In Spirit and Letter

Why are gaps introduced between a rule's intent and its articulation? What does this tell us about the lawmaking process, and about our own integrity and motivation as individual actors? And how do we apply this to contemporary issues?

As I resume regular episodes and blog posts, I want to visit really basic, but really important concepts that apply to lawmaking and interpretation and other equally important aspects of life. And in that vein, in this article I’ll talk about the concept of the spirit of the law versus the letter of the law.

Spirit vs Letter

In simple words, the spirit of the law refers to its original intent. What did the lawmaker intend to rule through the law? And the letter of the law refers to the actual written expression of the law.

Ideally, the letter of the law unambiguously captures its spirit, and following the letter of the law always results in acting in the spirit of the law. However, this isn’t always the case. Let’s consider a first gap: acting in the spirit of the law, willing to uphold its intent, but in a way that breaks or isn’t covered by the letter of the law. This is fairly tricky. It assumes an ability to correctly divine and interpret the law in a way that overcomes any ambiguity, obscurity, or whatever is lacking in the text.

In Letter, But Not In Spirit

The opposite scenario is simpler, and probably more common. A fascinating example of someone following the law but not its spirit comes from Frank Abagnale Jr., an American fraudster famously characterized by Leonardo DiCaprio in the 2002 movie Catch Me If You Can. As depicted in the movie, Abagnale was caught and convicted as a fraudster, but became a financial fraud consultant after serving part of his sentence. He was a consultant to the movie, and at one point a crew member was asking for a stamp to send a letter to his mother. Abagnale told the crew member, “you don’t need a stamp.” Instead, they took a new envelope, swapped around the sender and recipient addresses, and dropped it in the mail. When it reached the post office, it would have seemed as though the crew member’s mother had managed to send an unpaid letter. Accordingly, the post office would stamp the letter with a “Return to Sender - Postage Not Paid” seal, and mailed it for free back to the mother’s address. Abagnale had clearly exploited a loophole in the system. He stole the postage fee! But just by looking at the physical, unopened letter, you couldn’t tell he had broken any law.

In the Bible, the Pharisees provide an almost comically tragic pattern of following the letter of the law, but not its spirit. Actually, it goes further: they tweaked the letter of the law to maximize this effect. Let’s take the sabbath as an example. The Jewish law instituted the sabbath as a special day of religious observance. The letter of the law implied not working. The spirit of the law –its intent– was to enable people to dedicate themselves to the Lord; a day to abstain from regular toiling to worship and spend time with God. The letter of the law had to be made very specific, and this is where teachers or rabbis came in. They had ordinances regulating how to dress, how to eat, which specific activities were forbidden… And to this day, Jewish traditionalists refine and uphold these ordinances. For example, they may pre-tear toilet paper on Friday, because tearing things is forbidden on the sabbath. Sabbath elevators operate all day long, automatically stopping at every floor because actioning a physical switch breaks the prohibition on work.

Speaking of transportation, the sabbath imposed a limit on the method and the distance. You could walk no more than 2,000 cubits, or approximately 1,100. metres. However, the distance was measured from your abode or dwelling place; and having a meal in a location turned it into a temporary abode. Thus, it was possible to visit a place ahead of sabbath, and store a meal there – one specially crafted to comply with sabbath regulations on cooking and eating. And then, on sabbath, you could walk 1,100 metres to that place, have the meal – therefore turning the place into your temporary abode– and walk another 1,100 metres from there; and due to a provision allowing return trips, you ended up walking four times as much as originally allowed by the ordinance.

On paper, you were following the letter of the law to a T; but the intent of the law – to fully focus on God– was nowhere to be seen.

Contemporary Applications

My goal today is not to discuss the religious implications of this behaviour. What I want to discuss instead is how this applies in modern times, first, for everyday life as individuals, and second to the lawmaking process and the discussions around it.

Why are we even able to uphold the letter of the law and curtail its spirit? I think there are two main reasons. One is ambiguously worded rules due to honest mistakes or just shoddy law making. When this happens, people have a hard time aligning the letter and the spirit of the law despite their best intentions. We’ve seen many complaints along these lines with pandemic restrictions in Canada and elsewhere. Things that appear legal are, on closer notice, actually forbidden. Even worse, doing what is allowed doesn’t necessarily imply that it’s the safest thing to do from a public health perspective. The second reason for this gap is our desire to find and exploit loopholes. Even when laws are tightly and unambiguously written, it’s possible to find gaps and game the system. That’s the currency in which people like pre-conviction Frank Abagnale trade.

Therefore, I think here we find a dual call. To lawmakers, to ensure care and diligence in preventing ambiguity and lack of clarity as they make laws. To everyone, thinking through potential gaps between the spirit and the letter of a rule is a useful way to ensure we act with integrity and coherence.

Here are a couple examples where I think this is helpful in current affairs. Two controversial bills from Parliament’s last sitting were Bill C10 and, to a lesser extent, Bill C6. Bill C10 seeks to modernize the Broadcast Act and related legislation to extend the provisions that regulate broadcasts to the digital era. It has been controversial for companies operating in this industry, but for individuals too. The reason is that the bill originally had provisions, in section 4.1, that exempted user generated content. This meant that our social media posts, our YouTube videos, and even this site, wouldn’t be considered broadcasts under the law. However, some MPs feared that this granted undue exemptions to some parties over others; that it enabled loopholes. For example, a musician’s Spotify stream would be covered by the law, but her YouTube channel could be construed as user-generated content and be exempt.

The reaction was to remove section 4.1 altogether, triggering a debate on potential infringement of individual rights and freedoms. The government reinserted these provisions in a different section, arguing that the Canadian Radio Television and Telecommunications Commission (the CRTC) has no authority over individuals, and that the bill cleared the mandatory Charter Statement by the Minister of Justice. Nonetheless, the debate raged on. There were enough concerns that the Senate sent the bill to committee on their last seating before summer break, leaving the bill in pending state until the fall – or later, if a federal election is triggered before Parliament resumes.

Bill C6 had similar issues. This bill seeks to ban conversion therapy, which is already banned at the provincial level in most provinces and territories. The Liberal government promised a federal ban. The bill introduces a definition of conversion therapy, and penalizes those who advertise, conduct, or persuade others into conversion therapy. Here the controversy came from the perception that the bill’s definition of conversion therapy was too broad. To that effect the bill was amended to exempt “practices, treatments or services that relate to the exploration and development of an integrated personal identity without favouring any particular sexual orientation, gender identity, or gender expression.” This wording was added to allay concerns raised by counselors, faith leaders and other organizational entities. However, to some, the definition remains too broad. And again, this caused enough noise, enough concern around the process, that the Senate sent the bill to committee, which is to say to summer limbo.

The Spirit and the Letter of… Holidays?

Coming to an end, I think this idea could apply to holidays too. When I think of a holiday, two elements come to mind. The first one is the mechanics, the celebrations, the rites – sleeping in, eating something special, plus any traditions or customs you carry out. This is similar to the letter of the law. It’s the material the holiday is made of, so to speak. Then you have the intent of the holiday. What are we supposed to celebrate or commemorate? What is so important to mark our calendars and change our routine? And that’s similar to the spirit of the law.

With religious holidays particularly, you see a lot of following the letter but not the spirit. Everyone enjoys a day off, nice food, and a seasonally appropriate special activity. Anyone can enjoy that even if the intent behind the day means nothing to them. Conversely, for any holiday, religious or not, you can argue that the real meaning, the real intent isn’t about food or fireworks or concerts or gatherings.

I don’t have answers to the unspeakable pain of our Indigenous communities upon discovering unmarked graves on the grounds of former residential schools. The discoveries reignited a conversation of what does it mean to celebrate Canada Day in this environment; and personally, I found this “spirit versus letter” framework useful to reflect about that. Going ahead with the letter of the celebration as usual felt a bit crass. But also, cancelling the motions of the celebration altogether, in and of itself, wasn’t going to change anything. What matters more, in my opinion, is to crisply define the intent of the holiday, and to think about where do we go from here.

Personally, I don’t think this is an “either-or” situation, but a “both-and” situation. I have reasons to thank God for this country, for His plans for it, for the life it offers Canadians. And also, we have mistakes to amend, consequences to reckon with, and work to do to ensure equal opportunity to all of this for every inhabitant of this land. And this includes, from my perspective, access to the restorative and redeeming grace of the gospel of Jesus Christ. In the end, in my neck of the woods this Canada Day definitely felt muted compared to years past, and it was helpful to think and reflect along these lines.

Stepping back a bit, the question of intent versus expression, of spirit versus letter, is easier to debate when the authors of the text are around to answer questions and clarify their motives. What about ancient texts, like our foundational laws, or sacred texts like the Bible? How do we devise the true intent of the writers? Who defines the meaning of a text? If you want to know my thoughts on that, you won’t want to miss the next episode.

Published: July 4, 2021