Regulatory Interpretation: Conversational or Constructive?

Abstract

This article examines the nature of interpretation in regulation. Drawing on the work of Ronald Dworkin it considers two alternative theses of regulatory interpretation; the conversational thesis and the constructive thesis. The conversational thesis, which seems to find support in several contemporary writings on the use of rules in public administration, perceives regulatory interpretation as a method of interpretation that resembles the interpretation that people deploy in the course of a conversation in their attempt to understand and communicate with their co-discussants. The constructive thesis describes regulatory interpretation as a dialectical practice whose ultimate objective is to meet the demand for new and better interpretations in accordance with the public standards that best justify regulatory practice. It will be argued that the constructive thesis offers a more appealing account of regulatory interpretation because it is better placed to accommodate two apparently conflicting intuitions with respect to interpretation in the regulatory domain. The first one is the idea that the meaning of regulatory provisions must not be entirely contingent on the beliefs and/or preferences of those conducting the interpretation, for otherwise interpretation collapses into a cynical game of rent-seeking and regulatory capture. The second intuition is that regulatory interpretation must be procedurally efficient.