71 Pages Posted: 8 Nov 2014
Date Written: November 6, 2014
This article attempts to arrest the rising influence in Georgia of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan Garner. Though Reading Law has many worthy uses, its false polemics, its sharp divergence from the law of Georgia, and its numerous flaws should incline Georgia courts to use it cautiously, not to adopt its program wholesale.
Its flaws begin at the beginning, and this article takes the book to task for its misrepresenting the state of statutory interpretation at the founding of the nation as exemplified in its treatment of Blackstone’s Commentaries. Blackstone is clearly a purposivist, as Reading Law defines the term, and American judicial power was understood in purposivist terms, as the Georgia Supreme Court confirmed at a very early stage. Reading Law’s treatment of Blackstone is simply bad textualism.
The article then surveys the breadth of Georgia’s approach to statutory interpretation in point-by-point comparison with Reading Law. Though there are large areas of agreement, the differences are striking, most tellingly in Georgia’s methods of determining and applying the legislative intent under the “Mischief Rule” and in its robust application of the “Absurdity Doctrine.”
Numerous points in this survey show that a pure textualism is undesirable, that Reading Law departs widely from a pure textualism, that many of Reading Law’s canons of interpretation are purposivist in origin, and that most if not all questions of interpretation involve some judgment calls on the part of the judge, whether consciously or unconsciously performed, which makes hopelessly unattainable the textualist ideal of statutory interpretation free of judicial preferences.
The article concludes by rejecting as weak the arguments that the book urges against purposivism, and it presents a philosophical contrast between the legislator presupposed by both approaches. The purposivist legislator is to be preferred.
Keywords: statutory interpretation, textualism, purposivism, consequentialism, Georgia, Blackstone, Scalia, Garner, Reading Law
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