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Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law Maureen B

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Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law Maureen B NORTH CAROLINA LAW REVIEW Volume 79 | Number 3 Article 2 3-1-2001 Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law Maureen B. Cavanaugh Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Maureen B. Cavanaugh, Order in Multiplicity: Aristotle on Text, Context, and the Rule of Law, 79 N.C. L. Rev. 577 (2001). Available at: http://scholarship.law.unc.edu/nclr/vol79/iss3/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. ORDER IN MULTIPLICITY:* ARISTOTLE ON TEXT, CONTEXT, AND THE RULE OF LAW MAUREEN B. CAVANAUGH* Justice Scalia has made the question of textual interpretation tantamount to a referendum on whether we are a government characterizedby the "rule of law" or the "rule of men." Aristotle is frequently quoted in support of statements about the rule of law and methods of statutory interpretation. While frequent, quotation of and reliance on Aristotle has been selective. The dichotomy between methods of interpretationand the rule of law turns out to be a false one. This Article examines Aristotle's theories of interpretation,especially his analysis of homonymy, non-univocal uses of the same word, to show that not all homonyms are random. Aristotle's contribution,that associatedhomonyms allow us to understand related ideas, along with his principles of language and logic, permit us to address the central question of how to interpret a text. Following an explication of Aristotelian methodology, this Article then considers Gregory v. Helvering, an early tax case articulating a non-literal statutory interpretationof * The title of this Article references CHRISTOPHER SHIELDS, ORDER IN MULTIPLICITY: HOMONYMY IN THE PHILOSOPHY OF ARISTOTLE (1999), whose explication of homonymy in Aristotle's philosophy is crucial to my application of Aristotelian methodology. Shields's concern is with the significance of homonymy to Aristotle's central philosophical concepts; whereas, my concern is to apply not only Aristotle's understanding of homonymy, but also other Aristotelian principles of interpretation, language, and logic, such as definition, priority, and the law of non-contrariety, to modern statutory interpretation. Aristotle recognized that homonymy ("words spoken in many ways") creates the possibility of confusion because seemingly identical words lack identical accounts. Aristotle's contribution is to identify significant philosophical terms (justice, good) as core-dependent homonyms. Lacking univocal accounts but nevertheless related around an identifiable core, such homonyms by their complexity do not inhibit but rather improve philosophical analysis. Aristotle's analysis now provides similar benefits when applied to statutory interpretation by allowing ordering of complexity created by words with associated multiple accounts. ** Assistant Professor, Washington and Lee University School of Law. The assistance of the Francis Lewis Law Center at Washington and Lee University is gratefully acknowledged. I would like to thank all of my readers for their helpful comments, especially Karen C. Burke, Lewis H. LaRue, and Grayson M.P. McCouch, who discussed multiple drafts, as well as Dan Farber, David Millon, Joan M. Shaughnessy, and Scott Sundby for their discussions of various topics. This Article has benefited enormously from their, and others', including the editors of the North CarolinaLaw Review, comments. All remaining errors are mine. NORTH CAROLINA LAW REVIEW [Vol. 79 "reorganization"as a paradigm. This Article demonstrates that Aristotle, by helping us avoid unwarranted assumptions of univocity, provides a positive mechanism for finding order in multiplicity. Only by recognizing and ordering language complexity through interpretationand application of Aristotelian principles is it possible to give full effect to the rule of law. INTRODUCTION ....................................................................................... 579 I. THEORIES OF STATUTORY INTERPRETATION ......................... 584 A. Intentionalism........................................................................ 588 B. Textualism .............................................................................. 593 C. Dynamic-PragmaticInterpretation ...................................... 598 II. TAX STATUTORY INTERPRETATION: GREGORY V. HELVERING AND BUSINESS PURPOSE ............... 601 A. Gregory v. Helvering ............................................................ 602 B. Reaction to Gregory .............................................................. 609 III. ARISTOTELIAN ANALYSIS .......................................................... 623 A. Introduction ........................................................................... 623 B. Homonymy ............................................................................ 626 C. Definitions.............................................................................. 629 1. Identification of Genus in Complete Definition ......... 630 2. Genus and the Law of Non-Contrariety ....................... 632 3. Definitions Lacking Genus Incomplete ........................ 632 4. Priority .............................................................................. 633 5. Levels of Definition ........................................................ 634 D. Core-DependentHomonymy ............................................... 638 E. Methods for Identifying and Classifying Homonyms ........ 640 F. Identification of Homonyms-Signification....................... 645 IV. EXAMPLE OF HOMONYMY: "REORGANIZATION" ................. 648 A. Difference in Signification EstablishesHomonymy ........... 649 B. "Reorganization"as Definition ........................................... 650 C. "Reorganization":A Complete Definition of Genus "Not-Sale".............................................................................. 651 1. "Reorganization" as Incomplete Definition ................ 651 2. Characteristics of Genus "Not-Sale": Business Purpose ............................................................. 652 3. Priority of Genus, Base Referent: Business Purpose ............................................................. 654 4. Causal and Functional Relationship ............................. 655 5. Application of Law of Non-Contrariety ....................... 656 D. Extrinsic Evidence ................................................................. 657 CONCLUSION ........................................................................................... 658 2001] ARISTOTLE & STATUTORYINTERPRETATION 579 INTRODUCTION [I]t is preferable for the law to rule rather than any one of the citizens, and according to this same principle, even if it be better for certain men to govern, they must be appointed as guardians of the laws and in subordination to them .... I The appeal of plain meaning statutory interpretation is obvious when the rule of law is seen as preferable to the rule of men. Justice Scalia, the most prominent supporter of plain meaning statutory interpretation, argues for his method by articulating its democratic pedigree and linking the "rule of law" directly with textualism. 2 By framing the debate to advance his position, and by selectively quoting Aristotle's rule of law statement without regard to the passage or context,3 Justice Scalia has left the issue of what method of interpretation can most fully give effect to the "rule of law" at a stalemate. Legal realists and postmodernists have undercut the theoretical foundation of plain meaning-that language is both objective and determinate.4 Legal realists, who examine the reality of the political 1. ARISTOTLE, POLITICS, 1287a20-29 (H. Rackham trans., Harvard University Press 1990) (1944); see infra note 3 (reprinting the translation quoted by Justice Scalia); infra note 294 (quoting and discussing the passage in its entirety). For the course of transmission of Aristotle's "rule of law" into American jurisprudence, see JEROME FRANK, IF MEN WERE ANGELS: SOME ASPECTS OF GOvERNmENT IN A DEMOCRACY 190-211 (1942). 2. See William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation, 76 MINN. L. REV. 1133, 1165-66 (1992) (examining Justice Scalia's justification for and method of statutory interpretation and noting that "[b]y linking injustice with judicial discretion, Justice Scalia puts his critics at a rhetorical disadvantage"). 3. See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1176 (1989) [hereinafter Scalia, Rule of Law] (selectively quoting Aristotle from a translation by Ernest Barker (1946)). Rightly constituted laws should be the final sovereign; and personal rule, whether it be exercised by a single person or a body of persons, should be sovereign only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies to make an exact pronouncement. Id at 1176. The entire passage, including its context, in which Aristotle discusses the rule of law and the interpretation required by magistrates in applying the rule is quoted and discussed below. See infra note 294. 4. Postmodernists include both those who work in the discipline of philosophical hermeneutics, including HANS-GEORG GADAMER, TRUTH AND METHOD (Garett
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