Statutory Interpretation in the Courtroom, the Classroom, and Canadian Legal Literature
34 Pages Posted: 30 Jan 2016
Date Written: 1999
In recent years, judges and scholars in Canada and the United States are devoting more attention to the theory and techniques involved in statutory interpretation. Although some advocate 'foundational" theories to answer all theories of interpretation, most difficult cases require a pragmatic approach that requires analysis of the statutory text, original legislative intent, and legislative purpose in light of modern circumstances. Moreover, the most difficult cases may not be answerable by any of these approaches. In difficult cases, judges often resort to "normative canons" - rules they created to further a jurisprudence they desire. These canons need to be closely examined and justified. This article closely examines one American and one Canadian case, arguing that an appropriate normative canon interprets cases where the text, intent, and purpose are unclear in favour of the party least likely to have had its voice heard in the legislatures and against the party most likely to be able to secure legislative correction if the court's decision is politically undesirable.
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