The Problem of Interpretive Canons
(2023) 44(1) Statute Law Review (Forthcoming)
28 Pages Posted: 19 May 2023
Date Written: May 15, 2023
In this paper it is shown that interpretive canons are either constitutionally invalid because of the principles of interpretation it establishes, or a theory of interpretation can be made to be inconsistent: where a theory of interpretation says do p, then a new canon can say do not-p. This is called the Canon Dilemma. Whichever horn of the dilemma is taken as acceptable (accept invalidity or possible inconsistency), this shows that canons cause more problems for theorising about interpretation than currently realised. Some might interpret the Canon Dilemma as a process of theory change (p is replaced with not-p rather than being contradicted by it), but even then problems of incoherence still persist. This paper also shows a connection between debates on the constitutionality of interpretive canons and the descriptive accuracy of linguistic theories of interpretation.
Keywords: Legal Interpretation, Interpretive Canons, Canons of Construction, Public Law
JEL Classification: K00, K10
Suggested Citation: Suggested Citation