1. The document discusses Richard Posner's 1983 paper on statutory interpretation in law schools and courts. Posner argues that law schools have not adequately taught courses on legislation and statutory interpretation.
2. Posner believes law schools should offer courses to teach students the skills of interpreting statutes. Such courses would cover the legislative process, empirical studies of legislation, and techniques for researching a statute's history.
3. Posner examines existing canons of statutory interpretation but finds they are inadequate. He proposes an alternative approach called "imaginative reconstruction" but does not fully describe it in the excerpt.
Chapter 1 introdution to interpretation of statutesAsmatullah Kakar
The document discusses the interpretation of statutes. It begins by explaining that statutes are written laws created by the legislature and that the judiciary's role is to interpret and apply these statutes. It then defines interpretation as explaining or translating a text. The document goes on to discuss different types of interpretation and some common issues with language like ambiguity, vagueness, and problems that arise from indirect communication through written language. It emphasizes that because statutes are written in language, they too are subject to these problems, creating a need for judicial interpretation to determine the legislature's intended meaning.
Assignment on Interpretation of Statutes in Common Law and Civil Law System 0...Asian Paint Bangladesh Ltd
This document provides an assignment submitted by six students on interpreting statutes in common law and civil law systems. It begins with definitions of common law and outlines several principles of statutory interpretation used in common law, including literal construction, the mischief rule, and the golden rule. It also briefly defines civil law and notes it will discuss the civil law approach to interpretation. The document contains a table of contents outlining the topics it will cover related to interpreting statutes in different legal systems.
Interpretation is the procedure by which justices interpret and smear lawmaking. Particular quantity of interpretation is frequently essential when a circumstance includes a decree. Occasionally the influences of a decree consume a basic and direct sense. Then in numerous bags, here is specific ambiguity and vagueness in the words of the decree that need be determined by the justice. To novelty the senses of decrees, adjudicators practice many tackles and means of constitutional interpretation, counting outdated norms of legal interpretation, lawmaking antiquity, and determination. In joint law authorities, the law lords may smear rubrics of legislative interpretation together to regulation endorsed by the parliament and to substitute lawmaking such as organizational activity rules.
This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD
The document provides information on various legal concepts related to interpretation of statutes. It defines key terms like statute, interpretation, construction and ordinance. It also explains the difference between interpretation and construction. Furthermore, it outlines different rules of interpretation like literal rule, mischief rule, ejusdem generis rule etc. Finally, it discusses various aids that can be used for interpretation like long title, preamble, definitions, marginal notes etc.
Interpretation of Statutes and Agreements in IndiaAnil Chawla
This Guide to interpretation of laws and legal documents is intended for non-legal professionals but may
also be useful for legal professionals and students.
Chapter 1 introdution to interpretation of statutesAsmatullah Kakar
The document discusses the interpretation of statutes. It begins by explaining that statutes are written laws created by the legislature and that the judiciary's role is to interpret and apply these statutes. It then defines interpretation as explaining or translating a text. The document goes on to discuss different types of interpretation and some common issues with language like ambiguity, vagueness, and problems that arise from indirect communication through written language. It emphasizes that because statutes are written in language, they too are subject to these problems, creating a need for judicial interpretation to determine the legislature's intended meaning.
Assignment on Interpretation of Statutes in Common Law and Civil Law System 0...Asian Paint Bangladesh Ltd
This document provides an assignment submitted by six students on interpreting statutes in common law and civil law systems. It begins with definitions of common law and outlines several principles of statutory interpretation used in common law, including literal construction, the mischief rule, and the golden rule. It also briefly defines civil law and notes it will discuss the civil law approach to interpretation. The document contains a table of contents outlining the topics it will cover related to interpreting statutes in different legal systems.
Interpretation is the procedure by which justices interpret and smear lawmaking. Particular quantity of interpretation is frequently essential when a circumstance includes a decree. Occasionally the influences of a decree consume a basic and direct sense. Then in numerous bags, here is specific ambiguity and vagueness in the words of the decree that need be determined by the justice. To novelty the senses of decrees, adjudicators practice many tackles and means of constitutional interpretation, counting outdated norms of legal interpretation, lawmaking antiquity, and determination. In joint law authorities, the law lords may smear rubrics of legislative interpretation together to regulation endorsed by the parliament and to substitute lawmaking such as organizational activity rules.
This material is for PGPSE / CSE students of AFTERSCHOOOL. PGPSE / CSE are free online programme - open for all - free for all - to promote entrepreneurship and social entrepreneurship PGPSE is for those who want to transform the world. It is different from MBA, BBA, CFA, CA,CS,ICWA and other traditional programmes. It is based on self certification and based on self learning and guidance by mentors. It is for those who want to be entrepreneurs and social changers. Let us work together. Our basic idea is that KNOWLEDGE IS FREE & AND SHARE IT WITH THE WORLD
The document provides information on various legal concepts related to interpretation of statutes. It defines key terms like statute, interpretation, construction and ordinance. It also explains the difference between interpretation and construction. Furthermore, it outlines different rules of interpretation like literal rule, mischief rule, ejusdem generis rule etc. Finally, it discusses various aids that can be used for interpretation like long title, preamble, definitions, marginal notes etc.
Interpretation of Statutes and Agreements in IndiaAnil Chawla
This Guide to interpretation of laws and legal documents is intended for non-legal professionals but may
also be useful for legal professionals and students.
DIFFERENCE BETWEEN CONSTRUCTION AND INTERPRETATIONTejinder Bhatti
Interpretation means the art of finding out the true sense of an enactment by giving the words their natural and ordinary meaning whereas Construction means drawing conclusions in the basis of the true spirit of the enactment.
Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
1) It summarizes the key principles of statutory interpretation discussed in the document, including the presumption of constitutionality, reading down provisions, and competing theories regarding presumption in criminal law.
2) It discusses a Supreme Court case that declined to "read into" the constitution to prohibit the appointment of ministers facing criminal charges, relying on express constitutional provisions instead.
3) It analyzes another case that declined to read down provisions of the Juvenile Justice Act regarding the definition of a juvenile, finding the meaning was plain and unambiguous.
Casus omissus, interpretation of statutespoonamraj2010
The document discusses the legal concept of "casus omissus" which refers to a situation not provided for in the language of a statute. It notes that courts cannot supply omissions or legislate, they can only interpret the law. It provides examples from case law where courts have both refused to supply omissions due to clear legislative intent, and in other cases have supplied omitted words to avoid making a statute null. The document outlines principles from cases related to supplying omissions and harmonious construction of statutes.
This document discusses the need for and various rules of interpretation when interpreting taxing statutes. It notes that while tax practitioners are not lawyers, they essentially practice law when interpreting tax statutes. The rules of interpretation help the judiciary determine legislative intent when a statute's meaning is unclear.
Some key rules discussed include the literal rule of interpreting the plain meaning of words used, harmonious construction of reading provisions together, beneficial construction resolving doubts in favor of taxpayers, and the use of external aids like legislative history to help understand purpose and context. Exceptions to rules like the literal rule are mentioned. Interpretation of specific types of provisions like charging, penal and relief provisions are also covered.
This document provides an overview and summary of key principles for interpreting statutes. It begins with an introduction to statutory interpretation and discusses literal and logical interpretation approaches. It then covers various internal aids to interpretation like context, title, preamble, headings, and definitions. Exceptions to literal interpretation like ambiguity and absurdity are also noted. The document aims to enable law students' understanding of interpreting statutes.
This document discusses the various aids and principles of statutory construction that courts use to interpret statutes and ascertain legislative intent when the meaning is ambiguous. It outlines intrinsic aids found within the text itself, like the title, preamble, and context, as well as extrinsic aids from outside sources. It also discusses canons of construction regarding the consequences of various interpretations and legislative history.
Statutory Interpretation - approaches and rules appliedRonit Himatlal
The document discusses four approaches to statutory interpretation used by judges:
1) The literal approach interprets words based on their plain meaning using rules like the literal rule, golden rule, and mischief rule.
2) The purposive approach looks at the overall purpose of Parliament to interpret ambiguous words.
3) Cases like Smith v Hughes and Jones v Tower Boot Co. illustrate judges using the mischief rule and purposive approach to interpret statutes broadly to address the problems Parliament intended to fix.
4) The trend is for courts to increasingly use the purposive approach influenced by European law, but the literal approach remains more common in English courts.
This document contains the Summary of Lecture Notes (of Jurisprudence) on Unit 01 (Jurisprudence as a Science).
Topics: Etymology, Meaning, Definition, Classification, Scope and Utility of Jurisprudence and its Relation with other Social Science...It also contains a rich portion of exercises including Question both Subjective (Textual and MCQs) and Conceptual
Interpretation of law - Legal Environment of business - Business Law - Manu M...manumelwin
The process by which the courts of law try to ascertain or understand the meaning of the legislation through the wording of enactment is technically called interpretation. The aim of interpretation of a statute is to find out the legislative intention.
This document provides an overview of law and the legal system in Trinidad and Tobago. It discusses what law is, the main sources of law including the constitution, legislation, case law, and international law. It also describes the different types of laws, such as public law, private law, civil law, and criminal law. The document examines key legal concepts like statutory interpretation, the separation of powers, and the rule of law.
This document discusses principles of statutory interpretation in UK law, including the literal rule, golden rule, mischief rule, and harmonious construction. It provides definitions and examples of each rule.
The literal rule requires judges to rely solely on the exact wording of the statute without interpreting meaning. The golden rule allows modifying the literal meaning to avoid absurd outcomes. The mischief rule examines the common law and intent of the statute to rectify problems. Harmonious construction seeks an interpretation that avoids conflicts between statutes.
While the literal rule promotes certainty, it can lead to injustice. The golden rule and mischief rule give judges more discretion but risk imposing their own views. Overall, the rules aim to balance upholding the legislature
The rule of harmonious construction provides that when two or more statutes or parts of a statute conflict, they should be interpreted in a way that harmonizes them and gives effect to both. The interpretation that avoids inconsistencies or repugnancy between provisions and makes the statute consistent as a whole should be adopted. If provisions cannot be completely reconciled, they must be interpreted to give effect to both as much as possible without reducing any provision to useless or dead letter. The rule aims to avoid head-on clashes and inconsistencies between different parts of a statute.
The document discusses key concepts related to statutory interpretation in English law. It explains that courts are bound to interpret statutes according to legislative intent gleaned from the actual words used. It also outlines different types of statutes and rules regarding how they are numbered, cited, enacted, repealed and consolidated into other statutes.
This document discusses the interpretation of legislation and statutes. It provides an overview of different approaches to statutory interpretation such as textualism, legislative intent, and contemporary values. It also discusses the "golden rule" of statutory interpretation, which states that the ordinary meaning of words should be applied unless it produces absurdity or goes against legislative intent. The document provides examples from case law that further explain and apply the golden rule.
The document discusses the differences between mandatory and directory provisions in statutes. Mandatory provisions must be strictly followed and non-performance can result in sanctions, while directory provisions are discretionary and non-performance does not result in sanctions. Whether a provision is mandatory or directory depends on the language used and legislative intent gathered from the context and purpose. Key factors include whether a time limit is specified, if public or private duties are involved, and if the consequences of non-compliance undermine the statute's objectives. There are no absolute rules and each case must be evaluated based on its specific circumstances.
This document discusses statutory interpretation and aids to interpretation. It begins by outlining the objectives and providing examples of types of statutory interpretation rules. It then discusses internal aids to interpretation, including examining the statute, long title, preamble, headings, schedules, explanatory notes, and presumptions. It also discusses rules of language used in interpretation like ejusden generis. External aids discussed include dictionaries, law commission reports, historical setting, treaties, and Hansard. The effect of the Human Rights Act 1998 and precedent on statutory interpretation is also examined. Students are then asked to think about teaching this topic, including activities, checks for understanding, and starter/plenary ideas. The next period's task is to complete a worksheet using textbooks
Judge Richard Posner published three papers in 1980, 1987, and 1993 analyzing the state of legal scholarship in US law schools. In the 1980 paper, he described three types of legal scholarship: doctrinal analysis, positive analysis, and normative analysis. Doctrinal analysis involves careful examination of case law, while positive analysis seeks to understand what the law is and normative analysis proposes what the law should be. In subsequent papers, Posner observed the decline of doctrinal analysis and rise of interdisciplinary scholarship applying fields like economics to the law. He argued supplemental external perspectives were needed but that different approaches to scholarship can coexist through mutual respect.
Judge Richard Posner's book "How Judges Think" analyzes the thought processes of judges and seeks to understand judicial behavior. The book is divided into three parts, with the first examining the basic model of judging, the second elaborating on this model, and the third analyzing theories of law that justify judicial decisions. Posner argues that pretending the judicial function is simply dealing with cases is naïve, as judges also occasionally serve legislative functions by developing law. The book explores various theories of judicial behavior and constitutional interpretation, seeking to understand differences in how judges, justices, and legal academics approach the law.
DIFFERENCE BETWEEN CONSTRUCTION AND INTERPRETATIONTejinder Bhatti
Interpretation means the art of finding out the true sense of an enactment by giving the words their natural and ordinary meaning whereas Construction means drawing conclusions in the basis of the true spirit of the enactment.
Interpretation takes place when we look for the original meaning of the constitution. All other forms of constitutional analysis engage in construction
CONTEMPORNEA EXPOSITIO EXTERNAL AID TO INTERPRETATIONShreya Chaurasia
Interpretation means the art of finding out the true sense of an enactment by giving the words of the enactment their natural and ordinary meaning.
It is the process of ascertaining the true meaning of the words used in a statute.
The Court is not expected to interpret arbitrarily and therefore there have been certain principles which have evolved out of the continuous exercise by the Courts. These principles are sometimes called ‘rules of interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature conveyed expressly or impliedly in the language used.
Contempornea Expositio means that the meaning of words in a document are to be understood in the sense which they bore at the time of the document.
Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority.
Contemporanea expositio est optima means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion.
External Aid includes Historical Background,The original bill drafted and introduced,Legal Dictionaries,Debates in the Legislature,Judicial Construction etc.
1) It summarizes the key principles of statutory interpretation discussed in the document, including the presumption of constitutionality, reading down provisions, and competing theories regarding presumption in criminal law.
2) It discusses a Supreme Court case that declined to "read into" the constitution to prohibit the appointment of ministers facing criminal charges, relying on express constitutional provisions instead.
3) It analyzes another case that declined to read down provisions of the Juvenile Justice Act regarding the definition of a juvenile, finding the meaning was plain and unambiguous.
Casus omissus, interpretation of statutespoonamraj2010
The document discusses the legal concept of "casus omissus" which refers to a situation not provided for in the language of a statute. It notes that courts cannot supply omissions or legislate, they can only interpret the law. It provides examples from case law where courts have both refused to supply omissions due to clear legislative intent, and in other cases have supplied omitted words to avoid making a statute null. The document outlines principles from cases related to supplying omissions and harmonious construction of statutes.
This document discusses the need for and various rules of interpretation when interpreting taxing statutes. It notes that while tax practitioners are not lawyers, they essentially practice law when interpreting tax statutes. The rules of interpretation help the judiciary determine legislative intent when a statute's meaning is unclear.
Some key rules discussed include the literal rule of interpreting the plain meaning of words used, harmonious construction of reading provisions together, beneficial construction resolving doubts in favor of taxpayers, and the use of external aids like legislative history to help understand purpose and context. Exceptions to rules like the literal rule are mentioned. Interpretation of specific types of provisions like charging, penal and relief provisions are also covered.
This document provides an overview and summary of key principles for interpreting statutes. It begins with an introduction to statutory interpretation and discusses literal and logical interpretation approaches. It then covers various internal aids to interpretation like context, title, preamble, headings, and definitions. Exceptions to literal interpretation like ambiguity and absurdity are also noted. The document aims to enable law students' understanding of interpreting statutes.
This document discusses the various aids and principles of statutory construction that courts use to interpret statutes and ascertain legislative intent when the meaning is ambiguous. It outlines intrinsic aids found within the text itself, like the title, preamble, and context, as well as extrinsic aids from outside sources. It also discusses canons of construction regarding the consequences of various interpretations and legislative history.
Statutory Interpretation - approaches and rules appliedRonit Himatlal
The document discusses four approaches to statutory interpretation used by judges:
1) The literal approach interprets words based on their plain meaning using rules like the literal rule, golden rule, and mischief rule.
2) The purposive approach looks at the overall purpose of Parliament to interpret ambiguous words.
3) Cases like Smith v Hughes and Jones v Tower Boot Co. illustrate judges using the mischief rule and purposive approach to interpret statutes broadly to address the problems Parliament intended to fix.
4) The trend is for courts to increasingly use the purposive approach influenced by European law, but the literal approach remains more common in English courts.
This document contains the Summary of Lecture Notes (of Jurisprudence) on Unit 01 (Jurisprudence as a Science).
Topics: Etymology, Meaning, Definition, Classification, Scope and Utility of Jurisprudence and its Relation with other Social Science...It also contains a rich portion of exercises including Question both Subjective (Textual and MCQs) and Conceptual
Interpretation of law - Legal Environment of business - Business Law - Manu M...manumelwin
The process by which the courts of law try to ascertain or understand the meaning of the legislation through the wording of enactment is technically called interpretation. The aim of interpretation of a statute is to find out the legislative intention.
This document provides an overview of law and the legal system in Trinidad and Tobago. It discusses what law is, the main sources of law including the constitution, legislation, case law, and international law. It also describes the different types of laws, such as public law, private law, civil law, and criminal law. The document examines key legal concepts like statutory interpretation, the separation of powers, and the rule of law.
This document discusses principles of statutory interpretation in UK law, including the literal rule, golden rule, mischief rule, and harmonious construction. It provides definitions and examples of each rule.
The literal rule requires judges to rely solely on the exact wording of the statute without interpreting meaning. The golden rule allows modifying the literal meaning to avoid absurd outcomes. The mischief rule examines the common law and intent of the statute to rectify problems. Harmonious construction seeks an interpretation that avoids conflicts between statutes.
While the literal rule promotes certainty, it can lead to injustice. The golden rule and mischief rule give judges more discretion but risk imposing their own views. Overall, the rules aim to balance upholding the legislature
The rule of harmonious construction provides that when two or more statutes or parts of a statute conflict, they should be interpreted in a way that harmonizes them and gives effect to both. The interpretation that avoids inconsistencies or repugnancy between provisions and makes the statute consistent as a whole should be adopted. If provisions cannot be completely reconciled, they must be interpreted to give effect to both as much as possible without reducing any provision to useless or dead letter. The rule aims to avoid head-on clashes and inconsistencies between different parts of a statute.
The document discusses key concepts related to statutory interpretation in English law. It explains that courts are bound to interpret statutes according to legislative intent gleaned from the actual words used. It also outlines different types of statutes and rules regarding how they are numbered, cited, enacted, repealed and consolidated into other statutes.
This document discusses the interpretation of legislation and statutes. It provides an overview of different approaches to statutory interpretation such as textualism, legislative intent, and contemporary values. It also discusses the "golden rule" of statutory interpretation, which states that the ordinary meaning of words should be applied unless it produces absurdity or goes against legislative intent. The document provides examples from case law that further explain and apply the golden rule.
The document discusses the differences between mandatory and directory provisions in statutes. Mandatory provisions must be strictly followed and non-performance can result in sanctions, while directory provisions are discretionary and non-performance does not result in sanctions. Whether a provision is mandatory or directory depends on the language used and legislative intent gathered from the context and purpose. Key factors include whether a time limit is specified, if public or private duties are involved, and if the consequences of non-compliance undermine the statute's objectives. There are no absolute rules and each case must be evaluated based on its specific circumstances.
This document discusses statutory interpretation and aids to interpretation. It begins by outlining the objectives and providing examples of types of statutory interpretation rules. It then discusses internal aids to interpretation, including examining the statute, long title, preamble, headings, schedules, explanatory notes, and presumptions. It also discusses rules of language used in interpretation like ejusden generis. External aids discussed include dictionaries, law commission reports, historical setting, treaties, and Hansard. The effect of the Human Rights Act 1998 and precedent on statutory interpretation is also examined. Students are then asked to think about teaching this topic, including activities, checks for understanding, and starter/plenary ideas. The next period's task is to complete a worksheet using textbooks
Judge Richard Posner published three papers in 1980, 1987, and 1993 analyzing the state of legal scholarship in US law schools. In the 1980 paper, he described three types of legal scholarship: doctrinal analysis, positive analysis, and normative analysis. Doctrinal analysis involves careful examination of case law, while positive analysis seeks to understand what the law is and normative analysis proposes what the law should be. In subsequent papers, Posner observed the decline of doctrinal analysis and rise of interdisciplinary scholarship applying fields like economics to the law. He argued supplemental external perspectives were needed but that different approaches to scholarship can coexist through mutual respect.
Judge Richard Posner's book "How Judges Think" analyzes the thought processes of judges and seeks to understand judicial behavior. The book is divided into three parts, with the first examining the basic model of judging, the second elaborating on this model, and the third analyzing theories of law that justify judicial decisions. Posner argues that pretending the judicial function is simply dealing with cases is naïve, as judges also occasionally serve legislative functions by developing law. The book explores various theories of judicial behavior and constitutional interpretation, seeking to understand differences in how judges, justices, and legal academics approach the law.
Judge Richard Posner addresses pragmatic adjudication, how it differs from pragmatism philosophy, and whether appellate courts should adopt a pragmatic orientation. Pragmatic adjudication focuses on whether approaches work in practice and help judges anticipate consequences, rather than strictly adhering to past approaches. It acknowledges gaps in laws that require judges to consider context and consequences. Pragmatists are more tolerant of filling gaps and improvising without strict rules. While legalists focus only on the text of laws, pragmatists interpret texts within relevant contexts. The complex structure of the US legal system, including judicial review, means American judges must be more pragmatic than those in systems like the UK that follow strict rules.
The document summarizes Richard Posner's 1986 paper on the relationship between law and literature. Posner argues that while literary criticism techniques can be useful for legal interpretation, there are also important differences. Specifically, judges wield governmental power, so they have less freedom of interpretation and must be constrained by legal texts, unlike literary critics. Additionally, statutes are often incomplete and delegate lawmaking powers, so judge-made law and accommodation of changing needs play a role. Finally, Posner analyzes how rhetorical techniques are important in creating authoritative judicial opinions, using Holmes' Lochner dissent as an example.
Judge Posner delivered a keynote address discussing the role of judges in the 21st century. He outlined three main challenges: 1) keeping up with increasing scientific knowledge, 2) dealing with huge caseloads in federal courts, and 3) the future functions of artificial intelligence in adjudication. Posner argued judges should be more pragmatic than formalistic. He also discussed differences between how US and European judges operate, and said political preferences alone do not fully explain judicial decisions due to various contextual factors judges must consider.
Judge Posner outlines eight key contributions of legal pragmatism. Pragmatism supports a marketplace of ideas approach to free speech issues. It focuses on practical consequences rather than abstract concepts like intent. Pragmatism balances legalism with a focus on using law to further social welfare. It distinguishes literary from legal interpretation, requiring judges consider consequences. Pragmatism gives judges a sense of instrumentalism to balance stability and change. It relates law and economics without scientific foundations. Pragmatism emphasizes rhetoric and persuasion in legal discourse. The goal is not final answers but contingent approaches to address legal problems.
This document discusses various aspects of statutory interpretation including:
1. It outlines different rules of interpretation used by courts such as the literal rule of interpretation and canons of construction.
2. It examines theories of statutory interpretation like purposivism and textualism.
3. It analyzes criticisms of the literal rule of interpretation and the advantages and disadvantages of different interpretive theories.
Judge Posner defines the jurisprudence of skepticism and explores its main forms and implications for legal theory and practice. He argues that many legal problems cannot be solved through traditional legal reasoning alone and require importing perspectives from other domains. This gives rise to an "epistemological skepticism" about law's determinacy. Posner also examines different forms of legal reasoning like formalism and their limitations. Ultimately, he concludes that neither pure nor practical reason can provide law with certainty. This means judges must adopt a modest, moderate approach grounded in pragmatism when resolving complex cases with indeterminate outcomes.
The document discusses the nature, function, and classification of law. It defines law and distinguishes it from morality and justice. Several schools of thought on defining law are examined, including natural law, legal positivism, and Marxist theory. The functions of law in society are also outlined. Laws are classified as public or private, substantive or procedural, and international law is discussed.
The document discusses 9 theories of judicial behavior described by Judge Richard Posner: attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalistic. It explains that each theory provides some insights but no single theory can fully explain judicial decision-making. The document also examines differences between how judges think and behave, and notes theories should account for unconscious factors influencing both.
This document discusses statutory interpretation in the United States, including the major theories of purposivism and textualism. It outlines the goals of statutory interpretation throughout history, from natural law to legal realism. While purposivists prioritize interpretations that advance a statute's purpose and textualists focus on the text, both theories can encounter difficulties when applied to unanticipated situations. Judges use similar tools like ordinary meaning, statutory context, canons of construction, legislative history, and statutory implementation, but their theory may influence how they apply these tools.
Judge Posner provides a concise primer on the interpretation of legislation. He discusses Aristotle's view of "imaginative reconstruction" as the method of interpreting statutes in a way that achieves justice rather than literal meaning. Posner also explains how the separation of powers model in the US constitution, which aims to prevent any branch from becoming dominant, influenced the role of courts in interpreting statutes. Finally, he presents his model of the legislative process, which assumes rational behavior from political actors, and differentiates between direct and representative democracies.
1. The document discusses Kenji Yoshino's 1994 paper that applies Harold Bloom's theory of poetic influence ("the anxiety of influence") to analyze the Supreme Court case Planned Parenthood v. Casey in light of the precedent case Roe v. Wade.
2. Yoshino analyzes how the Casey decision, like poems that aim to surpass strong precursors, struggled unsuccessfully to improve upon Roe in the same way literary texts struggle with influential precursors like Shakespeare.
3. The document provides context on the law and literature movement in American law schools and efforts to apply Bloomian poetics to understand rhetorical construction in judicial opinions and the doctrine of precedents.
This document summarizes Roscoe Pound's 1941 essay on the legal doctrine of stare decisis. Some key points:
1. Stare decisis explains how cases are decided in common law based on precedence. It provides continuity and defends against political/judicial absolutism by allowing some change over time.
2. Strict rules alone cannot capture stare decisis - it requires seasoned judicial minds to determine family resemblances between cases. Precedents have a persuasive rather than binding function.
3. Both law and economics involve balancing rules with discretion. A reductive, rules-only approach does not work given the need to address unforeseen issues. Precedents and monetary interventions cannot be reduced
This document provides definitions and explanations of jurisprudence from various legal theorists and jurists. It discusses the evolving and contested nature of defining jurisprudence. Some key points made include:
- Jurisprudence cannot be defined with exactitude as it is a broad and elusive concept.
- Jurists and theorists have defined jurisprudence in various ways to include the philosophy of law, knowledge of law, examination of fundamental legal concepts and principles, and the study of law in relation to other disciplines.
- The scope of jurisprudence includes analyzing fundamental legal concepts like rights, ownership, and intent, as well as investigating theories of law and its relationship to society, politics, economics and other fields.
This document provides an introduction to the subject of jurisprudence. It defines jurisprudence as the study of general theoretical questions about the nature of law and legal systems. It discusses what jurisprudence is, who should study it, and why it is important to study. Specifically, it notes that jurisprudence involves examining questions about the relationship between law, morality, and justice. Studying jurisprudence helps students better understand law, its underlying ideas and impacts. The document also outlines different philosophical perspectives in jurisprudence like naturalism and positivism. It emphasizes that jurisprudence considers abstract and theoretical legal questions in various contexts.
15INTRODUCTION TO AMERICAN LEGAL SYSTEMINTRODUCTION.docxdrennanmicah
The document provides an introduction to the American legal system. It discusses that there are two basic court systems: federal and state. Each has its own set of laws and courts. When advising a client, a lawyer must determine which system's laws apply. The three primary sources of law are the constitution, statutes, and common law. Statutes are enacted by legislatures while common law develops from judicial decisions. The branches of government work together, with courts interpreting statutes and constitutional provisions. Prior court decisions (precedent) guide judicial interpretation through the principle of stare decisis. The document uses hypothetical scenarios on a fictional island to illustrate issues around defining law and interpreting statutes.
This document discusses the nature, scope, and utility of jurisprudence. It defines jurisprudence as the scientific study of fundamental legal principles. Jurisprudence shapes the legal understanding of law students and helps them develop their own opinions about laws. It connects law to various aspects of society and improves legal interpretation. Studying jurisprudence provides lawyers with a broader perspective, reveals the true intentions of laws, and helps improve legal systems over time. It is an interdisciplinary field related to subjects like ethics, psychology, history, sociology, and economics.
Sigmund Freud's theory of conflict posits that mental illnesses like neuroses are caused by irreconcilable internal conflicts between parts of the psyche, like the id, ego, and superego. A psychoanalytic treatment aims to help patients become aware of these underlying conflicts by analyzing their symptoms and how the conflicts are expressed and repeated in the transference relationship with their analyst. Identifying and working through these psychic conflicts in treatment can help resolve patients' neuroses by allowing them to metabolize and integrate the repressed traumatic experiences and libidinal desires that were at the root of their symptoms.
Shiva Kumar Srinivasan has a PhD in English Literature and Psychoanalysis from the University of Wales at Cardiff.
These clinical notes describe the differences between the 'desire of the subject' and the 'desire of the symbolic Other' in Lacanian psychoanalysis by inverting the conventional subject-object distinction within a theory of the subject.
The theoretical goal here is to identify the forms of libidinal excess that are generated in the act of speech in analysis; and then relate this excess to a theory of stability.
Such an exercise should be of interest to central bankers like Mark Carney of the Bank of England who must not only work out a theory of stability; but must also ponder on the ontological differences between stability at the levels of the individual, the institution, and the macro-economy as a whole.
These ontological differences matter, I argue, lest central bankers forget the importance of the 'fallacy of composition' in economic theory. This fallacy cautions us to avoid the conflation of micro-economic phenomena with macro-economic aggregates while doing economic theory.
These notes also draw a compelling analogy between the forms of libidinal regulation that characterizes clinical interventions in Lacanian psychoanalysis with the role played by counter-cyclical policies in monetary theory and practice in the attempt to regulate interest rates by central bankers.
The burden of the argument here is to show that while the stabilization of systemically important stakeholders in necessary, it is not sufficient. What is required are regulatory mechanisms that will serve a protective function (even if stakeholders act out their conflicts in the symbolic) like circuit breakers that regulate trading in stock exchanges.
These notes conclude by describing psychic mechanisms like 'alienation, separation, and traversing the phantasy' that constitute not only the Lacanian theory of the subject, but also the clinical trajectory that represents the end of analysis.
These notes should be useful not only to clinicians but also to those interested in formulating a theory of stability that is informed by the ideological concerns and clinical themes of Lacanian psychoanalysis.
Needless to say, these notes on the need for a psychoanalytic approach to stability are dedicated - for what they are worth - to Gov. Mark Carney of the Bank of England.
This document discusses the concepts of transference and countertransference in psychoanalysis and their relevance to relationships in the financial system. It argues that transference, where feelings from the past are transferred to present relationships, naturally occurs any time there are asymmetries in power, information, or knowledge. Central bankers must manage the transferences from stakeholders to remain stable, just as analysts must handle countertransferences from patients. Understanding these clinical dynamics can help central bankers and other leaders navigate affective relationships and maintain stability in the financial system.
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales at Cardiff.
These clinical notes summarize the main points raised by the Lacanian analyst Robert Samuels on the question of analytic technique.
These clinical notes should make it possible for both beginners and clinicians to relate Freudian concepts with Lacanian terms like the real, the imaginary, and the symbolic more effectively.
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales at Cardiff.
This review sets out the importance of a special issue of Umbr(a) #1, 1998, on 'Identity and Identification' from the Center for Psychoanalysis and Culture at SUNY, Buffalo for students of law, management, and business.
It explains how a Lacanian theory of the subject can make it possible to manage in a 'psychoanalytically informed manner' by making a case for incorporating the insights of Lacanian psychoanalysis in the mainstream professions.
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales at Cardiff.
This review essay on Sigmund Freud's 'Group Psychology and the Analysis of the Ego' describes how an understanding of psychoanalysis can further the reader's ability to situate and intervene in the context of group dynamics.
It lists the differences between individual and group psychology before describing the dangers of crowds and the contagion effect before setting out the structure and forms of identification between members in groups.
The main argument in the essay is that groups should guard against regression to more primitive forms of organizational life that Freud characterized as crowds and herds that are subject to the contagion effect.
In instances of such regression, groups will be able to repair themselves more effectively if they are psychoanalytically informed.
That is why this review essay on Freudian psychoanalysis is aimed at not only analysts but to an audience of bankers, economists, and social scientists.
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales at Cardiff (1996).
This book review explores the relationship between psychoanalysis and history.
It makes a case for why historians should be interested in psychoanalysis; and explains why the quest for freedom as an existential or historical state is mediated by negation in the Freudian theory of subjectivity.
This review should be of interest to historians, psychoanalysts, and students of the human sciences.
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales at Cardiff.
This book review describes the theoretical challenges involved in incorporating the Lacanian model of the subject within mainstream American ego psychology (given the huge amount of philosophical knowledge that Lacan assumes in his readers).
It will be of use to clinicians, literary critics, and philosophers who want to engage with Lacanian theory and practice.
This paper analyzes what Sigmund Freud was trying to do both as an an analyst and as a writer in his autobiography of 1925. It describes Freud's compositional ratio, fantasies in writing about psychoanalysis, early life, the Freudian clinic, the Freudian subject, and concludes that reading Freud is still the best way to learn psychoanalysis.
Shiva Kumar Srinivasan has a Ph.D. in literature and psychoanalysis from the University of Wales at Cardiff, UK (1996).
Shiva Kumar Srinivasan has a Ph.D. in English Literature and Psychoanalysis from the University of Wales, Cardiff (1996).
His thesis was titled 'Oedipus Redux: D.H. Lawrence in the Freudian Field.'
These clinical notes should be of use to both theorists and practitioners of psychoanalysis in the tradition of Sigmund Freud and Jacques Lacan.
Shiva Kumar Srinivasan has a Ph.D. from the University of Wales at Cardiff in English Literature and Lacanian Psychoanalysis (1996). His Ph.D. thesis was titled ‘Oedipus Redux: D. H. Lawrence in the Freudian Field.’
This series of 'clinical study notes' summarize the main points raised in important psychoanalytic texts.
They should be of use to students, theorists, and lay practitioners of psychoanalysis who are preparing to read or re-read the psychoanalytic literature associated mainly (though not only) with the theories of Sigmund Freud and Jacques Lacan.
These clinical notes describe the main points raised by Jacques-Alain Miller of the University of Paris VIII in the first Paris/Chicago psychoanalytic workshop on the analytic cure on July 25, 1986.
Miller starts by addressing common misconceptions about Lacanian theory and practice before explaining the structure, the techniques, and the forms of interpretation that constitute the analytic clinic.
Miller concludes by explaining why the definition of the analytic cure is not reducible to the biological model of adaptation or the invocation of borderline categories. The most important challenge of psychoanalysis will always be to explain hysteria.
Shiva Kumar Srinivasan has a Ph.D. from the University of Wales at Cardiff in English Literature and Lacanian Psychoanalysis (1996). His Ph.D. thesis was titled ‘Oedipus Redux: D. H. Lawrence in the Freudian Field.’ These clinical study notes summarize the main points raised in important psychoanalytic texts. They should be of use to students, theorists, and lay practitioners of psychoanalysis who are preparing to read or re-read the psychoanalytic literature associated mainly (though not only) with the theories of Sigmund Freud and Jacques Lacan.
These clinical notes summarize the main arguments in Jacques-Alain Miller's Paris-New York Workshop of 1988 titled 'A and a in Clinical Structures.'
Shiva Kumar Srinivasan has a Ph.D. from the University of Wales at Cardiff in English Literature and Lacanian Psychoanalysis (1996). His Ph.D. thesis was titled ‘Oedipus Redux: D. H. Lawrence in the Freudian Field.’ These clinical study notes summarize the main points raised in important psychoanalytic texts. They should be of use to students, theorists, and lay practitioners of psychoanalysis who are preparing to read or re-read the psychoanalytic literature associated mainly (though not only) with the theories of Sigmund Freud and Jacques Lacan.
Michel de Certeau's paper discusses Lacan's "ethics of speech" by analyzing Lacan's use of the term "speech" and its development in his work. For Lacan, speech refers to how the unconscious is structured like a language and can only be accessed through the patient's free association during psychoanalysis. De Certeau analyzes how Lacan situated his notion of speech in relation to linguistics, anthropology, theology, and philosophy. He also discusses how Lacan emphasized the "poetics" of Freud's work and saw psychoanalysis as interpreting what the patient says through speech, linking it to dreams, creativity, and the unconscious. Finally, De Certeau analyzes how Lacan
1. Jacques Lacan argued that narcissism is fundamental to the human psyche and that appeals to rationality and morality will not ensure that people will do the right thing. He was critical of ego psychology's focus on the ego rather than the unconscious.
2. For Lacan, the ego is a symptom, not the seat of reason. It is inherently deceptive and the source of resistance in analysis. The unconscious emerges from the gap between perception and consciousness.
3. Lacan's theory of narcissism is based on the ego having an erotic charge and the shifting of libido between the ego and objects. The anticipatory nature of the Lacanian subject arises from the mirror phase of development.
1) The document discusses the application of Jacques Lacan's psychoanalytic theories to literary criticism, specifically his idea that "the unconscious is structured like a language."
2) It summarizes four papers that incorporate Lacan's insights about the linguistic structure of the unconscious into their critical methodologies.
3) A key point is that Lacan's conceptualization of the unconscious as structured by differential language systems allows literary texts to be analyzed and basic categories of criticism to be rethought.
This document summarizes an essay by Stanley Leavy on integrating Jacques Lacan's psychoanalytic theory into clinical practice in American clinics. It discusses how Lacanian theory emphasizes that the ego is subject to imaginary distortions and the unconscious is structured like language. The document also notes that Lacanian analysis focuses on the specific words patients use rather than analytic themes or categories. It concludes that the goal of interpretation in Lacanian psychoanalysis is disclosure rather than closure by resonating with the patient's unconscious through brief but meaningful punctuations of their speech.
The document summarizes Lionel Trilling's 1945 essay on the relationship between art and neurosis. Trilling argues that while neurosis may be a source of creativity for some artists, it does not fully explain or reduce a work of art. A work of art emerges from multiple layers of the creative psyche and must be understood aesthetically as well as psychologically. While suffering can inspire art, neurosis is not uniquely linked to artists but is present across professions. Art allows sublimation of neuroses into creative works, but psychoanalysis should not reductively attribute art only to underlying psychopathology.
- The document discusses Donald Winnicott's view of the mirroring function of mothers and families in child development. It was influenced by Jacques Lacan's concept of the "mirror stage".
- Lacan believed that between 6-18 months, infants experience a sense of wholeness and unity upon seeing their reflection in a mirror, though it also produces alienation since the reflection is not fully controllable by the infant. This "mirror stage" establishes the Imaginary order of cognition.
- Winnicott expanded this concept by arguing that the first "mirror" for infants is not a physical mirror but the mother's face. Through her mirroring expressions and behaviors, the mother helps the infant develop a sense of
This document briefly explains the June compliance calendar 2024 with income tax returns, PF, ESI, and important due dates, forms to be filled out, periods, and who should file them?.
Sangyun Lee, 'Why Korea's Merger Control Occasionally Fails: A Public Choice ...Sangyun Lee
Presentation slides for a session held on June 4, 2024, at Kyoto University. This presentation is based on the presenter’s recent paper, coauthored with Hwang Lee, Professor, Korea University, with the same title, published in the Journal of Business Administration & Law, Volume 34, No. 2 (April 2024). The paper, written in Korean, is available at <https://shorturl.at/GCWcI>.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
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The legal profession, which has historically been male-dominated, has experienced a significant increase in the number of women entering the field over the past few decades. Despite this progress, women lawyers continue to encounter various challenges as they strive for top positions.
Genocide in International Criminal Law.pptxMasoudZamani13
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against which they can evaluate those classes of AI applications that are probably the most relevant for them.
1. 1
LEGAL THEORY
ON STATUTORY INTERPRETATION
Richard A. Posner (1983). ‘Statutory Interpretation in the Classroom and the
Courtroom,’ University of Chicago Law Review, Vol. 50, pp. 800-822.
INTRODUCTION
What does it mean to interpret statutes?
While it is common enough to hear law school students talk about interpreting the
constitution, there is not enough attention paid to interpreting statutes. Furthermore,
as Judge Richard A. Posner of the Court of Appeals, Seventh Circuit, Chicago and
Senior Lecturer in Law at the University of Chicago points out, most law schools
have not been able to teach courses on either statutory interpretation or on the
theory and practice of legislation. What this means is that when lawyers are asked to
draft legislation or interpret statutes they have difficulty in doing so. The purpose
behind Judge Posner’s intervention in this paper that he published in 1983 is to
clarify what is at stake in being able to interpret statutes and how law schools can
prepare students to be more effective in this area of legal expertise. Judge Posner
would like law school faculty to study statutory legislation and interpretation with
more diligence than has been the case so far. James Landis, for instance, pointed out
as early as 1934 that there is no jurist who has done for legislation what Justice
Oliver Wendell Holmes Jr. was able to do for the ‘common law.’ What Justice
Holmes did was not just to explain the significance of the common law to American
lawyers and law professors, but to put it firmly on the research agenda of law
schools in the United States. That is what Judge Posner feels is the need of the hour
for theories of legislation and statutory interpretation. While legal historians do
delve into this topic, they have not been able to explicate the dynamics of legislation
2. 2
and statutory interpretation as functional areas in the law school curriculum. They
have at best been able to provide the historical background or a theoretical
perspective on legislative history and the role that it plays in statutory interpretation;
hence the need for Judge Posner’s intervention.
COURSES ON LEGISLATIVE SKILLS
What is really required though are the skills of interpretation that go into drafting,
studying, and interpreting statutes amongst those who teach or practice law. Judge
Posner’s intervention is an attempt to make this possible by sharing his experiences
as a judge with members of the legal academy and the legal community. Judge
Posner’s argument is not that no work has been done in this area; he is aware that
academic lawyers can wield enormous expertise in the study of specific pieces of
statutory legislation. But what is missing is a general theory of legislation, the
legislative function, and statutory interpretation. What Judge Posner has in mind is
akin to the difference between case law and the common law. Both academic and
practicing lawyers will know a lot about the case law in a given area of expertise in
which they might have specialized without reflecting on how that relates to the
common law as such. Likewise, lawyers pick up expertise on specific statutes
without reflecting on how that relates to the case law generated by the statute or
how that in turn relates to the common law. That is why Judge Posner is at pains to
point out that ‘no one has ever done for legislation what Holmes did for the common
law.’ Economists have broached the theory of legislation using ‘interest-group
theory,’ but the scope of such work is limited. The existing case books and textbooks
on legislation do not study the role played by interest groups even though they have
become increasingly important. Those who edit these books do not ‘conceive of
legislation as a distinct subject’ at all. While a few law schools like the University of
Chicago’s School of Law offer courses on legislation, these are few and far between.
Judge Posner therefore explains what a course on legislation in a leading law school
should look like and what it must accomplish. The objectives of such a course should
include the following. It should include both the process of legislation and the
3. 3
empirical study of specific instances of legislation. Furthermore, it should teach
students the techniques necessary for researching the history of legislation.
INTERPRETING STATUTES & JUDICIAL OPINIONS
After making a case for a course on legislation and statutory interpretation, Judge
Posner goes on to consider the existing canons of statutory interpretation. He does
this because he finds that the existing canons are not adequate to the task of
statutory interpretation in the federal judiciary. After doing this, Judge Posner sets
out his own model which he terms ‘imaginative reconstruction.’ Before explaining
what this approach involves, let me share with readers what the existing canons of
statutory interpretation are and what exactly Judge Posner finds is wrong with them.
Judge Posner begin his critique by pointing out that there is a huge gap between
scholarly and practical approaches to statutory interpretation. While the study of
judicial opinions has been affected by the critique of legal formalism - that is not
necessarily the case in the context of statutes where the assumptions are as
mechanistic as before. Judge Posner also points out that the critique of judicial
opinions by law faculty led to a change in how these opinions are actually written by
members of the federal judiciary. That has however not happened in the case of
statutory legislation; it has not really been affected by developments in legal theory
or what law school faculty have to say about it.
STUDYING LEGISLATION IN LAW SCHOOLS
The whole point though for Judge Posner is that law school faculty do not have
much to say about legislation and the statutory function at all. In fact, that is what he
seeks to remedy in his paper. Those interested in statutory interpretation are more
likely to be scholars working in the area of law and literature who are wondering
what the differences are between literary interpretation and statutory interpretation
and whether models of literary interpretation are relevant in the context of statutory
interpretation given the differences between literary and non-literary approaches to
interpretation. The reasons for this should be obvious. Literary approaches to
interpretation involving stylistic analysis are relevant to studying judicial opinions.
The question is whether that approach will yield insights in the case of statutes or
4. 4
not given that statutes are not written by a single lawyer but by a committee of
lawyers. This difference in how statutes are drafted problematizes the traditional
questions of intent, structure, and function in interpretation. Literary texts, needless
to say, are not written by a committee but by a single mind. What this means is that
the ‘organic’ presuppositions of literary interpretation do not apply directly for
legislative texts. Furthermore, interpreters cannot presuppose any direct relationship
between the author and the text or seek recourse to historical information as a way
of filling in the gaps. That is probably why most of the canons of statutory
interpretation are wrong and need to be revised to reflect the reality of what really
goes into putting together a statute. Furthermore, as Karl Llewellyn has pointed out,
many of the canons of statutory interpretation contradict each other making
statutory interpretation even more difficult for judges.
CANONS OF STATUTORY INTERPRETATION
In order to interpret statues, the judge has to choose between the contradictory
canons to determine which approach to statutory interpretation would be
appropriate in any given case. Judge Posner then goes on to explain what he means
by saying that a statutory canon could be wrong from a functional point of view.
These canons might, for instance, expect judges to interpret their provisions and
sections by using ‘plain language,’ deploy their ‘common sense,’ or simply use
statutes as ‘flexible guideposts’ when they adjudicate. But it is not always clear what
these things mean in practice because two different judges can come up with two
different interpretations even though they may have the same above mentioned
canons in mind. In any case, the function of such canons is to constrain judges when
they interpret statutes. They also limit the power of the courts when compared to the
legislature. The main analytic distinction in statutory interpretation is the difference
between seeking a broad or a narrow interpretation. Furthermore, it is important to
know when to seek a ‘broad’ and when to seek a ‘narrow’ interpretation of a statute.
These methodological factors introduce uncertainty into acts of statutory
interpretation. There is no neutral method within statutory interpretation itself that
will tell the judge what to do though broadly speaking strict constructionists are
5. 5
thought to be conservative and loose constructionists are thought to be liberal.
Sometimes statutes themselves give an indication of whether what is required is a
broad or a narrow interpretation. This could be an indication of the legislature’s
intent on how the judges should interpret the statutes. Not all statutes will give this
form of methodological indication but corrective statutes do so because the
legislature may not have been happy with how a previous statute was interpreted by
the judiciary.
INSTANCES OF STATUTORY CANONS
Judge Posner examines a number of specific canons of statutory interpretation.
While there is not enough space to list all of them here, I will use a representative
sample to give the reader a feel for what is at stake in statutory interpretation. The
first of these statutory canons is the ‘plain meaning’ rule. This simply means that
judges should go by the plain meaning of the words in the statute. It may seem to be
the obvious thing to do but that is not necessarily the case. As Judge Posner points
out, judges are not really affected by the plain meaning because they are
preoccupied with reading the actual words in the statute. The briefs submitted by
the lawyers in the case may not even quote from the concerned section of the statute
at all. Most readers will be taken aback at this point, but this gap between our
theoretical expectations and the realities of practice is what makes it worth our while
to read Judge Posner carefully. There is much greater focus on case law than the
concerned section of the statute. Alternatively, the judge looks at the context of the
statute when the case law is not huge. The context can be determined by the name or
the title of the U.S. Code in which the statute is featured. In the case of ‘remedial’
statutes, it could turn out that there was a ‘compromise’ between legislators who
had conflicting objectives while drafting the statute. This makes it difficult to
construe the statute broadly in the attempt to formulate a remedy since that will
violate the legislative compromise. It also fails to take into account the role played by
interest groups in drafting the statute. There are also instances of ‘post-enactment
legislature materials’ that seek to guide the interpretation of the statute. What should
judges do with these materials? Should these materials be factored in or not? The
6. 6
basic problem is factoring them is that they reflect the preferences of the current
legislature and not the legislature that enacted the statute. Which of these should
have priority? Those who enact the statute? Or those who are subsequently in
power? Which of these legislatures should have the final say? Who is to decide?
LEGISLATIVE INTENT IN STATUTORY INTERPRETATION
Judge Posner argues that the legislature which enacts a statute should take priority
otherwise it might be tantamount to repealing a statute that has not been formally
repealed through the use of post-enactment materials. There are however exceptions
to this rule. Post-enactment materials are acceptable if they have been put together to
make it easier for the judiciary or if a legislative committee is trying to monitor the
‘administration of a statute.’ There might also be a ‘subsequently enacted statute’
that will have to be taken seriously, but this should not be conflated with a mere
committee report since that will not have the same value as a formal repeal of the
statute. Judge Posner also considers whether the interpretation associated with a
particular administrative agency that enforces a statute should be accorded ‘great
weight’ by a judge. They should only be accorded great weight if the interpretation
of the administrative agency has ‘persisted through several changes in the
administration’ rather than if they merely reflect the current preferences of the
legislature. It is not necessarily the case that administrative agencies are fully
acquainted with or even interested in the ‘original intent’ of the legislature. The main
reason that the canons of statutory interpretation go wrong is that they attribute
‘omniscience’ to the legislature which enacts a statute. It is important to remember
that most statutes are poorly drafted, ambiguous in construction and not really clear
about legislative intent because they are subject to a compromise between the
conflicting objectives of different groups of legislators. Statutes could also be
incomplete embodying gaps or inconsistencies in the law. That is why it is incorrect
to think that every word in a statute is important; statutes are not ‘organic’ texts like
poems aspire to be; they are also subject to ‘redundancies’ which is less likely to be
the case in literary texts. These then are some – though by no means all – of the
7. 7
problems involved in deploying the canons of statutory interpretation that Judge
Posner sets out to analyse in his paper.
IMPROVING STATUTORY INTERPRETATION
What is that judges and courts can do to improve statutory interpretation? The
model of interpretation that Judge Posner has in mind is ‘imaginative
reconstruction.’ What he means by this is that a judge should think back to the actual
context of the enacting legislature and the mind of the legislators who constituted
the members of the committee that put the statute together. Of course, this is not
easy to do. Nonetheless, Judge Posner argues that this approach is better than the
existing canons of statutory interpretation. This approach will prompt judges to take
the historical context of the statute seriously. It will also prompt them to inquire into
the value systems and attitudes which prevailed when the statute was enacted.
Judge Posner however does not believe that it is the responsibility of the judiciary to
keep all statutes ‘up to date.’ In any case, there are too many statutes and too few
judges; so this cannot be done even if it were a good idea to do so. Instead, the
judges must try to ‘imagine as best he can how the legislators who enacted the
statute would have wanted it applied to situations that they did not foresee.’ As far
as this approach to statutory interpretation is concerned, the statute itself will state
whether a broad or a narrow interpretation is required. If a common law concept is a
part of the statute then the judge is justified in invoking the principles of the
common law in its interpretation. There are also instances when a statute is able to
specify specific requirements as a corrective measure to a previous statute. In such
cases, Judge Posner argues there is a need to interpret the statute broadly.
CONCLUSION
This approach of ‘imaginative reconstruction’ was prefigured by H. Hart and A.
Sacks; their model is known as ‘attribution of purpose.’ These jurists would like
judges to focus on the ‘public interest’ and not worry about special interests or the
legislative compromises that undo the integrity of a statute. Judge Posner however
advices caution because the courts can substitute their preferences or define what
they like as the same as the public interest. The reason that Hart and Sacks are
8. 8
upbeat about this approach and ask the courts to act in the public interest is because
they formulated their approach to legislation during the New Deal when the country
as a whole thought that legislation ought to be progressive in its orientation; that
however is not necessarily the case in all historical eras. Legislation and legislative
intent nowadays is not as benign as the New Deal era; it is therefore important for
judges to use their powers wisely and defer whenever possible to the legislature.
And, finally, Judge Posner considers the suggestions made by Guido Calabresi in his
book which relates the common law ‘to the age of statutes.’ Calabresi suggests that
the courts should ‘update’ statutes to the extent possible or creatively ‘misread’
statutes to make them applicable to the needs of the present. Judge Posner points out
that Calabresi is only making explicit what constitutes the secret thoughts of most
lawyers and judges. In Calabresi’s approach to statutory interpretation, judicial
amendments take the place of legislative amendments in the public interest since the
latter are more difficult to enact.
And, in conclusion, Judge Posner points out that strict constructionism cannot
preserve legislative intent in matters pertaining to social welfare. The main
difference then between loose constructionists and strict constructionists of statutory
interpretation is that ‘the former think that modern legislation does not go far
enough, the latter think that it goes too far.’
SHIVA KUMAR SRINIVASAN