Llewellyn's Dueling Canons, One to Seven: A Critique

Abstract

In 1950 the redoubtable Karl N. Llewellyn launched the most famous of all attacks on canons of construction, a list of twenty eight pairs of anons having opposite effect: "Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed," 3 VANDERBILT L.REV. 395 (1950). This was and has been widely considered by statutory interpretation theorists to be devastating to the legitimacy of canons. But there has been no detailed examination of the validity or contrariety of Llewellyn's pairings. We should not accept Llewellyn's list as a devastating deconstruction just because of its rhetorical impact. It is like adopting a theory in chemistry on the basis of an extraordinary experiment that nobody ever even tried to replicate. My working hypothesis is that Llewellyn's pairings are not really devastating to canons. The conditions for the proper use of each of the superficially contrary members of a pair, and the justifications for their use, might adequately deflate the dramatic effect of the prima facie contrariety. This paper reports my results for Llewellyn's first seven pairs.

Keywords: statutory interpretation, cannons of construction