Interpretation of Statutes

L-CT-0018-5, Spring 2025

Anmol Jain
Andrew Stumpff, The Law is a
Fractal: The Attempt to Anticipate
Everything
Ronald Dworkin, Law’s Empire,
Chapter 1
Riggs v Palmer
Facts of the case

• Elmer’s grandfather — signs a will (most property given to Elmer) — remarries

— Elmer poisons him

• Daughters claimed the property under the existing statute of wills

• Law: concerns with form, witness requirements, how to revoke the will, the
mental state of the testator, etc.

• Elmer’s argument: The will was made lawfully; if the court rules in favor of the
daughters, they will e ectively be changing the will + the judges will be
substituting the law with their moral convictions.
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Premise

All judges agreed to the following premise:

- they will decide the case according to the law
- they will give the property to Elmer if the law says so
- no one said that the law needs to be reformed

STILL, there were disagreements about what the law actually is. How?
 Statute

Think of a poem

Physical Entity Real Statute

Disagreements about the law are in fact disagreements about the real statute

Need a theory of
legislation to interpret
and nd this
Need of do in every situation

Impeccable
Semantic defects
language
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Dissenting Opinion

- Decided in favour of Elmer

- they adopt a literal interpretation of the statute
- acontextual meaning of the law
- there is no exception for murderers in the law, so Elmer cannot be
debarred.

Is the reading just mechanical?

“Law students reading his opinion now are mostly contemptuous of that way of constructing a
statute from a text; they say it is an example of mechanical jurisprudence. But there was nothing
mechanical about Judge Gray's argu-ment. There is much to be said (some of which he did say)
for his method of constructing a statute, at least in the case of a statute of wills. Testators should
know how their wills will be treated when they are no longer alive to o er fresh instructions.
Perhaps Elmer's grandfather would have preferred his property to go to Goneril and Regan in the
event that Elmer poisoned him. But perhaps not: he might have thought that Elmer, even with
murder on his hands, was still a better object for his generosity than his daughters. It might be
wiser in the long run for judges to assure testators that the statute of wills will be interpreted in the
so-called literal way, so that testators can make any arrangements they wish, con dent that their
dispositions, however amusing, will be respected. Besides, if Elmer loses his inheritance just
because he is a murderer, then that is a further punishment, beyond his term in jail, for his crime. It
is an important principle of justice that the punishment for a particular crime must be set out in
advance by the legislature and not increased by judges after the crime has been committed. All
this (and more) can be said on behalf of Judge Gray's theory about how to read a statute of wills.”

Dworkin, page 18

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Majority Opinion

- legislators intention is an important in uence in determining the

meaning of the real statute
- it is absurd to think that the legislators would have intended for Elmer
to have the property

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“Judge Earl, however, writing for the majority, used a very di erent theory of
legislation, which gives the legislators' intentions an important in uence over the real
statute. "It is a familiar canon of construction," Earl wrote, "that a thing which is
within the intention of the makers of a statute is as much within the statute as if it
were within the letter; and a thing which is within the letter of the statute is not within
the statute, unless it be within the intention of the makers. (Notice how he relies on
the distinction between the text, which he calls the "letter" of the statute, and the
real statute, which he calls the "statute" itself.) It would be absurd, he thought, to
suppose that the New York legislators who originally enacted the statute of wills
intended murderers to inherit, and for that reason the real statute they enacted did
not have that consequence.”

Dworkin, page 18-19

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 On intentions

Weak Strong

That a statute can

Statutes can have no
contain nothing that
consequences that
the legislators
legislators did not
intended that it not
have in mind
contain

Intermediate

Statutes cannot have

consequences that legislators
would have rejected if they had
contemplated
Majority Opinion (contd.)

- Law should not be interpreted in isolation, but against the backdrop of the
general principles of law
- it should conform as closely as possible to the principles of justice assumed
elsewhere in the law

Why?
- One can assume that legislators would have the intention to respect the
traditional principles of justice
- Statutes form part of a larger intellectual system - law as a whole must remain
coherent
No one should pro t from their
own wrong

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 What was the dispute about, then?
A. Facts?
B. Law?
C. Justice/Morality/‘should question’?
Snail Darter case (TVA v Hill)
Facts of the case

- Endangered Species Act

- Secretary of Interior could name certain species as endangered, upon
which, if some habitat is crucial for their survival, they need to be
protected
- Tennessee - dam project (almost nished)
- Protests started before the law came into force
- New discovery: the dam is likely to destroy the only habitat of snail
darters.
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- When case led, the dam authority argued that the law should not a ect a project
that is substantially complete.
- they also made references to several actions of the Congress to show that the
Congress wanted the project to complete. It also allotted money to this e ect, even
after the law was introduced.

It empowers the secretary of the interior to designate species that would be

endangered, in his opinion, by the destruction of some habitat he considers crucial
to its survival and then requires all agencies and departments of the government to
take "such action necessary to insure that actions authorized, funded, or carried
out by them do not jeopardize the continued existence of such endangered
species.”
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Court opinion

- The SC ordered to halt the project.

- Like the dissent in Elmer, the Court said that there is no right to refuse
to apply the law just because the court believes that the results of the
law are silly.

- The Court, clearly, did not accept the way Judge Earl thought about
using the intentions of the legislators while interpreting the law.
But he did not accept Earl's principle about the way in which congressional
intention is relevant. He refused to consider the counterfactual test that Earl's
analysis made decisive. "It is not for us," he said, "to speculate, much less act,
on whether Congress would have altered its stance had the speci c events of
this case been anticipated.”

Dworkin, page 22

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 - The Court instead adopted the weak manner in constructing the
intention of the legislators.
- ‘carry out’: this phrase applies to ongoing projects as well, unless the
otherwise shown.
- The Court read the history to mean that the legislators wanted to give
higher order protection to the endangered species, even at the cost of
other social bene ts.
- Re the Congressional committees that allotted money - they were
di erent from the one that passed the law + they allotted money
without thinking about legality of their actions.
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Instead he adopted what I called, in discussing Earl's opinion, the excessively weak version of the
idea that judges constructing a statute must respect the legislature's intentions. That version
comes to this: if the contextual meaning of the words in the text is clear—if the words "carry out"
would normally include continuing as well as beginning a project-then the Court must assign those
words that meaning unless it can be shown that the legislature actually intended the opposite
result. The legislative history leading up to the enactment of the Endangered Species Act did not
warrant that conclusion, he said, because Congress plainly wanted to give endangered species a
high order of protection even at great cost to other social goals, and it is certainly possible, even if
not probable, that legislators with that general aim would want the snail darter saved even at the
amazing expense of a wasted dam. He rejected the evidence of the later committee reports and
the actions of Congress in approving funding for the continuation of the dam, which might have
been thought to indicate an actual intention not to sacri ce the dam to this particular species. The
committees that had reported in favor of the dam were not the same as the committees that had
sponsored the act in the rst place, he said, and congressmen often vote on appropriations
without fully considering whether the proposed expenditures are legal under past congressional
decisions.

Dworkin, page 22
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Dissenting Opinion

- The way majority read the law is an absurd way of constructing the
real statute
- While we should not change the policies, if history/context allows for
common sensical results, the courts must accept that.
Justice Lewis Powell wrote a dissent for himself and one other justice. He said that the majority's
decision constructed an absurd real statute from the text of the Endangered Species Act. "It is not
our province," he said, "to rectify policy or political judgments by the Legislative Branch, however
egregiously they may disserve the public interest. But where the statutory and legislative history,
as in this case, need not be construed to reach such a result, I view it as the duty of this Court to
adopt a permissible construction that accords with some modicum of common sense and the
public weal."!? This states yet another theory of legislation, another theory of how the legislature's
intentions a ect the statute behind the text, and it is very di erent from Burger's theory. Burger
said that the contextual meaning of the text should be enforced, no matter how odd or absurd the
consequences, unless the court discovered strong evidence that Congress actually intended the
opposite. Powell said that the courts should accept an absurd result only if they nd compelling
evidence that it was intended. Burger's theory is Gray's, though in a less rigid form that gives
some role to legislative intention. Powell's theory is like Earl's, though in this case it substitutes
common sense for the principles of justice found elsewhere in the law.

Dworkin, pages 22-23

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Disagreements?

- Is the disagreement about facts?

- Is the disagreement about the state of mind of the legislators?
- Is the disagreement about whether the court should follow law or
decided in accordance with morality/justice?

They disagreed about the question of law; they disagreed about how
judges should decide what is made by a particular text enacted by the
Congress.
McLoughlin v O’Brian
Facts of the case

- Not about interpretation of statutes, but about precedents

- Accident (owing to the negligence of the other party) — husband + 4
children injured
- Case to recover damages for the emotional injury su ered by the wife
upon reaching the hospital.
- Precedents: Damages paid only to people who were either present at
the scene of incident or arrived within a few minutes

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Trial Court

- Didn’t compensate
- The precedent establishes the right to seek damages only if the
person was present at the scene of incident
- The injury, in the present case, is not foreseeable and thus, di erent
from the ones present in the precedents - Precedents distinguished

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 Court of Appeal

- Reversed the decision, but still didn’t order compensation

- The injury was reasonably foreseeable; however, policy considerations
justi ed that the precedents be di erentiated from the present case
- Precedents: compensation to be given only in certain restricted
circumstances
- If this domain is expanded, then adverse consequences to the society
may follow: more lawsuits; more fraudulent cases; increase in the cost
of liability insurance; it will prevent poor from driving
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House of Lords

- Reversed, and ordered a new trial

- One may have policy reasons to distinguish cases, but they are not
available in this case
- Risk of increased litigation is not grave and courts can distinguish
genuine from fraud cases
- Courts cannot deny relief in meritorious cases for the reasons
mentioned in the decision of the Court of Appeal
- Precedents can be distinguished only when ‘moral principles’ applied in
earlier cases not applicable in the present one.
- So, if damage is reasonably foreseeable, then there is no di erence in
the underlying moral principle.
- In this situation, policy considerations cannot be the driving agents.

What is the disagreement about?

- It is about the proper role of considerations of policy in deciding what
results parties to a lawsuit are entitled to have.

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Dworkin, Chapter 5
 Should judges be pragmatic or decide
cases using what Dworkin calls the ‘law
as integrity’ approach?
 Pragmatism
- For Dworkin, a pragmatist denies that ‘past political decisions provide
justi cations for using state’s coercive power.’
- Justice/e cacy/or some other contemporary virtues of using state’s coercive
powers should be the deciding factor. Consistency does not contribute to
justice.
- Why? Consequential reasons
a. It will direct society to a brighter future
b. Liberate it from the dead hand of the past
c. Liberate it from the fetish of consistency for its own sake
- No doubt that there still will be disagreements between the judges. For
instance, they will disagree about which rule to adopt; what consequences will
be owing; vision of a good community; when should the state coerce: when it
is its moral duty or when it will increase the wealth of the community, etc.
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Conventionalism
People have right to win lawsuits if they have a legal right as decided
by past political decisions.

Law as integrity
People have a legal right when rights are sponsored by principles that
provide the best justi cations for the legal practice as a whole.
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Lets think about pragmatism
- Will a pragmatist never use the language of rights?
- They may, on pragmatist grounds. For instance, when a pragmatist
feels that the language of rights serves the society better, then they
may use it in their reasoning. Thinking about a civilisation is impossible
otherwise.
- Dworkin calls it the “as if” strategy.
- It is di erent from the standpoint that realists adopt - they take a very
extreme position.
- Could pragmatism be a better way of understanding what law really
is?
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- Think about this question. Do judges recognise rights only on
pragmatist grounds? What strategies would they adopt to pretend that
people have rights?
- Dworkin notes, one possible strategy is that of balancing. Judges will
say that predictability is necessary to protect the values of the
legislature AND balance it with retaining enough exibility for
themselves to act and improve the law.
- As part of the “as if” rights, such judges will includes most of the
rights emerging from clear legislations and past precedents.
- We can call it an “attenuated doctrine for respect of statutes and
precedents.”

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- And how do you disguise your actions while doing this? Dworkin
says, you do it under the garb of interpretation. NOBLE LIE reasons.
- Going back to the starting point of this inquiry then: is it in the interest
of society to lie to them? What if they gure out?
- Dworkin says - Perhaps YES, but only when one assumption holds
true, which never does.
- Lets understand this using an example.

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Prospective Rulemaking
- Consider the Elmer case again - what if Elmer is going to use the
money/property in ways that will bene t the society?
- In this scenario, the judges can decide to give the property to Elmer,
while closing this route for all future murderers. “Forward looking coup”
- But one can do this only in limited/special circumstances. Why?
- People won’t bring lawsuits to the courts otherwise; so community
stands to lose and not bene ted in long term.
- So, it is more bene cial to apply the law retrospectively. Then, there is
greater bene t to community and it will better coordinate the social
behaviour.
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- This approach will also make it pragmatism better than
conventionalism. How?
- If people act thinking about possible rules that judges will pronounce,
they will act accordingly to them, irrespective of the fact that they are
yet to be enacted or adjudicated.
- Therefore, pragmatism allows for change with time, that too from
within the judicial process itself.
- But, pragmatism will be useful only when it helps in hard cases as
well.
Pragmatism in hard cases
- When statutes are unclear, a pragmatist will do what is good for society. They
won’t try to nd the intentions of the lawmakers or apply vague provisions in
ways that do not coordinate actions. Why?
- Unclear laws do not provide ‘as if’ rights.
- A pragmatist will take decisions without thinking about the past decision
makers
- However, this does not disrupt the constitutional system as the lawmakers still
have the space to overrule the judicial reasoning
- Same is true for precedents: A pragmatist will not follow precedents when
they are unclear or controversial
- They would feel that there is no need to draw analogy or try to understand the
mind of the judges
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- However, this sounds good only when judges act with noble lie
reasons, which is IMPLAUSIBLE.
- This works only when we ignore the individuality involved in the
decision making process and assume that judges practice some
unmotivated form of deception. Not all judges may have noble reasons
to lie.
- This makes pragmatism a skeptical conception of law.
- Beyond this, there are two other major problems with this approach:
a. It does not take legal rights seriously
b. It rejects genuine, non-strategic reasons for legal rights
Pragmatism is a skeptical conception of law because it rejects genuine,
nonstrategic legal rights. It does not reject mo-rality, or even moral and political
rights. It says that judges should follow whichever method of deciding cases will
produce what they believe to be the best community for the fu-ture, and though
some pragmatic lawyers would think this means a richer or happier or more
powerful community, others would choose a community with fewer incidents of
injustice, with a better cultural tradition and what is called a higher quality of life.
Pragmatism does not rule out any theory about what makes a community better.
But it does not take legal rights seriously. It rejects what other conceptions of law
accept: that people can have distinctly legal rights as trumps over what would
otherwise be the best future properly understood. According to pragmatism what
we call legal rights are only the servants of the best future: they are instruments
we construct for that purpose and have no independent force or ground.

Dworkin, page 160

 Can this approach be justi ed, though?
- Many a times, people argue that the society itself has delegated such
powers to the judges
- This is an attempt also to unite the pragmatic approach with
conventionalism
- However, Dworkin argues that this is a forceful marriage
- To scholars who say that that such delegation has taken place and
nd its evidence in the fact that people have not yet revolted despite
judges functioning in a pragmatic manner, Dworkin says that they
operate with two assumptions:
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The two assumptions
- It assumes that pragmatism provides the best explanation of how
judges actually decide cases: However, Dworkin notes, that it is not
true as pragmatism leaves unexplained one prominent feature of
judicial practice—the attitude judges take toward statutes and
precedents in hard cases—except on the awkward hypothesis that this
practice is designed to deceive the public, in which case the public has
not consented to it.
- It assumes that the community believes and accepts the pragmatist
explanation of how judges decide cases, and that assumption seems
just wrong. On the contrary, people treat such judges as usurpers.
 - Pragmatism, therefore, can only be supported via the political dimension,
viz. by accepting its central feature—its skepticism of legal rights.
- To recall, the pragmatist thinks judges should always do the best they
can for the future, in the circumstance, unchecked by any need to respect
or secure consistency in principle with what other o cial have done or will
do.
- So, a pragmatist will pay whatever attention to the past is required by
good strategy. Not more than that.
- For instance, in McLoughlin, a pragmatist will not turn on whether any
distinction in principle can be found between the case of emotional injury
su ered at the scene of an accident and the same kind of injury su ered
later. If he thinks that the ‘rights’ established by the precedents are unjust,
he will not extend it any further to cases like that of McLoughlin.
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- While acknowledging that a decision against McLoughlin will be
incoherent in principle, a pragmatist will count it as no disadvantage.
For them, consistency in such decisions is itself a matter of injustice.
Future can be made less unjust by denying relief of McLoughlin.
- If we do not decide so, then we would have succumbed to a fetishism
of doctrinal elegance, slavery to coherence for its own sake!

How to object this?

- It is easy to say that di erent pragmatist judges will decide di erently.
As Dworkin says, “Of course they will.”
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 - However, it is not just pragmatist judges, but every judge will have to
make choices in hard cases.
- “In hard cases, judges must make controversial judgments of political
morality whichever conception of law they hold.”
- A pragmatist will respond: if judicial divisions and controversial
judgments are in any case inevitable, why should the controversy not be
about what really matters, about which decision will produce the least
ine cient practice or the fewest occasions of injustice in the future? How
can that goals itself be unjust? How can consistency in principle be
important for its own sake, particularly when it is uncertain and
controversial what consistency really requires?
- the charge, summarily is, “the importance of consistency in principle
against the charge of fetishism”
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Law as integrity
- Classics of political philosophy are utopian
- Ordinary politics share with utopian political theory certain political
ideals: the virtues of fairness, justice, and procedural due process.
- Fairness: Fairness in politics is a matter of nding political procedures
—methods of electing o cial and making their decisions responsive to
the electorate—that distribute political power in the right way.
- Justice: It is concerned with the decisions that the standing political
institutions, whether or not they have been chosen fairly, ought to make.
- Procedural due process: It is a matter of the right procedures for
judging whether some citizen has voted laws laid down by the political
procedures.
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- Ordinary politics adds to these familiar ideas one more principle: we
must treat like cases alike
- It requires government to speak with one voice, to act in a principled
and coherent manner toward all its citizens, to extend to everyone the
substantive standards of justice or fairness it uses for some.
- “The virtue of political integrity”.
- It is, however, di erent from what Dworkin calls personal morality.
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We want our neighbours to behave, in their day-to-day dealings with us, in the way we
think right. But we know that people disagree to some extent about the right principles of
behaviour, so we distinguish that requirement from the di erent (and weaker) requirement
that they act in important matters with integrity, that is, according to convictions that inform
and shape their lives as a whole, rather than capriciously or whimsically. The practical
importance of this latter requirement among a people who know they disagree about
justice is evident. Integrity becomes a political ideal when we make the same demand of
the state or community taken to be a moral agent, when we insist that the state act on a
single, coherent set of principles even when its citizens are divided about what the right
principles of justice and fairness really are. We assume, in both the individual and the
political cases, that we can recognise other people's acts as expressing a conception of
fairness or justice or decency even when we do not endorse that conception ourselves.
This ability is an important part of our more general ability to treat others with respect, and
it is therefore a prerequisite of civilisation.

Dworkin, page 166

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Why is the idea of political integrity important?
“If we accept integrity as a distinct political virtue beside justice and fairness, then we
have a general, nonstrategic argument for recognising such rights. The integrity of a
community's conception of fairness requires that the political principles necessary to
justify the legislature's assumed authority be given full e ect in deciding what a statute
it has enacted means. The integrity of a community's conception of justice demands
that the moral principles necessary to justify the substance of its legislature's decisions
be recognised in the rest of the law. The integrity of its conception of procedural due
process insists that trial procedures that are counted as striking the right balance
between accuracy and e ciency in enforcing some part of the law be recognised
throughout, taking into account di erences in the kind and degree of moral harm an
inaccurate verdict imposes. These several claims justify a commitment to consistency
in principle valued for its own sake. They suggest what I shall argue: that integrity rather
than some superstition of elegance is the life of law as we know it.”
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 “It will be useful to divide the claims of integrity into two more practical principles.
The rst is the principle of integrity in legislation, which asks those who create law
by legislation to keep that law coherent in principle. The second is the principle of
integrity in adjudication: it asks those responsible for deciding what the law is to
see and enforce it as coherent in that way. The second principle explains how and
why the past must be allowed some special power of its own in court, contrary to
the pragmatist's claim that it must not. It explains why judges must conceive the
body of law they administer as a whole rather than as a set of discrete decisions
that they are free to make or amend one by one, with nothing but a strategic
interest in the rest.”

Dworkin, page 167

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Community Personi ed
- Political integrity assumes a particularly deep personi cation of the
community or state. It supposes that the community as a whole can be
committed to principles of fairness or justice or procedural due process in
some way analogous to the way particular people can be committed to
convictions or ideals or projects.
- Dworkin says: My account of political integrity takes the personi cation
much more seriously, as if political community really were some special
kind of entity distinct from the actual people who are its citizens. Worse, it
attributes moral agency and reponsibility to this distinct entity. … I mean
that the community has its own principles it can itself honour or
dishonour, that it can act in good or bad faith, with integrity or
hypocritically, just as people can.
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- Two arguments about group responsibility
- The idea of political integrity personi es the community in the second
way, as a working personi cation, because it assumes that the
community can adopt and express and be faithful or unfaithful to
principles of its own, distinct from those of any of its o cials or citizens
as individuals.
- For example - corporation, Nazis, right that the states protect one
from assaults or provide a decent level of medical care
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We believe political o cials have responsibilities we could not defend if we had to build these
directly from the ordinary requirements of individual personal morality most of us accept for
ourselves and others in nonpolitical life. We think they have a special and complex
responsibility of impartiality among the members of the community and of partiality toward
them in dealing with strangers. That is quite di erent from the responsibility each of us accepts
as an individual. We each claim a personal point of view, ambitions and attachments of our own
we are at liberty to pursue, free from the claims of others to equal attention, concern, and
resource. We insist on an area of personal moral sovereignty within which each of us may prefer
the interests of family and friends and devote himself to projects that are sel sh, however
grand. Any conception of justice in personal behaviour, any theory about how the just person
behaves toward others, will limit that area of personal sovereignty, but no conception
acceptable to most of us will eliminate it entirely. We allow o cials acting in their o cial
capacity no such area at all. They must, we say, treat all members of their community as
equals, and the individuals’s normal latitude for self-preference is called corruption in their case.

Dworkin, 173-74
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Can we rather say that such an obligation of impartiality
arises because the of cials have entered into their of ces
subject to this understanding - the responsibilities,
therefore, ow from ordinary morality only, viz. the
morality of keeping promises? Dworkin says NO because
it reverses the argument that we would naturally make—
our of cials must treat all members of the community
they govern as equals because we believe they should
behave that way, not the other way around.
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 “the community as a whole has obligations of impartiality toward its members, and that
of cials act as agents for the community in acquitting that responsibility. Here, as in the
case of the corporation, we need to treat group responsibility as logically prior to the
responsibilities of of cials one by one.

These various examples of working personi cation of the community t together as

partners in a general system of thought. Once we accept that our of cials act in the
name of a community of which we are all members, bearing a responsibility we
therefore share, then this reinforces and sustains the character of collective guilt, our
sense that we must feel shame as well as outrage when they act unjustly. The practical
principles of integrity I cited integrity in legislation and in adjudication-take their places in
this system of ideas. The adjudicative principle is our special interest because it
provides a conception of law antagonistic to pragmatism. If that principle can be
sustained, pragmatism must be rejected.”
Dworkin, page 175
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Understanding interpretation
from the lens of literature
Dworkin - Judge and a Literary Critic
- creative interpretation takes its formal structure from the idea of
intention—it aims to impose purpose over the text or data or tradition
being interpreted.
- It, therefore, has a normative component: we can here compare a
judge with a literary critic who is teasing out the various dimensions of
value in a complex play or poem.
- Not straightforward: di erences between a judge and a literary critic
- So, Dworkin pushes us to consider a di erent genre of literature,
called the chain novel
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 The Chain Novel
- a group of novelists writing a novel seriatim
- Two dimensions of intentions:
a. the dimension of t [the interpretation one adopts must ow throughout the
text; it must have general explanatory power]
b. Which of the eligible readings makes the work in progress best, all things
considered

We can appreciate the range of di erent kinds of judgments that are blended
in this overall comparison. Judgments about textual coherence and integrity,
re ecting di erent formal literary values, are interwoven with more substantive
aesthetic judgments that themselves assume di erent literary aims.
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The Lottery
Paul Armstrong, The Conflict of
Interpretation and the Limits of
Pluralism
 This article rst explains why permissible
readings of a literary text may differ and,
second, show that criteria for validity
nonetheless act as constraints on acceptability
and regulate claims to legitimacy even when
unresolvable con icts divide interpretations.
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 Premise
- Can any interpretation lay a de nitive claim to correctness? NO
- Two opinions:
a. Array of Interpretations: Limitless/Innumerable readings/all are misinterpretation as
no internal criterion (within or outside the text) to judge any reading as the right one.
b. Meaning is determinative. Singular. (Appeals to author’s intention, norms in the
work itself, or plain old common sense)
- However, they are still united. How?
- They both oppose the idea of a pluralistic view of interpretation that would allow for
di erent, equally “correct” readings.
- Armstrong rejects both. “The rigidity of the monists is as unacceptable, however, as
the nihilism of the radical relativists.”
- Pursues a theory of limited pluralism.
ff
fi
I. Pluralism in Interpretation
- focuses on the role of beliefs in understanding.
- the rst premise of hermeneutics is that interpretation is circular.

“We can only comprehend the details of a work by projecting a sense of the
whole, just as, conversely, we can only achieve a view of the whole by
working through its parts.”

- an act of faith/beliefs that compose parts into a whole/hypotheses that we

can check, modify, and re ne by moving back and forth/“consistency-
building”: the ongoing quest for patterns that establish coherence among
the elements of a text
fi
fi
“… understanding requires expectations. We can only interpret something if we have
already grasped it through a fore-seeing that projects and delimits a range of meanings
it might have. Our interpretations turn these possibilities into actualities. To interpret is
thus to lay out an anticipatory understanding that has cleared the way for a fuller, more
explicit, and more re ned act of construal. … To project a hypothesis is to anticipate a
possible future. The surprise we sometimes experience in reading illustrates this
argument.”

Three important
implications

Theory of No theory can

Always requires
interpretation is guarantee
guesswork/trial
not a machine for persuasive,
and error/no
cranking out effective readings
established rules
readings
fi
- What does this suggest?
- It shows that beliefs are more fundamental than the hypotheses that align parts
into a whole.
- Every interpretive approach has its own anticipatory understanding of literature,
one that re ects its most basic presuppositions. “All understanding, like all
interpretation, is … continually oriented by the manner of posing the question and
by what it aims at. Consequently, it is never without presuppositions; that is to say,
it is always directed by a prior understanding of the thing about which it
interrogates the text. … The characteristic hypotheses projected by a method of
interception are practical embodiments of more basic beliefs about Huma being,
the being of the object interrogated, and the being of the world as a whole.
Psychoanalysis, Marxism, phenomenology, structuralism—each has a di erent
method of interpretation because each has a di erent metaphysics, a di erent set
of convictions that make up its point of departure and de ne its position in the
hermeneutic eld.”
fl
fi
ff
fi
ff
ff
- These presuppositions are both enabling [vantage point, set of
expectations, guidance] and limiting [close o other potential modes].
“Every hermeneutic standpoint has its own dialectic of blindness and
insight—a ratio of disguise and disclosure that stems from its
presuppositions.”

- Classi cation of con icting modes of interpretation: what they aim at

and how they take their aim.
- Paul Ricoeur: archeological [psychoanalysis, marxism, and
structuralism - the rule is suspicion] and teleological [phenomenology
and new criticism - the rule is trust]
fi
fl
ff
- When do interpretations con ict, then?
- Can these disagreements be resolved? Weak and Strong
disagreements.
- Ricoeur has attempted to achieve arbitration among the absolutist
positions of such diverging theories of interpretation.

“He seeks to show that the theory behind each method is justi ed by
the particular area of human experience it singles out as its special
province. … We can then reconcile opposing methods, he argues, by
resolving their theories into a uni ed image of human beings, that is, by
showing how the di erent modes of existence they focus on belong to
the coherent gure of the being which we ourselves are.”
fi
ff
fl
fi
fi
- However, this approach has its own problems.

1. Theories of interpretation not only disagree about the de ning aspects of

human beings (who are variously viewed as primarily linguistic, psychological,
or social) but also hold con icting irreconcilable beliefs about the same
aspect of existence.

2. One school’s assumptions about an individual aspect of existence have

implications for other aspects that are incompatible with the presuppositions
of another hermeneutic.

So, we cannot arrive at the truth about the meaning of a literary work by
reconciling opposing positions in the con ict of interpretations.
fl
fl
fi
 - A rejoinder by monists: all interpretations retain some degree of identity because they all derive
from the same text.

However, per Armstrong, this fails to correctly understand the mode of existence of a literary
work.

“A text is not an independent object that remains the same, regardless of how it is constructed. It
is not autonomous but heteronomous. While a literary work transcends any individual
interpretation, it exists only in and through its concretizations—so that it will cease to exist in any
meaningful sense. If it is no longer read. Di erent interpretations concretize the work di erently,
and its identity is the synthesis of changing construals across a tree and over the eld of
con icting modes of understanding—a synthesis that may not be complete so that the identity of
a work is typically a multiplicity correlated to the many possible ways of construing it.”

- Areas of agreement (‘core’) only allow the possibility of discussion; they are not conclusive
evidence of the text’s autonomous essence.
- The possibility of multiple interpretations is, in fact, a distinguishing feature of art.
fl
ff
ff
fi
II. The Limits of Pluralism
- the question of the validity of individual interpretations - are there no
standards of correctness to distinguish between legitimate and mistaken
readings? How can we be sure that the underlying presuppositions are
trustworthy?

- There are tests that can be deployed to do this, however, the limits of
these tests prevent them from establishing any single interpretation as
the “right” one. Literary criticism is inherently pluralistic, but it is
nonetheless a rational enterprise, with standards and restrictions built
into its proceedings, not a eld of anarchic free play where anything
goes.
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 The three positive
tests for correctness

Inclusiveness Intersubjectivity Ef cacy

Intersubjective validation
The
necessarily entails the use of
presuppositions are
rhetoric, which is open to
Different and not immune from
abuse that may undermine
con icting practical testing
the fair application of
interpretive (actions arising out
credibility as a test of
methods based on of convictions have
Limits different
legitimacy
consequences,
+
presuppositions which may cast
A universal agreement is the
can pass the test doubt on what we
ultimate indication, which is
of inclusiveness believe)—so a
impossible to achieve due to
with equal success continuous
con ict between
justi cation is
irreconcilable methods and
required
beliefs
fi
fl
fl
fi
 Three roads to dogmatism or
three negative counterparts to
the positive tests

Warnings Method of tenacity Method of authority The a priori method

Presuppositions are agreeable

Selling opinion by appealing to to reasons/or to what we nd
Meaning Steady and immovable faith; institutional sanction; tyrannical ourselves to believe in; removes
disregards dissent; the trap of communal solipsism; denies the beliefs from testing ground,
Dangers solipsism and self-con rmation opposing views unbiased interpreter gets uncontrolled
hearing license, reduces beliefs to a
matter of taste/fashion

Not all practitioners are equal.

We choose from a range of
If we don’t hold beliefs with Some views are presumed to
equally defensible alternatives
some tenacity, we will abandon have a greater claim to validity
(ought question). The choice of
them prematurely; balance (past performance/ specialized
Quali cations hermeneutic standpoint is
between excessive training). Authority may rigidify
inherently somewhat arbitrary;
stubbornness and overhasty into dogmatic tyranny, but it
alternatives are always there - it
capitulation wards off the anarchy of
is just a choice
perpetual revolution
fi
fi
fi
Is interpretation a rational enterprise?
- Despite the fact that our presuppositions depend on the ‘ought’ question, it does not mean that
it is not a rational enterprise.

“Every hermeneutic standpoint has an a priori foundation because it rests on an ethical decision
about what it is better to believe … Literary criticism is a rational enterprise, however, not only
because tests for validity act as constraints on its proceedings but also because our critical
commitments can be analyzed and debated. If every method discloses some things at the cost of
disguising others, then the merits and risks of hermeneutic wager can be examined and
discussed. A critic may prefer some kinds of insights and tolerate some areas of blindness; once
again, what ratio between the two to accept is a matter of choice, but not of unreasoned choice.
Stanely Fish may be right that “one man’s reason is another man’s irrelevance.” But interpreters
are accountable to the community for the consequences of their commitments, and some wagers
stand up to critical public scrutiny better than others do. … The question of what we ought to
believe can only be decided by discussion and argument within the community. While such
exchanges do not lead to agreement about a single, indubitable truth, they do introduce testing
and evaluation, thereby rescuing the eld from the anarchy of total relativism. Literary criticism is a
pluralistic universe, but there are limits to its pluralism.”
fi
Arie Rosen, Statutory
Interpretation and the Many
Virtues of Legislation
 We have seen how it is impossible to write laws providing for
every possible situation (Andrew Stumpff), making it necessary
for the judiciary to intervene by way of interpretation. However,
the enterprise of interpretation does not promise a uniform and
singular reading of the law. Judges do disagree, even when such
disagreements have no roots in the concerns of morality and
justice (Dworkin). Disagreements are rooted in the exercise of
interpretation and arise because judges adopt differing theories
of legislation while performing their tasks. So, the next question
for us to address is: what guides the adoption of differing theories
of legislation among the judges? Literary studies suggest that
one’s beliefs or presuppositions could be the guiding factor
(Armstrong, Dworkin). What could such presuppositions be when
thinking about law and its interpretation?
How the deference and respect we owe to legislative
decisions should affect the way we interpret them?
In other words, how does the ultimate value and
purpose we attribute to the legislative process affect
the choice of interpretative approach?
Premise
- This question is usually glossed over. Consider Scalia, who overstates the
democratic case for textualism. Not the only way to interpret democratically, and
it works with two implicit assumptions:
- legislative decisions are exhausted by the statutory text;
- adherence to the particular legislative decisions sets the limit to what passes
for deference.

- Two visions of legislation and its virtue

- value of legislation in the ability to generate good laws for our community
- value of legislation in correctness-independent values of political morality
such as procedural fairness, political equality, and self-government
- These two visions impose di erent duties on the interpreters
ff
 The primary value attributed to
legislation

Correctness- Probable
independent correctness of
values decisions

Decision Correctness-
exhausted by oriented
Textualism
plain meaning of approaches
the statutory text (Dworkinian:
The scope of the
putting statutes to
legislative
good use and
decision
Decision exceeds read them as
the plain meaning ful lling basic
Intentionalism values and moral
of the statutory
text principles )
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Lets start with textualism and intentionalism
- Intentionalists
- purpose of legislation: communicate the authors’ desire
- the goal of interpretation: retrieval of legislative intent (of course, it is arti cial
in nature)

- Textualists
- the content of the decision completely overlaps with the plain meaning of the
text
- what lawmakers intended to say has been expressed by way of the text,
there is no residual intent or any arti cial intent transcending the legislative text
fi
fi
 - However, the scope of the legislative decision depends on our
understanding of the nature of democratic practices of decision making.
- John Manning defends textualism by reference to a transactional
understanding of the legislative process: bargaining between di erent
interest groups.
- Jeremy Waldron uses the same logic but describes the assembly as a
eld of competition between views rather than between interests.
- On the side of intentionalists, Richard Ekins argues that lawmakers are
the trustees of the community, and they produce rational choice of a
complete plan of action. Intent goes beyond the plain meaning of the
words.
- So, our understanding of the scope of legislative decisions depends on
how we view the legislative processes (the nature of legislative practices).
fi
ff
The question of deference
- The two approaches do not say anything conclusively about deference due to the legislative
processes. It depends not on scope but on the value of legislation and the service it provides to
the community.

Two modes of
interpretation

Control-maximising Correctness-oriented

Interpretive techniques Willing to compromise

should maximise the legislative control in favour
control of the author over of an ameliorating
the content of the statutory interpretation according to
law. principles of justice,
expedience or
Joseph Raz, Larry reasonableness.
Alexander, Emily Sherwin Dworkin
- However, a di erent goal could be contemplated than just following
the text.

An expert gardener has left me in charge of a garden, instructing me

to turn on the sprinklers twice a week during the summer for
irrigation. Since I am con dent in her superior knowledge regarding
the care of the garden, I have every reason to follow her instructions
to the letter. As it happens, however, on the following week the rain is
uncommonly heavy for the season. Although I trust the instructions I
have received and am fully committed to following them, I decide to
water the garden only once that week.
ff
fi
- What does this example show?
It shows that respective authoritative directives need not necessarily take
the form of adherence to the words of instructions or the intent of their
authors.
- Objection. But, if legislators are experts, then shouldn’t we just defer to
them? Maximizing the authors’ control over the interpretive process
would also maximize the correctness of the outcome. However, this fails
to take into account that expert instruction only partly articulate the
reasons underlying them and that the literal applicability of these
directives to future contingencies has its natural limitations. … What is
required is engaging in open process of reasoning in which the particular
facts of the case at hand, knowledge from other sources, common sense
and substantive value considerations inform the interpretation and
application of the instruction.
It is the ultimate point of exercising expert authority
that calls for this correctness-oriented mode of
interpretation. … The point is to make the best use
of these directives as guides for proper action. This
overarching goal determines the logic appropriate
for their interpretation.
Dangers of the correctness-based approach
- Danger that this will undermine the authority, in the name of ‘doing the
right thing’
- As Lon Fuller mentioned, ‘One can imagine a course of reasoning that
might run as follows. This statute says absinthe shall not be sold. What is
its purpose? To promote health. Now, as everyone knows, absinthe is a
sound, wholesome, and bene cial beverage. Therefore, interpreting the
statute in light of its purpose, I construe it to direct a general sale and
consumption of that most healthful of beverages, absinthe.’
- These arguments can be addressed only by understanding
correctness-oriented approaches to interpretation in the context of
correctness-based exercise of legislative authority.
fi
When we try to understand a text, we do not try to transpose
ourselves into the author’s mind but … try to transpose ourselves
into the perspective within which he has formed his views. This
simply means that we try to understand how what he is saying
could be right.

Hans-Georg Gadamer, Rosen 145

- So, the correctness-oriented approaches only demand that text/intent
should not be considered as the benchmark while interpreting a text.
- When we interpret these instructions, we aim at understanding them
in light of their rationale and identifying the kernel of useful knowledge
that they hold and that is applicable to our own situation. When we
employ this interpretive logic, we do not follow directives slavishly or
defer completely to the intent of their authors, as doing so would often
defeat the purpose of our deference to their authority in the rst place.
Rather, we draw on our own understanding of the situation, our own
prior knowledge, and notions of correctness and do our best to
interpret the directive against this backdrop.

fi
Therefore, correctness oriented approaches are not a license to
disregard an authoritative decision, but is the only mode appropriate
for showing it proper respect. When the grounds for following
authoritative directives are due to their probable correctness and
ability to help us in getting things right, their addressees are required
to interpret them in a way that puts them to good use, with an eye for
achieving substantively correct results.

Rosen, 147
 If that is so, which is the right understanding of
legislative actions: are they mere directives to be
followed or are they actions to help us get things right?
Correctness-oriented approaches
It is hard to conclude that legislative bodies function as experts. Still, a few reasons suggest
that we must treat them as experts.

It explains the genealogy of our contemporary

interpretive practices Correctness-based approaches have persisted
in modernity. These accounts de ne
(Consider Acquinas’ argument that positive law lawmaking as correctness-enhancing
must be derived from eternal normative procedures aimed at producing good laws.
principles.)

Standards of correctness may di er, though

Material
Right reason Rationality
welfare
ff
fi
 The relevance of correctness-oriented approach

Correctness-oriented approaches, as we have seen, are not based on a licence to disregard the
authoritative directive. Rather, their starting point is one of con dence that the directive, if properly
applied, should be able to guide its addressees to correct action in concrete cases. If correctness-
based evaluations of legislation are true, then the interpretive prescriptions of textualists and
intentionalists are misguided. If our respect for legislative decisions is based on their ability to guide
their addressees towards moral and reasonable behaviour, we should strive to interpret them in a way
that leads to moral and reasonable results. To do otherwise would subvert the point of deference to
legislative decisions. Similarly, if we respect statutes as approximations of what our shared community
values demand, then we should interpret them in light of these values and avoid results contrary to our
societal ethics. Finally, if our respect for legislative practices is premised on their ability to yield welfare-
promoting statutes, then we should interpret statutes as guides for the promotion of our welfare and
material common good.

Rosen, 150

fi
Correctness-independent values
- basic objection to the correctness-oriented approach: in the modern
pluralist society, there is no agreement on what ‘right reason’, ‘common
values’, or ‘welfare’ means. No agreement on which standard of
correctness to adopt. Why is it problematic?
- in tension with democratic equality
- it will undermine the de facto authority of the legislative mechanism
- The response has been the development of correctness-independent
values of legislation, such as procedural fairness and self-government.
Under this approach, there is no reason to treat the directives as those of
experts, rather interpreters are called upon to show respect to particular
agreements reached in the legislature.
Jeremy Waldron:
- the function of legislation: solves the coordination problem, and thus, laws
demand our respect regardless of their potential correctness
- values associated with particular procedures adopted in the legislature

Other accounts think about law from the perspective of self-government.

Under this approach, contributions on the part of the interpreters to the content
of the law can never be legitimate as ‘ameliorative’—since the grounds on which
statutes are respected disavow any objective measure of better and worse.

All of this is required because our society is plural.

In order to show proper respect to statutes, interpreters should consider the
particular circumstances of each statute’s enactment and the actual value
the particular statute holds for the political community. This means, rst, that
our doctrine of statutory interpretation should be informed by what really
goes on in legislative assemblies, rather than by abstract idealised accounts
of legislation. It also means that our choice of interpretive approach should
not be based on wholesale accounts of the value of legislation but on an
individual evaluation of statutes and the circumstances of their enactment.

Rosen, 138

Interpreters should be concerned with the particular disagreement resolved by

the singular statute they interpret, the concrete procedures that were observed
in its creation, and the actual value it serves in their political community.

Rosen, 154

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Objections?
Multiple institutional considerations:
- Cumbersome; increase uncertainty; add another element where
judges will have discretion
- Principled objections as well: judicial duty to engage in interpretation
that would yield just results; judges should not contribute to legal
development; non-deferential mode of interpretation is most likely to
serve the demands of expedience and utility.
Eskridge and Frickey, Statutory
Interpretation as Practical
Reasoning
Premise
- The three theories—textualism, intentionalism, and purposivism—
privilege one or another of these approaches as foundational — these
are grand theories.
- Judges’ approaches to statutory interpretation are generally eclectic,
not inspired by any grand theory.
- 3 Problems with these approaches:
- questionable assumptions
- indeterminacy
- excludes other values
Intentionalism
- focus on legislative intent. Why? Legislature is the primary lawmaker,
and one furthers the value of representative democracy if one a rms
the will of the elected representatives.
- Three ways of thinking about it.
1. Actual Intent: very hard to ascribe intent to an institution composed
of such a high number of individuals. Historical record never reveals
why each legislator voted the way they did; and many vote for
unknowable motives. At times, motive has very little to do with the
precise meaning of the law.

ffi
 2. Conventional method: you nd intent by looking at committee
reports and oor statements made by sponsors of the law.
- Problems:
1. Their views may not be representative of the entire legislature
2. The intent of some cannot be given a higher weight
3. Is in tension with the idea of bicameralism
4. Supports the idea of factional/fragmented lawmaking

So, both the actual intent and the conventional method su ers from the
aw of questionable assumptions.
fl
fl
fi
ff
 - Let’s move to the aspect of indeterminacy now.
- United Steelworkers v. Weber.
- Section 703(a)(1) of the Civil Rights Act made it an unlawful
employment practice “to discriminate against any individual” because of
his or her “race, color, religion, sex, or national origin.”
- Question: Whether the law bars the establishment of voluntary
a rmative action plans for black workers.
- House Judiciary Committee: Doesn’t clarify. Minority Report: “Nowhere
did the bill de ne the critical term ‘discriminate’ and that the
administration intends to rely upon its own construction of
‘determination’ as including the lack of racial balance.” Employers may
be forced to hire according to race to racially balance those who for him.
ffi
fi
- No signi cant debate on this aspect in the Congress.
- However, the Judiciary Committee noted that the minority report
overstated the e ects of the bill. Similarly, other supporters said that
there is nothing in the bill as a matter of legislative history that would
require racial balancing.
- In this scenario, the intent of the House remains indeterminate.
- When the issue reached the Senate, it added an interesting provision.
Nothing in Title VII “shall be interpreted to require any employer … to
grant … preferential treatment … to any group because of race … of
such … group on account of ” a de facto racial imbalance in the
employer’s workforce.
fi
ff
 3. Posner’s imaginative reconstruction approach: judges imagine talking to
the legislature at the time of enactment and should then reconstruct how
the legislators would have answered the interpretative questions, given
their values and their concerns. Judges seek the most reasonable
interpretation.
- This also su ers from all three problems.
1. Present-day interpreters can never completely or accurately reconstruct
past understandings.
2. Involves asking counterfactual questions, which cannot be accurately
answered as every statute carries with it certain assumptions about the
nature of law and society.
3. Slights other values such as the aspect that laws ought to be
e cacious over time and across changing circumstances.
ffi
ff
Purposivism
- Mischief rule, expanded by Henry Hart and Albert Sacks into the
purposivist school.
- They also claim that they remain faithful to the principle of legislative
supremacy.

“Every statute must be conclusively presumed to be a purposive act. The

idea of a statute without an intelligible purpose is foreign to the idea of law
and inadmissible. Because every statute and every doctrine of unwritten
law developed by the decisional process has some kind of purpose or
objective, identifying that purpose and deducing the interpretation with
which it is most consistent resolves interpretive ambiguities.”
- Questionable assumptions

They think legislators are reasonable individuals who will reach

reasonable purposive results. Reality is di erent: politics, bene ts well-
organised groups at the cost of general people, deal-making, rent-
seeking, reelection-minded, manipulation by power gures, backroom
deals. Many legislative decisions are, therefore, arbitrary and unfair.
- Judicial attempts to gure out the purpose in such statutes are naive
and they may actually superimpose their purpose over the precisely
calibrated deal worked out as part of the legislative process.
fi
ff
fi
fi
 - Indeterminacy

Con icting purposes, as a statute may have to satisfy diverse interests.

Di erent interests cannot be clubbed together/aggregated to nd a
common public purpose.
At times, the statute may be furthering more than one purpose.

Consider Weber again - a few businesses have been excluded from the
operation of the law.
Also, equality of opportunity v. Obtaining more jobs for blacks
ff
fl
fi
 - Neglects other values: such as the value of text. Text is the most
legitimate expression of the legislative intent and purpose + citizens
ought to be able to reply on clear statutory text to determine their rights
and duties.

Gri n v. Oceanic Contractors, Inc.

“Every master or owner who refuses or neglects to make payment in

the manner hereinbefore mentioned without su cient cause shall pay
to the seaman a sum equal to two days’ pay for each and every day
during which payment is delayed beyond the respective periods …”
ffi
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- Trial Court: penalty between 1 April 1976 and 5 May 1976 [$6881.60 for
the unpaid dues of $412.20]
- SC: ‘shall pay for each and every day’: $302,790.40

Dissent: looked at intent and purpose to argue that the penalty statute
gave the trial court discretion to toll the penalty period to an equitable
time.

1872 Original statute: limited double wages to only 10 days + court

discretion to limit it further.
1898 amendment: eliminated the 10-day limit. Dissent says discretion
remained. But, it did, in fact, delete the explicit grant of judicial discretion.
- Does the change in language convey anything? Nothing in debates. Routine amendment. No
intent.

- What is the purpose? Records only say this: “the amelioration of the condition of the American
seaman” and that the strengthened law was “designed to secure the promptest possible
payment of wages.”

- Still, no clarity. How? Which of the following two is the true purpose:
1. Merely the compensation to the seaman for incidental expenses while they relocate and nd
new employment; or
2. Strongly deter the withholding of wages from vulnerable seaman.

Dissent believes in 1; the majority believed in 2.

Another possibility: Even if the dissent’s understanding of the purpose is correct because the
text of the statute is very clear.

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Textualism
- two varieties:
1. Stricter version: we do not inquire what the legislature meant; we
ask only what the statute means
2. Less ambitious version: text the best guide to legislative intent or
purpose. “There is, of course, no more persuasive evidence of the
purpose of a statute than the words by which the legislature
undertook to give expression to its wishes.”
Problems:
- Works only when the language is very clear. But, at times, terms have
a political and social context. E.g. discrimination. They are susceptible
to di erent interpretations. Same for the other case: Gri n.

In Gri n, a statutory prerequisite to recovery of the penalty was the

employer’s failure to pay wages “without su cient cause”.

Context of the law matters.

Also, interpreters are always in uenced by their own context, including
current values. Evolutive nature of society and regulation.
ff
ffi
fl
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- Bob Jones University v. United States

Section 501(c)(3) of the Internal Revenue Code provided an exemption

for institutions “organized and operated exclusively for religious,
charitable, … or educational purposes.”

Question: Could a nonpro t school prescribing racially discriminatory

admissions standards qualify for exemption from federal income tax?
fi
Court: historically, the IT exemptions were for ‘charitable organizations’
because they performed public services of value to society.

As the conduct of this school was against fundamental public policy, the
historical purpose of the statute would be defeated.

This is a great example to understand how the Court refused to apply

textualism when contextual arguments strongly cut against the textual
ones.

THEREFORE, Eskridge and Frickey argue that foundationalism has

failed.
Practical Reasoning Approach
Why needed?
1. Foundationalism has failed
2. Statutory interpretation involves creative policymaking by judges -
hermeneutics show that interpretation is a dynamic process and that the
interpreter is inescapably situated historically.

“The real meaning of a text, as it speaks to the interpreter, does not

depend on the contingencies of the author and whom he originally wrote
for. It certainly is not identical with them, for it is always partly determined
also by the historical situation of the interpreter and hence by the totality of
the objective course of history.”
- Any historical text, including statutes, contains assumptions and
preunderstandings—a horizon—which is often quite di erent from the
horizon of the later interpreter.
- Similarly, hermeneutics tell us that text gets its meaning only when it
is interpreted. One never understands a text in isolation/abstract.
Consider Weber or other cases. + Justices also learn a lot about the
statutes from the facts that face them.

3. Interpretation is not mechanical, it involves the interpreter’s choice

among several competing answers. If the ‘background’ and ‘traditions’
of the interpreter change, the interpretation will also change. Everyone,
therefore, is making a political choice. Consider Bob Jones or Weber.

ff
4. Interpretation is not driven by singular value, but by multiple values.

Three metaphors:
A. Web of beliefs
B. Cable vs chain contrast
B. Hermeneutic circle

It pushes the interpreter to look at a broad range of evidence—text,

history, evolution etc.
 Most Abstract Inquiry Current Policy

Evolution of the Statute

Legislative Purpose

Speci c and General Legislative History

Most concrete Inquiry Statutory text

A Practical Reasoning Model of Statutory Interpretation

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Funnel shaped

Three reasons:
1. Hierarchy of sources that the court has assumed
2. It suggests the degree of abstraction at each source
3. It illustrates the hermeneutic and pragmatic insights: you move up
and down the chain to really interpret the text

Example of how it works: Church of Holy Trinity v. United States

The church hired an English clergyman and agreed to provide for his
transportation to the US.

It shall be unlawful for any person, company, partnership, or

corporation, in any manner whatsoever, to prepay the transportation, or
in any way assist or encourage the importation or migration of any alien
or aliens, any foreigner or foreigners, into the United States, its
Territories, or the District of Columbia, under contract or agreement,
parol or special, express or implied, made previous to the importation
or migration of such alien or aliens, foreigner or foreigners, to person
labour or service of any kind in the United States, its Territories, or the
District of Columbia.
- there were certain exemptions, but clergymen weren’t a part of that
list.

- Rather than just limiting to the text, the Court looked at other
evidence as well.
Title: Alien Contract Labour Law (An act to prohibit the importation and
migration of foreigners and aliens under contract or agreement to
perform labor in the United States, its Territories, and the District of
Columbia)
And legislative background: both suggested that the law was about the
supply of cheap, unskilled labor. Didn’t cover ‘brain toilers’.
- But the court didn’t with history and purpose. It examined other historical and
current policy arguments to test this argument. How?

1. Saw the speci c legislative history: House and Senate committee reports
complemented the purpose that the Court found as they suggested that the
committees preferred if the law speci cally mentioned ‘manual labor’ rather than
‘labour and services.’

2. Textualist approach threatened the societal value of religious freedom and the
idea that the US is a christian nation.

“The Court’s analysis becomes persuasive because it weaves di erent arguments

together to present powerful reasons for rethinking the apparent meaning of the
bare text.”
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Antonin Scalia, The Dissenting
Opinion
Week 6: Primary Rules of
Interpretation
The Rule of Literal Construction
- The words of a statute are rst understood in their natural, ordinary, or popular
sense, and phrases and sentences are construed according to their grammatical
meaning unless that leads to some absurdity or unless there is something in the
context or in the object of the statute to suggest the contrary.

As Lord Atkinson stated in Corp of the City of Victoria v. Bishop of Vancouver

Island (1921),
“In the construction of statutes, their words must be interpreted in their ordinary
grammatical sense unless there be something in the context, or in the object of
the statute in which they occur or in the circumstances in which they are used,
to show that they were used in a special sense di erent from their ordinary
grammatical sense.”
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ff
 - Similarly, Lord Simon noted in Suthendran v. Immigration Appellate
Tribunal (1976),

“Parliament is prima facie to be credited with meaning what is said in an Act

of Parliament. The drafting of statutes, so important to a people who hope to
live under the rule of law, will never be satisfactory unless courts seek
whenever possible to apply the golden rule of construction, that is to read
the statutory language, grammatically and terminologically, in the ordinary
and primary sense which it bears in its context, without omission or addition.
Of course, Parliament is to be credited with good sense; so that when
such an approach produces injustice, absurdity, contradiction or
stulti cation of statutory objective the language may be modi ed
su ciently to avoid such disadvantage, though no further.”
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- The Indian Supreme Court has adopted a similar approach. In Jugalkishore Saraf v. Raw
Cotton Co Ltd. (1955), it observed:

“The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to
the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to
absurdity and the words are susceptible of another meaning, the Court may adopt the same.
But if no such alternative construction is possible, the court must adopt the ordinary rule of
literal interpretation. In the present case, the literal construction leads to no apparent absurdity,
and therefore, there can be no compelling reason for departing from that golden rule of
construction.”

Similarly, in Kanai Lal Sur v. Paramnidhi Sadhukhan (1957), the Court noted,

“The words used in the material provisions of the statute must be interpreted in their plain
grammatical meaning and it is only when such words are capable of two constructions that the
question of giving e ect to the policy or object of the Act can legitimately arise.”
ff
- On the question of intentions, the SC noted in Mahadeolal Kanodia v.
Administrator General of West Bengal (1960),

“The intention of the Legislature has always to be gathered by words

used by it, giving to the words their plain, normal, grammatical meaning
and proceeding further he said: If the strict grammatical interpretation
gives rise to an absurdity or inconsistency such interpretation should be
discarded and an interpretation which will give e ect to the purpose the
Legislature may reasonably be considered to have had, will be put on
the words, if necessary even by modi cation of the language used.”
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Consider this case
Maradana Mosque v. Badi-ud-din Mahmud (1966)

By section 11 of the Assisted Schools and Training College

(Supplementary Provisions) Act 1960 (Ceylon), the Minister of
Education is empowered if he is satis ed that an unaided school "is
being administered in contravention of any of the provisions of the Act
etc.” to declare that such a school shall cease to be an unaided
school and that the Director of Education shall be its manager.

Question: Would the law cover a situation where a school in the past
was found to be in violation of the provisions of the Act?
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In holding that the Minister can only take action if the school at the
time of making of the order is being carried on in contravention of the
Act and not merely on the ground that a breach of the Act was
committed in the past, the Privy Council (Lord Pearce) pointed out:

“The present tense is clear. It would have been easy to say ‘has been
administered’ or ‘in the administration of the school any breach of any
of the provisions of the Act has been committed’, if such was the
intention, but for reasons which commonsense may easily supply, it
was enacted that the Minister should concern himself with the present
conduct of the school not the past, when making the order.”
- Deepak Agarwal v. Keshav Kaushik (2013)

Article 233(2) of the Constitution of India provides as follows:

A person not already in the service of the Union or of the State shall
only be eligible to be appointed a district judge if he has been for not
less than seven years an advocate or a pleader and is recommended
by the High Court for appointment.

Question: Should the person still be an advocate when s/he is

considered for appointment as a district judge?
- Harbhan Singh v. Press Council of India (2002)

Section 6(7) of the Press Council Act 1978 provides:

“A retiring member shall be eligible for re-nomination for not more than one term.”

Question: A member retired in the past after serving for two terms. Is he eligible to be
nominated to the Press Council of India?

SC noted,
“Legislature chooses appropriate words to express what it intends, and therefore, must
be attributed with such intention as is conveyed by the words employed so long as this
does nor result in absurdity or anomaly or unless material - intrinsic or external — is
available to permit a departure from the rule.”
Explanation of the Literal Rule
In the statement of the rule, “the epithets ‘natural’, ‘ordinary’, ‘literal’, ‘grammatical’ and ‘popular’ are employed almost
interchangeably”, to convey the same idea. The word "primary" is also used in the same sense. When it is said that words
are to be understood rst in their natural, ordinary or popular sense, what is meant is that the words must be ascribed that
natural, ordinary or popular meaning which they have in relation to the subject-matter with reference to which and the
context in which they have been used in the statute. Brett, MR called it a "cardinal rule" that

“Whenever you have to construe a statute or document, you do not construe it according to the mere ordinary general
meaning of the words, but according to the ordinary meaning of the words as applied to the subject matter with regard to
which they are used.” (Lion Insurance Association v. Tucker, 1883-84)

"No word", says Professor HA Smith "has an absolute meaning, for no words can be de ned in vacuo, or without reference
to some context”. According to Sutherland there is a "basic fallacy" in saying "that words have meaning in and of
themselves", and "reference to the abstract meaning of words", states Craies, "if there be any such thing, is of little value in
interpreting statutes” In the words of Justice Holmes:

“A word is not a crystal transparent and unchanged: it is the skin of a living thought and may vary greatly in colour and
content according to the circumstances and the time in which it is used.” (Towne v. Eisner, 1917)

The context in the construction of statutes means the statute as a whole, the previous state of the law, other statutes in pari
material, the general scope of the statute and the mischief that it was intended to remedy.
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- But why read a text in its natural, ordinary or popular sense?

- Justice Frankfurter says, in Wilma E Addison v. Holly Hill Fruit

Products

“After all legislation when not expressed in technical terms is

addressed to common run of men and is therefore to be understood
according to sense of the thing, as the ordinary man has a right to rely
on ordinary words addressed.”
But when to use the technical meaning
As a necessary consequence of the principle that words are understood in their
ordinary or natural meaning in relation to the subject-matter, in legislation
relating to a particular trade, business, profession, art or science, words having
a special meaning in that context are understood in that sense. Such a special
meaning is called the technical meaning to distinguish it from the more common
meaning that the word may have. Lord Jowitt has stated the rule as follows:

“It is, I think, legitimate in construing a statute relating to a particular industry to

give to the words used a special technical meaning if it can be established that
at the date of the passing of the statute such special meaning was well
understood and accepted by those conversant with the industry.”

(Mayor, Councillors and Burgesses v. Taranaki Electric Power Board, 1933)

Example
- What does the term ‘beyond the sea’ mean?

“These words ‘beyond the seas’ are of extensive application in the law, many ancient
rights being saved by the common law to persons 'beyond the seas. It is, therefore, of
considerable importance to ascertain what has been deemed to be the legal import and
meaning of them, because, if it shall appear that they have long been used, in a sense
which may not improperly be called technical, and have been judicially construed to
have a certain meaning, and have been adopted by the Legislature in that sense long
prior to the statute, the rule of construction of statutes will require that the words in the
Statute should be construed according to the sense in which they had been so
previously used; although that sense may vary from the strict literal meaning of them.”

(HH Ruckmaboye v. Lulloobhoy Motichand, 1851-52).

Cases to read
1. BN Mutto v. Dr TK Nandi (1979)
2. Ramavatar Budhaiprasad v. Assistant Sales Tax O cer, Akola (1962)
3. Motipur Zamindary Co Pvt Ltd. v. State of Bihar (1962)
4. State of West Bengal v. Washi Ahmed (1977)

ffi
Reference to the Intentions and Purpose
The Supreme Court noted in Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate (1958)

“The words of a statute, when there is doubt about their meaning, are to be understood in the sense in
which they best harmonise with the subject of the enactment and the object which the Legislature has in
view. Their meaning is found not so much in a strict grammatical or etymological propriety of language, nor
even in its popular use, as in the subject or in the occasion on which they are used, and the object to be
attained.”

The courts, therefore, decline to be bound by the letter, when it frustrates the patent purpose of the statute.

“It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be
understood in a sense in which they best harmonise with the object of the statute, and which e ectuate the
object of the Legislature.” (New India Sugar Mills Ltd v. Commissioner of Sales Tax, Bihar, 1963)

Therefore, when no interpretations are feasible the court will prefer that which advances the remedy and
suppresses the mischief as the Legislature envisioned. The court should adopt an object oriented approach
keeping in mind the principle that legislative futility is to be ruled out so long as interpretative possibility
permits.

ff
Examples
Narendra Madivalapa Kheni v. Manikrao Patil (1977)

Section 23 of the Representation of the People Act, 1951 permits

"inclusion of the names in the electoral roll till the last date for making
nominations" for an election in the concerned constituency. Section
33(1) of the Representation of the People Act, 1951 speci es that the
nomination paper shall be presented "between the hours of 11
o'clock in the forenoon and 3 o'clock in the afternoon”. Reading these
provisions together in the light of the object behind them, the
Supreme Court construed the words "last date" in section 23 of the
1951 Act as follows:

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If the purpose of the provision were to illumine its sense, if the
literality of the text is to be invigorated by a sense of rationality, if
conscionable commonsense were an attribute of statutory
construction, there can hardly be any doubt that the expression ‘last
date for making nominations’ must mean the last hour of the last date
during which presentation of nomination papers is permitted under
section 33 of the 1951 Act.
K Prabhakaran v. P Jayarajan (2005)

Under section 8(3) of the Representation of the People Act, 1951 "a
person convicted of any o ence and sentenced to imprisonment for
not less than two years" is disquali ed for being chosen as and for
being a member of the Legislature of a State.

Question: Would a person be disquali ed if s/he is imprisoned on two

counts—for 1 year and 1.5 years—in a single trial?
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 Having regard to the object that the provision was meant to prevent persons
with criminal backgrounds from entering the legislature, the expression "a
person convicted of any o ence" was construed as "all o enses of which a
person has been charged and held guilty at one trial" and the expression
"sentenced to imprisonment for not less than two years" was required to be
calculated by taking the total term of imprisonment for which the person has
been sentenced. Thus a person who is sentenced for two o ences in one trial
but is not sentenced for any of the o ences to a sentence of more than two
years will still be disquali ed if the total sentence of imprisonment for the two
o ences to run consecutively exceeds two years. For the same reason section
8(4) of the Act, which suspends the disquali cation, when a person is a
member of the Legislature at the time when he is sentenced, for a period of
three months and till the disposal of his appeal or revision if it is led within
that period, has been held not to apply after the person ceases to be a
member of the Legislature or the House is dissolved.
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Heydon’s case (1584)
The rule which is also known as "purposive construction" or "mischief
rule", enables consideration of four matters in construing an Act:

(i) What was the law before the making of the Act,
(ii) What was the mischief or defect for which the law did not provide,
(ili) What is the remedy that the Aa has provided, and
(iv) What is the reason of the remedy.

The rule then directs that the courts must adopt that construction
which Shall suppress the mischief and advance the remedy".
- In Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs
and Trademarks (1898), Earl of Hapsburg noted

“My lords, it appears to me that to construe the Statute in question, it is not only
legitimate but highly convenient to refer both to the former Act and to the
ascertained evils to which the former Act had given rise, and to the later Act which
provides the remedy. These three being compared.”

Similarly, Lord Roskill observed in Anderton v. Ryan (1985)

“Statutes should be given what has become known as a purposive construction,

that is to say that the courts should identify the ‘mischief’ which existed before
passing of the statute and then if more than one construction is possible, favour
that which will eliminate the mischief so identi ed.”
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When two competing Acts construed to further the purposes behind
them produce a con ict, the court may resolve the con ict by taking
into consideration as to which Act represents "the superior purpose"
in addition to other relevant factors. In applying a purposive
construction, a word of caution is necessary that the text of the
statute is not to be sacri ced, and the court cannot rewrite the
statute on the assumption that whatever furthers the purpose of
the Act must have been sanctioned.
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 As the SC noted in New India Assurance Co Ltd v. Nusli Neville Wadia,
2008:

“To interpret a statute in a reasonable manner the court must place itself
in the chair of a reasonable legislator/author. So done the rules of
purposive construction have to be resorted to which would require the
construction of the Act in such a manner as to see that the object of the
Act is ful lled. … rst the interpreter should assume that the legislature is
composed of reasonable people seeking to achieve reasonable goals in a
reasonable manner; and second the interpreter should accept the non-
rebuttable presumption that members of the legislative body sought to
ful ll their constitutional duties in good faith. This formulation allows the
interpreter to inquire not into the subjective intent of the author, but rather
the intent the author would have had, had he or she acted reasonably.”
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To reemphasise
The rule in Heydon's case is applicable only when language is ambiguous In another
case (Kanai Lal Sur v. Paramnidhi Sadhukhan, 1957), Justice Gajendragadkar stated
that the recourse to object and policy of the Act or consideration of the mischief and
defect which the Act purports to remedy is only permissible when the language is
capable of two constructions. But it has already been seen that for deciding whether
the language used by the Legislature is plain or ambiguous it has to be studied in its
context, and "context" embraces previous state of the law and the mischief which
the statute was intended to remedy.

Therefore, it is not really correct to say that the rule in Heydon's case is not
applicable when the language is not ambiguous. The correct principle is that after
the words have been construed in their context and it is found that the language is
capable of bearing only one construction, the rule in Heydon's case ceases to be
controlling and gives way to the plain meaning rule.
Regard to Consequences
If the language used is capable of bearing more than one
construction, in selecting the true meaning regard must be had to the
consequences resulting from adopting the alternative constructions. A
construction that results in hardship. serious inconvenience, injustice,
absurdity or anomaly or which leads to inconsistency or uncertainty
and friction in the system which the statute purports to regulate has
to be rejected and preference should be given to that construction
which avoids such results. This rule has no application when the
words are susceptible to only one meaning and no alternative
construction is reasonably open.
As the Supreme Court noted in Tirath Singh v. Bachittar Singh (1955):

“Where the language of a statute, in its ordinary meaning and

grammatical construction, leads to a manifest contradiction of the
apparent purpose of the enactment, or to some inconvenience or
absurdity, hardship or injustice, presumably not intended, a construction
may be put upon it which modi es the meaning of the words, and even
the structure of the sentence.”
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Example
In Tirath Singh v. Bachittar Singh, the Supreme Court was concerned with the
construction of Section 99 of the Representation of the People Act, 1951 (as it
stood prior to amendment by Act 27 of 1957) which authorises the Election
Tribunal at the conclusion of the trial to name all persons who have been guilty
of corrupt practice. The power, however, is subject to a proviso which prior to its
amendment read, "provided that no person shall be named in the order unless
— (a) he has been given notice to appear before the tribunal and to show cause
why he should not be so named; and (b) if he appears in pursuance of the
notice, he has been given opportunity of cross-examining any witness who has
already been examined and of calling evidence in his defence and of being
heard". The contention before the Supreme Court was that even parties to the
election petition were entitled to the bene t of the proviso as the words "no
person shall be named" interpreted in literal sense included such persons.
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 The Supreme Court, rejecting this contention pointed out: If the
contention is to be accepted, then the result will be that even though
there was a full trial of the charges set out in the petition, if the
tribunal is disposed to hold them proved it has rst to give notice of
the nding which it proposes to give, to the parties and to hold a fresh
trial of the very matters that had been already tried. That is an
extraordinary result for which it is di cult to discover any reason or
justi cation.
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To conclude
It must be remembered that a court would only be justi ed in departing from the plain
word of the statute when it is satis ed that

(1) there is clear and gross balance of anomaly,

(2) Parliament, the legislative promoters and the draftsman could not have envisaged
such anomaly and could not have been prepared to accept it in the interest of a
supervening legislative objective,
(3) the anomaly can be obviated without detriment to such a legislative objective, and
(4) the language of the statute is susceptible of the modi cation required to obviate
the anomaly.

Therefore, the court cannot decline to give e ect to clear and unambiguous language
to avoid an anomaly even if it was the result of an omission on the part of the
draftsman which went undetected during passage of the Bill through Parliament.
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Cases to read
1. G Narayanswami v. Pannerselvam
2. SR Batra v. Taruna Batra
3. Heydon’s case
4. RMD Chamarbaugwala v. Union of India
5. Bengal Immunity Co. v State of Bihar