Abstractions over Text?: Groping in Daylight in Search of the Switch

29 Pages Posted: 1 Jun 2021

Date Written: May 24, 2021

Abstract

Independence is a virtue one takes time to acquire. But the judiciary – entrusted with deciding cases and controversies – is allowed to posit no excuse for its precarious institutional posture. One of the ways judges compromise judicial independence – and in doing so shockingly adorn the veil of a legislator – is by interpreting statutes whimsically. This Article, therefore, seeks to shed light on textualism – a method of interpreting legal texts – and its principal tenet, context. This Article goes on to critique the traditional approaches to statutory interpretation – literalism, the golden rule, the mischief rule, and purposivism – on the primary basis that they are flawed and unworkable. They rob statutes of their textual meaning and strip them of their democratic sheath. It exposes literalism’s flaw – the plain-meaning inquiry and its tendency to constrict meaning. The author suggests an alternative test – the ‘linguistic reasonableness’ test. As regards the golden rule, this Article analyzes its tripartite exceptions laid down in the oft-cited Grey v Pearson. The author examines one of the exceptions – the absurdity doctrine – by conducting two analyses: the OPLA and SSA analyses. This Article then discusses the mischief rule and purposivism. In the author’s opinion, they bear a distinction without a difference. Next, the author offers nine hypotheticals with interpretive problems, resolving each as a textualist would. This Article concludes by expressing misgivings about the undisciplined and capricious posture of the judiciary in statutory interpretation, and warn against such improvidence.

Keywords: Law, Statutory Interpretation, Legal Philosophy, Textualism, Literal Rule, Golden Rule, Mischief Rule, Purposive Approach, Legislative Intent

Suggested Citation

Sreekumar, Sree Sudaarshan, Abstractions over Text?: Groping in Daylight in Search of the Switch (May 24, 2021). Available at SSRN: https://ssrn.com/abstract=3851641 or http://dx.doi.org/10.2139/ssrn.3851641

Sree Sudaarshan Sreekumar (Contact Author)

University of London ( email )

United Kingdom

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