Authentic Interpretation

(2020) 33 Ratio Juris 6–23

14 Pages Posted: 3 Mar 2021

See all articles by Timothy A.O. Endicott

Timothy A.O. Endicott

University of Oxford - Faculty of Law; All Souls College

Date Written: April 4, 2020

Abstract

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret.

Keywords: interpretation, legal interpretation, principles, legislation

Suggested Citation

Endicott, Timothy A.O., Authentic Interpretation (April 4, 2020). (2020) 33 Ratio Juris 6–23, Available at SSRN: https://ssrn.com/abstract=3757207

Timothy A.O. Endicott (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

All Souls College ( email )

14 High St
Oxford
United Kingdom

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