Interpreting Statutes

A Comparative Study

D. Neil MacCormick, Robert S. Summers

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351926386
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book is a work of outstanding importance for scholars of comparative law and jurisprudence and for lawyers engaged in EC law or other international forms of practice. It reviews, compares and analyses the practice of interpretation in nine countries representing Europe as well as the US and Argentina in common and civil law; it also explores implications for general theories of interpretation and of justification. Its authors, who include Aulis Aarnio, Robert Alexy, Ralf Dreier, Enrique Zuleta-Puceiro, Michel Troper, Christophe Grzegorczyk, Jean-Louis Gardes, Enrico Pattaro, Michele Taruffo, Massimo La Torre, Jerry Wroblewski, Alexsander Peczenik, Gunnar Bergholtz and Zenon Bankowski, as well as editors Robert S. Summers and D. Neil MacCormick, constitute an international team of great distinction; they have worked on this project for over seven years.

1 Introduction

ROBERT S. SUMMERS, Ithaca

As lawyers and legal theorists, we have found it extraordinarily interesting to take part in the international project which has yielded the following set of essays about statutory interpretation as a major field of legal reasoning considered in comparative and jurisprudential perspective. We hope here to convey the same sense of excitement to you, the reader. The published justifications appearing in opinions of the higher courts in Western legal systems comprise what is perhaps the greatest repository of recorded practical reasoning known to humankind. We remind the reader also of the absolutely central importance of statute law in modern legal systems; and thus of the equal importance of statutory interpretation.

It is hard enough to keep track of interpretational norms and practices in any single contemporary system of law. Yet this book takes a bold step into what may be a wilder Maelstrom of confusion by exploring questions of interpretation comparatively and jurisprudentially across a wide range of legal systems. The authors represent nine disparate systems — common law, civil law and mixed, East and West European, North and South American. Yet, for all this, the authors have maintained a common purpose and (to a considerable extent) a common approach. They all agreed on some key points of method (see Chapter 2) and all asked themselves the same basic questions in the same order. (See the Appendix). Then at group meetings held more or less annually over seven years, each contributor subjected everyone else's answers to constructive criticism. The questions themselves were worked out and revised several times through a similar process of group deliberation and debate, and in the light of the emerging answers.

So nine of the chapters, Chapters 3—11, here are 'country-by-country chapters', each dealing with interpretation in a particular national jurisdiction or jurisdictions. But those nine chapters, distinctive in style and legal—philosophical tradition though each is, have a common structure — that provided by the common questions, and by the fact that each chapter is an ordered set of responses to those questions. The authors are both lawyers, familiar with the legal systems reported, and scholars of jurisprudence and legal philosophy, with special interest in the theory of legal reasoning.

In the upshot, then, what do these labours of many hands offer? Chapters 3—11, one on each of the nine different countries represented, provide information and insight into interpretational practices as revealed in the published opinions of the higher courts of those countries. Also, these nine country-specific chapters and the two more general chapters at the end — Chapter 12 on comparative analysis, and Chapter 13 on justificatory theory - are all organized and presented largely in terms of a common general framework. Of central interest in this framework is the set of concepts and terminology we have devised for identifying, individuating and describing a wide range of types of arguments recognized and deployed by the various national judiciaries as reasons for decision.*

While, as we will shortly see, the two more general chapters at the end of the book, Chapters 12 and 13, presuppose and to a considerable extent address comparative and jurisprudential questions posed by the materials in the country-specific chapters, it should be stressed that these two more general chapters by no means purport to address all materials of general interest in Chapters 3—11. This is especially true of those materials in the country-specific chapters on the general origins of interpretational issues within legal systems, statutory gaps and gap-filling, the role of constitutional law, the effect of statutory provisions prescribing interpretative method, and the nature of collisions between statutes and other norms and how they are resolved. Yet the materials we have not been able to address frontally in Chapters 12 and 13 are not only informative; they, along with all the other country-specific materials, comprise an addition to the present-day comparative law 'database', and may now be used by comparativists as well as by legal theorists and scholars interested in statutory interpretation and justificatory theory as such.

We now come to the general Chapters 12 and 13 at the end ot the volume. These chapters for the most part select from materials in the country-by-country chapters and generalize from them or use them as points of departure for comparative and jurisprudential analysis. This is not to say that the factual basis for generalizations and analyses in these later chapters is always fully spelled out in the earlier country-by-country chapters. Part of the factual basis for Chapters 12 and 13 appears instead in formal and informal minutes of our numerous roundtable discussions held over the years.

In Chapter 12, we set forth 11 major types of arguments and advance our 'universalist' thesis that all systems in our study share these as a common core of good reasons for interpretative decisions; to the extent there are variations we also argue that these are rationally explicable by reference to differences of political systems, of institutional frameworks, of judicial roles in relation to the legislature and the executive, of general legal culture and of traditions with respect to the training and staffing of the judiciary. We believe that our 'common core' thesis could be important, for at least three reasons. It implies (along with the rational explicability of variations) a common rationality rooted in shared values, a topic we treat in detail in Chapter 13. It also implies the feasibility of constructing an ideal normative model (necessarily elaborate) for the justified interpretation of statutes generally, or perhaps a set of such models each with discrete ranges of application the totality of which covers the field, a topic we introduce and discuss briefly in Chapter 13. On a less theoretical plane, the common general conception of good reasons has positive implications for major contemporary experiments in the unification of diverse and highly developed national legal systems, as in the current case of the European Community.

In the course of developing the common core of good reasons thesis, Chapter 12 provides some systematic treatment of the types of interpretational argument shared in the various countries. The key questions raised, and to some extent addressed, include the following: How are particular instances of a general type of argument conceived and constructed? What material content do they require? How widely available are such materials? What are the sources of the justificatory force of this type of argument? What factors may operate to weaken the force of such an argument? How does this type of argument differ from other closely related types of argument? What is the relative general decisional role of the type of argument within the system? What, if any, role can the type of argument have as directly reinforcing any other types of argument? What is the relative force of the argument when in conflict with other arguments? Does the type of argument have any distinctive use or limits? For example, does it play a special 'second order' role in the resolution of 'first order' conflicts between arguments? Finally, what does the argument have in common with any of the other types of argument? Can the various arguments be illuminatingly grouped under more discrete unifying categories? We think all of the above questions interesting and important, and some of them are relatively new questions in our subject.

But comprehensive treatment of all of these questions in regard to each type of argument has not been at all possible. Indeed to give these types or arguments their just due in the foregoing terms would require, at the very least, a whole chapter devoted to each. Some of the arguments, for example, the argument from ordinary meaning and the argument from legislative intention, might each require a whole monograph. In our view, scholars have traditionally underestimated the demands of the subject.

Chapter 12 on comparative analysis also identifies significant variations in types of arguments and patterns of justification in the different systems. It reveals major differences in the structure, logic and style of the opinions in the higher courts. For example, the higher judiciaries in about half the countries follow a magisterial approach in which opposing arguments are usually not recognized at all in the published opinions, while the other half take an argumentative approach in which opposing arguments are answered, with the opinions including, at least implicitly, dialogues with counsel, or with other members of the court, or with lower court judges. Further, most countries adopt a deductive rather than a discursive justificatory model. In the European panorama, a finding of some importance is the emergence of a new and distinctive justificatory style overall that borrows from both of the traditional systems — common law and civil law.

In regard to all major differences between systems, we also suggest how they are at least consistent with the hypothesis that they are both explained by, and rationally grounded in, political, institutional, cultural and other factors specially operative in the systems. Thus, in our view, these differences are not necessarily inconsistent with the common rationality we discern. At the same time, the analysis reveals in concrete terms how the interpretational practices of the judges of the higher courts of different countries may rationally vary, depending on the nature of the institutional, political and cultural worlds that the judges inhabit.

It is also a finding of some importance that the differences we discern in justificatory structure, logic, style and substance seldom track the traditional common law—civil law divide.

The materials in both Chapter 12 and Chapter 13 also explain and analyse basic patterns of justification that appear in the opinions of the higher courts. In the simplest pattern, one form of argument dominates, and usually this is either what we call the argument from ordinary meaning or the argument from technical meaning. A more complex pattern is essentially cumulative, and it takes two basic forms. In the first, arguments are usually cumulated to reinforce the argument from ordinary meaning or the argument from technical meaning. In the second, there is no viable linguistic argument and various other arguments are cumulated in its place to clarify and specify an appropriate statutory meaning. An interesting question that arises here is how far the overall force of cumulative argumentation may exceed the sum of its parts, that is, exceed the overall force of instances of types of argument if they were merely added together individually.

In the most complex pattern of all, arguments in favour of the decision are cumulated, and opposing arguments are overtly canvassed and rejected, with reasons. Another question of great jurisprudential and practical interest that is considered in some detail in Chapters 12 and 13 is how far the 'weighing and balancing' metaphor, so popular in American legal literature, accounts for the resolution of conflicts between arguments. It is our view that this metaphor felicitously applies to only one of four modes of resolution discoverable in the opinions of most countries.

Chapter 13 is more theoretical than Chapter 12, and also rather less comparative, though it necessarily builds on Chapter 12 and therefore also on Chapters 3—11 (which, as we have said, provide nearly all of the material for comparative analysis in Chapter 12), In Chapter 13, we distinguish between the basic idea governing the construction of particular instances of a type of interpretational argument on the one hand, and the underlying values that give rise to its justificatory force on the other. The idea governing the construction of a type of argument can be analysed into the circumstantial conditions ('directives', to use the late Professor Wroblewski's term) that must be present if an argument of that type is to be available or applicable in the first place.

In Chapter 13 (and also to a degree in Chapter 12) the wide-ranging primacy of arguments from ordinary usage and from technical usage is analysed and discussed. Arguments from systematic harmony and unity of the overall statute book and of the law generally are given a major place (a rather larger one than is usually acknowledged by US and UK scholars, for instance). Arguments from purpose are also put in their place.

Chapter 13 classifies all 11 of the major types of argument in terms of four basic kinds: linguistic, systematic, teleological-evaluative and intentional. We believe the factors unifying the types of arguments falling into each category cast special light on the basic character of the types of arguments involved. Also, in the case of the various appeals to intention, distinctive light is cast by high-lighting the inherently 'transcategorical' nature of arguments from intention. .

The chapter provides theoretical accounts of the various basic patterns of complex justification, especially judicial resort to the cumulation of instances of types of argument, and judicial invocation of various modes of settling conflicts between instances of argument types beyond 'weighing and balancing'. A tentative model is set forth of the interactions between basic categories of arguments: linguistic, systemic, teleological–evaluative and, finally, the intentional. Second level problems of choice between conflicting arguments are treated further, drawing on the various modes of resolution in addition to 'weighing and balancing' introduced in Chapter 12.

Chapters 12 and 13 address some evaluative issues. Several arise with respect to the types of interpretative argument: what are the standard criticisms of specific forms of argument, and when are they valid? For example, what precisely is it that motivates the common criticism that a proposed ordinary meaning argument is 'wooden', or 'excessively literal', or 'conclusory'? When is such a criticism valid? Why? Similar questions are raised about the manipulation of purpose and about abuses of other types of argument. Still other evaluative issues are treated, including ones that relate to the structure and style of justifications as a whole. For example, what might justify the magisterial approach so prominent in some countries?

These issues raise still broader evaluative questions: What would an ideal system of justificatory practices look like? How might one, in these terms, differentiate between a system that, overall, approximates to the ideal and one that falls short? Interpretational practices may be more advanced because free of false theories about the way language works, or more sophisticated about linguistic meaning and legislative intent, or more subtle in regard to contextual harmonization and coherence, or more analytical in regard to all types of argument, or more systematic and consistent with respect to the resolution of conflicts between competing arguments, or more realistic and candid about disclosing reasons for decision, or more careful in handling the various types of materials relevant to the construction of reasons, or more comprehensive in making available within opinions all resources necessary for a reader to make an independent judgement about the quality of the justification.

We are not able to treat many of the foregoing issues at all fully, but we believe we now see them rather more clearly than before. Indeed, we prefer to believe that one of the contributions of this book may be that it identifies many new and significant questions and thus, in a sense, redefines the subject. We are confident that our own project members, and still others, will soon carry matters beyond where we have had to leave them here.

*A leading American scholar of our subject once observed: 'It would be hard to think of a field of law that needs clarifying more than that of statutory interpretation.' He went on to stress 'the difficulty and even impossibility of conversing sensibly on statutory intepretation without elaborate precautions to establish or stabilize terms, concepts, and premises.' R. Dickerson, The Interpretation and Application of Statutes p. 1 (1975).

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Dedication
• Series Preface
• Preface and Acknowledgements
• 1 Introduction
• 2 On Method and Methodology
• 3 Statutory Interpretation in Argentina
• 4 Statutory Interpretation in the Federal Republic of Germany
• 5 Statutory Interpretation in Finland
• 6 Statutory Interpretation in France
• 7 Statutory Interpretation in Italy
• 8 Statutory Interpretation in Poland
• 9 Statutory Interpretation in Sweden
• 10 Statutory Interpretation in the United Kingdom
• 11 Statutory Interpretation in the United States
• 12 Interpretation and Comparative Analysis
• 13 Interpretation and Justification
• Appendix: Final Version of the Questions, Comparative Statutory Interpretation Project 1 November 1989
• About the Authors
• Index