We have, almost all of us, I think, been brought up in the belief that the interpretation of legal documents consists essentially in a search for the intention of the author. I take it the classic, and I am sure the most elegant, exposition of this doctrine is the paper which Vaughan Hawkins, almost ninety years ago, in 1860, read before the juridical Society. Thayer printed it as an appendix in his Preliminary Treatise on Evidence and said of it, "the nature of the inquiry is described with penetration and accuracy." Hawkins states our creed in a few sentences...
"[I]n the interpretation of written language in the most general form .... the object is a single one--to ascertain the meaning or intention of the writer--to discover what were the ideas existing in his mind, which he desired and endeavored to convey to us.... In the interpretation of a legal document, however, we have not indeed a different, but an additional object of inquiry. We desire not only to obtain information as to the intention or meaning of the writer or writers, but also to see that that intention or meaning has been expressed in such a way as to give it legal effect and validity; we desire, in short, to know what the writer meant by the language he has used, and also to see that the language used sufficiently expresses that meaning. The legal act, so to speak, is made up of two elements,--an internal and external one; it originates in intention, and is perfected by expression. Intention is the fundamental and necessary basis of the legal effect of the writing; expression is the outward formality annexed by the law."
This is what we were brought up on, and what most of us still believe, or at any rate take for granted. For it is still the orthodox theory of legal interpretation.
Charles P. Curtis,
A Better Theory of Legal Interpretation,
3 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol3/iss3/25