Interpretive Choice in Statutory Interpretation
American Journal of Jurisprudence, Vol 59, 2014, Forthcoming
24 Pages Posted: 26 Mar 2014
Date Written: February 10, 2014
This article considers theories of 'interpretive choice', which deny that any particular method of interpreting a statute is uniquely reasonable and instead take statutory interpretation to be very largely underdetermined by reason. Cass Sunstein argues from the nature of interpretation that the choice of interpretive method should turn directly on consequences. Adrian Vermeule argues that whatever one takes to be the object of interpretation, it is the study of the capacities of interpreters rather than philosophical argument that should decide the choice of interpretive method. Scott Shapiro argues that the nature of law entails that interpretive discretion should track the distribution of trust, which is system-specific and varies from (type of) interpreter to interpreter. These arguments fail to perceive the nature of language use and interpretation in general, or lawmaking and statutory interpretation in particular. Any well-formed practice of statutory interpretation will centre on inference about the intentions of the enacting legislature, which focus on legislative intent is nonetheless consistent with much variation in the context of enactment.
Keywords: interpretation, interpretive choice, legislative intent, jurisprudence
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