Opaque intended meanings
Searching for the rule-maker’s intended meaning may reveal occasions when even the rule-maker himself will not be sure what meaning he intended. We gave examples of animals about which the rule-maker may have had no view regarding whether they are or are not ‘wild’.
When the interpreter comes to a case in which the rule-maker’s intent is indeterminate to everyone, including even the rule-maker, interpretation of the rule by reference to its author's intended meaning yields no answer. In a sense, the rule does not cover the case, either by including it within the rule's application or by excluding it.When the rule-maker's intended meaning is opaque in this way, what should the interpreter do? One thing is clear: whatever the interpreter does to resolve the case, it will not be through interpretation. Beyond that, there are essentially two options, depending on the authority of the interpreter. If the interpreter has lawmaking authority, she can construct a rule to cover the case, presumably one that is normatively attractive when conjoined with the remainder of the primary rule-maker's rule. If the interpreter has no lawmaking authority, then the case is governed by status quo ante legal rules. If the ‘no wild animals' rule were a prohibitory exception to a general permission to keep animals near private residences, the case of the questionable ‘wild animals' should be resolved in favor of a permission.
3.3