Did Justice Scalia Have a Theory of Interpretation?

32 Pages Posted: 10 Jan 2017

See all articles by Gary Lawson

Gary Lawson

Boston University School of Law

Date Written: January 9, 2017


It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication.

Keywords: Scalia, Interpretation, Textual, Standards of Proof

JEL Classification: K00, K19, K30, K49

Suggested Citation

Lawson, Gary, Did Justice Scalia Have a Theory of Interpretation? (January 9, 2017). Notre Dame Law Review, Forthcoming; Boston Univ. School of Law, Public Law Research Paper No. 17-01. Available at SSRN: https://ssrn.com/abstract=2896239

Gary Lawson (Contact Author)

Boston University School of Law ( email )

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