Statutory Interpretation and the Many Virtues of Legislation

Arie Rosen*

The text delves into the enduring debate surrounding statutory

interpretation in legal circles. It highlights the intricate nature of this issue,
touching upon various aspects such as language communication,
governmental structure, political authority, utility, predictability, and
justice. Each of these elements contributes to the complexity of
determining how statutes should be interpreted.

The article narrows its focus to one specific aspect: the impact of
deference and respect towards legislative decisions on the interpretation
of statutes. It refrains from addressing broader questions, such as whether
judges should prioritize practicality or justice over strict adherence to
statutory language, or how interpretive techniques might influence
legislative behaviour.

The discussion references Antonin Scalia's defence of textual originalism,

which emphasizes the importance of respecting the authority of the
legislative branch in interpreting statutes. However, it suggests that
Scalia's argument may oversimplify the relationship between textualism
and democracy, indicating that other interpretive approaches can also be
democratic.

Overall, the article aims to dissect the complexities of statutory

interpretation, particularly concerning the role of deference and respect
towards legislative decisions, without reaching definitive conclusions on
broader interpretive methods or their implications.

The article challenges two key assumptions underlying Scalia's position

on statutory interpretation. Firstly, it questions the notion that legislative
decisions are solely reflected in the statutory text, suggesting that
modern legislative practices may involve decisions that extend beyond
textual content. This leads some to prefer INTERPRETING LEGISLATIVE
INTENT over strict textualism. Secondly, it challenges the idea that
deference to legislative decisions is bounded by adherence to the specific
content of statutes, suggesting that respect for legislation may sometimes
require forward-looking, ameliorative approaches.

The discussion proposes two contrasting visions of legislation: one

focusing on generating correct laws for the community, and another
emphasizing correctness-independent values like procedural fairness and
political equality (rule of law). Each vision imposes different duties on
statutory interpreters: correctness-based understandings advocate for
interpretation techniques aimed at approximating the correctness statutes
embody, while correctness-independent views view interpretation as a zero-
sum game where any deviation diminishes legislative control over
statutory content.

Different interpretive approaches are classified based on their stance on

two questions: the scope of legislative decisions and the proper mode of
applying them. Textualism and intentionalism differ on scope but agree
on limiting interpretation to the particular content of legislative
decisions. In contrast, "correctness-oriented" approaches encourage
interpreters to go beyond statutory text and intend to achieve desirable
results in concrete cases.

Overall, the article examines the complexities of statutory interpretation,

highlighting diverging perspectives on legislative intent and the role of
interpreters in achieving substantive outcomes.

The article argues for an interpretive approach that emphasizes the

importance of considering objective purpose and values in statutory
interpretation, categorizing such approaches as "correctness-
oriented." It critiques overly unifying accounts of legislation and suggests
that statutory interpretation should be informed by the circumstances of
each statute's enactment and its actual value to the political community.

It further explores the divergence between textualism and intentionalism

regarding the scope of legislative decisions. Intentionalists advocate for
interpreting statutes based on the legislative intent behind them, viewing
legislative instructions as intending to communicate desired actions.
Textualists, on the other hand, argue that the plain meaning of statutory
text encompasses the entirety of legislative decisions, rejecting the need
for attributing artificial intent to the legislature.

The identification of the scope of legislative decisions is contingent upon

the understanding of democratic decision-making processes.
Textualists often defend their position by referencing a transactional
understanding of legislative processes, framing decisions as bargains
struck between competing interests.

Overall, the article presents a nuanced analysis of statutory interpretation,

considering the implications of different interpretive approaches and their
relationship to legislative intent and democratic principles.

The article discusses contrasting views on the scope and application of

legislative decisions in statutory interpretation. Textualists like Manning
and Waldron argue that legislative intent is exhausted by the text
adopted, emphasizing a transactional understanding of legislation as a
precise agreement between competing interests. In contrast,
intentionalists like Ekins contend that legislative decisions encompass
more than what is explicitly expressed in the text, viewing legislation as
a rational choice of a complete plan of action by legislators.

The analysis highlights the dependence of the scope of legislative

decisions on the understanding of legislative practices. Textualist
positions assume a narrow legislative agreement, while views
interpreting statutes as expressions of wider legislative intent attribute to
legislation a logic of collective reasoning and agreement.

The article proposes that the mode of statutory interpretation depends on

the nature of legislative practices and the value of legislation to the
political community. It distinguishes between "control-maximising" and
"correctness-oriented" modes of interpretation. Control-maximising
approaches prioritize strict adherence to legislative decisions, while
correctness-oriented approaches are willing to compromise legislative
control in favor of interpreting statutes according to principles of
justice, expediency, or reasonableness.
Some argue that strict adherence to legislative decisions is essential for
respect for legislative authority, while others advocate for interpretive
approaches that allow for substantive amelioration of legislative
decisions. The article aims to explore the implications of these different
approaches for statutory interpretation.

The article compares statutory interpretation to interpreting directives

from an expert, such as a gardener instructing someone to water a garden.
It argues that while respecting authoritative directives involves
considering both the words of the instructions and the intent behind
them, it does not necessarily require strict adherence to either. Using
examples of expert advice, the article suggests that interpreting
authoritative directives involves reasoning based on the specific
circumstances, common sense, and substantive value considerations.

In the example of the gardener's instructions, although the explicit

directive was to water the garden twice a week, the interpreter decides to
water it only once due to heavy rainfall. This decision, while not strictly
adhering to the words of the instructions or the gardener's explicit intent,
is still considered a proper interpretation because it aligns with the
overarching goal of making the best use of the directives as guides for
proper action.

The article generalizes this insight, stating that when the purpose of
following directives is to achieve correct outcomes, the interpretive goal is
not merely to maximize the author's control but to put the directives to good
use. It suggests that interpreting such directives involves identifying their
correctness-based significance and properly applying it to the interpreter's
circumstances, even if it means deviating from the literal words or the
explicit intent of the author.

The article addresses objections to correctness-oriented modes of

interpretation, which prioritize achieving correct outcomes over strict
adherence to the words or intent of directives. Critics argue that such
approaches risk undermining authority by replacing the judgment of the
author with that of the interpreter. An example is provided by Lon
Fuller's hypothetical scenario where a correctness-oriented interpretation
leads to a misguided conclusion about the sale of absinthe.

The article counters these objections by asserting that correctness-

oriented approaches are balanced and guided by the perceived
correctness of the authority issuing the directive. It suggests that such
approaches are characterized by the principle of charity in interpretation,
where interpreters assume statements are generally true and strive to
interpret them as such. However, while the principle of charity can
explain some aspects of interpretation, it fails to capture the logic of
correctness-oriented approaches.

Instead, the article turns to Hans-Georg Gadamer's theory, which rejects the
retrieval of authorial intent as the ultimate benchmark of interpretation.
Gadamer suggests understanding texts by transposing oneself into the
perspective within which the author formed their views. This
perspective focuses on understanding how the author's statements
could be right, rather than attempting to discern their original intent.

The article concludes by highlighting the familiarity of this interpretive

mode to lawyers, noting that many legal traditions interpret statutes and
legal decisions in light of their underlying rationale to achieve just
results. This approach, known as the ratio legis, emphasizes
understanding the kernel of useful knowledge within directives and
applying it to the interpreter's situation against the backdrop of their own
understanding and notions of correctness.

The article explores correctness-oriented modes of statutory

interpretation, which prioritize achieving substantively correct
outcomes over strict adherence to the wording or intent of statutes. It
notes that such approaches have historical roots in both civil and common
law traditions, where statutes are interpreted as precepts of right reason
and equity.

Various contemporary schools of statutory interpretation, such as

equitable interpretation and Ronald Dworkin's interpretivism, advocate
correctness-oriented readings of statutes in light of moral principles or
objective purposes. These approaches invite interpreters to use
regulative standards of correctness, focusing on achieving just and
proper results.

The article argues that correctness-oriented interpretation introduces an

aspect of legitimate aspiration and evolution to statutory law, guided by
objective elements like equity, moral principle, and purpose. It suggests
that interpreters should treat statutes akin to directives from experts,
interpreting them in a way that puts them to good use for achieving correct
outcomes.

While some may resist likening legislative authority to expertise, the article
argues that exploring this analogy is valuable for understanding the
genealogy of contemporary interpretive practices. It traces the development
of correctness-based understandings of legislation back to medieval and
Renaissance political theory, where positive law was seen as entangled with
correctness and propriety.

Despite the modern departure from viewing legislators as experts,

correctness-based understandings of legislation persist to varying
degrees. Some contemporary accounts of democracy still uphold the view
that legislative practices aim to produce good laws, which should be
respected and interpreted accordingly.

Overall, the article suggests that the choice between control-maximizing

and correctness-oriented approaches to statutory interpretation depends
on whether legislative authority is seen as primarily aimed at guiding
people to proper action, akin to expert directives, or as something else
entirely.

The article examines three potential standards of correctness in modern

legislative efforts: right reason, community ethics, and material welfare
or utility. It argues that correctness-based interpretations of legislation
assume that statutes must reveal and approximate a standard of correctness
to be authoritative. These standards correspond to various theories of
democracy and political morality, guiding legislative procedures to produce
statutes that approximate this pre-existing standard.
However, the article acknowledges challenges to wholesale correctness-
based evaluations of legislation, particularly in pluralist societies where
there is no consensus on what constitutes correctness. The objection from
disagreement suggests that invoking any particular standard of
correctness may undermine democratic equality and the authority of
legislative mechanisms. As a result, theories of political legitimacy have
emerged that base authority on correctness-independent values such as
procedural fairness and self-government.

In light of these correctness-independent values, the article argues against

traditional correctness-oriented modes of statutory interpretation.
Instead, it advocates for control-maximizing approaches that prioritize
strict adherence to the particular decisions reached in the legislature.
This shift reflects the contemporary popularity of control-maximizing
approaches in statutory interpretation, which emphasize respect for
legislative agreements rather than adherence to a particular conception
of correctness.

The article examines the importance of understanding legislative practices

in guiding statutory interpretation. It argues that legislation serves
valuable functions, such as solving coordination problems in pluralistic
societies, and that legislative decisions deserve respect regardless of their
potential correctness. The values of procedural fairness, equality, and
self-government associated with the legislative process also support
adherence to the decisions made by the legislature.

Correctness-independent accounts of the value of legislation suggest that

interpreters should identify and respect the particular decisions made by the
legislature without imposing their own notions of correctness. In
pluralistic societies, where there is no consensus on the standard of
correctness, interpreters should refrain from undermining legislative
authority by imposing their own interpretations.

While interpreters inevitably contribute to the interpretation of statutes,

they should aim to minimize their intervention and prioritize adherence to
the decisions made by the legislature. Practical considerations and
entrenched disagreements about the nature and value of legislative practices
further complicate the translation of theoretical conclusions into a practical
doctrine of statutory interpretation. Ultimately, interpreters should focus on
the specific disagreement resolved by each statute, the procedures followed
in its creation, and its actual value in the political community when
determining the appropriate interpretive approach.

When interpreting statutes, it's crucial to understand the legislative process

that produced them. Interpreters should focus on what legislative practices
were actually like rather than what they ideally should be. Some legal
theorists turn to positive political theory to understand legislative activity,
but this approach raises complex descriptive questions, such as whether
majority voting is a rational mechanism and how deliberative practices
function in legislatures.

These descriptive questions delve into various aspects of legislative

practices, including how representatives deliberate, set agendas, and make
decisions. Understanding legislative practices involves answering
interconnected questions about voting behavior, disagreement among
representatives, the role of values, and the influence of expertise and
committees. The variability and complexity of legislative practices
highlight the need for nuanced interpretations of statutes based on the
realities of legislative activity.

Statutory interpretation must consider the irregularity in legislative

practices, which varies from one instance of legislation to another.
Different statutes result from different modes of election, drafting,
consultation, deliberation, and voting. Most schools of statutory
interpretation advocate a single approach for all statutes, assuming a
uniform legislative process and value. However, this overlooks the diverse
nature of legislative practices and the plurality of disputes and
disagreements that legislatures address.

Disagreements in legislatures can range from conflicts over fundamental

values to disagreements on practical matters. Some discussions may aim to
reveal shared values or approximate rationality, rather than simply
bargaining for narrow agreements. Therefore, correctness-based evaluations
of legislative practices may still be relevant in some cases where
disagreement does not lead to transactional interactions.

Similarly, the scope of legislative decisions may extend beyond the plain
meaning of statutory text, especially when parties reach a robust plan with
clear ends and agreed-upon purposes. Prescribing a single principle for
interpreting all statutes disregards their diverse origins and values,
potentially undermining the proper respect owed to some statutes.
While determining the particular scope and value of each statute may seem
cumbersome, it ensures a more accurate interpretation that respects the
specific legislative context. This approach recognizes the complexity and
variability of legislative practices, leading to more nuanced and context-
sensitive interpretations of statutes.

The proposal to determine statutory interpretation based on the specific

context of each statute raises concerns about increased uncertainty and
practical objections. Some theorists argue that judges have a duty to
interpret statutes in a way that yields just results or reforms the law into a
principled body. Others advocate for limiting judicial contribution to legal
development due to distrust of judges and concerns about the comparative
capacities of legislatures and courts.

While these concerns deserve rigorous investigation, they highlight the

complexity of institutional considerations and the potential conflicts among
them. Respect for legislation, judicial duty, institutional competences,
expedience, and certainty may pull in different directions. Recognizing this
complexity suggests that the ultimate answer to the normative question of
statutory interpretation may not be straightforward, but it ensures sensitivity
to multiple normative commitments.

It's possible that considering interpretive duty from the perspective of

respect for legislation may lead to employing different interpretive modes
for different statutes. However, diverging from this model would come at
the expense of deference to statutes, compromising some of the virtues of
modern legislation.