INTERPRETATIO

N OF STATUTES
& JURIDICAL
PROCESS

Week 1

Saksham Shukla || IOSJP || Spring 2024 2/1/2024 1

 WHAT IS MEANT BY ‘INTERPRETATION’?
IS THERE A DIFFERENCE BETWEEN THE INTERPRETATION OF
‘STATUTES AND LAW’?
• A statute is the ‘will of the legislature’. (Maxwell. 11th ed.)
• This will must have been expressed through the Parliament.
• The function of the court is to interpret this document ‘according to the intent of them that made it’.
(Lord Coke)
• Interpretation and construction refers to the process by which the courts seek to ascertain the
meaning of the Legislature through the medium of authoritative forms in which it is expressed.
• Are interpretation and construction different?
• Are statutes and law different?

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 DO WE HAVE THE SAME IDEAS ABOUT HOW WE
SHOULD BE INTERPRETING STATUTES?
• There is one rule of construction for statutes and other documents, it is that you must not imply anything
in them which is inconsistent with words expressly used. (Lord Green MR in Re A Debtor 1948)
• Cooley’s (Constitutional Limitations) differentiation of Interpretation and Construction:
• Interpretation is the art of finding out true sense of any form of words; the sense which their author is intended
to convey; and of enabling others to derive from them the same idea which author intended to convey.
• Construction is drawing of conclusion, respecting subjects that lie beyond direct expression of the text from
elements known and given in the text; conclusions which are in spirit, though not within the letter of the law.
• Objective determination of words used by the legislature?

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 THE PROBLEM OF INTERPRETATION

• Problem of the meaning of words and their effectiveness as a medium of expression to communicate a
particular thought.
• A word is used to refer to some object or situation in the real world, and this object/situation is assigned a
technical name.
• But words of many languages are capable of referring to different referents in different contexts and times.
• ‘There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes
darkness is hard to determine.’ (Boyse v Rossborough, 1857)
• “Legislation has an aim. It seeks to obviate some mischief, to supply an inadequacy, to effect change of policy,
to formulate a plan of government. That aim, that policy is not drawn like nitrogen from the air, it is evidenced
in the language of the statute as read in light of other external manifestations of purpose.” (Frankfurter)

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 WHY IS IT IMPORTANT TO STUDY IOS?

• It matters how judges decide cases.

• It matters what they think the law is.
• When they disagree about this, it matters what kind of disagreement they are having.
• Is there any mystery about it?

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WHY DOES STUMPFF
ARGUE THAT LAW, IN
MANY SENSES, IS A
FRACTAL?
WHAT IS A FRACTAL?

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 THE CLASSICAL PICTURE OF JUDICIAL
DECISION MAKING
• Based on the casebook method, the use of precedents and rigorous arguments of analogy.
• From precedents and written court opinions, a general act of rules and a specific verdict in controversy
before the court are distilled.
• Judges rely on these precedents. Proponent – CC Langdell. Defines it in a 3-step process –
• Similarity is seen;
• The rule of law inherent in the first case is announced.
• The rule is applied in the present case.
• The implicit assumption is that once similarity is recognized, legal reasoning is simply a matter of making a
logically valid deduction of a holding. (Deductive reasoning)
• Dworkin supports this idea, minus the deductivist principles.

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 LEGAL PRAGMATISM
(DANIEL FARBER, THOMAS GRAY, MARGARET RADIN, RICHARD
POSNER)
• Critical of more traditional pictures of law and, more specifically, judicial decision-making.
• Emphasizes the need to include a more diverse set of data and claims that law is best thought of as a
practice that is rooted in the specific context at hand, without secure foundations, instrumental, and
always attached to a perspective.
• They believe the classical view to be very legalistic, naively rationalistic and based on
misunderstandings of legal institutions.
• It emphasizes the eclectic nature and diverse aims of the law. legal pragmatists largely agree upon four
main aspects of a pragmatist version of jurisprudence: (1) the importance of context, (2) the lack of
foundations, (3) the instrumental nature of law, and (4) the unavoidable presence of alternate
perspectives.

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 4 FOUNDATIONS PRINCIPLES OF
PRAGMATISM
• Importance of Context – all legal decision-making takes place in a specific and unique context that
is so important that without it, there is no meaning desirable. Posner emphasizes the unavoidable
presence of a specific context “disconnects the whirring machinery of philosophical
abstraction from the practical business of governing our lives and our societies (Posner
1995, p. 463).

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 4 FOUNDATIONS PRINCIPLES OF PRAGMATISM
• Anti-foundational – foundationalists argue that there are some core foundational principles from
which all legal decisions can be deduced. The moderate view of foundationalists believes that judges
have a sufficient set of tools from within traditional materials of the classical view of legal decision-
making to make properly informed decisions in present cases.
• Moderate view sees cases as necessary and sufficient foundation from which to deduce sufficiently
analysed conclusions. A pragmatist rejects these ideas.
• Pragmatist rejects the idea that correct outcomes can be deduced from some overarching principles
or set of principles. (Cotter, 1996) The solution adopted is inductive in nature and provides for
creative ways of problem solving.
• Pragmatists also reject the metaphysical picture of knowledge or decision-making that sees either as
needing a foundation.

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 4 FOUNDATIONS PRINCIPLES OF PRAGMATISM
• Instrumentalist – advocates an investigation of the effects a decision might have and the capabilities of the
legal institution. An instrumental view is, therefore, less interested in precedent and more based upon an
“orientation towards the future” (Rosenfeld 1996).
• Instead of an emphasis on consistency with the essence of past decisions, the pragmatist judge looks to the
worldly implications of his or her decision. For instance, in a contract dispute, a judge following the classical
model of legal reasoning would look to antecedently held rights and obligations, as shown in earlier cases, in
order to make a decision.
• A pragmatist judge, on the other hand, would see those issues as important but would also look at the greater
implications for contract disputes in the future. This prospective attitude would bring in data as to the effects of
the contract decision upon third parties, how a ruling would affect daily life, etc.
• The pragmatist judge allows other sorts of data, for instance, sociological or economic data, in order to access
the individual case at hand properly. It emphasizes “the primacy of consequences in interpretation (Posner 1995)

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 4 FOUNDATIONS PRINCIPLES OF PRAGMATISM
• Unavoidable presence of alternate perspective - Perspectivalism entails a suspicion of broad
generalities and an acknowledgement of eclectic manners of description.
• It emphasizes that all is messy, open-ended, and subject to revision in light of another perspective or
further information (Shutkin 1993).
• The acknowledgement of perspective entails that an overly deferential stance towards precedent and
previously endorsed analogies could be unfairly restrictive towards new and possibly more inclusive
descriptions.

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 DWORKIN’S THEORY

• Every legal interpretation reflects an underlying theory about the general character of law. Dworkin
says –
• ‘…There is a moral dimension to an action at law and so a standing risk of a distinct form of public
injustice. A judge must decide not just who shall have what, but who has behaved well, who has met the
responsibilities of citizenship, and who by design or greed or insensitivity has ignored his own
responsibilities to others or exaggerated theirs to him.
• … the injury is gravest when an innocent person is convicted of a crime, but it is substantial enough when
a plaintiff with a sound claim is turned away from a court or the defendant leaves with an undeserved
stigma.’

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DWORKIN’S THEORY

• Constructive interpretation is a process of imposing purpose on an object or practice in order to make of it

the best possible example of the form or genre to which it is taken to belong (Dworkin 1986, p. 52).
• Lawsuits can raise three different issues: issues of facts, issues of law and issues of political morality
and fidelity (Dworkin 1986).
• The first category refers to what actually happened, the second to what the pertinent law is and the third to
what a just outcome should be. According to positivists, there can be no theoretical disagreements about
what the law is because law is a matter of what legal institutions have decided in the past and what is
written down in records (Dworkin 1986, p. 7).
• Unwritten – moral – principles are not part of law. If a disagreement appears to be of a theoretical nature,
it is actually, according to positivists, a disagreement about what the law should be.

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• The conception of law as integrity is an intrinsic political value (Dworkin 1986, p. 176) that requires
lawmakers to make laws morally coherent and judges ‘to treat our present system of public
standards as expressing and respecting a coherent set of principles’ (Dworkin 1986, p. 217).
• Law as integrity is an ideal that judges must keep in mind whenever they decide on a hard case.
• Viewing law as integrity indicates that one has to combine backward- and forward-looking elements
when interpreting legal practices. The interpreter has to make sure his decision fits earlier decisions,
as well as the current legal landscape. Therefore, ‘law as integrity […] pursues the past only so far
as and in the way its contemporary focus dictates’.
• If several interpretations fit earlier decisions, the interpreter has to choose the one that is most
justified, assuming that the law is structured by a coherent set of principles about fairness, justice,
procedural due process and integrity.

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 DWORKIN’S THEORY

• Dworkin was critical of legal pragmatism because he rejected the theory that emphasises the
immediate practical consequences of legal decisions rather than abstract principles or moral values.
• Dworkin believes that legal decision-making should be based on principles of justice, fairness and
procedural due process rather than on pragmatic considerations. He argues that legal principles
should be grounded in moral and ethical values, and judges should strive to maintain consistency
and integrity in their decision-making.
• Dworkin was a student of HLA Hart and critiqued legal positivism as being an improper description
of legal practice. According to him, ‘interpretation of law should be guided by the concept of
integrity.’

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 LAW AS INTEGRITY

• Dworkin considers that law contains ‘principles’ that ought to be observed because they constitute a
“requirement of justice, fairness or some other dimensions of morality.”
• Judges should decide cases based on those principles which provide the best constructive
interpretation of a community’s legal practice.
• A theory centred on judicial interpretation and its effect on society benefits common law countries
where judges and their decisions play an active role in determining legal rules.
• Law as Integrity – consistency with past judicial decisions should be emphasized as one of the most
important legal virtues. (scope for discretion?)

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WHAT IS DWORKIN’S CRITIQUE OF LEGAL PRAGMATISM?
AND WHAT IS THE RELEVANCE OF CHAIN NOVEL IN
INTERPRETATION?
• A chain novel is a novel written one chapter at a time. After the creation of each new chapter, the
novel is passed to a new author for further elaboration.
• Dworkin argues that in this enterprise, we surely would want new authors to find as supremely
important the need to cohere (coherence) with and respect the content of the chapters already
completed.
• An author who didn’t follow this rule would not be properly fulfilling his/her role.
• Dworkin suggests that each case is directly analogous to a new chapter in the chain novel.

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ELMER’S CASE
• Was he legally entitled to inherit his grandfather’s last will provided?
• Were the words of the statute vague or ambiguous?
• Judge Gray – acontextual interpretation – written law created no exception for murders. Is the
opinion leaning towards anticipation of situations while making wills?
• No man should be punished twice for the same offence?
• Judge Earl – text – letter of statute; real statute – intention of makers; emphasizes on intention of
makers.
• Was there any active intention evident in this matter? If not, then what?
• General principles of law – do they provide an answer?

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SNAIL DARTERS CASE

• Law – empowered Secretary of Interior to designate species that would be endangered, in his
opinion, by destruction of a habitat he considers crucial to its survival and then requires all agencies
and departments of government to take such “such action necessary to insure that actions
authorized, funded, or carried out by them do not jeopardize the continued existence of such
endangered species.”
• Started before or later?
• If acontextual meaning is clear, judges should give that meaning unless it can be shown that
legislature actually intended opposite.
• What was the disagreement on?

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MCLOUGHLIN’S CASE

• Trial court – foreseeability

• Appellate – Policy
• HOL – Revered the decision.

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 HOW DO SCALIA J. AND BREYER J. JUSTIFY THEIR POSITIONS ON
RESOLVING DISPUTES OF INTERPRETING STATUTES? WHAT ARE
THEIR CRITERIA/TOOLS FOR RESOLVING SUCH DISPUTES?
• Justice Scalia is a staunch conservative, what he calls an "originalist." He believes judges should
determine the framers' original intent in the words of the Constitution and adhere strictly to it.
• He allows text to trump everything, especially consequences. In his words, if you don’t like the
consequences, blame it on the framer’s choice of words.
• Justice Breyer is often called a liberal or a pragmatist. He believes in what he calls the "living
Constitution," the idea that the values outlined by the framers must be moulded to apply to our
modern society.
• Breyer talks about six tools available to a judge when faced with difficult questions.

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WHAT ARE Text

THEIR history
CRITERIA/TOO
LS FOR traditions

RESOLVING
precedent
SUCH
DISPUTES? Purpose of the
statutory phrase

consequences.

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PROBLEM

• Assume that in some future death penalty cases, the defence establishes that 10% per cent of the
people convicted and sentenced to death were actually innocent. And further, 10% of those
convicted people were actually executed.
• Justice Scalia, who sees consequences as irrelevant, would almost certainly vote to affirm the
conviction. He would see it as a simple, easy case. On the other hand, Justice Breyer would
consider the statistics relevant and plausible (though, of course, we do not know this statement to
be true) determinative.

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