Statutory

Interpretation and
many virtues of
Legislation
Arie Rosen
Summary of the text
• This paper explores the relationship between the respect owed to legislative decisions and our
interpretive practices. The author develops two arguments in this regard.
• The first argument traces the way varying understandings of modern legislation and alternative
accounts of the value of legislative practices entail different modes of statutory interpretation.
• The second argument criticizes existing theories of statutory interpretation for assuming a
monolithic account of the value of legislation and suggests that different approaches to statutory
interpretation might be appropriate for dealing with different exercises of legislative power.
• The paper discusses the duty of interpreters and the interpretive consequences of respect and
deference.
Key Question
• How should the deference and respect we owe to legislative decisions affect the way we interpret
them?
• Our hermeneutical standpoint could be Scalia’s approach (defence of textual originalism)–
• When government-adopted texts are given a new meaning, the law is changed; and changing
written law, like adopting written law in the first place, is the function of the first two branches
of government—elected legislators and ... elected executive offi cials and their delegates.
• Rosen notes that textualism is an approach that might be suitable for the interpretation of statutes
given a particular understanding of legislative practices and their value, but it is not the only
interpretive approach compatible with democracy.
Critiquing Scalia: Two implicit
assumptions
• First assumption: that legislative decisions are exhausted by the statutory text.
• This is a descriptive assumption whose veracity depends on the nature of our legislative
practices. It is possible to argue, for example, that modern deliberative practices result
in decisions whose content exceeds the plain meaning of the statutory text.
• In that case, then showing proper respect to legislative decisions requires the
identification of this non-textual content. This insight leads many to prefer reference to
legislative intent over a textualist approach.
Critiquing Scalia: Two implicit
assumptions
• Second assumption: is that adherence to particular legislative decisions
sets the limit to what passes for deference.
• Means that going beyond the particular content of decisions of the legislature is
not interpretation of their decision but usurpation.
• Sometimes, exhibiting proper respect to legislation means employing what Scalia
calls 'the Mr Fix-It mentality' of the common law judge. That is, sometimes, it is
right for interpreters, as a matter of the respect they owe legislation, to adopt
ameliorative, forward-looking approaches in their interpretation of the statute.
Two visions of legislation and virtue:
Rosen

The second vision sees the value of legislation

The first vision sees the value of legislation in its lying elsewhere in correctness-independent values
ability to generate good laws for our community, of political morality such as procedural fairness,
political equality, and self-government.
 the question of the
Different scope or particular
Interpretive content of legislative
approaches decisions;
the question of the
are based on proper mode of
these two application for these
questions decisions once their
scope has been
identified
Interpretative
Implications
of the
question
raised
Analysis
• Textualism and intentionalism diverge on the
question of scope, each prescribing a different way
for identifying the content of legislative decisions.
• However, both schools have a similar position when it
comes to the second question: they insist that the
particular content of the legislative decision—be it
the plain text or the intent behind it—sets the limit to
legitimate statutory interpretation.
 • Doctrines of interpretation that adopt this
approach prescribe modes of interpretation
that encourage interpreters to go beyond both
the statutory text and the legislative intent and
Correctness- use statutes to the best of their ability to attain
substantively desirable results in concrete
cases.
oriented • Dworkinian interpretivism, advocating an
interpretation of statutes in light of moral
approach principles or modes of purposive interpretation
that emphasise the import of objective purpose
and the consideration in statutory
interpretation, can be seen as a correctness-
oriented approach.
QUESTION of scope and application
• Scope of legislative decisions depends on nature of our legislative practices and that deference to
statutes does not necessarily prescribe strict adherence to text of statute or intent of author.
• Intentionalists: retrieval of legislative intent—the resolution and desire behind the statutory text
—should be the goal of our interpretive practices.
• Interpreters cannot be said to properly respect legislative instructions if they claim to interpret
statutes in a way that diverges from the intent of their author.
• That would simply be making new law under the guise of interpretation, which would be at odds
with our democratic commitment
Intentionalist
When we speak of 'legislative intent', we therefore refer
to an artificial intent that can be attributed to the
collectivity as a whole.
The question of whether this artificial intent is reducible
to the mental states of members of the assembly or
whether it is wholly or partly independent of these
mental states is a matter of controversy among
theorists.
Textualists
• Textualists agree with intentionalists that it is the legislative decision alone that determines the
content of statutory law, but they believe that the content of this decision completely overlaps
with the plain meaning of the statutory text.
• They do not deny that legislation is an intentional activity or that one might attribute some
artificial intent to the collectivity as a whole, but insist that whatever the legislature intended to
say is found in the plain meaning of the words chosen.
• Textualists, therefore, deny that there is any artificial intent transcending the legislated text: they
reject the notion that there is some residual intent, a residual content to the legislative decision,
which is not expressed in the plain meaning of the text.
Textualists versus intentionalists
Waldron: The legislative process is oriented at the adoption of a text, takes place against
the background of disparate views about what is done and why, and the statutory text that
is adopted articulates in full the agreement between members of the legislature. Therefore,
there can be no disjunction between the legislative decision and the statutory text.
Ekins: According to Ekins, the legislative intent—the comprehensive plan that has been
chosen—exceeds the plain meaning of the words of the statute. Interpreters of statutes
should therefore look beyond the letter of the statutory text, infer the overall plan chosen
by the legislature and implement it.
Mode of application of interpretation

Correctness-
Control
oriented
Maximizing
approach
Control maximizing approach
• Control-maximising modes of interpretation emphasise a strict division of labour
between author and interpreter, insisting that interpretive techniques should
maximise the control of the author over the content of statutory law. Both textualism
and intentionalism are control-maximising approaches in this sense.

• 'The natural suggestion, ' says Joseph Raz, 'is that legislators make the law that they
intend to make, and they make that law by expressing the intention to do so.'
Interpreters should respect this.
Correctness-oriented approach
• Proponents of the correctness-oriented modes of interpretation are willing to compromise
legislative control over statutory law in favour of an ameliorating interpretation of statutes
according to principles of justice, expedience or reasonableness.
• best use of these directives as guides for proper action.
Examples
• Letter from your mother
• Gardner
• Doctor
Absinthe Example
• There is a longstanding correctness-oriented mode of interpretation, claiming that it completely
undermines authority, replacing the judgment with that of the interpreter.
• Rosen uses Lon Fuller's famous example of how correctness-oriented interpretation can go wrong
to illustrate the limitations of this approach. Fuller's example involves a statute that prohibits the
sale of absinthe, which is interpreted in light of its purpose to promote health. Fuller argues that
this interpretation could lead to the conclusion that the statute actually mandates the sale of
absinthe, which is contrary to its intended purpose.
• Rosen uses this example to demonstrate that correctness-oriented approaches to interpretation
can lead to unintended consequences when they are not balanced with other hermeneutic
principles.
The starting point of our deference to correctness-based
decisions is that we accept them as good (although
naturally limited) guides in our effort to 'do the right
thing’.
That is, for us to accept a rule against the sale of
absinthe on correctness-based grounds means that we
believe that the authority issuing the directive can
actually tell us something about how to promote health,
and therefore, we never run the risk of construing its
Principle of Charity
• According to this principle, interpreters assume that statements are
generally true, and would prefer to attribute the blatant falsehood of
some utterances to an inconsistent use of linguistic conventions rather
than to divergence in the experience of reality.
• The principle of charity can explain some dimensions of our
interpretation of expert directives, but it cannot explain all of them.
• At its core, the principle remains committed to the model of inferring
and retrieving the author's intent (under charitable assumptions), and
it therefore fails to capture the logic of this different interpretive
model.
Gadamer’s principle
• Gadamer's theory of interpretation, which rejects the retrieval of authorial
intent as the purpose of interpretation, provides a more accurate description
of the logic of correctness-oriented approaches.
• According to Gadamer, the overall purpose of interpretation is to get things
right, and this should ultimately determine the logic that governs our
interpretation of expert directives. When we interpret these directives, we aim
to understand them in light of their rationale and identify the kernel of useful
knowledge that they hold and that is applicable to our own situation.
• This mode of interpretation requires drawing on our own understanding of the
situation, our own prior knowledge, and notions of correctness, and doing our
best to interpret the directive against this backdrop.
• The notion that statutes (and legal decisions in general) should be interpreted in light of their
underlying rationale in a way that would lead to just results in particular cases is common to
many legal traditions.
• The long-standing doctrine of the equitable interpretation of interpreters with the construction of
all legislation as precepts and equity, the attainment of which is taken to be a general goal of
legislation.
• Similarly, Ronald Dworkin advocates a correctness-oriented reading of the statutory text in light
of moral principles that show it 'in the best possible light’. Dworkin explains that past political
decisions should be read in a way that upholds the best moral principle that they can be seen as
instantiating.
Proper Mode of interpretation
• The proper mode of interpretation depends, then, on what sort of
authority modern legislative assemblies exercise.
• A correctness-oriented mode of interpretation is called for not as a
license to disregard an authoritative decision but as the only mode
appropriate for showing it proper respect.
Correctness in legislation
• One reason we must explore the analogy to expertise
is that it explains the genealogy of our contemporary
interpretive practices. Our interpretation—those
which go beyond the particular legislative decision to
its purpose and rationale—developed in relation to a
correctness-based understanding of the value of
politics.
• These practices, which evolved during the late Middle
Ages and early modernity, took their cue from
Example
• Thomas Aquinas' theory of legislative authority insisted that positive law must
be derived—either by way of deduction or by way of determination—from pre-
existing, eternal normative principles.
• Positive law that is not so derived, is not law properly so called. As these
principles can be revealed to mankind through the use of reason, it was the role
of the legislator to understand the principles dictated by right reason and then
to legislate accordingly.
• Since jurists of the time understood the purpose of legislation as guiding people
to proper action according to right reason, they treated it much as one would
treat the directives of experts. Appropriately, they developed a range of
ameliorating techniques that treat positive law as a guide for the just and
proper resolution of concrete disputes.
Three standards of correctness
• Right Reason (Rationality)
• Shared Values/Community Values - public discourse as a process of 'reaching
a common mind', by revealing values already shared by members of the
community and tracing their conclusions. Such underlying, implicitly shared
values constitute an alternative ethical standard of correctness against which
legislative decisions can be evaluated and to which they can be said to aspire.
• Material Common Good - legislation should aim at the promotion of the
material common good of the community. Democratic developments of this
ideal stress the ability of elections to reveal the interests of all and the ability
of political decision-making to ensure the greatest happiness for the greatest
number of citizens.
Correctness-oriented approaches are not based on a licence to disregard the
authoritative directive. Rather, their starting point is one of confidence that
the directive, if properly applied, should be able to guide its addressees to
correct action in concrete cases.
Correction-Independent values
• In modern pluralist societies, there is no agreement
on what 'right reason', 'common values' and 'welfare'
mean. Nor is there any agreement on which standard
of correctness—be it one of these three or a different
one altogether—our legislation should pursue.
critique
• Invoking any particular standard of correctness in the legitimation of legislative decisions immediately
raises two problems.
• The first is that such an invocation might be in tension with democratic equality as long as not all share the
same standard. In a society in which there is no agreement of purpose, a priori preference to one ideal of
correctness over others necessarily means that the views and convictions of some are discounted or excluded.
• The second related problem is that this exclusion would undermine the de facto authority of legislative
mechanisms. In circumstances of pluralism and disagreement, ascribing correctness-based values to
legislation would make its products valuable only for some but never for all.
• If, for example, our legislative practices are valuable because they reliably reveal the material common good
of the community, a person who does not accept material utility as the proper standard for legislation would
have no reason to heed legislative decisions.
• Since the value of legislation can no longer be seen as
resting on its ability to make good rules, there is no
reason to treat statutes as one would treat the
directives of an expert.
• Since the value of legislation resists any a priori
connection to a particular conception of correctness,
the employment of any such conception in statutory
interpretation would be indefensible. Instead,
correctness-independent values call upon interpreters
Waldron’s correctness independent
reasons
• Function of legislation - that legislation performs the valuable function of
solving in circumstances of pluralism and disagreement. Since statutes that
are generally accepted as binding are imperative, he describes the legislation
as an achievement that deserves our respect, regardless of its potential
correctness.
• Respecting legislative decisions involves the values associated with the
particular procedure observed by the legislature. According to his account,
the practices of representation, drafting, deliberation and voting are all part
of a fair decision-making mechanism in which each person's view receives
equal respect. Adhering to the particular resolution that is produced by this
mechanism is therefore supported by considerations of fairness and equality.
• This is not to say that legislative control over
meaning can ever be complete. Any interpretation
necessarily involves some contribution on the part of
the interpreter. At the very least, interpreters of
statutes must refer to their own understanding of
what the plain meaning of the statutory text was at
the time of its enactment, which also draws on their
particular assumptions regarding the conventions of
the statutory use of language both today and
Statutory interpretation
• Noting irregularities in legislative practices
• Varieties of disagreement
• Institutional considerations - consideration—respect
for legislation, judicial duty in developing the law,
relative institutional competences, expedience and
certainty—can potentially pull in a different
direction.