What the Tortoise Says about Statutory Interpretation: The Semantic Canons of Construction Do Not Tip the Balance

Forthcoming, Oxford Journal of Legal Studies, This is a penultimate draft; please consult the published version, available at https://doi.org/10.1093/ojls/gqac004.

43 Pages Posted: 29 Mar 2022 Last revised: 31 May 2022

See all articles by Amin Ebrahimi Afrouzi

Amin Ebrahimi Afrouzi

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program

Date Written: March 6, 2022

Abstract

Karl Llewellyn’s critique of the canons of statutory interpretation led to a decline in their use for several decades. His critique, however, faced sustained resistance from some corners of the academy and the judiciary. Although this resistance has had only a selective uptake, it animated a gradual revival of the canons and brought the state of scholarship to an impasse that is for the most part partisan. In this article, I examine the semantic canons from a deeper level and argue that a universal assumption about them is false. Said assumption is that, although not dispositive, the semantic canons at least offer some reasons in favour of or against a candidate interpretation. Inclinations to rely on the semantic canons are also based on this assumption, although it is an assumption that the critics of the canons also share. I argue that this assumption is false because the semantic canons are a class of rules that are by nature not reason-giving. This provides a new ground against giving the semantic canons deliberative weight in questions of statutory interpretation.


Keywords: statutory interpretation, canons of interpretation, semantic canons, syntactic canons, legislation, textualism, legal philosophy, normativity, legal reasoning, judicial discretion, rules, rules of thumb, maxims of interpretation

Suggested Citation

Ebrahimi Afrouzi, Amin, What the Tortoise Says about Statutory Interpretation: The Semantic Canons of Construction Do Not Tip the Balance (March 6, 2022). Forthcoming, Oxford Journal of Legal Studies, This is a penultimate draft; please consult the published version, available at https://doi.org/10.1093/ojls/gqac004., Available at SSRN: https://ssrn.com/abstract=4050941

Amin Ebrahimi Afrouzi (Contact Author)

University of California, Berkeley, School of Law, Jurisprudence and Social Policy Program ( email )

Berkeley, CA 94720
United States

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