Abstract
The subject of statutory interpretation is as old as written law, yet it is by no means fully understood. The subject is also one in which legal theory and legal practice intersect at many points. One branch of the subject takes the form of an inventory and analysis of the nature and limits of leading types of interpretive arguments. This is the branch we will explore now. But within that branch, we will concentrate on only one leading type of argument in the field, namely, the argument from ordinary meaning. This has for a long while been the leading type of interpretive argument in Britain,1 and there are recent signs in the United States, especially in the Supreme Court,2 that the argument from ordinary meaning is now coming more into favour.
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Notes
As Lord Blackburn put it, judges should give “the words their ordinary signification”: River Wear Commissioners v Adamson (1877) 2 App Cas 742. For a general account of interpretive practices in the United Kingdom, see MacCormick and Summers (eds), Interpreting Statutes — A Comparative Study (1991), Ch 10.
See e.g., John Doe Agency v John Doe Corp 110 S Ct 471, 476 ( 1989); Commissioner v Asphalt Products Co 482 US 117,120(1987); United States v Locke 471 US 84,93 (1985); Griffen v Oceanic Contractors Inc 458 US 564, 570 (1982). For a general account of interpretive practices in the US Supreme Court, see MacCormick and Summers (eds), Interpreting Statutes ’ A Comparative Study ( 1991 ) Ch 11.
See Ryle, The Concept of Mind (1949), p 49: “Excellence at surgery is not the same thing as knowledge of medical science.”
Some of these recommendations are referred to in the Report of the Law Commission and the Scottish Law Commission, The Interpretation of Statutes (HC 256, 1969).
See, for example, R v Registrar General, The Times, 18 November 1990 where Lord Justice Staughton wrote that a given interpretation “was consistent with the growing tendency, perhaps encouraged by Europe, towards a purposive construction of statutes, at all events if they did not deal with penal or revenue matters.”
See e.g., Kutscher, Methods of Interpretation as Seenbya Judge at the Court of Justice (1976), pp 39–41.
For what is probably the most influential American formulation of purposive argumentation, see Hart and Sacks, The Legal Process: Basic Problems in the Making and Application of Law (unpublished teaching materials, 1958), pp 1148–1158 and 1410–1417.
1 Comm 62.
We might also notice that the literal use does not necessarily in a linguistic sense entail a narrower usage.
1 Comm 61.
CfR v Logan and Others [1957] 2 QB 589.
There are countless examples of syntactical ambiguity in the reported cases — see generally, Bennion on Statute Law (3rd ed 1990), pp 258–259.
CfR v MacDonagh, The Times, 20 February 1974.
CfBrebner v British Coal, The Times, 23 July 1988.
CfR v Registrar General, The Times, 12 November 1990.
See generally MacCallum, Legislative Intent in Summers (ed), Essays in Legal Philosophy (1970), pp 254–260.
CfPitt v Locke (1960) 125 JP 93.
R v Rouse [1936] 4 DLR 797.
Customs and Excise Commissioners v Beecham Foods Ltd, The Times, 26 January 1972.
R v Stanley [1965] 2 QB 327.
Brutus v Cozens [1971] 2 All ER 1297.
R v MacDonough [1974] 2 All ER 257.
The Meaning of Literal Interpretation (1981) 131 New LJ1128, 1129.
DPP v Luft [1977] AC 962 (pamphlets urging “Don’t vote National Front”).
The Times, 27 April 1956.
See supra n. 4.
See e.g., supra n. 5.
See 503 HL Debs, cols 278 etseq (18 January 1989).
See e.g., Bell and Engle, Cross on Statutory Interpretation (2nd ed, 1987), p 95.
We are not unmindful that some skeptics would argue that, on the contrary, the argument from ordinary meaning is itself often deployed by judges to implement, yet hide, their own value preferences. Here we must distinguish two versions of the skeptical position. On one version, the language of the statute really does have the ordinary meanings that the court attributes to it. Here, presumably the value choices of the legislature are appropriately implemented in accord with the argument. The fact that values of the judges are also at the same time implemented, though “covertly” without the judges owning up to it, is irrelevant and can be disregarded, even though implementation of these values might well be the true motivation of the interpreting court. The other possible version of the alleged abuse is more troublesome. We are presumably to suppose that, on appropriate analysis, the argument from ordinary meaning is not really available because the conditions of its applicability are missing, or though these conditions are present, doubt remains which the argument from ordinary meaning does not sufficiently settle, yet the court invokes the argument to further its own value choice covertly, that is, without explicit acknowledgement ofthat choice. Several things should be said about this. First, it will often be difficult to know whether this is really what is going on because there will be little, if any, evidence that the court is in this way seeking to vindicate its own value choices as opposed to the presumed value choices of the legislature. Secondly, just how often this occurs and the proportion of instances in which it occurs are very difficult to assess. Materials for the appropriate empirical study are not really accessible. Thirdly, we may point out that the court’s unjustified invocation of the argument from ordinary meaning merely as a cover for its own value choices is, when this is publicly evident, subject to criticism by higher courts or by commentators (or both), criticism that will have some corrective effect generally, albeit not necessarily in the particular case.
For variants of this view, see Hart and Sacks, supra n. 7 at p 1157. See also Fuller, Positivism and Fidelity to Law — A Reply to Professor Hart (1958) 71 Harv. L. Rev 630, 663.
See Hart and Sacks, supra n. 7 at pp 1151–1157 and 1413–1417.
Rodrigues v United States 107 S Ct 1391, 1393 (1987).
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Summers, R.S., McRoberts, W.G., Goodhart, A.L. (2000). The Argument from Ordinary Meaning in Statutory Interpretation. In: Essays in Legal Theory. Law and Philosophy Library, vol 46. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9407-3_10
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