Statutory Interpretation – A Pragmatic Approach

Statutory Interpretation – A Pragmatic Approach I opened this book intrigued as to what a pragmatic approach to statutory interpretation might consist of. I went from being intrigued to being troubled by the middle of the second line of the preface, which announces that the pragmatism referred to in the title is actually about pragmatic judging and not about pragmatic interpretation at all. I do wish that everybody involved in the legislative process, from policy makers through drafters to lawmakers, would remember that of the vast potential range of different classes of target audience, the judges are not only a tiny percentage, but they are also a percentage that comes into play only when the legislative intent has failed to make itself clear to the real consumer of legislation, the citizen. Having been told in the preface that this book is aimed at considering how judges will be influenced by substantive background considerations in determining the meaning of a statute, I approached it with trepidation expecting to find it of little use for people who are trying to construe and apply statutes without need to recourse to the courts. Chapter 1 justified my fears: it is a historical review of how courts interpreted statutes from common-law beginnings to the end of the 19th century. Not, perhaps, the most obviously pragmatic material in the sense of actually being useful to anybody trying to interpret legislation for any practical purpose. As an academic exercise, it is both extraordinarily thorough and completely fascinating. It would not help anybody read a statute for immediate practical purposes, and it clearly is not meant to do that but for anyone who wants to get thoroughly into the psyche of American judges construing and applying statutes in a particularly intractable case, this would be valuable background. Or perhaps to be more accurate, Chapter 1 would be valuable background to the real background which comes in Chapter 2 in the form of a discussion of the rise of purposive interpretation. If I have a slight criticism of this Chapter it would be that, as so often, this treatment of purposive interpretation ignores the facts that judges (including American judges with their early background in English legal commentators) have always been well used to the search for the legislative mischief and that it was the process of purposivism, rather than the nature or acceptance of purposivism, that changed over time. What has changed in judicial purposivism is the nature and extent of the context deployed in pursuing it, in two ways: first, the range of materials to which the judges will have regard in construing the purpose of the text; and secondly, the social and real-world contexts within which purposivism has to be operated. As to the second of those factors in particular, Chapter 2 has some penetrating insights to offer: in particular, the consideration of the implications for interpretation of the changing nature of crime and the rise of regulatory law is so pertinent and fascinating that I would have liked to have seen it explored further. Chapter 3 is completely devoted to the American experience and will be vital for those who want to understand how contemporary politics influences judicial attitudes; it will be of less interest to other jurisdictions. Overall, Part I is fascinating, learned, penetrating, and almost every complimentary adjective I can think of in relation to a work on statutory interpretation, except pragmatic. Part II—the Technique and Theory of Statutory Interpretation—is presumably where we get down to pragmatism with a vengeance. And to some extent it does. Despite the proclaimed focus on judicial behavior in the preface that had me so worried, Chapter 4 which discusses the use of the text of legislation is a fantastically clear and simple model that anyone could use in applying the cardinal rule of interpretation for the purposes of ordinary readers, and it certainly satisfies my ambitions that statutory interpretation should be more about staying away from the courts than predicting how they will behave. In particular, the analysis of different kinds of literalism is something that the neophyte will find particularly useful. Pragmatic or not, modern literal or modern purposive, interpretation today is all about a wider and wider context and an ever growing use of a wider range of materials. Chapter 5 begins to embrace external context and is of interest and use for that purpose. Most of the discussion is both sound and helpful: if there is one part that left me unsatisfied it is the treatment of drafting errors, but I do not know whether this is a failure in the text to analyze contemporary judicial attitudes sufficiently broadly or whether it simply reflects the fact that American judges have not yet arrived at an understanding that an application of the rules in Inco Europe is less a departure from the Golden Rule of interpretation and more an appreciation of the fact that the literal text sometimes needs a process of rectification in the same way as other formal instruments. Despite what I say about concentrating on the needs of non-judicial users of the statute book, it is of course necessary to know the attitude which the courts will take when forced to look at legislation because it is insufficiently clear otherwise; and an absolutely essential component of that is the developing attitude to legislative history. Chapter 5 deals with that in depth and extremely helpfully. All in all, by the time I had emerged from Chapters 5 and 6, I was satisfied that it is the preface of the book which is at fault in claiming to focus on judicial pragmatism, and not the contents of the book which clearly go far beyond that and will be of interest and use to those who wish to apply statutes without going anywhere near a judge. Chapter 7 deals with the impact of change on the meaning statutes and perhaps falls slightly short of the depth of penetrative analysis that Chapter 6 gave to external context. Judicial attitudes to words which change meaning over time need to be analyzed separately in the context of literalism and purposivism; and, for me at least, Chapter 7 neither draws pragmatic conclusions nor analyses the available material with the depth shown in previous chapters. Chapter 8—administrative interpretation—is perhaps the most important chapter in the whole book for those who want to know to what extent statutes can be robustly construed and applied without recourse to the courts. In particular, the doctrine whereby the courts do not disturb established understanding within the key target audience of a statute is both of much longer standing than some people realize and is of enormous importance in practice when applying statute. In particular, the more that target audiences take the trouble to set up a clear audit trail of general acceptance of a particular usage both within the commercial or other sector at which the statute is aimed, and also by agreement with the government that enacted the legislation, the less the courts are likely to interfere with that established interpretation and therefore the more robustly and confidently it can be applied. In that sense, I tentatively proffer the suggestion that Chapter 8 starts in the wrong place, by focusing on administrative interpretation rather than commercial and local usage. It is, of course true, that the reference to administrative interpretation is in one sense ‘a direct challenge to the courts’ traditional role in interpreting statutes’ but that is if one begins from the rise of administrative law. If one goes back to the age when little if any statute was attempting to regulate the relationship between the citizen and the State, and the primary focus of statute was on relationships between citizens, the courts were generally both happy and relieved to defer to settled usage in a number of ways. To the extent that administrative interpretation amounts to settled usage within the public law context, the degree of deference shown to it is simply an extension and reflection of a long-standing approach and implies no conflict or interference with the balance of power. The emergence of the balance of power as a key factor in the interpretation of ‘political statutes’ is, of course, an important subtopic and I could have wished that Chapter 15, which gives some fascinating insights into the executive—legislative relationship, could have been considerably longer. In one sense, I ended this book as puzzled as when I began it. In particular, I still do not know what pragmatism means in the context of statutory interpretation. If this book had indeed, as its preface suggested, been solely about pragmatism in judicial behavior I would have found it disappointingly limited in its application: it is, however, about ever so much more than that, and there was not a single page that I did not find opening up new vistas of thought that would help both neophytes and the more experienced reader, without any thought for the courtroom whatsoever. The title suggests that the book will be advancing a particular approach to statutory interpretation that can be designated as pragmatic. I did not find that it did so in my mind, or that the author was ever led by dogma to push the reader in a particular direction that the evidence did not clearly support; indeed, the repeated use of questions in the text without a single dogmatic answer is one of the most valuable and welcome features of the book. So is it ‘an approach’? I don’t think so. Is it ‘pragmatic’? I did not find it particularly so. Is it an important and helpful experience for anybody who needs to know about statutory interpretation at anything below a superficial level? Yes it certainly is. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

Statutory Interpretation – A Pragmatic Approach

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Publisher
Oxford University Press
Copyright
© The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmy013
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Abstract

I opened this book intrigued as to what a pragmatic approach to statutory interpretation might consist of. I went from being intrigued to being troubled by the middle of the second line of the preface, which announces that the pragmatism referred to in the title is actually about pragmatic judging and not about pragmatic interpretation at all. I do wish that everybody involved in the legislative process, from policy makers through drafters to lawmakers, would remember that of the vast potential range of different classes of target audience, the judges are not only a tiny percentage, but they are also a percentage that comes into play only when the legislative intent has failed to make itself clear to the real consumer of legislation, the citizen. Having been told in the preface that this book is aimed at considering how judges will be influenced by substantive background considerations in determining the meaning of a statute, I approached it with trepidation expecting to find it of little use for people who are trying to construe and apply statutes without need to recourse to the courts. Chapter 1 justified my fears: it is a historical review of how courts interpreted statutes from common-law beginnings to the end of the 19th century. Not, perhaps, the most obviously pragmatic material in the sense of actually being useful to anybody trying to interpret legislation for any practical purpose. As an academic exercise, it is both extraordinarily thorough and completely fascinating. It would not help anybody read a statute for immediate practical purposes, and it clearly is not meant to do that but for anyone who wants to get thoroughly into the psyche of American judges construing and applying statutes in a particularly intractable case, this would be valuable background. Or perhaps to be more accurate, Chapter 1 would be valuable background to the real background which comes in Chapter 2 in the form of a discussion of the rise of purposive interpretation. If I have a slight criticism of this Chapter it would be that, as so often, this treatment of purposive interpretation ignores the facts that judges (including American judges with their early background in English legal commentators) have always been well used to the search for the legislative mischief and that it was the process of purposivism, rather than the nature or acceptance of purposivism, that changed over time. What has changed in judicial purposivism is the nature and extent of the context deployed in pursuing it, in two ways: first, the range of materials to which the judges will have regard in construing the purpose of the text; and secondly, the social and real-world contexts within which purposivism has to be operated. As to the second of those factors in particular, Chapter 2 has some penetrating insights to offer: in particular, the consideration of the implications for interpretation of the changing nature of crime and the rise of regulatory law is so pertinent and fascinating that I would have liked to have seen it explored further. Chapter 3 is completely devoted to the American experience and will be vital for those who want to understand how contemporary politics influences judicial attitudes; it will be of less interest to other jurisdictions. Overall, Part I is fascinating, learned, penetrating, and almost every complimentary adjective I can think of in relation to a work on statutory interpretation, except pragmatic. Part II—the Technique and Theory of Statutory Interpretation—is presumably where we get down to pragmatism with a vengeance. And to some extent it does. Despite the proclaimed focus on judicial behavior in the preface that had me so worried, Chapter 4 which discusses the use of the text of legislation is a fantastically clear and simple model that anyone could use in applying the cardinal rule of interpretation for the purposes of ordinary readers, and it certainly satisfies my ambitions that statutory interpretation should be more about staying away from the courts than predicting how they will behave. In particular, the analysis of different kinds of literalism is something that the neophyte will find particularly useful. Pragmatic or not, modern literal or modern purposive, interpretation today is all about a wider and wider context and an ever growing use of a wider range of materials. Chapter 5 begins to embrace external context and is of interest and use for that purpose. Most of the discussion is both sound and helpful: if there is one part that left me unsatisfied it is the treatment of drafting errors, but I do not know whether this is a failure in the text to analyze contemporary judicial attitudes sufficiently broadly or whether it simply reflects the fact that American judges have not yet arrived at an understanding that an application of the rules in Inco Europe is less a departure from the Golden Rule of interpretation and more an appreciation of the fact that the literal text sometimes needs a process of rectification in the same way as other formal instruments. Despite what I say about concentrating on the needs of non-judicial users of the statute book, it is of course necessary to know the attitude which the courts will take when forced to look at legislation because it is insufficiently clear otherwise; and an absolutely essential component of that is the developing attitude to legislative history. Chapter 5 deals with that in depth and extremely helpfully. All in all, by the time I had emerged from Chapters 5 and 6, I was satisfied that it is the preface of the book which is at fault in claiming to focus on judicial pragmatism, and not the contents of the book which clearly go far beyond that and will be of interest and use to those who wish to apply statutes without going anywhere near a judge. Chapter 7 deals with the impact of change on the meaning statutes and perhaps falls slightly short of the depth of penetrative analysis that Chapter 6 gave to external context. Judicial attitudes to words which change meaning over time need to be analyzed separately in the context of literalism and purposivism; and, for me at least, Chapter 7 neither draws pragmatic conclusions nor analyses the available material with the depth shown in previous chapters. Chapter 8—administrative interpretation—is perhaps the most important chapter in the whole book for those who want to know to what extent statutes can be robustly construed and applied without recourse to the courts. In particular, the doctrine whereby the courts do not disturb established understanding within the key target audience of a statute is both of much longer standing than some people realize and is of enormous importance in practice when applying statute. In particular, the more that target audiences take the trouble to set up a clear audit trail of general acceptance of a particular usage both within the commercial or other sector at which the statute is aimed, and also by agreement with the government that enacted the legislation, the less the courts are likely to interfere with that established interpretation and therefore the more robustly and confidently it can be applied. In that sense, I tentatively proffer the suggestion that Chapter 8 starts in the wrong place, by focusing on administrative interpretation rather than commercial and local usage. It is, of course true, that the reference to administrative interpretation is in one sense ‘a direct challenge to the courts’ traditional role in interpreting statutes’ but that is if one begins from the rise of administrative law. If one goes back to the age when little if any statute was attempting to regulate the relationship between the citizen and the State, and the primary focus of statute was on relationships between citizens, the courts were generally both happy and relieved to defer to settled usage in a number of ways. To the extent that administrative interpretation amounts to settled usage within the public law context, the degree of deference shown to it is simply an extension and reflection of a long-standing approach and implies no conflict or interference with the balance of power. The emergence of the balance of power as a key factor in the interpretation of ‘political statutes’ is, of course, an important subtopic and I could have wished that Chapter 15, which gives some fascinating insights into the executive—legislative relationship, could have been considerably longer. In one sense, I ended this book as puzzled as when I began it. In particular, I still do not know what pragmatism means in the context of statutory interpretation. If this book had indeed, as its preface suggested, been solely about pragmatism in judicial behavior I would have found it disappointingly limited in its application: it is, however, about ever so much more than that, and there was not a single page that I did not find opening up new vistas of thought that would help both neophytes and the more experienced reader, without any thought for the courtroom whatsoever. The title suggests that the book will be advancing a particular approach to statutory interpretation that can be designated as pragmatic. I did not find that it did so in my mind, or that the author was ever led by dogma to push the reader in a particular direction that the evidence did not clearly support; indeed, the repeated use of questions in the text without a single dogmatic answer is one of the most valuable and welcome features of the book. So is it ‘an approach’? I don’t think so. Is it ‘pragmatic’? I did not find it particularly so. Is it an important and helpful experience for anybody who needs to know about statutory interpretation at anything below a superficial level? Yes it certainly is. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

Journal

Statute Law ReviewOxford University Press

Published: May 30, 2018

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