The Politics of Statutory Interpretation: The Hayekian Foundations of Justice Scalia's Jurisprudence
46 Pages Posted: 9 Mar 2014 Last revised: 28 Aug 2014
Date Written: March 7, 2014
Over the years, Justice Scalia’s approach to statutory interpretation has generated both controversy and analysis. Yet while scholars have debated various aspects such as textualism, originalism, the use of dictionaries and so on, there has been no comprehensive account that seeks to harmonize these diverse strands into one, seamless web of overall justification. With the 2012 publication of Reading Law, Justice Scalia’s composite account of the canons of statutory interpretation, the need is now even more acute. This article aims to do just that. It argues that careful attention to Justice Scalia’s judicial and extra-judicial writings reveals that underlying all the rules, canons and principles is a particular, normative vision of the rule of law and formal equality, values that he considers paramount and guiding. Furthermore, at an even deeper level, these values are derived from a vision of the good society that was most famously – and completely – articulated by the conservative 20th century philosopher, Friedrich Hayek. Concrete interpretive techniques, such as Justice Scalia’s use of dictionaries, his antipathy towards legislative history, his approach to precedent – are ultimately derived, via the rule of law, from foundational values that are pervasively and inescapably normative and political. Thus, the intellectual success of his interpretive account depends ultimately on how convincing and persuasive we – his interlocutors – find his philosophical foundations. The broader point is that any clash between philosophies of statutory interpretation, in the final analysis, is a clash between norms; and it is only by interrogating those underlying norms can we fully understand – and thus, defend or critique, as the case may be – the statutory interpretation accounts of judges and scholars.
Keywords: statutory interpretation, justice scalia, textualism, originalism
JEL Classification: K10
Suggested Citation: Suggested Citation