States with the task of interpreting and applying statutes.  Statutes in this country, then, have the character of civil law pronouncements and their place in the hierarchy of law above common law, but because they are understood and applied by common law cultured courts, the way in which they operate in the United States is slightly, but significantly different.

            The first of the reading,[68] is meant to serve as a bridge between two distinct Americas,  The first, substantially eroded by the early twentieth century was that of the common law and equity.  The second, arising between the World Wars and now dominant in contemporary United States, is one that is substantially the mirror image of the original. Professor Clark already sees the coming of the day when common law and equity would be merged (about a decade after the article was published at the federal level). The article is useful both as a review of the difficulties of the distinctions between common law and equity in practice, but more importantly for its discussion, now rarely considered by academics, of the cultures within which courts tended to operate.  The discussion suggests what I had hinted at earlier, a judicial culture that is quite conservative and strongly attached to traditional modes and patterns of action. It provides an excellent discussion of common law judicial thinking at the heart of the common law.  Most important, though, it suggests the way that courts understood and constructed the relationship between common law and statute. At the heart of the reading is a central issue of derogation of common law after statute: how do courts apply statutes that seek to change the procedure of civil cases.  Professor Clark suggests that courts, a century ago, might treat statutes the way they treated other elements of common law, one that could be understood only when naturalized within the web of case law into which it was inserted. This is about as far form a civil law sensibility as may be possible. 

            Professor Clark suggests that statutes ought to be treated with substantially more deference; that they ought to be applied without reference to or interpretation within the body of case law in to which it was inserted. Professor appeals to an interpretation that starts with the intention of the framers rather than the common law against which it was written (p. 3) and he appeals as well to common law sensibilities, suggesting earlier cases might have gotten the interpretation and application of the Code right (pp. 3-5). He further appeals to an interpretation of the statute based on its inherent logic and the policy it was meant to further when the Code is considered as a whole (pp. 6-7; 8-9), rather than relying on judicial interpretation.  This is a very distinctive approach to deriving law:  rather than focus on the aggregation of judicial opinion to construct an expression of the law (common law classic) Professor Clark would start with the code as a self referencing work, whose logic and meaning must be found within its language, specific language at issue, the meaning of the provision in which it is written and the policies furthering the statute as a whole. Yet at the end, Professor Clark relies, as a good common law lawyer must, on argument deduced form the cases within which the statute and its logic must be found to fit.  Statute exists within the common law and perhaps in derogation thereof, but not apart. This approach will change substantially in the century that follows as statutes first are treated as independent and superior to common law and then statutes increasingly exist in areas in which there is no common law to fall back on.  Still, the forms of reasoning for courts will not change much and the techniques once applied to cases will be applied to statutes as well.

            The second of our readings,[69] touches on the heart of the matter considered today--the relationship between statute and common law in Anglo-American systems. Atiyah askes:

    The question concerns the relationship between the common law and statute law. Does our law constitute, in some sense, a single coherent, integral body of law, or does it consist of two separate entities, two streams running on parallel lines one of which occasionally feeds into the other, but which are destined for ever to retain their separate identities?[70]

This he believes is important in order to understand the way two distinct and developing bodies of law operate within a single legal system.  That is an issue as much for the United States as the United Kingdom.

            Professor Atiyah first reminds the student of the fundamental difference between statute in common law systems and those of civil law states--statutes are discrete legislative actions, even when they propose a fairly well integrated regulatory scheme (corporate regulation for example).  Statues in common law states are not integrated into a substantially self contained system, such as the Code Napoleon or the Germain Civil Code. Rather they are embedded into a system that includes and generates other statutes and further development of common law (in the form of rules, standards and applications of the statute itself).  In this they resemble case law but with a different character (p.2). Professor Atiyah then suggests three examples of the interwovenness of statuette and common law. The first are statutes that adopt a very broad textured type of language which requires courts to "fill in the gaps" through case law (p. 3).  The second are statutes that confer discretion on the courts  to resolve conflicts or disputes according to some specified formula, or more dangerously as is "just as equitable."  He uses the example of the English matrimonial property statutes. Students should consider why Professor Atiyeh view statutes of this kind with some concern.[71].

    The proliferation of these discretions appears to me to arise at least in part from the realisation that legislation, even when fleshed out by detailed subordinate legislation, simply cannot anticipate and provide for the great variety of cases which are likely to arise; and that Parliament therefore prefers to proceed in partnership with the judiciary.[72]

Much of the objection goes to rule of law issues--judicial discretion unconstrained by common law or statutory boundaries can reduce the legitimacy of judicial action. The third, quite common in the United States, are statutes enacted in derogation of the common law.  Echomg Professor Clark's discussion of half a century earlier, Professor Atiyah explains: "When this happens, the Act may be interpreted and applied, often in parallel with analogous areas of the common law, and the legislation almost takes on the characteristics of a living graft which develops a life of its own." (Ibid., 5).  Cooperation generally takes one of two forms--either the courts work to operationalize the general principles by working out the details, or the courts seek to clean up disastrously bad legislation to make it workable within the general framework of the law into which the statute was was inserted. For much of this century U.S. courts were adept at cleaning up legislative messes.  Recently  new ideologies of judicial conservatism has tended to view such activities as too activist and judges have been more willing to allow legislatures to reap the consequences of badly worded legislation.

Part II of the article is used to suggest something Professor Atiyah suggests is a bit more controversial: can courts treat statutes like cases for the development of common law (p. 6).

    Can they justify jettisoning obsolete cases, not because they have been actually reversed by some statutory provision, but because a statute suggests that they are based on outdated values? Could the courts legitimately draw some general principle from a limited statutory provision, and apply that principle as a matter of common law?[73]

These were issues raised famously by the U.S. scholar Roscoe Pound in 1907 ("Common Law and Legislation” (1907) 21 Harvard Law Rev. 383).  Professor Atiyah's discussion of Pound's discussion of the distinct ways in which courts receive statutes remains important: (1) strict and narrow interpretation, no reasoning from statutes by analogy (2) broad interpretation, no reasoning from statutes by analogy, (3) statutes received fully into common law and treated like cases; (4) statutes treated as a higher source of law from which reasoning by analogy would be necessary. U.S. law of the early 1900s had just reached the first stage, as Professor Clarks' article illustrated nicely.  English law had reached the third stage (Ibid., 7). Professor Atiyah suggests that it is possible for courts to give statutes no effect as statute beyond their narrow confines but to apply statutes as a source of analogy or principle to justify changing common law.  He provides a number of arguments.  He then discusses a number of legal areas where he argues that English courts already develop the common law by analogy to statutes or from their principles.  Lastly, Professor Atiyah considers the way in which courts treat statutes that reverse or supplant common law.[74] He suggests a range of reaction--from treating the statutory derogation narrowly not affecting prior cases except to their holdings to those instances where a statute is deemed to require re-adjustment of the common law in the area touched on by the statute. We will consider this possibility under contemporary U.S. legal principles as the semester proceeds.  We will discover that, at least in the area of corporate law, this is already a well established judicial methodology, especially in the area of fiduciary obligations.  Professor Atiyah suggests that certain U.S. statutes, including the Uniform Commercial Code already recommend the application of its provisions by analogy for decisions.[75] We will consider whether Professor Atiyah's assessment of the U.S. system applies in fact:

    For one thing, our legislature is much more active than American legislatures, especially state legislatures. The need for judicial creativity is much greater there, and there is a corresponding need for methods by which the courts can jettison obsolete laws based on out-dated values. For another thing, American legislatures are accustomed to being told what they can and cannot do by the courts.[76]

We will consider this in more detail as we work through the core issues of the American constitutional system and its operation in the area of corporate governance.

The last two reading[77]s consider the crucially important issue of statutory “culture” within the U.S. legal system.  We have alluded to the basic problem—in a jurisdiction in which judge administered law is an important component of the legal system, and where statutes form a part but not the whole of the system for declaring and imposing law, then how doers one approach the application and interpretation of statutes, and what is the role of the courts in that context?  That issue requires an introduction to the differences in forms of statutory systems between statutory codes, and statutory compilations. Codes can be understood as self-referencing and internally coherent systems of rules that are dependent on themselves and their principles for their meaning and application.  Statutory compilations are common to legal systems in which statutes form a part but not the whole of multi-sourced law system, which provide some basis for their interpretation but which requires considerable inter-communication with the entirety of the law, including the common law.  A case from the criminal law may make this point well—the need to intermesh statutory and common law systems to interpret and apply statutes—something impossible in systems in which law is sourced in statutes and statutes are organized as self-referencing coders whose logic and scope is wholly internal.


Court of Appeals of Washington
4 Wash.App. 908, 484 P.2d 1167 (1971)

            HOROWITZ, Chief Judge.

            Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.

            The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.

            The court expressly found:

That both defendants were aware that William Joseph Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The             defendants were  ignorant. They did not realize how sick the baby was. They        thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They         knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.

The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.

That as a proximate result of this negligence, William Joseph Tabafunda died.

From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.
            Defendants take no exception to findings but contend that the findings do not support the conclusions that the defendants are guilty of manslaughter as charged. The contentions raise tow basic issues, (1) the existence of the duty to furnish medical aid charged by the information to be violated1 and the seriousness of the breach required; and (2) the issue of proximate cause, I.e., whether defendants were put on notice, in time to save the child's life, that medical care was required. Because the nature of the duty and the quality or seriousness of the breach are closely interrelated, our discussion of the first issue involved will embrace both matters.

            Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. [cases cited]. In Washington, the existence of the duty is commonly assumed and is stated at times without reference to any particular statute. * * * On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or simple negligence-gross negligence was essential. [sources cited]. In Washington, however, RCW 9.48.0602 (since amended by Laws of 1970, ch. 49, s 2) and RCW 9.48.1503 supersede both voluntary and involuntary manslaughter as those crimes were defined at common law. Under these statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence.

            The concept of simple or ordinary negligence describes a failure to exercise the ‘ordinary caution’ necessary to make out the defense of excusable homicide. RCW 9.48.150. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use ‘ordinary caution.’ See State v. Hedges, Supra. If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter. * * *

            RCW 26.20.030(1)(b) makes it a felony for a person who ‘willfully omits, without lawful excuse, to furnish necessary * * * medical attendance for his or her child * * *.’ The words ‘willfully omits' are, as pointed out in State v. Russel used in two senses, namely, (1) ‘an act or omission done intentionally * * *’ or (2) when used in statutes making nonsupport a crime, ‘an absence of lawful excuse or justification on the part of the accused parent.’ It was further pointed out that, by reason of RCW 26.20.080, the state meets its burden of proving willfulness and absence of lawful excuse on a prima facie basis when the evidence, directly or circumstantially, reveals a failure on the part of a physically or vocationally able parent to furnish the required medical attendance. Hence, RCW 26.20.030 is presumptively violated either because a defendant intentionally omits to furnish necessary medical care, or omits so to do without lawful excuse.

            Defendants' contention misconceives the significance of the words ‘willful * * * misconduct’ contained in the conclusions because of defendants' failure to recognize that ‘willful’ is a phrase of double meaning. The presumption of correctness that attends judgments of the trial court is necessarily predicated upon the subordinate presumption of the correctness of findings and conclusions. To give proper effect to this presumption requires that findings, whether or not containing a conclusion of law, and conclusions of law be reconciled if reasonably possible. Such a reconciliation is entirely possible in the instant case by a proper interpretation of the phrase ‘willful * * * misconduct.’ Since the trial court expressly found that the defendants ‘had no excuse that the law will recognize for not taking the baby to a doctor,’ it is reasonable to conclude that the phrase ‘willful * * * misconduct,’ contained in the conclusion, merely means intentional misconduct. The conclusion, in light of the findings, means merely that the conduct, although not intentional, was without lawful excuse and therefore willful in the second sense. State v. Russell, 73 Wash.2d 903, 442 P.2d 988 (1968);State v. McCarty, 76 Wash.2d 328, 456 P.2d 350 (1969); State v. Ozanne, 75 Wash.2d 546, 452 P.2d 745 (1969). Even if it is assumed that the information charging the crime of manslaughter relied upon a violation of RCW 26.20.030(1)(b), the conviction must stand since the findings and supporting evidence are sufficient to support the conclusion that, in the second sense of the term, the defendants willfully violated the duty owing their deceased child.

            Furthermore, the significance of the words ‘willful * * * misconduct’ contained in the conclusion is overstated. If it be assumed that RCW 26.20.030(1)(b) can be said to create a duty to furnish medical care otherwise not existing, as distinguished from a mere statement of a condition precedent to the imposition of a criminal sanction, then a duty may be said to exist even if the conditions permitting imposition of the criminal sanction do not. [case cited]. Hence, a conclusion that defendants' conduct was not willful does not mean that the duty has not been violated. It merely means that the special sanction of RCW 26.20.030(1) (b) cannot be invoked.

            We need not, however, rest our decision solely on the above mentioned grounds. The information charging statutory manslaughter made no mention of and did not purport to restrict itself to the violation of the duty set forth in RCW 26.20.030(1)(b). The information charged the violation of ‘the legal duty of providing necessary * * * medical attention to said * * * minor child * * *’ This general language permits reliance upon the existence of the legal duty no matter from what source derived. We have already pointed out that such a parental duty is recognized in the decisions of this state and has been characterized as a natural duty existing independently of statutes. [case cited]. RCW 26.20.030(1)(b) is consistent with and therefore does not supersede the common law natural duty of parents to provide medical care for their minor dependent children. Thus, should RCW 26.20.030(1)(b) be repealed, it could not reasonably be claimed that parents were thereby absolved from their natural duty to provide necessary medical care for their minor dependent children. We therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter under RCW 9.48.060 and 9.48.150. [cases cited].

            In the instant case, however, the defendant husband is not the father of the minor child, nor has he adopted that child. Nevertheless, the evidence shows that he had assumed responsibility with his wife for the care and maintenance of the child, whom he greatly loved. Such assumption of responsibility, characterized in the information as that required of a ‘guardian and custodian,’ is sufficient to impose upon him the duty to furnish necessary medical care. [cases, sources, statute cited].

            The remaining issue of proximate cause requires consideration of the question of when the duty to furnish medical care became activated. If the duty to furnish such care was not activated until after it was too late to save the life of the child, failure to furnish medical care could not be said to have proximately caused the child's death. Timeliness in the furnishing of medical care also must be considered in terms of ‘ordinary caution.’ The law does not mandatorily require that a doctor be called for a child at the first sign of any indisposition or illness. The indisposition or illness may appear to be of a minor or very temporary kind, such as a toothache or cold. If one in the exercise of ordinary caution fails to recognize that his child's symptoms require medical attention, it cannot be said that the failure to obtain such medical attention is a breach of the duty owed. In our opinion, the duty as formulated in People v. Pierson, properly defines the duty contemplated by our manslaughter statutes RCW 9.48.060 and RCW 9.48.150. The court there said:

We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician.

It remains to apply the law discussed to the facts of the instant case. * * *

            Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.

            The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned ‘a bluish color like.’ The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth ‘when it's all swollen up like that.’ There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that ‘the way the cheek looked, * * * and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.’ Defendant wife testified that the defendants were ‘waiting for the swelling to go down,’ and also that they were afraid to take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. ‘It's just that I was so scared of losing him.’ They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.

            In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968 to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.

            The judgment is affirmed.



1.  Was justice done in this case?  Does your answer depend on how you apply the premises for justice that we discussed from Justinian’s Institutes?

2.  Does the statute in this case impose a legislative determination of what is just, manifested in the command of the statute?  What if the objectives of the statute, its intent and broad objectives, are undermined by the application of the statute in a particular instance?  Should the letter of the law applied formally prevail over the application the objectives of the statute, that is its function and purpose?

3.  What was the reason for including in the description of the defendants their race/ethnicity? What was the judge trying to signal?  Was this required either if the judge was disposed to apply the letter of the law or its purpose?

4.  Can you describe the way in which the statute was interpreted in light of law that falls outside the statutory code that is the criminal law of this state?  If the state’s criminal law were considered an integrated code would the judge have had the same leeway, or would he have been required to apply a different set of interpretive techniques?

IV. Problem.

            We have now some small experience in reading cases from the common law and equity.  We have begun to understand that those cases are read to extract the principles, standards and elements of liability, and to determine the range of actions in which liability has been applied or avoided in order to deduce whether in the context of the dispute to be resolved, whether or not liability attaches.  We have also begun to understand the common law system as one grounded in the use of those principles and the ever-widening set of factual situations in which it has been applied, as the means by which social learning is undertaken.  The cases themselves teach not merely the principles of liability but also the extent of the reach of liability; and in this manner helps people adjust their conduct to avoid liability in their relations with others.  Common law in this sense is interactive. Equity, we have seen, tends to work in a similar way.  It is the means through which we can do justice through the mechanism of judicial proceedings in three distinct realms—the development of substantive conduct rules, the development of defenses to liability, and in the scope of remedies available to those whose interests have been adversely affected by the conduct of another.   

            We must now begin the process of mastering the way the courts approach substantive rules that they have not created in this inactive fashion.  Statutes are commands—normative rules—that have been written, that do not change, and that must be applied unchanged by the courts where disputes arise as to liability that might be triggered by breach of those writings. We will come to understand that though courts have no authority to change or reject the principles and standards written into statutes, they have a substantial amount of responsibility for its application and interpretation.  these tasks are different, in kind, from those of the common law or equity courts.  yet they also involve mechanisms and processes of decision that are quite similar.  Courts must determine whether a statute applies, the circumstances in which it might not apply.  Courts are asked to fill in gaps where statutes are silent and to resolve ambiguity where statutes might be read in more than one way.  Courts are especially asked to invest words with their meaning, phrases with theirs, and the collection of words that produce a description of command some semblance of meaning that is certain and predictable, but which is also accessible and comports with the expectations and practices of the society within which these meanings are extracted. While we will consider the techniques that courts use to achieve these objectives in later chapters, the student can now be introduced to the nature of the relationship of courts to statutes through the problem set out below. 

An excellent example of these judicial roles with respect to statutes is on display in the well known cases that follows.  As you read the cases see if you can describe with specificity what the court was called upon to do, and how it applied the statutes.  Then determine whether one might argue that the court, in each case, rewrote the statutes rather than interpreted them.


Supreme Court of the United States
143 U.S. 457; 12 S.Ct. 511
February 29, 1892.

Mr. Justice BREWER delivered the opinion of the court.

Plaintiff in error is a corporation duly organized and incorporated as a religious society under the laws of the state of New York. E. Walpole Warren was, prior to September, *458 1887, an alien residing in England. In that month the plaintiff in error made a contract with him, by which he was to remove to the city of New York, and enter into its service as rector and pastor; and, in pursuance of such contract, Warren did so remove and enter upon such service. It is claimed by the United States that this contract on the part of the plaintiff in error was forbidden by chapter 164, 23 St. p. 332; and an action was commenced to recover the penalty prescribed by that act. The circuit court held that the contract was within the prohibition of the statute, and rendered judgment accordingly, (36 Fed. Rep. 303,) and the single question presented for our determination is whether it erred in that conclusion.

The first section describes the act forbidden, and is in these words:
‘Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that from and after the passage of this act it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia, under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its territories, or the District of Columbia.’

It must be conceded that the act of the corporation is within the letter of this section, for the relation of rector to his church is one of service, and implies labor on the one side with compensation on the other. Not only are the general words ‘labor’ and ‘service’ both used, but also, as it were to guard against any narrow interpretation and emphasize a breadth of meaning, to them is added ‘of any kind;’ and, further, as noticed by the circuit judge in his opinion, the fifth section, which makes specific exceptions, among them professional actors, artists, lecturers, singers, and domestic servants, strengthens the idea that every other kind of labor and service was intended to be reached by the first section. While there is great force to this reasoning, we cannot think congress intended to denounce with penalties a transaction like that in the present case. It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers. This has been often asserted, and the Reports are full of cases illustrating its application. This is not the substitution of the will of the judge for that of the legislator; for frequently words of general meaning are used in a statute, words broad enough to include an act in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its enactment, or of the absurd results which follow from giving such broad meaning to the words, makes it unreasonable to believe that the legislator intended to include the particular act. As said in Stradling v. Morgan, Plow. 205: ‘From which cases it appears that the sages of the law heretofore have construed statutes quite contrary to the letter in some appearance, and those statutes which comprehend all things in the letter they have expounded to extend to but some things, and those which generally prohibit all people from doing such an act they have interpreted to permit some people to do it, and those which include every person in the letter they have adjudged to reach to some persons only, which expositions have always been founded upon the intent of the legislature, which they have collected sometimes by considering the cause and necessity of making the act, sometimes by comparing one part of the act with another, and sometimes by foreign circumstances.’

In Pier Co. v. Hannam, 3 Barn. & Ald. 266, ABBOTT, C. J., quotes from Lord Coke as follows: ‘Acts of parliament are to be so construed as no man that is innocent or free from injury or wrong be, by a literal construction, punished or endangered.’ In the case of State v. Clark, 29 N. J. Law, 96, 99, it appeared that an act had been passed, making it a misdemeanor to willfully break down a fence in the possession of another person. Clark was indicted under that statute. The defense was that the act of breaking down the fence, though willful, was in the exercise of a legal right to go upon his own lands. The trial court rejected the testimony offered to sustain the defense, and the supreme court held that this ruling was error. In its opinion the court used this language: ‘The act of 1855, in terms, makes the willful opening, breaking down, or injuring of any fences belonging to or in the possession of any other person a misdemeanor. In what sense is the term ‘willful’ used? In common parlance, ‘willful’ is used in the sense of ‘intentional,’ as distinguished from ‘accidental’ or ‘involuntary.’ Whatever one does intentionally, he does willfully. Is it used in that sense in this act? Did the legislature intend to make the intentional opening of a fence for the purpose of going upon the land of another indictable, if done by permission or for a lawful purpose? * * * We cannot suppose such to have been the actual intent. To adopt such a construction would put a stop to the ordinary business of life. The language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity. The court must restrain the words. The object designed to be reached by the act must limit and control the literal import of the terms and phrases employed.’ In U. S. v. Kirby, 7 Wall. 482, 486, the defendants were indicted for the violation of an act of congress providing ‘that if any person shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same, he shall, upon conviction, for every such offense, pay a fine not exceeding one hundred dollars.’ The specific charge was that the defendants knowingly and willfully retarded the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty, and also in like manner retarded the steam-boat Gen. Buell, at that time engaged in carrying the mail. To this indictment the defendants pleaded specially that Farris had been indicted for murder by a court of competent authority in Kentucky; that a bench-warrant had been issued and placed in the hands of the defendant Kirby, the sheriff of the county, commanding him to arrest Farris, and bring him before the court to answer to the indictment; and that, in obedience to this warrant, he and the other defendants, as his posse, entered upon the steamboat Gen. Buell and arrested Farris, and used only such force as was necessary to accomplish that arrest. The question as to the sufficiency of this plea was certified to this court, and it was held that the arrest of Farris upon the warrant from the state court was not an obstruction of the mail, or the retarding of the passage of a carrier of the mail, within the meaning of the act. In its opinion the court says: ‘All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter. The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity,’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1 Edw. II., which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, ‘for he is not to be hanged because he would not stay to be burnt.’ And we think that a like common sense will sanction the ruling we make, that the act of congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.’ . . . .

Among other things which may be considered in determining the intent of the legislature is the title of the act. We do not mean that it may be used to add to or take from the body of the statute, (Hadden v. Collector, 5 Wall. 107,) but it may help to interpret its meaning. In the case of U. S. v. Fisher, 2 Cranch, 358, 386, Chief Justice MARSHALL said: ‘On the infiuence which the title ought to have in construing the enacting clauses, much has been said, and yet it is not easy to discern the point of difference between the opposing counsel in this respect. Neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration.’ And in the case of U. S. v. Palmer, 3 Wheat. 610, 631, the same judge applied the doctrine in this way: ‘The words of the section are in terms of unlimited extent. The words ‘any person or persons’ are broad enough to comprehend every human being. But general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them. Did the legislature intend to apply these words to the subjects of a foreign power, who in a foreign ship may commit murder or robbery on the high seas? The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature. The title of this act is, ‘An act for the punishment of certain crimes against the United States.’ It would seem that offenses against the United States, not offenses against the human race, were the crimes which the legislature intended by this law to punish.’

It will be seen that words as general as those used in the first section of this act were by that decision limited, and the intent of congress with respect to the act was gathered partially, at least, from its title. Now, the title of this act is, ‘An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States, its territories, and the District of Columbia. Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms ‘labor’ and ‘laborers’ does not include preaching and preachers, and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of ministers, rectors, and pastors.

Again, another guide to the meaning of a statute is found in the evil which it is designed to remedy; and for this the court properly looks at contemporaneous events, the situation as it existed, and as it was pressed upon the attention of the legislative body. U. S. v. Railroad Co., 91 U. S. 72, 79. The situation which called for this statute was briefly but fully stated by Mr. Justice BROWN when, as district judge, he decided the case of U. S. v. Craig, 28 Fed. Rep. 795, 798: ‘The motives and history of the act are matters of common knowledge. It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an ignorant and servile class of foreign laborers, under contracts by which the employer agreed, upon the one hand, to prepay their passage, while, upon the other hand, the laborers agreed to work after their arrival for a certain time at a low rate of wages. The effect of this was to break down the labor market, and to reduce other laborers engaged in like occupations to the level of the assisted immigrant. The evil finally became so flagrant that an appeal was made to congress for relief by the passage of the act in question, the design of which was to raise the standard of foreign immigrants, and to discountenance the migration of those who had not sufficient means in their own hands, or those of their friends, to pay their passage.’

It appears, also, from the petitions, and in the testimony presented before the committees of congress, that it was this cheap, unskilled labor which was making the trouble, and the influx of which congress sought to prevent. It was never suggested that we had in this country a surplus of brain toilers, and, least of all, that the market for the services of Christian ministers was depressed by foreign competition. Those were matters to which the attention of congress, or of the people, was not directed. So far, then, as the evil which was sought to be remedied interprets the statute, it also guides to an exclusion of this contract from the penalties of the act.

A singular circumstance, throwing light upon the intent of congress, is found in this extract from the report of the senate committee on education and labor, recommending the passage of the bill: ‘The general facts and considerations which induce the committee to recommend the passage of this bill are set forth in the report of the committee of the house. The committee report the bill back without amendment, although there are certain features thereof which might well be changed or modified, in the hope that the bill may not fail of passage during the present session. Especially would the committee have otherwise recommended amendments, substituting for the expression, ‘labor and service,’ whenever it occurs in the body of the bill, the words ‘manual labor’ or ‘manual service,’ as sufficiently broad to accomplish the purposes of the bill, and that such amendments would remove objections which a sharp and perhaps unfriendly criticism may urge to the proposed legislation. The committee, however, believing that the bill in its present form will be construed as including only those whose labor or service is manual in character, and being very desirous that the bill become a law before the adjournment, have reported the bill without change.’ Page 6059, Congressional Record, 48th Cong. And, referring back to the report of the committee of the house, there appears this language: ‘It seeks to restrain and prohibit the immigration or importation of laborers who would have never seen our shores but for the inducements and allurements of men whose only object is to obtain labor at the lowest possible rate, regardless of the social and material well-being of our own citizens, and regardless of the evil consequences which result to American laborers from such immigration. This class of immigrants care nothing about our institutions, and in many instances never even heard of them. They are men whose passage is paid by the importers. They come here under contract to labor for a certain number of years. They are ignorant of our social condition, and, that they may remain so, they are isolated and prevented from coming into contact with Americans. They are generally from the lowest social stratum, and live upon the coarsest food, and in hovels of a character before unknown to American workmen. They, as a rule, do not become citizens, and are certainly not a desirable acquisition to the body politic. The inevitable tendency of their presence among us is to degrade American labor, and to reduce it to the level of the imported pauper labor.’ Page 5359, Congressional Record, 48th Cong.

We find, therefore, that the title of the act, the evil which was intended to be remedied, the circumstances surrounding the appeal to congress, the reports of the committee of each house, all concur in affirming that the intent of congress was simply to stay the influx of this cheap, unskilled labor.

But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. . . .

* * * * * * *

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Com., 11 Serg. & R. 394, 400, it was decided that, ‘Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; * * * not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.’ And in People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor KENT, the great commentator on American law, speaking as chief justice of the supreme court of New York, said: ‘The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. * * * The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to panish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.’ And in the famous case of Vidal v. Girard’s Ex’rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: ‘It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.’

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

Suppose, in the congress that passed this act, some member had offered a bill which in terms declared that, if any Roman Catholic church in this country should contract with Cardinal Manning to come to this country, and enter into its service as pastor and priest, or any Episcopal church should enter into a like contract with Canon Farrar, or any Baptist church should make similar arrangements with Rev. Mr. Spurgeon, or any Jewish synagogue with some eminent rabbi, such contract should be adjudged unlawful and void, and the church making it be subject to prosecution and punishment. Can it be believed that it would have received a minute of approving thought or a single vote? Yet it is contended that such was, in effect, the meaning of this statute. The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the legislature used general terms with the purpose of reaching all phases of that evil; and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.

The judgment will be reversed, and the case remanded for further proceedings in accordance with this opinion.


1. What was it exactly that the Court did regarding the statute—did it interpret the statute or rewrite it?  If they rewrote the statute what was their authority for overturning a legislative prerogative, as representatives of the people, to enact such legislation as they choose?

2.  Of course, it is possible to argue that the Court adhered strictly to the legislative primacy in the enactment and imposition of statutes as written.  However, it is possible to suggest that statutes consist of two parts; first a writing and second an objective. The two must reinforce each other.  But should legislative objective serve as a superior interpretive imperative than the plain meaning of the words of a statute?


Problem:  You are a young lawyer working in the Buenos Aires, Argentina office  of a multi-office law firm, the headquarters of which are in New York. The partner for whom you work has been meeting with Argentine judges well trained in the civil law traditions of Argentina.  They are curious to know how U.S. courts apply statutes—and especially the techniques they use to interpret and apply statutes. They have assumed that the role of the judge is very limited when construing and applying statutes and that beyond the words of the statute themselves and the code within which they appear, judges have very little authority to extend their sources of interpretation.  They have read Holy Trinity Church and were given a new case to read—Welsh v. United States, 398 U.S. 333, 90 S. Ct. 1792 (1970), and are curious to know exactly what it is the courts did to reach the results in the cases. They are especially interested to understand how it is that the court in Holy Trinity Church could read the statutes against its plain meaning, and how three different interpretations were possible in the Welch case. The partner has asked you to prepare a very brief explanation of the approach of U.S. judges to the tasks of statutory interpretation, and especially to describe the techniques used, why they might be understood as authoritative, and how the use of distinct techniques permitted the construction of `plausible alternative constructions of statutes by the justices in Welsh.


Elliott Ashton WELSH, II, Petitioner,
398 U.S. 333; 90 S.Ct. 1792
Supreme Court of the United States
(Argued Jan. 20, 1970.  Decided June 15, 1970)

Mr. Justice BLACK announced the judgment of the Court and delivered an opinion in which Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL join.

The petitioner, Elliott Ashton Welsh II, was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U.S.C. App. s 462(a), and was on June 1, 1966, sentenced to imprisonment for three years. One of petitioner’s defenses to the prosecution was that s 6(j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was ‘by reason of religious training and belief * * * conscientiously opposed to participation in war in any form.’[78] After finding that there was no religious basis for petitioner’s conscientious objector claim, the Court of Appeals, Judge Hamley dissenting, affirmed the conviction. 404 F.2d 1078 (1968). We granted certiorari chiefly to review the contention that Welsh’s conviction should be set aside on the basis of this Court’s decision in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). 396 U.S. 816, 90 S.Ct. 53, 24 L.Ed.2d 67 (1969). For the reasons to be stated, and without passing upon the constitutional arguments that have been raised, we vote to reverse this conviction because of its fundamental inconsistency with United States v. Seeger, supra.

The controlling facts in this case are strikingly similar to those in Seeger. Both Seeger and Welsh were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but when their ideas did fully mature both made application to their local draft boards for conscientious objector exemptions from military service under s 6(j) of the Universal Military Training and Service Act. That section then provided, in part:[79]

‘Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.’

In filling out their exemption applications both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated ‘I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form.’ Seeger could sign only after striking the words ‘training and’ and putting quotation marks around the word ‘religious.’ Welsh could sign only after striking the words ‘my religious training and.’ On those same applications, neither could definitely affirm or deny that he believed in a ‘Supreme Being,’ both stating that they preferred to leave the question open.[80] But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a ‘still, small voice of conscience’; rather, for them that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger’s convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, ‘(t)he government concedes that (Welsh’s) beliefs are held with the strength of more traditional religious convictions.’ 404 F.2d, at 1081. But in both cases the Selective Service System concluded that the beliefs of these men were in some sense insufficiently ‘religious’ to qualify them for conscientious objector exemptions under the terms of s 6(j). Seeger’s conscientious objector claim was denied ‘solely because it was not based upon a ‘belief in a relation to a Supreme Being’ as required by s 6(j) of the Act,’ United States v. Seeger, 380 U.S. 163, 167, 85 S.Ct. 850, 854, 13 L.Ed.2d 733 (1965), while Welsh was denied the exemption because his Appeal Board and the Department of Justice hearing officer ‘could find no religious basis for the registrant’s beliefs, opinions and convictions.’ App. 52. Both Seeger and Welsh subsequently refused to submit to induction into the military and both were convicted of that offense.

In Seeger the Court was confronted, first, with the problem that s 6(j) defined ‘religious training and belief’ in terms of a ‘belief in a relation to a Supreme Being * * *,’ a definition that arguably gave a preference to those who believed in a conventional God as opposed to those who did not. Noting the ‘vast panoply of beliefs’ prevalent in our country, the Court construed the congressional intent as being in ‘keeping with its long-established policy of not picking and choosing among religious beliefs,’ id., at 175, 85 S.Ct., at 859, and accordingly interpreted ‘the meaning of religious training and belief so as to embrace all religions * * *.’ Id., at 165, 85 S.Ct., at 854. (Emphasis added.) But, having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were ‘religious’ within the meaning of the statute. This question was particularly difficult in the case of Seeger himself. Seeger stated that his was a ‘belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.’ 380 U.S., at 166, 85 S.Ct., at 854. In a letter to his draft board, he wrote:

‘My decision arises from what I believe to be considerations of validity from the standpoint of the welfare of humanity and the preservation of the democratic values which we in the United States are struggling to maintain. I have concluded that war, from the practical standpoint, is futile and self-defeating, and that from the more important moral standpoint, it is unethical.’ 326 F.2d 846, 848 (2 Cir. 1964).

On the basis of these and similar assertions, the Government argued that Seeger’s conscientious objection to war was not ‘religious’ but stemmed from ‘essentially political, sociological, or philosophical views or a merely personal moral code.’

In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that ‘(the) task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.’ 380 U.S., at 185, 85 S.Ct., at 863. (Emphasis added.) The reference to the registrant’s ‘own scheme of things’ was intended to indicate that the central consideration in determining whether the registrant’s beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant’s life. The Court’s principal statement of its test for determining whether a conscientious objector’s beliefs are religious within the meaning of s 6(j) was as follows:

‘The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.’ 380 U.S., at 176, 85 S.Ct., at 859.

The Court made it clear that these sincere and meaningful beliefs that prompt the registrant’s objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that s 6(j) ‘does not distinguish between externally and internally derived beliefs,’ id., at 186, 85 S.Ct., at 864 and also held that ‘intensely personal’ convictions which some might find ‘incomprehensible’ or ‘incorrect’ come within the meaning of ‘religious belief’ in the Act. Id., at 184—185, 85 S.Ct., at 863—864. What is necessary under Seeger for a registrant’s conscientious objection to all war to be ‘religious’ within the meaning of s 6(j) is that this opposition to war stem from the registrant’s moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality—a God—who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual ‘a place parallel to that filled by * * * God’ in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a ‘religious’ conscientious objector exemption under s 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

Applying this standard to Seeger himself, the Court noted the ‘compulsion to ‘goodness“ that shaped his total opposition to war, the undisputed sincerity with which he held his views, and the fact that Seeger had ‘decried the tremendous ‘spiritual’ price man must pay for his willingness to destory human life.’ 380 U.S., at 186—187, 85 S.Ct., at 864. The Court concluded:

‘We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers.’ 380 U.S., at 187, 85 S.Ct. at 864—865.

Accordingly, the Court found that Seeger should be granted conscientious objector status.

In the case before us the Government seeks to distinguish our holding in Seeger on basically two grounds, both of which were relied upon by the Court of Appeals in affirming Welsh’s conviction. First, it is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word ‘religious,’ but Welsh struck the word ‘religious’ entirely and later characterized his beliefs as having been formed ‘by reading in the fields of history and sociology.’ App. 22. The Court of Appeals found that Welsh had ‘denied that his objection to war was premised on religious belief’ and concluded that ‘(t)he Appeal Board was entitled to take him at his word.?’ 404 F.2d at 1082. We think this attempt to distinguish Seeger fails for the reason that it places undue emphasis on the registrant’s interpretation of his own beliefs. The Court’s statement in Seeger that a registrant’s characterization of his own belief as ‘religious’ should carry great weight, 380 U.S., at 184, 85 S.Ct., at 863, does not imply that his declaration that his views are nonreligious should be treated similarly. When a registrant states that his objections to war are ‘religious,’ that information is highly relevant to the question of the function his beliefs have in his life. But very few registrants are fully aware of the broad scope of the word ‘religious’ as used in s 6(j), and accordingly a registrant’s statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption. Welsh himself presents a case in point. Although he originally characterized his beliefs as nonreligious, he later upon reflection wrote a long and thoughtful letter to his Appeal Board in which he declared that his beliefs were ‘certainly religious in the ethical sense of the word.’ He explained:

‘I believe I mentioned taking of life as not being, for me, a religious wrong. Again, I assumed Mr. (Bradey (the Department of Justice hearing officer)) was using the word ‘religious’ in the conventional sense, and, in order to be perfectly honest did not characterize my belief as ‘religious.“ App. 44.
The Government also seeks to distinguish Seeger on the ground that Welsh’s views, unlike Seeger’s, were ‘essentially political, sociological, or philosophical views or a merely personal moral code.’ As previously noted, the Government made the same argument about Seeger, and not without reason, for Seeger’s views had a substantial political dimension. Supra, at 1795. In this case, Welsh’s conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote:

‘I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to ‘defend’ our ‘way of life’ profoundly change that way of life. I see that in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation.’ App. 30.

We certainly do not think that s 6(j)‘s exclusion of those persons with ‘essentially political, sociological, or philosophical views or a merely personal moral code’ should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency. In applying s 6(j)‘s exclusion of those whose views are ‘essentially political, sociological, or philosophical’ or of those who have a ‘merely personal moral code,’ it should be remembered that these exclusions are definitional and do not therefore restrict the category of persons who are conscientious objectors by ‘religious training and belief.’ Once the Selective Service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a ‘religious’ conscientious objector, it follows that his views cannot be ‘essentially political, sociological, or philosophical.’ Nor can they be a ‘merely personal moral code.’ See United States v. Seeger, 380 U.S., at 186, 85 S.Ct. at 864.

Welsh stated that he ‘believe(d) the taking of life—anyone’s life—to be morally wrong.’ App. 44. In his original conscientious objector application he wrote the following:

‘I believe that human life is valuable in and of itself; in its living; therefore I will not injure or kill another human being. This belief (and the corresponding ‘duty’ to abstain from violence toward another person) is not ‘superior to those arising from any human relation.’ On the contrary: it is essential to every human relation. I cannot, therefore, conscientiously comply with the Government’s insistence that I assume duties which I feel are immoral and totally repugnant.’ App. 10.

Welsh elaborated his beliefs in later communications with Selective Service officials. On the basis of these beliefs and the conclusion of the Court of Appeals that he held them ‘with the strength of more traditional religious convictions,’ 404 F.2d, at 1081, we think Welsh was clearly entitled to a conscientious objector exemption. Section 6(j) requires no more. That section exempts from military service all those whose consciences, spurred by deeply held moral, ethical, or religious beliefs, would give them no rest or peace if they allowed themselves to become a part of an instrument of war.

The judgment is reversed.

Mr. Justice BLACKMUN took no part in the consideration or decision of this case.

Mr. Justice HARLAN, concurring in the result.

Candor requires me to say that I joined the Court’s opinion in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today’s decision convinces me that in doing so I made a mistake which I should now acknowledge.[81]

In Seeger the Court construed s 6(j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on the theistic belief. The Court, in treating with the provision of the statute that limited conscientious objector claims to those stemming from belief in ‘a Supreme Being,’ there said: ‘Congress, in using the expression ‘Supreme Being’ rather than the designation ‘God,’ was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views,’ and held that the test of belief “in a relation to a Supreme Being’ is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption.’ 380 U.S., at 165—166, 85 S.Ct., at 854. Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: ‘If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time’ (emphasis added), he qualifies for a s 6(j) exemption.

In my opinion, the liberties taken with the statute both in Seeger and today’s decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and, as I will undertake to show in this opinion, those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether s 6(j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment. For reasons later appearing I believe it does, and on that basis I concur in the judgment reversing this conviction, and adopt the test announced by Mr. Justice BLACK, not as a matter of statutory construction, but as the touchstone for salvaging a congressional policy of long standing that would otherwise have to be nullified.


Section 6(j) provided during the period relevant to this case:

‘Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.’ Universal Military Training and Service Act of 1948, s 6(j), 62 Stat. 612, 50 U.S.C.App. s 456(j).

The issue is then whether Welsh’s opposition to war is founded on ‘religious training and belief’ and hence ‘belief in a relation to a Supreme Being’ as Congress used those words. It is of course true that certain words are more plastic in meaning than others. ‘Supreme Being’ is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. Cf. United States v. Storrs, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460 (1926). This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like ‘religion’ or ‘speech,’ which this Court is freer to construe in light of evolving needs and circumstances. . . .  Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. Cf. e.g., Standard Oil Co. of New Jersey v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911). It is Congress’ will that must here be divined. In that endeavor it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy, Rector, etc., of Holy Trinity Church v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892); it is a wholly different matter to define words so as to change policy. The limits of this Court’s mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970)[82] The prevailing opinion today snubs both guidelines for it is apparent from a textual analysis of s 6(j) and the legislative history that the words of this section, as used and understood by Congress, fall short of enacting the broad policy of exempting from military service all individuals who in good faith oppose all war.


The natural reading of s 6(j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. Section 5(g) of the 1940 Draft Act exampted individuals whose opposition to war could be traced to ‘religious training and belief,’ 54 Stat. 889, without any allusion to a Supreme Being. In United States v. Kauten, 133 F.2d 703 (C.A.2d Cir. 1943), the Second Circuit, speaking through Judge Augustus Hand, broadly construed ‘religious training and belief’ to include a ‘belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets.’ 133 F.2d, at 708. The view was further elaborated in subsequent decisions of the Second Circuit, see United States ex rel. Phillips v. Downer, 135 F.2d 521 (C.A.2d Cir. 1943); United States ex rel. Reel v. Badt, 141 F.2d 845 (C.A.2d Cir. 1944). This expansive interpretation of s 5(g) was rejected by a divided Ninth Circuit in Berman v. United States, 156 F.2d 377, 380—381 (1946):

‘It is our opinion that the expression ‘by reason of religious training and belief’ * * * was written into the statute for the specific purpose of distinguishing between a conscientious social belief, or a sincere devotion to a high moralistic philosophy, and one based upon an individual’s belief in his responsibility to an authority higher and beyond any worldly one.

‘(I)n United States v. Macintosh, 283 U.S. 605, 51 S.Ct. 570, 578, 75 L.Ed. 1302, Mr. (Chief) Justice Hughes in his dissent * * * said: ‘The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.‘‘

The unmistakable and inescapable thrust of the Berman opinion, that religion is to be conceived in theistic terms, is rendered no less straightforward by the court’s elaboration on the difference between beliefs held as a matter of moral or philosophical conviction and those inspired by religious upbringing and adherence to faith.

‘There are those who have a philosophy of life, and who live up to it. There is evidence that this is so in regard to appellant. However, no matter how pure and admirable his standard may be, and no matter how devotedly he adheres to it, his philosophy and morals and social policy without the concept of deity cannot be said to be religion in the sense of that term as it is used in the statute. It is said in State v. Amana Society, 132 Iowa 304, 109 N.W. 894, 898 * * *: ‘Surely a scheme of life designed to obviate such results (man’s inhumanity to man), and by removing temptations, and all the inducements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotee regards it as an essential tenet of their (sic) religious faith. “”’’ (Emphasis of Court of Appeals.) Ibid.

In the wake of this intercircuit dialogue, crystallized by the dissent in Berman which espoused the Second Circuit interpretation in Kauten, supra, Congress enacted s 6(j) in 1948. That Congress intended to anoint the Ninth Circuit’s interpretation of s 5(g) would seem beyond question in view of the similarity of the statutory language to that used by Chief Justice Hughes in his dissenting opinion in Macintosh and quoted in Berman and the Senate report. The first half of the new language was almost word for word that of Chief Justice Hughes in Macintosh, and quoted by the Berman majority;[83] and the Senate Committee report adverted to Berman, thus foreclosing any possible speculation as to whether Congress was aware of the possible alternatives. The report stated:

‘This section reenacts substantially the same provisions as were found in subsection 5(g) of the 1940 act. Exemption extends to anyone who, because of religious training and belief in his relationship to a Supreme Being, is conscientiously opposed to combatant military service or to both combatant and non-combatant military service. (See United States v. Berman (sic) 156 F. (2d) 377, certiorari denied, 329 U.S. 795 (67 S.Ct. 480, 91 L.Ed. 680).)’ S.Rep. No. 1268, 80th Cong., 2d Sess., 14.[84]


Against his legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of s 6(j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from ‘essentially political, sociological, or philosophical views or a merely personal moral code.’

In the realm of statutory construction it is appropriate to search for meaning in the congressional vocabulary in a lexicon most probably consulted by Congress. Resort to Webster’s[85] reveals that the meanings of ‘religion’ are: ‘1. The service and adoration of God or a god as expressed in forms of worship, in obedience to divine commands * * *; 2. The state of life of a religious * * *; 3. One of the systems of faith and worship; a form of theism; a religious faith * * *; 4. The profession or practice of religious beliefs; religious observances collectively; pl. rites; 5. Devotion or fidelity; * * *conscientiousness; 6. An apprehension, awareness, or conviction of the existence of a supreme being, or more widely, of supernatural powers or influences controlling one’s own, humanity’s, or nature’s destiny; also, such an apprehension, etc., accompanied by or arousing reverence, love, gratitude, the will to obey and serve, and the like * * *.’ (Emphasis added.)

Of the five pertinent definitions four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court’s opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining ‘religion,’ there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. That it is difficult to plot the semantic penumbra of the word ‘religion’ does not render this term so plastic in meaning that the Court is entitled, as matter of statutory construction, to conclude that any asserted and strongly held belief satisfies its requirements. It must be recognized that the permissible shadow of connotation is limited by the context in which words are used. In s 6(j) Congress has included not only a reference to a Supreme Being but has also explicitly contrasted ‘religious’ beliefs with those that are ‘essentially political, sociological, or philosophical’ and a ‘personal moral code.’ This exception certainly is, at the very least, the statutory boundary, the ‘asymptote,’ of the word ‘religion.’[86]

For me this dichotomy reveals that Congress was not embracing that definition of religion that alone speaks in terms of ‘devotion or fidelity’ to individual principles acquired on an individualized basis but was adopting, at least, those meanings that associate religion with formal, organized worship or shared beliefs by a recognizable and cohesive group. Indeed, this requirement was explicit in the predecessor to the 1940 statute. The Draft Act of 1917 conditioned conscientious objector status on membership in or affiliation with a ‘well-recognized religious sect or organization (then) organized and existing and whose existing creed or principles forb(ade) its members to participate in war in any form * * *.’ s 4, 40 Stat. 78. That s 5(g) of the 1940 Act eliminated the affiliation and membership requirement does not, in my view, mean as the Court, in effect, concluded in Seeger that Congress was embracing a secular definition of religion.[87]

Unless we are to assume an Alice-in-Wonderland world where words have no meaning, I think it fair to say that Congress’ choice of language cannot fail to convey to the discerning reader the very policy choice that the prevailing opinion today completely obliterates: that between conventional religions that usually have an organized and formal structure and dogma and a cohesive group identity, even when nontheistic, and cults that represent schools of thought and in the usual case are without formal structure or are, at most, loose and informal associations of individuals who share common ethical, moral, or intellectual views.


When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost.

I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957). As the Court stated in Aptheker v. Secretary of State, 378 U.S. 500, 515, 84 S.Ct. 1659, 1668—1669, 12 L.Ed.2d 992 (1964):

‘It must be remembered that ‘(a)lthough this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute * * *‘ or judicially rewriting it. Scales v. United States, 367 U.S., (203) at 211, 81 S.Ct., (1469) at 1477 (6 L.Ed.2d 782). To put the matter another way, this Court will not consider the abstract question of whether Congress might have enacted a valid statute but instead must ask whether the statute that Congress did enact will permissibly bear a construction rendering it free from constitutional defects.’

The issue comes sharply into focus in Mr. Justice Cardozo’s statement for the Court in Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379, 53 S.Ct. 620, 622, 77 L.Ed. 1265 (1933):

“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.’ * * * But avoidance of a difficulty will not be pressed to the point of disingenuous evasion. Here the intention of the Congress is revealed too distinctly to permit us to ignore it because of mere misgivings as to power. The problem must be faced and answered.’

If an important congressional policy is to be perpetuated by recasting unconstitutional legislation, as the prevailing opinion has done here, the analytically sound approach is to accept responsibility for this decision. Its justification cannot be by resort to legislative intent, as that term is usually employed, but by a different kind of legislative intent, namely the presumed grant of power to the courts to decide whether it more nearly accords with Congress’ wishes to eliminate its policy altogether or extend it in order to render what Congress plainly did intend, constitutional. . . .  I therefore turn to the constitutional question.


The constitutional question that must be faced in this case is whether a statute that defers to the individual’s conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly ‘neutral’ and, in my view, would not offend the Free Exercise Clause, for reasons set forth in my dissenting opinion in Sherbert v. Verner, 374 U.S. 398, 418, 83 S.Ct. 1790, 1801, 10 L.Ed.2d 965 (1963). . . .  However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment. . . . . The implementation of the neutrality principle of these cases requires, in my view, as I stated in Walz v. Tax Comm’n, supra ‘an equal protection mode of analysis. The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders. In any particular case the critical question is whether the scope of legislation encircles a class so broad that it can be fairly concluded that (all groups that) could be thought to fall within the natural perimeter (are included).’ 397 U.S., at 696, 90 S.Ct., at 1425.

The ‘radius’ of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its ‘scope’ individuals motivated by teachings of nontheistic religions,[88] and individuals guided by an inner ethical voice that bespeaks secular and not ‘religious’ reflection. It not only accords a preference to the ‘religious’ but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This in my view offends the Establishment Clause and is that kind of classification that this Court has condemned. . . . . .

* * * * *


Where a statute is defective because of underinclusion there exist two remedial alternatives: a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion. . . .

The appropriate disposition of this case, which is a prosecution for refusing to submit to induction and not an action for a declaratory judgment on the constitutionality of s 6(j), is determined by the fact that at the time of Welsh’s induction notice and prosecution the Selective Service was, as required by statute, exempting individuals whose beliefs were identical in all respects to those held by petitioner except that they derived from a religious source. Since this created a religious benefit not accorded to petitioner, it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment unless Welsh is to go remediless. . . . .

This result, while tantamount to extending the statute, is not only the one mandated by the Constitution in this case but also the approach I would take had this question been presented in an action for a declaratory judgment or ‘an action in equity where the enforcement of a statute awaits the final determination of the court as to validity and scope.’ Smith v. Cahoon, 283 U.S., at 565, 51 S.Ct., at 586.[89] While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered fixed by the legislative pronouncement on severability.

* * * * *

In exercising the broad discretion conferred by a severability clause it is, of course, necessary to measure the intensity of commitment to the residual policy and consider the degree of potential disruption of the statutory scheme that would occur by extension as opposed to abrogation. . . . .

* * * * *

When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it.[90] Thus I am prepared to accept the prevailing opinion’s conscientious objector test, not as a reflection of congressional statutory intent but as patch work of judicial making that cures the defect of underinclusion in s 6(j) and can be administered by local boards in the usual course of business. Like the prevailing opinion, I also conclude that petitioner’s beliefs are held with the required intensity and consequently vote to reverse the judgment of conviction.

Mr. Justice WHITE, with whom THE CHIEF JUSTICE and Mr. Justice STEWART join, dissenting.

Whether or not United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), accurately reflected the intent of Congress in providing draft exemptions for religious conscientious objectors to war, I cannot join today’s construction of s 6(j) extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology. Our obligation in statutory construction cases is to enforce the will of Congress, not our own; and as Mr. Justice HARLAN has demonstrated, construing s 6(j) to include Welsh exempts from the draft a class of persons to whom Congress has expressly denied an exemption.

For me that conclusion should end this case. Even if Welsh is quite right in asserting that exempting religious believers is an establishment of religion forbidden by the First Amendment, he nevertheless remains one of those persons whom Congress took pains not to relieve from military duty. Whether or not s 6(j) is constitutional, Welsh had no First Amendment excuse for refusing to report for induction. If it is contrary to the express will of Congress to exempt Welsh, as I think it is, then there is no warrant for saving the religious exemption and the statute by redrafting it in this Court to include Welsh and all others like him.

* * * * *

If I am wrong in thinking that Welsh cannot benefit from invalidation of s 6(j) on Establishment Clause grounds, I would nevertheless affirm his conviction; for I cannot hold that Congress violated the Clause in exempting from the draft all those who oppose war by reason of religious training and belief. In exempting religious conscientious objectors, Congress was making one of two judgments, perhaps both. First, s 6(j) may represent a purely practical judgment that religious objectors, however admirable, would be of no more use in combat than many others unqualified for military service. Exemption was not extended to them to further religious belief or practice but to limit military service to those who were prepared to undertake the fighting that the armed services have to do. On this basis, the exemption has neither the primary purpose nor the effect of furthering religion. As Mr. Justice Frankfurter, joined by Mr. Justice Harlan, said in a separate opinion in the Sunday Closing Law Cases, 366 U.S. 420, 468, 81 S.Ct. 1101, 1158, 6 L.Ed.2d 393 (1961), an establishment contention ‘can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349.’

Second, Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because in the view of Congress to deny the exemption would violate the Free Exercise Clause or at least raise grave problems in this respect. True, this Court has more than once stated its unwillingness to construe the First Amendment, standing alone, as requiring draft exemptions for religious believers. Hamilton v. Board of Regents, 293 U.S. 245, 263—264, 55 S.Ct. 197, 204—205, 79 L.Ed. 343 (1934); United States v. Macintosh, 283 U.S. 605, 623—624, 51 S.Ct. 570, 574—575, 75 L.Ed. 1302 (1931). But this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task. Legislative exemptions for those with religious convictions against war date from colonial days. As Chief Justice Hughes explained in his dissent in United States v. Macintosh, supra, at 633, 51 S.Ct., at 578, the importance of giving immunity to those having conscientious scruples against bearing arms has consistently been emphasized in debates in Congress and such draft exemptions are “indicative of the actual operation of the principles of the Constitution.” However this Court might construe the First Amendment, Congress has regularly steered clear of free exercise problems by granting exemptions to those who conscientiously oppose war on religious grounds.

* * * * * *

The Establishment Clause as construed by this Court unquestionably has independent significance; its function is not wholly auxiliary to the Free Exercise Clause. It bans some involvements of the State with religion that otherwise might be consistent with the Free Exercise Clause. But when in the rationally based judgment of Congress free exercise of religion calls for shielding religious objectors from compulsory combat duty, I am reluctant to frustrate the legislative will by striking down the statutory exemption because it does not also reach those to whom the Free Exercise Clause offers no protection whatsoever.
I would affirm the judgment below.


[1] Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions  29 (New York: Foundation Press, 1999).
[4] M. Vanel, Rep. Civ. Dalloz V° Code Civil n.2; J. C. Groshens, La codification par décret des lois et règlements, D. 1958, Chronique, 157.
[5] R.D. Encyclopaedia Universalis V° Codification.
[6] Ch. Osawke Louisiana legal system: A confluence of two legal traditions in ‘Law in the U.S.A. faces social and scientific change,’ 34 Am. J. Comp. L. 29 (1986).
[7] Herman, Llewellyn the Civilian: Speculations on the Contribution of Continental experience to the Uniform Commercial Code, 56 Tul. L. Rev. 1125 (1982).
[8] 1 G. Cornu, Droit Civil, Introduction—les personnes—les biens, no. 222 (2d ed. 1985).
[9] P. Orianne, Introduction au Système Juridique 98 (1982).
[10] 1 J. Carbonnier, Droit Civil—Introduction, les personnes, no. 15 (11th ed. 1979).
[11] Cited by 1 H. Mazeaud & L. Mazeaud & J. Mazeaud & F. Chabas, Lecons de droit civil, no. 45 (8th ed. 1986).
[12] R. Demogue, Les notions fondamentales de droit privé, 207 (1911). See more generally, La codification et l’évolution du droit, XVIIIth Congress of IDEF, Louisiana 1985, Revue Jur. et Politique 1986. See R. Sacco ‘Codificare: modo supezato di legiferare?’ Rivista di Diritto Civile 1983, 117 et seq.
[13] R. David, Les grands systèmes de droit contemporains, no. 469, 472 (8th ed. 1982), at no. 70.
[14] T. Huc, Commentaire théorique et pratique du code civil 37 (1892). Translation in Levasseur, On the Structure of a Civil Code, 44 Tul. L. Rev. 693, 697 (1970).
[15] 1 P. Fenet, supra note 20; Levasseur, Code Napoleon or Code Portalis, 43 Tul. L. Rev. 762, 769-72 (1969). See also Diamond, 1973 Rev. Internationale de droit comparé 704, raising the question as to whether codification should only deal with general principles.

[16] 1 H. Mazeaud & L. Mazeaud & J. Mazeaud & F. Chabas, Lecons de droit civil, no. 43 (8th ed. 1986)
[17] G. Cornu, supra . . ., at no. 287; see also J. Ray, Essai sur la structure logique du Code Civil Francais (1926).
[18] G. Cornu, supra . . . , at no. 287; see also Arnaud, Les origines doctrinales du Code Civil francais IX Bibl. de philo. du Droit (1969); Essai d’analyse structurale du Code civil francais XVI Bibl. de philo. du Droit (1973).
[19] G. Cornu, supra . . , at no. 287.
[20] R. David, supra . . . , at no. 70.
[21] 1 C. Larroumet, Droit Civil—Introduction a l’étude du droit privé, no. 158 (1984).
[22] Id. at 695; Pothier, Introduction à la coutume D’Orléans (1670).
[23] 1 G. Cornu, supra . . . , at no. 223; see more generally on the legal language, J. Bergel, Théorie générale du droit, no. 108 (1985); J. Sourioux & P. Lerat, Le language du droit (1975).
[24] Olivier, supra . . . 10.
[25] 1 A. Weill & F. Terré, Droit Civil—Introduction générale, no. 142 (4th ed. 1979), which cite Tallon, Codification and Consolidation of the Law at the Present Time, 14 Israel L. Rev. 1 (1979).
[26] 1 F. Gény, Méthode d’interpretation et sources en droit privé positif, no. 52 (1954); see also Hahlo, Codifying the common law, protracted gestation, 38 Modern L. Rev. 23 (1975).
[27] Law Reform Commission of Canada, Towards a Codification of Canadian Criminal Law, 1.36, p. 14 (1976).
[28] L. Scarman, English Law, the New Dimension 4 (1974).
[29] O’Neill, Preface to United States Code, at VII (1982 ed.).
[30] Cal. Code at v (West 1985).
[31] Ga. Code Ann. at ix (1982).
[32] 10 Cal. Code, at vi (West 1985).
[33] 1977 Ala. Acts 20, § 8; O’Neill, supra note 47.
[34] See, e.g., the first six titles of the U.S.C., 1982 Ed.
[35] Ga. Code Ann. at xi (1982).
[36] Usually, the legal literature on codification in America begins with the early nineteenth century, or even later, with David Dudley Field in the mid-nineteenth century. There are few exceptions. Varga starts in 1648 with the Book of the General Laws and Libertyes, see [Csaba Varga, Codification As a Socio-Historical Phenomenon (Sander Eszenyi et al. trans., 1991) (1979)], at 152, while Berger claims that codification “started as early as 1634, when Massachusetts envisaged the drafting of codes inspired by Natural Law.” Berger, supra note 14, at 152. Berger gives no sources and no evidence for his claim. It is unclear which code he is describing.
[37]  [Lawrence M. Friedman, A History of American Law 21, 112 (1985); and Friedrich Kessler et al., Contracts: Cases and Materials (1986)] at 90.
[38] Friedman, supra . . ., at 93.
[39] There has been an intense debate about the sources of the Digest. See Herman, supra note 326, at 31-32 nn.60-61.

[40] [David S. Clark, The Civil Law Influence on David Dudley Field’s Code of Civil Procedure, in The Reception of Continental Ideas in the Common Law World: 1820-1920, at 73 (Mathias Reimann ed., 1993)] (pointing out that Field made 59 trips to Europe during his lifetime).
[41] 1 David Dudley Field, Speeches, Arguments, and Miscellaneous Papers of David Dudley Field 326 (Abram P. Sprague ed., New York, Appleton and Co. 1884).
[42] 3 id. at 239.
[43] See Clark, supra . . . , at 87.
[44] The assertion of insignificance is doubtful because there are cases in which the Civil Codes were not irrelevant for the court’s decision. See, e.g., Palo Alto Town & Country Village, Inc. v. BBTC Co., 521 P.2d 1097 (1974).
[45] Guido Calabresi, A Common Law for the Age of Statutes 1 (1982).
[46] Law dictionaries can be another source of confusion. Note, for example, that former editions of Black’s Law Dictionary defined “codification” as a “[p]rocess of collecting and arranging the laws of a country or state into a code, i.e., into a complete system of positive law, scientifically ordered, and promulgated by legislative authority,” Black’s Law Dictionary 324 (4th ed. 1951); whereas, the most recent edition demands less by defining it as a “process of compiling, arranging, and systematizing the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code.” Black’s Law Dictionary 252 (7th ed. 1999).
[47] On the European continent, formal codification is particularly widespread in France (known as “codification formelle,” “codification à droit constant,” “codification administrative,” or “codification par décret”). See, e.g., Roger Saint-Alary, Les codifications administratives et le progrès du droit en France, 40 Revue juridique et politique 738 (1986); Christian Vigouroux, Alice au pays de la codification à droit constant, 82 Revue française d’administration publique 187 (1997). There is a special commission dealing with this kind of codification known as “Commission supérieure de codification” in France and “Bureau de coordination du Conseil d’État de Belgique” in Belgium. For France, see, for example, Yves Robineau, Les structures françaises: la Commission supérieure de codification, 82 Revue française d’administration publique 263 (1997). For Belgium, see, for example, Christian Lambotte, Une Expérience: Le Bureau de coordination du Conseil d’État de Belgique, 40 Revue juridique et politique 817 (1986). This type of codification also existed in the most extensive form in Russia with the process towards a Svod Zakonov. See, e.g., William E. Butler, Toward a Svod Zakonow for the Union of Soviet Socialist Republics, in Codification in the Communist World 89 (Barry et al. eds., 1975).
[48] For the influence of Goldschmidt and the “Germanisten” on Llewellyn, see James Whitman, Commercial Law and the American Volk: A Note on Llewellyn’s German Sources for the Uniform Commercial Code, 97 Yale L.J. 156 (1987). On the impact of German legal ideas on Llewellyn in general and Jhering and Goldschmidt in particular, see Herman, supra note 17, at 427-31; and Ulrich Drobnig, Llewellyn and Germany, in Rechtsrealismus, mulitkulturelle Gesellschaft und Handelsrecht: Karl N. Llewellyn und seine Bedeutung heute 17 (Ulrich Drobnig & Manfred Rehbinder eds., 1994). Llewellyn is in this respect not exceptional among the legal realists. Legal realism is one of many examples in which the close connection between American and German legal thought is striking. See, e.g., James E. Herget & Stephen Wallace, The German Free Law Movement as the Source of American Legal Realism, 73 Va. L. Rev. 399 (1987).
[49] For a brief account of the history of the U.C.C. see, for example, Herman, supra note 17, at 427-32 (providing further references). For a detailed account of the history from 1940 to 1949, see Allen R. Kamp, Uptown Act: A History of the Uniform Commercial Code: 1940-49, 51 SMU L. Rev. 275 (1998).
[50] For an index of in-process drafts of U.C.C. acts with links to most recent drafts, see the Uniform Law Commissioners’ official website: The National Conference of Commissioners on Uniform State Laws--Drafts of Uniform and Model Acts--Official Site (visited Feb. 20, 2000) .
[51] Karl N. Llewellyn, The Needed Federal Sales Act, 26 Va. L. Rev. 558, 561 (1940).
[52] See, e.g., Grant Gilmore, Article 9: What It Does for the Past, 26 La. L. Rev. 285, 286 (1966); see also Berman, supra note 428, at 223 (claiming that the U.C.C. is no real codification because, for example, in cases of gaps the judge may still fall back on common law and equity). But see Frier, supra note 446, at 2201 n.4 (criticizing this argument).
[53] Arthur Rosett, Improving the Uniform Commercial Code (May 1997) < http://www.cnr.it/CRDCS/rosett2.htm>.
[54] Richard M. Buxbaum, Is the Uniform Commercial Code a Code?, in Rechtsrealismus, multikulturelle Gesellschaft und Handelsrecht--Karl N. Llewellyn und seine Bedeutung heute, supra note 436, at 197, 220.
[55] This assertion by Denis Tallon is explained in Diamond, supra . . . , at 379. Herman also doubts in this respect whether the U.C.C. qualifies as a codification, as certain subjects such as land transactions have not been regulated. See [Shael Herman, The Fate and the Future of Codification in America, 40 Am. J. Legal Hist. 407, 435 (1996)].
[56] [Arthur T. Von Mehren, Some Reflections on Codification and Case Law in the Twenty-First Century, U.C. Davis L. Rev. 659, 668 (1998) ].
[57] [[Mark D. Rosen, What Has Happened to the Common Law?--Recent American Codifications, and Their Impact on Judicial Practice and the Law’s Subsequent Development, 1994 Wis. L. Rev. 1119].
[58] [ bid., 1119].
[59] [Mark D. Rosen, What Has Happened to the Common Law?--Recent American Codifications, and Their Impact on Judicial Practice and the Law’s Subsequent Development, 1994 Wis. L. Rev. 1119, 1144-60]. The second category is further subdivided into eight interpretive approaches that courts have used when consulting extra-code materials, which span the range of having no impact on the primacy of a code’s text to significantly imperiling the centrality of the code. The groups are (a) citing to case law and articles to buttress unambiguous readings of the code and official comments on the code (the “belt and suspenders” approach, 21.3% of issues were resolved by reference to extra-code materials) (b) citing to pre-code legal materials to clarify the legal context in which the code rule was born (“contextualization,” 6.7%) (c) using case law and articles for the purpose of “concretizing” application of the code’s abstract terms (“concretization,” 41.4%) (d) relying on extra-code materials to resolve ambiguities and conflicts in the code itself (4.3%) (e) citing to case law and articles to fill intended or unintended lacunae in the codes (1.5% when a U.C.C. provision was considered, 2.8% when a provision of the Federal Rules of Evidence was analyzed) (f) utilizing case law as a supplement to the code (3.2%) (g) using case law as a “substitute” for the codes themselves (8.5%, but only very few significant alterations of the rule) and, finally, (h) relying on case law to “transform” the rule articulated by the code (0.3%). See generally id. Only the relatively rare cases of (g) and (h) threaten a codification, the others are common features of codification familiar to codified European legal systems.
[60] See Roscoe Pound, Sources and Forms of Law, 22 Notre Dame L. Rev. 1, 76 (1946). . . .
[61] Compare U.C.C. § 1-203 (1996) with BGB art. 242. Looking at case law on each, however, shows that U.C.C. § 1-203 is less important for the U.C.C. than BGB art. 242 is for the German Civil Code. In part, this can be explained by the fact that the U.C.C. is much younger and that the U.C.C. has already been supplemented substantially. General clauses, therefore, were less important to deal with fundamental changes in law and society than they were in case of the German Civil Code. See generally Allan E. Farnsworth, The Concept of “Good Faith” in American Law (April 1993) (explaining that it has been found difficult to adopt a general concept of good faith in England, while the United States has had a generally accepted concept of good faith for decades); Roy Goode, The Concept of “Good Faith” in English Law (March 1992) (same)
[62] See, e.g., Howard Foss, Interpreting the Uniform Commercial Code: Methodologies Used, Misused and Unused, 20 Golden Gate U. L. Rev. 29 (1990). . . .
[63] Generations of civil-law scholars, for example, have dealt with the partially unsolved and probably unsolvable problem of the relationship between and the order of the different classical methods of interpretation-- grammatical, historical, systematic, and teleological interpretation.
[64] Grant Gilmore, Legal Realism: Its Cause and Cure, 70 Yale L.J. 1037, 1043 (1961). . . .
[65] [Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung (1996) at 260-62]. In England, the House of Lords changed its theory of interpretation particularly under the impression of European law which is presently discussed under the keyword “Europeanization” of the English legal style. See, e.g., Litster v. Forth Dry Dock and Engineering Co., 1 All E.R. 1134 (H.L. 1989); Pickstone v. Freemans plc, 2 All E.R. 803 (H.L. 1988); Buchanan & Co. v. Babco Forwarding and Shipping Ltd., 1 All E.R. 208 (C.A. 1977); The Gradual Convergence, supra note 15; Jonathan E. Levitsky, The Europeanization of the British Legal Style, 42 Am. J. Comp. L. 347, 369-74 (1994); and Xavier Lewis, A Common Law Fortress Under Attack: Is English Law Being Europeanized?, 2 Colum. J. Eur. L. 1 (1996). For discussion of statutes and the common law from a Continental perspective, see Reinhard Zimmermann, Statuta Sunt Stricte Interpretanda?, 56 Cambridge. L.J. 315 (1997). For a comparative overview of statutory interpretation, see the reports in Interpreting Statutes: A Comparative Study (D. Neil MacCormick & Robert S. Summers eds., 1991).
The argument by analogy, one of the oldest methods of decision making, is employed in both English and Continental legal systems to justify judicial decisions. It may even provide sufficient common grounds for a distinct European method. See Katja Langenbucher, Argument by Analogy in European Law, 57 Cambridge L.J. 481 (1998) (offering a normative framework for arguments by analogy in European law that combines aspects of both legal systems). But see Tetley, supra note 9, at 615-17 (still presenting the classic way of distinguishing both legal systems by the function of statutes, the style of drafting of laws, and the interpretation of laws ignoring recent developments and changes).
[66] Stare decisis, the ruyles that determine that extent to which precedent is binding on courts, is treated in more detail later in these materials.  See Chapter ---, infra. 
[67] Cf. John Henry Merrymen et al., The Civil Law Tradition: Europe, Latin America, and East Asia. Michie 1994. pp. 447-454; 476-485.)
[68] Charles E. Clark, “The Union of Law and Equity,” 25 Columbia Law Review 1-10 (1925).
[69] P.S. Atiyah, “Common Law and Statute Law,” Modern Law Review 48(1): (1985),
[70] Ibid., 1.
[71] Ibid., 4-5.
[72] Ibid., 5.
[73] Ibid.
[74] Ibid., 20-22.
[75] Ibid., 27
[76] Ibid., 27.
[77] Jean Louis Bergela, Principal Features and Methods of Codification, 48 Louisiana Law Review 1073 (1988); and Gunther A, Weiss, The Enchantment Of Codification In The Common-Law World, 25 Yale Journal of International Law 435 (2000)

[78] 62 Stat. 612. See also 50 U.S.C.App. s 456(j). The pertinent provision as it read during the period relevant to this case is set out infra at 1794.
[79] 62 Stat. 612. An amendment to the Act in 1967, subsequent to the Court's decision in the Seeger case, deleted the reference to a ‘Supreme Being’ but continued to provide that ‘religious training and belief’ does not include ‘essentially political, sociological, or philosophical views, or a merely personal moral code.’ 81 Stat. 104, 50 U.S.C.App. s 456(j) (1964 ed., Supp. IV).
[80] In his original application in April 1964, Welsh stated that he did not believe in a Supreme Being, but in a letter to his local board in June 1965, he requested that his original answer be stricken and the question left open. App. 29.
[81] For a discussion of those principles that determine the appropriate scope for the doctrine of stare decisis, see Moragne v. States Marine Lines, also decided today, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970); Boys Markets v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940).
[82] The difference is between the substitution of judicial judgment for a principle that is set forth by the Constitution and legislature and the application of the legislative principle to a new ‘form’ that is no different in substance from the circumstances that existed when the principle was set forth. Cf. Katz v. United States, 389 U.S. 347, 88 S.C. 507, 19 L.Ed.2d 576 (1967). As the Court said in Weems v. United States, ‘Legislation, both statutory and constitutional, is enacted, * * * from an experience of evils, * * * its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. * * * (A) principle, to be vital, must be capable of wider application than the mischief which gave it birth.’ 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910) (emphasis added).
While it is by no means always simple to discern the difference between the residual principal in legislation that should be given effect in circumstances not covered by the express statutory terms and the limitation on that principle inherent in the same words, the Court in Seeger and the prevailing opinion today read out language that, in my view, plainly limits the principle rather than illustrates the policy and circumstances that were in mind when s 6(j) was enacted.
[83] The substitution in s 6(j) of ‘Supreme Being’ instead of ‘God’ as used in Macintosh does not, in my view, carry the burden, placed on it in the Seeger opinion, of demonstrating that Congress ‘deliberately broadened’ Chief Justice Hughes' definition. ‘God’ and ‘Supreme Being’ are generally taken as synonymous terms meaning Deity. It is common practice to use various synonyms for the Deity. The Declaration of Independence refers to ‘Nature's God,’ ‘Creator,’ ‘Supreme Judge of the world,’ and ‘divine Providence.’ References to the Deity in preambles to the state constitutions include, for example, and use interchangeably ‘God,’ ‘Almighty God,’ ‘Supreme Being.’ A. Stokes & L. Pfeffer, Church and State in the United States 561 (1964). In Davis v. Beason, 133 U.S. 333, 342, 10 S.Ct. 299, 300, 33 L.Ed. 637 (1890), the Court spoke of man's relations to his ‘Creator’ and to his ‘Maker’; in Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 683, 96 L.Ed. 954 (1952), and Engel v. Vitale, 370 U.S. 421, 424, 82 S.Ct. 1261, 1263, 8 L.Ed.2d 601 (1962), to the ‘Almighty.’
[84] The Seeger opinion relies on the absence of any allusion to the judicial conflict to parry the thrust of the legislative history and assigns significance to the Committee citation of Berman as manifestation of its intention to reenact s 5(g) of the 1940 Act, and also as authority for the exclusion of those whose beliefs are grounded in secular ethics. The citation to Berman would not be conclusive of congressional purpose if Congress had simply reenacted the 1940 Act adding only the express exclusion in the last clause. But the reasoning in Seeger totally ignores the fact that Congress without other apparent reason added the ‘Supreme Being’ language of the Berman majority in the face of the Berman dissent which espoused Judge Hand's view in Kauten. The argument in Seeger is not, moreover, strengthened by the fact that Congress in drafting the 1948 Selective Service laws placed great weight on the views of the Selective Service System which the Court suggested, did not view Berman and Kauten as being in conflict. 380 U.S., at 179, 85 S.Ct., at 860. The Selective Service System Monograph No. 11, Conscientious Objection (1950) was not before Congress when s 6(j) was enacted and the fact that the Service relied on both Kauten and Berman for the proposition that conscientious objection must emanate from a religious and not a secular source, does not mean that it considered the Supreme Being discussion in Berman as surplusage.
[85] New International Dictionary, Unabridged (2d ed. 1934).
[86] The prevailing opinion's purported recognition of this distinction slides over the ‘personal moral code’ exception, in s 6(j). Thus that opinion in concluding that s 6(j) does not exclude ‘those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy’ but excludes individuals, whose beliefs are not deeply held, and those whose objection to war does not rest upon ‘moral, ethical, or religious principle,’ but instead rests solely upon considerations of ‘policy, pragmatism, or expediency,’ ante, at 1798, blends morals and religion, two concepts that Congress chose to keep separate.
[87] The apparent purpose of the 1940 change in language was to eliminate membership as a decisive criterion in recognition of the fact that mere formal affiliation is no measure of the intensity of beliefs, and that many nominal adherents do not share or pursue the ethics of their church. That the focus was made the conscientiousness of the individual's own belief does not mean that Congress was indifferent to its source. Were this the case there would have been no occasion to allude to ‘religious training’ in the 1940 enactment, and to contrast it with secular ethics in the 1948 statute. Yet the prevailing opinion today holds that ‘beliefs that are purely ethical,’ no matter how acquired, qualify the holder for s 6(j) status if they are held with the requisite intensity.
However, even the prevailing opinion's ambulatory concept of ‘religion’ does not suffice to embrace Welsh, since petitioner insisted that his beliefs had been formed ‘by reading in the fields of history and sociology’ and ‘denied that his objection to war was premised on religious belief.’ 404 F.2d, at 1082. That opinion not only establishes a definition of religion that amounts to ‘Newspeak’ but it refuses to listen to petitioner who is speaking the same language.
[88] This Court has taken notice of the fact that recognized ‘religions' exist that ‘do not teach what would generally be considered a belief in the existence of God,’ Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, 81 S.Ct. 1680, 1684, 6 L.Ed.2d 982, e.g. ‘Buddhism, Taoism, Ethical Culture, Secular Humanism and others.’ Ibid. See also Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 249 F.2d 127 (1957); 2 Encyclopaedia of the Social Sciences, 293; J. Archer, Faiths Men Live By 120—138, 254—313 (2d ed. revised by Purinton 1958); Stokes & Pfeffer, supra, n. 3, at 560.
[89] As long as the Selective Service continues to grant exemptions to religious conscientious objectors, individuals like petitioner are not required to submit to induction. This is tantamount to extending the present statute to cover those in petitioner's position. Alternatively the defect of underinclusion that renders this statute unconstitutional could be cured in a civil action by eliminating the exemption accorded to objectors whose beliefs are founded in religion. The choice between these two courses is not one for local draft boards nor is it one that should await civil litigation where the question could more appropriately be considered. Consequently I deem it proper to confront the issue here, even though, as a technical matter, no judgment could issue in this case ordering the Selective Service to refrain entirely from granting exemptions.
[90] I reach these conclusions notwithstanding the admonition in United States v. Reese that it ‘is no part of (this Court's) duty’ ‘(t)o limit (a) statute in (such a way as) to make a new law, (rather than) enforce an old one.’ 92 U.S. 214, 221, 23 L.Ed. 563 (1876). See also Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059 (1926); Marchetti v. United States, 390 U.S. 39, 60, 88 S.Ct. 697, 708, 19 L.Ed.2d 889 (1968). Neither of these cases involved statutes evincing a congressional intent to confer a benefit on a particular group, thus requiring the frustration of third-party beneficiary legislation when the acts were held invalid. Moreover, the saving construction in Marchetti would have thwarted, not complemented, the primary purpose of the statute by introducing practical difficulties into that enforcement of state gambling laws that the statute was designed to further.

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