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ON LEGISLATION
Richard A. Posner (1989). ‘Legislation and its Interpretation: A Primer,’ Nebraska Law
Review, Vol. 68, pp. 431-453.
INTRODUCTION
What does it mean to interpret legislation?
That is the question which Judge Richard Posner of the U.S. Court of Appeals,
Seventh Circuit and the University of Chicago sets out to answer in his Pound
Lectures of 1988 at the University of Nebraska’s Law School. These lectures were
subsequently published in the Nebraska Law Review in 1989. This essay summarizes
the main points raised by Judge Posner on that occasion. What Judge Posner had to
say in his Pound Lectures not only remains relevant for law school audiences, but for
anybody who is interested in the history, theory, and practice of legislation. It is a
concise introduction to the history of legislation scholarship in American law schools
and will be of use to lawyers, judges, and legislators. Judge Posner also provides his
readers with a model of the legislative process in the attempt to ‘examine the
problems of statutory interpretation.’ The intellectual sources of Judge Posner’s
discussion draw on an interdisciplinary mélange of disciplines comprising
‘economics, political science, and philosophy.’ But, as Judge Posner points out, this
foray in legislative theory is not in the generic form of a treatise; it is, as he puts it
modestly, only a ‘primer.’ In other words, Judge Posner feels that what he has to say
will make it possible for those interested in legislative interpretation to just get on
with it. Judge Posner has also provided a bibliographic appendix in lieu of footnotes
for readers who wish to get deeper into this topic. Judge Posner clarifies the scope of
his primer by stating that while legislation and its interpretation can be defined as

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including the constitution and its interpretation, his focus will be on statutory
interpretation. There is a good reason for limiting the scope of his study. There is a
huge literature on the canons of constitutional interpretation but not on statutory
interpretation. So it is more important for him to concentrate on statutory or
legislative interpretation.
ARISTOTLE ON ‘IMAGINATIVE RECONSTRUCTION’
The first thing to note is that the discussion of legislative interpretation predates the
legislative process. So, for instance, even before legislatures took on their
contemporary form, it was necessary to interpret royal ‘decrees.’ This is a topic that
features in the works of Aristotle. The Greek philosopher pointed out that the main
challenge in legislation is that it cannot foresee the future. That is why legislation
takes on a general form. No legislature can envisage the contingent factors that will
affect the interpretation of any given piece of legislation in the future. The method of
legislative interpretation that was favoured by Aristotle was ‘imaginative
reconstruction.’ Aristotle felt that judges were more likely to do justice - in any given
case – if, in addition to imaginative reconstruction, they also used an equitable
approach to adjudication. In order to do this, they must be careful not to interpret
statutes literally because statutes by definition are designed to have a ‘broad sweep.’
So, for instance, if a statute forbids the shedding of blood in Bologna, does it mean
that barbers should not shave anybody in that city? Clearly, that is not the correct
interpretation at all. What the statute means by forbidding the shedding of blood is
that it is not lawful to kill. This should not be misconstrued as saying that it is
unlawful for a barber to shave a customer. The legislative intent, in other words, is to
forbid killing. This form of interpretation is what Aristotle meant by imaginative
reconstruction. If the legislature could have anticipated that their statute would be
misconstrued they would probably have made an exception for barbers. Every
instance of interpretation must decide whether to interpret the relevant section of the
legislation in the literal or the figurative sense of the term. Otherwise, nobody will be
willing to shave anybody in Bologna.

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SEPARATION OF POWERS
Furthermore, in order to interpret a statute, we must know something about the
history of legislatures and understand the legislative function. There is a
fundamental difference between English and American approaches to legislation.
During the colonial era, Americans felt that the House of Commons was dominant; it
behaved like a unicameral legislature even though the House of Lords was quite
powerful in England. So when the Americans came up with their model of the
judiciary, they wanted to ensure that it would protect them from unicameral
legislatures. That is why in America – unlike in England – the model of governance
is characterized by the separation of powers; it includes many checks and balances.
This model is designed to prevent any branch from becoming dominant in American
politics. Not only is there competition between the different branches of
government, they also moderate the scope of each other’s political authority. Some
of these aspects of American governance, including the role of an independent
judiciary, were discussed by Alexander Hamilton in No. 78 of the Federalist papers.
The function of the judiciary in the first instance was to ensure that it would be
equitable in its interpretation of statutes. Only subsequent to that function was it to
worry about whether statutes were in conformity with the constitution under the
aegis of judicial review. In other words, the question of how to interpret statutes was
an important aspect of colonial governance in 18th century America and is not a
recent invention or preoccupation.
THE DECLINE OF ‘OPTIMISTIC PLURALISM’
In the 19th century, the main challenge was to decide whether the common law or
statutes had greater authority in the Anglo-American legal system. The argument in
favour of the common law was that it constituted the collective wisdom of the
judges. The argument in favour of legislation was that it represented the will of the
people. There was however a change in how legislation was viewed when it was
understood that legislation does not directly serve as a conduit for the will of the
people. Instead, it appeared that legislation was always subject to ‘compromise’ as
interest groups fought it out in the legislature. So the whole question of whether judges

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should be ‘deferential’ to legislators and legislative intent is really a matter of
whether judges believe that legislation reflects what the people really want in a
democracy. Judges who believe that they should be deferential to the legislative
function, process, and intent believe that it reflects the will of the people. Those who
do not believe this to be the case, and think that legislation is seriously compromised
by interest groups are more likely to interpret statutory provisions with that fact in
mind. The history of legislative theory demonstrates that New Deal legislation was
seen as more ‘progressive’ than in any other period of American history. So those
who take the New Deal model of legislation as the prototype of the legislative
function are likely to be more upbeat than those who don’t about what legislation
can achieve in American society. As judges begin to suspect the legislative function –
some even go so far as thinking it to be perverse – they are less likely to deploy the
give-and-take that would constitute the relationship between the legislative and
judicial functions in earlier periods of American history. This lack of cooperation
then led to a crisis in the theory and practice of legislation. So when Judge Posner
poses the question of what it means to interpret legislation, this is the historical
background that he expects his readers to take into account. It doesn’t make sense
therefore to think about the differences between ‘judicial activism’ and ‘judicial
restraint’ without situating how the legislative and judicial functions relate to each
other. The consensus model of deferential legislative interpretation depends on
whether there is adequate trust between the legislative and judicial functions. If
there is distrust instead, it is much more likely that the judiciary will assert itself and
allow litigants to challenge the validity of statutory legislation by invoking the
mechanism of judicial review. That is why the model of ‘optimistic pluralism’ that
constituted the relationship between the legislative and judicial function is not what
it used to be in the history of American governance.
JUDGE POSNER’S MODEL OF LEGISLATION
Judge Posner states the basic assumption that he makes in his attempt to model the
legislative process. That assumption pertains to the fact that all political actors are
rational when they partake of the legislative function or when they deliberate in the

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attempt to further the legislative function. An implication of this assumption is that
all political actors will put in the effort to keep themselves well-informed in any
given instance though that may not always be the case because of the costs involved
in doing so. Judge Posner also differentiates between direct and representative forms
of democracy. In the former, the legislative function is less important since the
population at large will gather to deliberate on the issues that really matter. In a
representative democracy, however, the people act through their representatives.
Since there is no guarantee that a representative will act in the interests of the
people, they are less inclined to participate actively than in a direct democracy. A
representative democracy can use mechanisms that constitute a direct democracy
like a referendum. That is the case in, for instance, in California and in Switzerland.
In representative democracies, it is not possible to vote for a policy; instead, voters
choose representatives who they believe will be sympathetically inclined to their
policy preferences. Needless to say there is a lot more apathy and unwillingness to
vote in a representative democracy since the average voter is not in a position to
affect the outcome of an election or further his policy preferences through political
participation. In recent years, a problem that was not adequately anticipated by the
founding fathers has taken American politics hostage. This is the problem of ‘interest
groups’ who vote in elections with only one particular interest in mind. The
founding fathers were however more preoccupied with political ‘factions’ that might
control legislatures in order to get their way. While interest groups do affect the
legislative function, there is any number of instances when legislation is able to
further the public interest in making available ‘public goods.’ An important analytic
technique that Judge Posner is given to deploying in this context is the use of cost-
benefit analysis to make sense of the market for legislation. Amongst the obstacles to
the success of any statutory legislation are the following: the lack of human
foresight, the inability to anticipate contingencies, and its indefinite duration. In
other words, judges find that they are asked to fill in the gaps in statutes when they
would have preferred to merely interpret the relevant provisions in any given
instance of legislation. This is inevitable because statutes by definition take on a
general cast in order to minimize the transaction costs in the legislative function.

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That is why the success of any piece of legislation depends not only on the legislators
who bring it about, but by the judges who are entrusted with the task of statutory
interpretation.
INTERPRETING STATUTES
And, finally, Judge Posner explains what is involved in interpreting statutes. There
are three important approaches involved in doing so. They are known as ‘the
formulaic, the mentalist, and the purposive’ approaches to statutory interpretation.
The formulaic approach is a version of legal formalism. It is based on interpreting
statutes by using the pre-existing canons of interpretation. These canons explain
when a statute is to be construed broadly or narrowly and whether interpretation
should be done in reference to the constitution. These canons also relate to how a
statute should be interpreted in relation to those it comes before or after. So, for
instance, a statute could be ‘remedial’ in terms of legislative intent to undo the
mistakes made while drafting a previous version. These statutes are to be interpreted
broadly. Later statutes should not be construed as ‘repealing’ earlier statutes unless
they state their intention explicitly. These then are a few representative canons of
statutory interpretation. The formulaic approach is about taking these canons of
statutory interpretation as seriously as possible in any given instance of adjudication
that involves interpreting a section or provision of a statute. Canons of interpretation
can be divided into those that give advice on how to ‘read’ a statute, how to infer the
‘legislative policy’ therein, and the ‘extrinsic policy preferences’ of judges as
opposed to legislators. The basic problem with the canons of statutory interpretation
is that they are often in conflict. So judges may find themselves trying to resolve not
merely a conflict in laws but a conflict in the canons of interpretation as well. The
mentalist approach is about reading the mind of the legislators by judges to ascertain
their intent. Of course, it is not correct to say that there is only one particular mind
since the statute represents the work of a large number of legislators. In this
approach it is not easy to ascertain intent. Where it is possible to ascertain intent, it is
not clear whether the legislators would have wanted the judge to further his intent if
it is a situation that they could not have anticipated like in the Bologna blood-

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shedding statute. So the mentalist approach does not yield rules that are easy to
adjudicate by. The purposive approach is an attempt to ask what the legislators
would have done if a contingent factor which they did not foresee is presented to
them in hindsight. How would the legislators redefine their intent in such a
situation? How judges approach statutes then is also affected by whether they are
basically ‘optimistic’ or ‘pessimistic’ about statutes in general. This relates to how
they respond as judges to the interest group compromise model of legislation, and
whether they believe it is an accurate model of contemporary legislation.
CONCLUSION
Judges who are not too keen on interpretation in the traditional sense given above
will be preoccupied with not what the correct interpretation of the statute is, but on
what the consequences of any particular interpretation might be; these judges are
known as pragmatists. They are not excited about the approaches given above
because they are familiar with the limitations of all the approaches and know a lot
about the problems of textual indeterminacy in the theory of statutory interpretation.
Pragmatists use the canons of statutory interpretation as ‘considerations’ but not as
determinative. Given that none of the canons can guarantee the validity of an act of
statutory interpretation, pragmatist judges prefer to look at the consequences rather
than at canonical antecedents when they decide a case.
Judge Posner concludes his lectures by noting that the pragmatist approach is not
only the best but ‘the actual approach taken by the best judges, and it is thus an
attainable ideal’ for the American judiciary in interpreting statutory legislation.
SHIVA KUMAR SRINIVASAN