Probabilism in Legal Interpretation

Abstract

This Essay presents a shortened version of the article published in 107 Iowa Law Review 1389 (2022) that developed a novel theory of statutory and constitutional interpretation, conceptualized as probabilism. Probabilism views legal rules as a communication coming from the lawmaker. What this communication says is an empirical fact that judges need to uncover. To that end, judges must consider all relevant evidence, identify every plausible meaning of the underlying statutory or constitutional provision, determine the probability that the provision’s drafters have chosen its wording to communicate the meaning under consideration, and, finally, adopt the meaning most likely to be factually correct. By following this approach, judges will maximize the accuracy of their interpretive decisions and fulfill their mission as faithful agents of the legislature and the people.

Keywords: probabilism, statutory interpretation, constitutional interpretation, legal theory