Lex posterior derogat priori and the elusive performative.

Jacob discusses an Albion College resolution that attempts to amend its faculty handbook to permit a bunch of firings, as follows:

RESOLVED that exercising the authority of the Board of Trustees under the Charter of 1857, the Faculty Handbook is amended effective immediately in all ways necessary to
permit the reduction of 15 full time equivalent (FTE) existing faculty positions, which may include tenured faculty positions, by the beginning of the 2010-2011
academic year.

He’s skeptical:

They still haven’t acted.

[quoted text]

has no actual amendments contained within its language. The thing about written legal documents is that they contain actual words– and amending them requires substituting other actual words, or else specifying which original words are being deleted. You can’t simply declare a policy goal.

If the Faculty Handbook posed an ex ante obstacle to the firings, then I can’t see that that obstacle has been removed.

But I’m not so sure. Traditionally, we understand that a legislative act implicitly repeals all prior provisions of law (except for superior law, i.e., statutes can’t repeal constitutional principles) just to the extent those provisions are contrary — that’s one of those principles of statutory construction that is so venerable it has a latin name, “lex posterior derogat priori.” If we think that ordinary principles of statutory construction apply to faculties amending their handbooks, then we’d be obliged to say that had the faculty of the college in question wanted to, they could have simply added “15 FTE positions, including tenured positions, may be eliminated by the 2010-2011 academic year” to the handbook, and that would have carried out all necessary amendments.

But it follows from that proposition that legal text can be amended in general — i.e., that the content of a legislative amendment can be “any text that contradicts the following.” Because that’s the kind of amendment that happens when we apply the lex posterior.

But then it seems like Jacob is committed to the claim that this kind of general amendment can only be made implicitly — i.e., that you can make a general repeal of provisions of law contrary to some proposition P only by specifying some rule that in fact declares P to be the case. And that seems much more implausible than the way he originally stated the point. After all, if a legislative body has the power to carry out a general repeal, why shouldn’t it be able to do so without putting something in the place of the repealed text?

Two other considerations also suggest that this kind of amendment is effective. First, those construing a legislative utterance probably ought to defer to the conscious use of the explicit performative. Second, legislators can have coherent reasons for repealing parts of a document that are contrary to some power they want exercised without either explicitly granting permission in that document to exercise that power or repealing every single piece of contrary text in specific. For an easy example, suppose that they think that the entity in whose benefit the repeal is conducted has the inherent power to carry out the act they’re permitting, and their concern is only to cautiously remove all legislative barriers to that act? For example: I can easily see a twisted and sheeplike Congress passing some law that says something like “all provisions of law that might be construed to forbid the president from ordering coercive interrogations are repealed,” both to be sure they catch any inconvenient anti-torture laws that might be lying around and to nonetheless implicitly affirm the position that the president has inherent power to torture as commander in chief except insofar as there is legislation to the contrary.

(Why am I posting on this thing that is probably totally uninteresting to most people? Because it’s AM and I’m not ready to get out of bed yet, plus I feel guilty for neglecting this blog, plus because Jacob’s post doesn’t permit comments.)

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4 Responses to “Lex posterior derogat priori and the elusive performative.”

  1. Jacob T. Levy Says:

    Comments now activated.

    I don’t think your example is an easy one. A statute can have the content that the president may commit torture, and the later statute supersedes the earlier one if the contradiction is clear. But supersede =/= repeal or amend. Words like “notwithstanding” are fine; they leave the old language untouched and create a new categorical exception or override.

    But to say “all provisions [...] that might be construed [...] are *repealed*” is to say that tomorrow I can no longer tell you what the statute books say; it’s to abandon the enterprise of having a written code.

    These are weird attempts to incorporate later interpretations and constructions into present legislation. Instead of just enacting the exception or override, *or* repealing or amending the provisions, they say “when some competent authority later finds a contradiction between what we just did and the code, that will then trigger a retroactive-to-right-now repeal of that portion of the code.”

    No; you can’t amend contracts like that, and you can’t legislate like that. You can punt interpretive questions and resolution of complex interactions until tomorrow. But you can’t punt until tomorrow the question of what the text says today.

  2. Paul Gowder Says:

    Hmm… let me try to approach this from an oblique angle…

    Suppose the legislature passing a law saying “no statute shall be construed to prohibit X?”

    For ease of reference, let’s call that passage G-CONS, and let’s call the following passage G-REPL: “all statues that prohibit X are hereby repealed to the extent of that prohibition.”

    The formulation “nothing in this section shall be construed to prohibit X” (call that S-CONS) is extremely common and courts give it effect all the time. The only difference between S-CONS and G-CONS is that instead of addressing a single section, it addresses the entire body of code, so it would seem that if you think S-CONS is effective, G-CONS must also be effective, right? (It’s hard to imagine, otherwise, where to draw the line between effective and ineffective, especially since a single section/piece of legislation could be arbitrarily large.)

    If that’s right, then in order for G-CONS to be effective but G-REPL to not be effective, there has to be some kind significant difference between the act of repealing all law with a given content and the act of instructing all adjudicative bodies not to give effect to all law with a given content. But I guess this just seems excessively formalistic. In each case, the proposition “X is prohibited” becomes, by virtue of the recent legislative act, false, assertions of the prohibition of X are no longer recognized as law in the jurisdiction, etc. Why should it make a difference whether it’s written as a repeal or as a guide for interpretation?

  3. Jacob T. Levy Says:

    It’s not formalistic in a bad way to distinguish between rules of construction and amendments/repeal. (The enterprise of giving written form to rules is a formal enterprise, and form matters. It’s all in Fuller, “Consideration and Form.” What *are* they teaching in the schools these days?)

    You can’t “repeal to the extent that.” Repeal is binary; you do it or you don’t. You can “*narrow* to the extent that”– and narrowing is an act of construction or interpretation. And so G-REPL would have to read “all statutes that prohibit X are hereby repealed.” And then you’ve thrown your code into Schroedinger’s box– no one knows anything about any part of it until it’s sorted out whether section 1002(4)para (d), in addition to all the other things it does, prohibits X. And note that the Trustee’s statement doesn’t include that “to the extent that.”

    The rule cf construction means that no one who’s doing anything other than X has to worry about the new problem. G-REPL isn’t like that– and neither is the trustees’ action.

    Is it “necessary” to repeal the existence of the Faculty Senate altogether in order to effect the 15 firings? Necessary to repeal the Senate’s jurisdiction over budgetary matters? Necessary to repeal its jurisdiction over personnel-budgetary matters? Necessary that the Senate simply be held never to have *final* jurisdiction over any of these questions? Necessary to modify the tenure rules? Or what? When the Faculty Senate meets tomorrow, is it a real legal body? Does it have any jurisdiction? What is it? When a tenured professor goes to a bank tomorrow to apply for a mortgage, what can he or she say about his or her employment contract? If the existing rules are to be changed to allow a particular result, it’s important to know which strategy of change is being used.

    Legislation is struck down for unconstitutional vagueness– even though *subsequent judicial interpretation* is always hard to predict at the time of enactment. Contracts are deemed incomplete and null if they’re missing core parts of the contractual language– even though the “this contract shall be interpreted according to the laws of Delaware” always incorporates the open-ended changes in future Delaware rules of interpretation. I can’t see why we should abandon that normal distinction between written language and rules of construction.

  4. Jacob T. Levy Says:

    And I hereby acknowledge the existence of vague “repealed to the extent” language in some jurisdictions, but still think it’s very poor draftsmanship and note that it’s rare in major jurisdictions.

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