Evolution does not take place only in nature. Nor is it just confined to human societies. Evolution also takes place in words and their meaning, in particular when we attempt to apply all kinds of noble covenants ― whether constitutions, laws or international agreements ― to specific situations at hand. Once codified, texts are set in stone, but the world we live in continues to change. A critical question then is, should words in these texts be understood as they were agreed upon at the time of the signing or as they are accepted at present?
Suppose legislation, enacted in 1990, contains the term “cellphone.” Does it mean a cellphone that we knew as of 1990, a brick-sized portable phone, and its future extensions? Or should the term also cover the new electronic products, sporting “all-in-one” digital capabilities, that we carry in our pockets and bags in 2013? This question relates to what is called “evolutionary interpretation” or “dynamic interpretation” of texts, and poses a new challenge.
Here are some recent examples to ponder. The ever-intensifying gun control debates in the United States unfolding since the Newtown tragedy have focused on the meaning of the “right to bear arms” appearing in the U.S. constitution. Gun control opponents accord a static, literal emphasis to the phrase. Gun control advocates, meanwhile, stress the need for fluid understanding of the concept: Life on the frontier in 1791 and that in today’s big cities are different, so the term should be understood accordingly.
In 2009, Costa Rica and Nicaragua had a rare border dispute arising from their 1858 agreement on the navigation rights on the river San Juan. The agreement stipulates Nicaragua as the owner of the river but gives Costa Rica the right to use the river “for the purpose of commerce (con objectos de commercio).”
The core question was whether the reference to commercial use should be interpreted as the term was understood in 1858 or as it is presently understood. Nicaragua objected to allowing neighboring Costa Rica the right to use the river for tour boats, arguing that the practice did not exist as a commercial activity in 1858. Here, Costa Rica prevailed at the end of the day.
How about “financial services”? One of the recent Sino-U.S. disputes featured a similar problem. In trade litigation between the two concerning the meaning of the words “financial services” included in the services market opening list, the question raised was whether the term meant the types of financial services available when the document was finalized in 2001 or as the term is understood as of today.
This phenomenon is almost inevitable. Even after the words are inscribed on pages and in texts, the world where they apply continues to change. So, a gap is always there. The trouble is, the pace of change continues to quicken ― sometimes to an astonishing degree in a very short time, which means the gap becomes wider and deeper. An amendment is always a possibility, but frequent amendment is neither easy nor feasible, particularly so when the text is a grand document such as a constitution or an important treaty.
Many foreign friends of ours, who have keenly followed the selection process for high ranking government positions in Seoul for the past several years, would wonder why many super elite in Korean society have been tainted with “irregularities” of various sorts in their personal dealings. Their curiosity must have intensified recently in the midst of the press coverage of the selection process for the new administration. What lies beneath this embarrassing phenomenon is also the chasm between a norm (be it laws or other codes) and how the society understands the meaning of the norm.
The norm may be the same but what is expected from it now has become more rigorous and stringent. Activities once touted as streetwise maneuverings have become irregular, disgraceful acts, if not entirely illegal. So, through evolution of the meaning of the norm, synchronization between what is written and what is understood in society is ensured over time. Hopefully, this synchronization, in turn, will spare us any more candidate-probe embarrassment in the near future.
By Lee Jae-min
Lee Jae-min is a professor of law at the School of Law, Hanyang University, in Seoul. Formerly he practiced law as an associate attorney with Willkie Farr & Gallagher LLP. ― Ed.