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This chapter addresses complexities introduced by the fact that administrative agencies perform a great many construals of statutes, and it may well be that these agencies should not simply try to replicate what courts do when they engage in that endeavor. Related to how agencies do and should interpret statutes are questions about the responses of reviewing courts. More particularly, should they defer to agency interpretations and decisions about implementation; how should standards of deference be cast; and on what theories can deference be defended?

In this chapter I claim that the fiduciary model answers a difficult question that arises in hard cases of administrative law in which an individual is subject to a drastic exercise of public power: if the individual has no pre-existing right to the vulnerable interest at stake (such as an interest in continued residence in a state in which she is not a citizen), why should the vulnerable interest figure at all in the balance when a decision-maker is called on to interpret and apply a statutory power? Under the fiduciary theory, the vulnerable interest must figure in the balance because fiduciaries owe solicitude to the people subject to their power. The chapter works out some of the details of this conception of administrative law, and relates them to evolving public law doctrines of judicial deference, review of agency interpretations of law, and review of discretion.

This chapter opens with some reflections on what statutory and common law interpretation have in common and what makes them different. It then turns to more direct relations between statutes and the common law, before closing with some brief thoughts about how the forms of interpretation considered in this book resemble legal interpretation of private texts and interpretation in other disciplines.

This chapter examines a range of approaches to statutory interpretation. In particular, it explores how Congress actually functions, how Congress signals its meaning, what Congress expects of those interpreting its laws, and how courts in their interpretative role become participants in the legislative process. After discussing how Congress works and the lawmaking process as it has evolved, the chapter explains how legislators who comprise Congress signal their legislative meaning to agencies—the first interpreters of statutes—and how agencies regard Congress's work product in interpreting and executing the law. It then describes two approaches to the judicial interpretation of statutes, purposivism and textualism, and argues that a purely textualist approach is inadequate when interpreting ambiguous laws. Finally, it considers practical ways in which Congress may better signal its meaning and how courts may better inform Congress of problems they perceive in the statutes they review.

The case pitting Edward Pickles against Bradford over water supply was a case about statutory interpretation. The Corporation took its stand against Pickles on the statute first, seeking an injunction in respect of the alleged breach of statutory duty by Pickles. The case illustrates the potency of the common law principle that whenever possible, statutes will be interpreted by the courts to protect the property interests of individuals. This chapter considers the structure and content of the Bradford Waterworks Act 1842 and its successors in order to place the key provision (section 49) in context. The differing approaches of the judges to the interpretation of section 49 are then summarised, and some comments are presented regarding what the litigation illustrates about statutory interpretation and the common law mindset.

This introductory chapter first sets out the book's purpose, which is to consider crucial questions about the relation between statutory and common law interpretation. Among these are: How far does the coverage of the common law figure in statutory interpretation, and how far do statutes affect common law development? How far does actual and legitimate statutory interpretation involve forms of reasoning associated with common law decision? In either domain, should judges self-consciously rely on their own notions of morality and justice? To what extent does the doctrine of precedent, so central to understanding common law development, apply to the interpretation of statutes? The chapter then discusses possible analogies to other forms of interpretation, limits of interpretation and appropriate strategies, relations of legislatures to courts for statutory interpretation, nuances about purpose, agency complications, values and their legal norms, and empirical realities and levels of courts.

A principle of statutory interpretation embodies legal policy, which is based on public policy. The content is what judges think and say it is, though they are guided by relevant legislation. Legal policy consists of principles the judges consider the law must uphold, such as: that law should serve the public interest, that it should be fair and just, etc. Different elements of legal policy, for example the safeguarding of personal liberty and the need for state security, may conflict. On some aspects legal policy may change drastically over a period. The court ought not to enunciate a new head of policy where Parliament has demonstrated its willingness to intervene. It is a principle of legal policy that domestic law should conform to public international law. This has been given statutory effect in relation to the European Convention on Human Rights by the Human Rights Act 1998 s 3(1).

Justice Scalia’s most enduring legacy is likely to be the method of statutory interpretation—“textualism”—that he brought to the U.S. Supreme Court and to all of the courts below it. With his three-decades’ worth of relentless insistence on text-focused interpretation of statutes, Justice Scalia changed the way judges of all interpretive stripes approach that task, the process ingraining in the minds of many, for better or for worse, the notion that a purpose- or pragmatism-driven approach to statutory cases was not consistent with the judicial role. Underpinning this approach from the start was Justice Scalia’s proclaimed faith in formalism, and that statutory interpretation was amenable to it. But in the end, Justice Scalia was no interpretive formalist. The rules of statutory interpretation that he advanced are not predictable, or even fully listable. Even as Justice Scalia, more than anyone else, emphasized the importance of formalism in statutory interpretation, he either never really wanted it to succeed, or did not fully appreciate its implications. The chapter asks the following questions: What would it take to make statutory interpretation truly formalist? Why did Justice Scalia’s vision fall short?

This chapter considers some of the implications of the nature of the legislative intent for the practice of statutory interpretation. It argues that interpreters should aim to infer the legislature's intended meaning in uttering the relevant statutory text. This process of inference is informed by, and in turn informs, reflection on the reasoned choice the legislature likely acted to make and is grounded in the rich context of enactment. The chapter argues that legislative history does not form a main part of this context. Indeed reference to this history is not entailed by the centrality of legislative intent in statutory interpretation. In exceptional cases, interpreters have good reason to recognize that the legislature's intended meaning is qualified or extended by its reasoned lawmaking choice.

According to one view — really a family of related views — that has considerable currency at the moment, the philosophy of language and linguistics have a direct bearing on the content of the law. This chapter calls this view the communicative-content theory of law or, for short, the communication theory. According to the communication theorists, the study of language and communication reveals that the full linguistic meaning of an utterance is what the speaker or author communicates by the utterance — or communicative content — which may go well beyond the literal meaning of the words. (On the standard understanding, communicative content is constituted by the content of certain specific communicative intentions of the speaker.) The communication theorists conclude that a statute's contribution to the content of the law is its communicative content. The chapter grants many of the assumptions of the communication theorists and then argues that there are many candidates for a statute's contribution to the content of the law, including different linguistic and mental contents. The study of language can be important in helping us to make and clarify such distinctions, but beyond this information-providing role, it has nothing to say about which, if any, of these candidates constitutes a statute's contribution to the law. The communication theory therefore lacks the resources to say what any statute's contribution is. Ultimately, trying to understand legislation on the model of communication is misguided because legislation and legislative systems have purposes that have no parallel in the case of communication, and that may be better served if a statute's contribution to the content of the law is not constituted by what is communicated by the legislature.

This chapter examines statutes and their interpretation in four jurisdictions: Germany, England and Wales, Sweden, and the United States. It begins by tracing the history of statutory lawmaking in the four jurisdictions and identifies the attitudes of courts and academics to certain developments. It then discusses the sources of law and the traditional methods of statutory construction or interpretation. All four jurisdictions rely essentially on three basic approaches: literal interpretation, historical interpretation, and purposive interpretation.

This chapter examines how the jurisprudence on the European Convention on Human Rights—which is a combination of the case laws of the Strasbourg Court and the United Kingdom courts on Convention rights—now plays a direct part in statutory interpretation in this country. The chapter shows that the wording of s 3(1) of the 1998 Act gives the courts considerable flexibility in interpretation, but the task is not the traditional one. Indeed, the case law shows that the courts have been on a steep learning curve in relation to s 3(1), not least because the Strasbourg Court itself adopts the principle of dynamic or evolutive interpretation. This new approach has many consequences and the rules are still developing. But s 3 is not a ‘judicial override’: the process is still one of interpretation and the courts’ traditional role in that respect has not been radically altered.

This chapter examines whether the Vienna Convention’s interpretive provisions were drafted partly with national courts in mind, and examines how national courts apply them. Section II sets the scene for treaty interpretation by national courts. It looks at the development of interpretive principles, and asks whether national courts are among their intended users. Section III considers national judges as members of diverse epistemic communities that influence treaty interpretation and explores the value of the VCLT’s minimum harmonization of interpretive methods. Section IV considers the doctrinal question of whether national courts are formally bound by the VCLT’s interpretive principles and the empirical question of whether they routinely apply the VCLT even in the absence of a formal legal obligation to interpret treaties in accordance with the VCLT. Section V examines the persistent tendency for national courts to use non-VCLT methodologies such as contract and statutory imagery in interpreting treaties.

The main argument of this chapter is relatively simple. The content of a legal text is not solely an instance of linguistic meaning. Rather, legal concerns sometimes trump the linguistic meaning of the text. Nevertheless, the linguistic meaning of a text is generally an important aspect of the text’s legal meaning, and should be so. Especially because linguistic meaning is an important aspect of legal interpretation, knowledge of the ways in which language operates is important to the proper functioning of the law. Linguists are, by training, experts on language. Judges, in general, are experts on the law, and on principles of legal interpretation, but are not experts on language. It follows that judges can benefit from the expertise of linguists. One benefit is that linguists can demonstrate the contextual nature of language and the flaws of believing that linguistic meaning can accurately be determined without consideration of context. Another important benefit is that knowledge of language can reveal its indeterminacy. By not adhering to valid principles of language usage, judges risk interpreting legal texts in ways that mask the inherently normative nature of interpretation.

This chapter looks at civil law. Civil law is the counterpart and the typical object of comparison to the common law. The distinction between these two legal families is one of the few on which comparative lawyers largely agree. In highly simplified descriptions found mostly in older texts, the unique feature of civil law is often identified as legal codification, especially of private law. The main aspects of this legal mindset are the doctrine of legal sources, the systematization of law, the method of statutory interpretation, and the role of legal authorities. All of these things influence the way in which law is applied in everyday practice and are the products of a specific historical evolution. The fundamental character of civil law can only be understood when the interplay among all these factors is considered.

This chapter discusses statute law and statutory interpretation and then draws some conclusions about the judicial role. The principal premise is that statutory interpretation can be analysed into two distinct models: the Agency Model and the Dynamic Model. It describes the Agency Model and makes a short detour into the rule of law. It then turns to the Dynamic Model, and considers the extremely liberal approach to interpreting legislation under s 3 of the Human Rights Act 1998. This is contrasted with the courts’ more restricted approach to the question of whether they should ever go beyond Strasbourg jurisprudence, referred to as the ‘take account’ point. The development of the Dynamic Model is one of the factors which has led to a debate about whether judges now have too much power.

This chapter explains the need for an evaluative theory of the British constitution, capable of showing why governmental authority is legitimate. A useful account must be an interpretation of legal and political practice: it must exhibit the connections between legal doctrine and the moral and political values internal to a just constitution, worthy of allegiance. The chapter challenges the conventional reading of Dicey, whose work superficially places parliamentary sovereignty and the rule of law in conflict. A defensible view of sovereignty is one that points to its reconciliation with the fundamental rights implicit in basic ideas of human dignity and equality. It discusses the ProLife Alliance case, demonstrating rival conceptions of the constitution. It considers the nature of statutory interpretation in the context of constitutional principle. It also reflects on the debate between Hart and Fuller on the nature of law and legal interpretation.