Holmes: The Theory of Legal Interpretation (By Martin Marquez Jr.)

In the Theory of Legal Interpretations, Holmes spends his time addressing what he calls the "theory of construction." Externality of the Law appears to be the largest issue with interpretation. Holmes makes reference to the "normal speaker of english"and claims that the law is interpreted accordingly. The idea may appear to be of some validity but then Holmes disects and addresses the obvious issues of what class or peoples can be deemed the "normal speaker(s) of english"? or what if the contract or law is written by higher level intellectuals, such as most laws and contracts are, how then do we interpret or choose whose interpretation of the writings will be deemed as correct? With that, Holmes states "But the normal speaker of English is merely a special variety... he is external to the particular writer...a reference to him ...is simply another instance of the externality of the law."It would appear that Holmes is stating that it is in a way, the majority or common interpretation at the time that will take precedence, rather than Constitutional dictation. The main focus of contracts should be to exemplify the intended agreement between persons. Holmes believes that rather then striving to discover the initial and actual intension of a contract, Judges, like most people tend to take the contract through their own interpretations, and in turn create a whole separate contract through misinterpretation.  

Moving further into Holmes's writing, he brings up the dubious tendencies of actual language and the clairvoyance of theoretical language. Actual language leaves multiple interpretations to words, phrases and whole sentences. Theoretical language functions much more within contextual interpretation and even though two things may be written or said exactly the same, the situation or even way they are said can cause difference in their intention. Essentially, it appears that Holmes holds language and its opaque   nature responsible for a large part of legal interpretation issues.

According to Holmes, the way people address contracts and statutes should be done so in a separate manor. Holmes states "In the case of a statute... it would be possible to say that we are dealing with the commands of the sovereign the only thing to do is to find out what the sovereign wants." It would appear that Holmes believes the only way to write and interpret a statute is by understanding exactly what the intention of it is because it will effect all of those, even those who are not directly involved in its creation. People have a common misconception and take statutes at their face value and do not attempt to find out what exactly it was created for and what its actual intended purpose is, which is what we do not do. To simplify, we act as a literal society, taking things for their literal meanings, rather than for their intended purpose(s).