Four Comments on Justice Stein’s Probabilism in Legal Interpretation Approach

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The Scope of Justice Stein’s Probabilistic Interpretation Approach

Before his appointment to the Israeli Supreme Court, Justice Stein was renowned as a world expert in evidence law. It is therefore not surprising that he chose to apply his expertise in evidence law to the task of judicial interpretation. In a fascinating article published in 2022, he proposes an approach to statutory and constitutional interpretation that he calls “probabilistic interpretation” (probabilism). This theory treats legal texts as communication emanating from the legislature. According to Stein, what the law or constitution “says” is a factual question that judges must uncover in much the same way they determine facts within the framework of evidence law. To achieve this, judges must consider all relevant evidence, identify every plausible meaning of the legal or constitutional provision, determine the probability that this is indeed the meaning intended by the text's creator, and select the meaning with the highest probability based on the weight of evidence – which is factually correct.

In this article, I seek to challenge Stein's interpretive approach through four comments concerning the scope of the interpretive project, the nature of the partnership between the legislative/constitutional authority and the judiciary, the role of normative considerations in interpretation, and the validity of the comparison between evidence law and interpretation law.

The Scope of the Interpretive Project from Normative and Descriptive Perspectives

Stein does not make it sufficiently clear what the scope of his interpretive project is: is it descriptive, normative, or a combination of the two? From a descriptive standpoint, Stein oscillates between claiming that his interpretive approach is “new” and asserting that it is already reflected in the rulings of the U.S. Supreme Court, or at least in the decisions of judges who adhere to an originalist approach within the U.S. Supreme Court. To the latter, he offers new terminology, a construction of their judicial discretion, and greater awareness of the nature of the interpretive process. In fact, he calls for them to adopt a new kind of originalism, which he calls probabilism.

From a normative standpoint, Stein seems to be responding to the criticism that courts “invent” law when interpreting texts and, therefore, their actions are illegitimate. According to him, the court only “reveals” the probable meaning of the text. In Stein’s view, his interpretive approach better aligns with the principle of separation of powers. It is also more accurate and, therefore, factually truer to what the text's creator intended to convey. Stein aims to educate judges to be more precise and honest in the interpretive process, urging them not to speak of the definite meaning of a text but only of its probable meaning.

Stein does not clarify in his article whether he also proposes that the Israeli legal system adopt his approach. However, in the first footnote, he states that he is already applying his approach as a judge on the Israeli Supreme Court. In an academic discussion we held about the article at the Hebrew University, within the framework of the Israeli Forum for Law and Liberty, it emerged that he indeed wishes to stimulate renewed discussion in Israel about the proper interpretive method. He is also currently working on an article in Hebrew demonstrating his approach within the context of Israeli jurisprudence.

If this is indeed a call for Israeli judges to adopt his interpretive approach, and it appears that this is the intended direction of his interpretive project, it represents a call for a “reset” (a term frequently used these days) of the judicial craft. Certainly, his interpretive approach does not reflect the dominant interpretive approach in Israel. In Israel, the purposive interpretation method is almost exclusively dominant, whereby judges take into account the text, the intention of its creator, but also seek to choose an interpretation that aligns with and promotes the fundamental values of the Israeli legal system. Stein’s interpretive approach, which calls for adherence to uncovering the probable meaning that the creators of the text intended to convey, would bring about a dramatic normative shift in the art of interpretation in Israel.

Stein’s Approach Overlooks Legislative Context and Judicial Partnership

Stein’s interpretive approach does not account for the fact that legislators create laws within a specific context and against particular foundational assumptions. The legislature relies on the prevalent interpretive method used by judges in a given legal system. This is especially true in the Israeli legal system, where there is virtually no disagreement among Supreme Court justices about the dominant interpretive approach – purposive interpretation. Therefore, the Knesset, aware that the accepted interpretive method in Israel is purposive, legislates differently from legislatures in countries where the dominant interpretive approach is originalist or where significant disagreement exists. As such, adopting Stein’s approach in Israel could distort, rather than reflect, the meaning that the Knesset intended to convey.

Judges as Junior Partners to the Legislature

Stein’s interpretive approach seeks to argue that judges do not engage in creative activity when interpreting texts. Their encounter with the text is a matter of “revealing the facts” rather than creating law. However, I believe that the attempt to convince the public that judicial interpretation is merely about uncovering factual truth is doomed to fail. Numerous empirical studies have shown a correlation between a judge’s identity and the outcome of their rulings, particularly in the field of public law.

A prime example is the Dobbs decision in 2022, which overturned the recognition of women’s constitutional right to an abortion. Once a solid conservative majority was established on the U.S. Supreme Court, it did not wait long and, at the first opportunity, overturned the fifty-year precedent of Roe v. Wade, even though the constitutional text had not changed over time. It seems that the “genie” – the recognition that judges are active participants in creating law, even if they are secondary partners to the legislature – is out of the bottle and cannot be put back. One need not adopt the extreme view that judges are entirely unconstrained by text to reject the opposite approach that interpretation is solely or primarily about uncovering facts.

It seems that even Stein cannot fully adhere to his own view that adjudication is purely a fact-finding activity. In his article, there are instances where his justification for certain decisions over others is based on the “moral repugnancy” of the alternative – a term he uses to explain why the prohibition of discrimination on the basis of sex under Title VII of U.S. law should be interpreted to include a prohibition of discrimination based on sexual orientation.

Stein also uses the term “clearly” to justify one decision over another. However, this term does not convince those with opposing views. Furthermore, Stein suggests that the judge should choose the interpretation that offers the most compelling “narrative.” Yet, using the term “narrative” during a time of open narrative wars between nations, groups within the population, and various political actors highlights the element of choice inherent in the act of interpretation.

Evidence Law and Interpretation Law: Are They Really the Same?

Stein seeks to apply the rules of evidence law to the world of interpretation. I am sympathetic to this approach because both evidence law and interpretation law are products of common law development. Stein does not limit his interpretive approach to common law systems, but it is questionable whether it can be applied in the same manner in civil law systems. In particular, the second-order rules Stein recommends applying during the second stage of interpretation, such as interpreting in favor of the defendant, are derived from the common law tradition.

Stein believes that only his approach develops tie-breaking rules, which are not part of other originalist interpretive methods. He sees this as a significant advantage of his approach. However, I argue that these rules are used by all existing interpretive methods because they were developed within the common law, as Stein himself acknowledges.

While I am sympathetic to the comparison between evidence law and interpretation law, I believe Stein fails to make the necessary distinctions between the two. First, evidence law deals with events that have already occurred and are completed, with the aim of retrospectively determining the facts of a case. In contrast, interpretation law deals with a dynamic, interactive process that essentially never ends.

In this sense, it is not surprising that Stein characterizes interpretation law as “communication” between entities, while others have referred to it as a dialogue. For Stein, the communication is between the legislature and the public. Furthermore, he acknowledges that sometimes the most probable interpretation of a text leads to a result that the text’s creators did not anticipate, and yet it is inevitable because the text establishes a standard (as opposed to a rule) that grants interpretive discretion to adapt the text to a developing world.

Unlike evidence law, interpretation law cannot be limited to a one-time communication from the legislature to the public. Instead, it is an ongoing discourse between the legislature and diverse audiences who are the recipients of the legislation (parties, the general public, future legislatures, executive authorities, administrative bodies, judges of various courts, international actors, academics, and different generations of participants). These recipients, in turn, influence how the text is created. Law exists within a normative environment, and its interpretation is constantly influenced by broader developments in the legal system.

Secondly, the claim that it is possible to uncover the true, even the most probable, meaning of a text is problematic. Stein often refers to legislators as "individuals." However, the legislature is an institutional, heterogeneous body, often marked by internal disagreements about the meaning of the law it produces. Sometimes, ambiguity in wording allows different legislators to agree on legislation as a collective act, leaving interpretation to other authorities and the public.

For example, the Harari Decision was understood differently by various participants: some saw it as the abandonment of the constitution-drafting project, while others saw it as a gradual adoption process. Similarly, the meaning of the term "Jewish and democratic state" depends on the observer. Some members of the Knesset intended the democratic aspect to prevail, while others wanted the Jewish element to be dominant. All involved were content with the text as a vague compromise because they expected a dynamic, creative, endless process of interpretation, involving many actors.

Thirdly, Stein assumes that the intention of the text’s creator aligns with the text itself. However, many times the legislature or constitutional body "says" one thing and "does" something entirely different. The text and its history do not always reveal the true consequences of the text. Following Stein's approach, ambiguity requiring further interpretation would not even be recognized. This is concerning in practical, real-life scenarios, such as proposed changes to Israel’s Basic Law: The Judiciary.

For instance, a new bill proposes changing the composition of the Judicial Selection Committee to include six politicians (four from the coalition and two from the opposition), two judges from lower courts chosen by the Justice Minister, and the Chief Justice. On the surface, the new Basic Law does not eliminate or undermine Section 2, which guarantees judicial independence, but if we examine the broader context, it becomes clear that the proposed change undermines the judiciary’s independence by giving politicians overwhelming control over the appointment process.

The issue here is that the decision about whether ambiguity exists in the legal text is not derived from the text itself or its explanatory notes but from the broader legal context and, especially, the text's outcomes.

Stein's approach, which ignores the discrepancy between the text’s wording and its actual outcomes, is likely influenced by his years in the American legal system. In this system, certain doctrines are willing to overlook the outcomes of legal texts, unlike the Israeli legal system. This is particularly evident when comparing how both legal systems determine whether the constitutional right to equality has been violated. While Israeli law examines equality violations based on the law’s outcomes, American law focuses on the text and the intent of its creator.

Fourthly, one cannot ignore the precedent-setting aspect of the interpretive process of disputed texts. In this regard, there is a fundamental difference between evidence law and interpretation law. While decisions on the credibility of evidence or witnesses in evidence law generally do not serve as precedents for other cases, a misinterpretation of legal and constitutional texts not only harms the parties to a specific case but also creates a flawed precedent for future disputes.

Therefore, judges adopt a more flexible approach when examining sources for interpreting legal texts. They may even rely on sources not presented by the parties in an adversarial process, unlike evidence law. Applying the rules of evidence law to interpretation law would limit the number of possible interpretations available to judges. They would be completely dependent on the information presented by the parties. Judges might interpret texts without considering relevant information, especially in a world where parties have limited resources. This interpretive approach could also lead to strategic manipulation of legal development by litigants, even more than currently exists.

Conclusion

I wish to commend Justice Stein for developing the probabilistic interpretation approach. His approach forces us to reexamine our foundational assumptions about the role of normative considerations in interpretation. While I am sympathetic to Stein’s analogy between evidence law and interpretation law, I have sought to highlight the significant differences between these two areas of law. I have also attempted to explain why, in my view, normative considerations are present from the outset of the interpretive process, not only at its conclusion. We do not have to adopt the extreme view that texts have no meaning in order to prefer an approach that acknowledges that normative considerations are not negligible in the judicial interpretive process.

Suggested Citation:

Four Comments on Justice Stein’s Probabilism in Legal Interpretation Approach, ICON-S-IL Blog, Jan. 23. 2023.