Public Law & Legal Theory Research Paper No. 19-40: Egal Nterpretation

Public Law & Legal Theory Research Paper No.
19-40
LEGAL INTERPRETATION
BY
MARK GREENBERG
PROFESSOR OF PHILOSOPHY
PROFESSOR OF LAW
This paper is a long version of my chapter on legal interpretation for the STANFORD ENCYCLOPEDIA OF PHILOSOPHY.
Electronic copy available at: https://ssrn.com/abstract=3470769

Legal Interpretation
Legal interpretation involves scrutinizing legal texts such as the texts of statutes, constitutions,
contracts, and wills. This chapter introduces the foundational question of what legal
interpretation, by its nature, seeks—and competing answers to that question. It goes on to canvas
leading substantive theories of legal interpretation and examines in greater depth a few
influential theories and difficulties they encounter. Finally, the chapter considers how theories of
legal interpretation should be defended and evaluated.
Table of Contents
1. Introduction
2. What Legal Interpretation Seeks
2.1 Linguistic Meaning
2.2 The Correct Resolution of Disputes
2.3 A Provision’s Contribution to the Content of the Law
3. Overview of Methods of Legal Interpretation
4. Theories of Legal Interpretation
4.1. Intentionalism and Purposivism
4.1.1 Types of Legislative Intentions
4.1.2 Problems with Legislative Intentions
4.1.3 The Relevance of Different Kinds of Legislative Intentions
4.1.4 Objectified Intentions and Purposivism
4.1.5 Linguistically Motivated Intentionalism
4.2 Textualism
5. How to Argue for and Evaluate Theories of Legal Interpretation
5.1 Theories of Legal Interpretation and Theories of Law
5.2 Ideal and Non-Ideal Theories of Legal Interpretation
Bibliography

Other Internet Resources
Related Entries
Acknowledgments
1. Introduction
Legal interpretation is familiar to lawyers, judges, and legal theorists. Public and private disputes
of tremendous importance turn on questions of how to interpret legal texts. Yet there is deep and
pervasive controversy over the proper theory or method of legal interpretation. Part of the reason
for such controversy is that, perhaps surprisingly, there is no consensus with respect to the more
fundamental issue of what legal interpretation is – in particular, what its constitutive aim is. Does
legal interpretation, for example, seek the linguistic meaning of legal texts, the best resolution of
disputes, or legal provisions’ contribution to the content of the law? Without progress on this
foundational issue, progress on understanding the proper method of legal interpretation cannot be
expected.
This chapter begins, in section 2, by canvassing different accounts of what legal interpretation is.
Section 3 sketches leading theories or methods of legal interpretation. Section 4 explores a few
of these methods, especially intentionalism and textualism (including original meaning
originalism), in much greater detail and examines difficulties they encounter. Several distinctions
are introduced that enable more precise analysis than the characterizations generally offered in
the literature. Section 5 turns to the question of how to defend and evaluate theories of legal
interpretation. It concludes with a brief discussion of the distinction between ideal and non-ideal
theories of legal interpretation.
The discussion is necessarily compressed, and references to further reading are provided. The
focus is on statutory and constitutional interpretation, though much of the discussion applies with
appropriate qualifications and modifications to the interpretation of administrative regulations
and private instruments such as contracts and wills. The interpretation of judicial decisions is a
topic best addressed separately. See entry on Precedent and Analogy in Legal Reasoning.
2. What Legal Interpretation Seeks

Lawyers and judges are familiar with various competing theories or methods of legal
interpretation and with arguments for and against those theories. (This chapter uses the terms
theory of legal interpretation and method of legal interpretation interchangeably.) Leading
theories include, for example, textualism, originalism, intentionalism, and purposivism. The

questions of which theory is correct, and of the different theories’ pros and cons, are important.
But there is a more fundamental question that is less often addressed: what is legal
interpretation? More specifically, what does legal interpretation, by its nature, seek? What is its
constitutive aim?
Many activities are defined or constituted in part by their aims. Medicine and cooking are
examples. Someone who examines people, prescribes medicines, and performs surgeries is not
practicing medicine unless these activities are undertaken for the appropriate purposes. Of
course, individual physicians may have many other purposes, such as earning money or
impressing people, but such ends are not what the practice of medicine, by its nature, seeks.
Legal interpretation starts from certain input, such as legal texts and practices, actions and mental
states of certain legal actors, and customs. (It is controversial exactly what the input should
include, though certain texts are central.) And legal interpretation yields an output – “an
interpretation.” The familiar debate concerns which method of getting from the input to the
output is correct. But the more basic issue concerns what the output is supposed to be – what
legal interpretation seeks. (For brevity, I will often write simply of what legal interpretation
seeks; the qualification “by its nature” should be understood.) In the case of constitutional and
statutory provisions, for example, is it the linguistic meaning of the text of the relevant
provision? The provision’s contribution to the content of the law? The best resolution of
disputes? Or something else?
This issue is more fundamental than more familiar questions about the method of interpretation
because which method is correct (and which reasons or arguments count in favor of a method)
depends on what legal interpretation seeks. In general, how good a method is depends on what
the method is for. The appropriate method for finding, say, the linguistic meaning of a text is
likely very different from the appropriate method for finding the best resolution of a dispute.
Similarly, the fact that a method is fair or democratic might well be irrelevant if legal
interpretation seeks linguistic meaning, but highly relevant if it seeks the best resolution of
disputes.
Before turning to the leading candidates for what legal interpretation seeks, it is worth
considering the recurrent suggestion that interpretation takes place only when the answer to a
legal question is not obvious.1 We can quickly dispense with this suggestion. It does not capture
what paradigmatic theories of legal interpretation are engaged in, for the prescriptions offered by
such theories apply to easy problems as well as difficult ones. Moreover, the suggestion would
have the unfortunate consequence that legal interpretation would not be a unified subject matter.
(Compare excluding from the subject of chemistry those chemical reactions that are already well
understood.) Whether one is seeking linguistic meaning, the content of the law, or the best
resolution of a dispute, one is engaged in the same enterprise when the issues are easy as when
they are difficult. A closely related point is that whether a particular legal issue is easy or
1
E.g., Fallon 2015, 1299; Marmor 2005, 118, 121; Patterson 1996, 86-88. See Greenawalt 2004, 269. Proponents of
this idea may fail adequately to distinguish the pragmatic from the semantic: the fact that people might not typically
say that interpretation is required in easy cases may reflect pragmatic considerations rather than what interpretation
is.

difficult is relative to the interpreter. For an experienced tax lawyer, the answer to an arcane tax
question may be obvious. The suggestion would therefore have the consequence that what counts
as legal interpretation depends on who is doing the interpretation (and when).
Perhaps surprisingly, most of the literature on legal interpretation does not consider the
foundational question of legal interpretation’s constitutive aim.2 In evaluating methods of
interpretation, writers tend to appeal to whatever considerations strike them as valuable without
addressing what legal interpretation is for. For example, Philip Frickey suggests that the way to
evaluate purposivism is by asking “whether the interpretations that this theory produces are more
worthwhile for a legal system than would be literalist or intentionalist ones” (2006, 851-52).3
It is likely that the term “legal interpretation” is not always used with a precise and univocal
meaning. We have some paradigms of theories of legal interpretation, but it may well be that
they are not all engaged in exactly the same enterprise. To the extent that the term has different
uses, it’s probably not helpful to try to identify the uniquely correct use of the term. Instead, we
should ask how the term would be usefully regimented. The primary desideratum should be to
accurately capture the central enterprise of influential theories such as textualism, purposivism,
and originalism. Another factor that could favor a particular understanding of legal interpretation
is whether it has the consequence that the term picks out a theoretically unified enterprise.
2.1 Linguistic Meaning

In discussions of legal interpretation, there is a widespread assumption — sometimes explicit,
sometimes implicit — that legal interpretation seeks the meaning of the legal texts. Frequently,
all sides to a legal interpretive debate ostensibly agree that the debate concerns the meaning of a
particular legal text (Berman and Toh 2013, 547, fn. 11; Greenberg 2014, 1297 fn. 19; see, e.g.,
Greenawalt 2004, 275-77; Alexander and Prakash 2004, 991; Goldsworthy 2009, 683; Fallon
2015, 1237, 1297-1307; Lawson 1997; Barak 2005, 3; Whittington 2010, 121; Fiss 1982, 739,
743-45; Dickerson 1975, 3, 217; for judicial examples, see the various opinions in Smith v.
United States, and District of Columbia v. Heller).4 But this apparent agreement does not in fact
tell us much because the term “meaning” (and its cognates) is often used loosely and, in any
2
When writers talk about what legal interpretation seeks, they are often best understood as addressing the less
fundamental question of which substantive method of legal interpretation is correct. See, for example, Scalia 1997,
16; Alexander and Prakash 2004, 991; Nelson 2005, 348, 351-57; Whittington 2010, 120, 121 fn. 3; Alexander
2013, 540; Soames 2013, 597; Fallon 2015, 1279, 1297; Barak 2005, 8-9.
3
Similarly, after making their often quoted claim that “American courts have no intelligible, generally accepted, and
consistently applied theory of statutory interpretation,” Hart and Sacks suggested that “the most that could be hoped
for” a theory is that, in addition to being founded in experience and good practice, “it will be well calculated to serve
the ultimate purposes of law” (1994, 1169). For more examples of arguments used to evaluate and defend theories
of interpretation, see section 5.
4
Scott Soames emphasizes a distinction between the meaning of the statutory text and the content of the statute. But
Soames uses "meaning" for semantic content and equates "the content of a statute" with its total linguistic content
(Soames 2009, 403). Because Soames takes for granted that legal interpretation seeks the total linguistic content of a
statute, he is another example of a theorist who assumes that legal interpretation debates concern the linguistic
meaning of legal texts.

event, has several senses. There is a broad use of the term in which it is a rough synonym of
“implication” or “consequence.” One might ask what the outcome of a particular election means
for international trade or for abortion rights.
Again, “meaning” can be used to mean, roughly, significance, as when we catch someone doing
something inappropriate and ask, “what is the meaning of this?”
Differently again, “meaning” can be used for the information or content that a symbol expresses
or represents. This symbolic meaning can be called meaning in the strict sense. Mathematical
symbols and semaphore flags have meanings in the strict sense.
Linguistic meaning is a species of symbolic meaning. Linguistic meaning is the information that
is reliably and systematically conveyed by words, sentences, and other linguistic entities. In fact,
there are several kinds and components of linguistic meaning, such as word meaning, semantic
content, what is said, speaker meaning, and implicature.5 (In this subsection, in considering the
possibility that legal interpretation seeks linguistic meaning, I set aside the issue of the type of
linguistic meaning.)
The widespread acceptance that legal interpretation seeks the meaning of a statute or
constitutional provision most likely reflects some combination of 1) a lack of clarity about the
sense in which the term “meaning” is being used; 2) misunderstandings about what linguistic
meaning is; 3) a conflation of a provision’s linguistic meaning with its contribution to the content
of the law (its contribution, for short); 4) and an assumption that a provision’s contribution is its
linguistic meaning.6 See Berman and Toh 2013, 547. Even sophisticated theorists who carefully
distinguish between different kinds of linguistic meaning fail to distinguish between a
provision’s linguistic meaning and its contribution to the content of the law.7
The “new originalists” (see section 3) explicitly advocate using the term “constitutional
interpretation” for the process of discovering the meaning of the constitutional text (to be
distinguished from “constitutional construction,” an “essentially creative” process of
5
See section 4.2 for discussion of the basic distinction between semantic content and pragmatically conveyed
content. This chapter uses "linguistic content" to encompass both semantic and pragmatic content.
6
To make matters more complicated, theorists sometimes use the term “legal meaning”. See Berman 2009, 18 n.39,
38 n.100; 2011, 409; Berman and Toh 2013, 547-50; Fallon 2015; 2019, 43-50; Solum 2008, 65, 110-11; Balkin
2007, 304; Barak 2005, 6-7. This term could naturally be used to refer to a word's or phrase's technical legal sense.
But when theorists of legal interpretation write of "legal meaning" they typically do not use the term in this way. In
some cases, they probably use “legal meaning” to refer to a provision’s contribution to the content of the law,
though they may not be completely clear about the distinction between a provision's contribution and its linguistic
meaning. Under this usage, “legal meaning” is not a kind of linguistic meaning or even symbolic meaning at all.
Other writers may presuppose that some kind of linguistic meaning is the kind that the law cares about and intend to
use “legal meaning” to pick out that kind. Still others may have some awareness that a statute's contribution is not a
kind of linguistic meaning but think it is some other special kind of meaning. The term "legal meaning" is probably
best avoided because it breeds confusion (see Berman and Toh 2013, 549-50 & n.23; Greenberg 2014, 1296-1297,
fn. 18-19; 2017a, 107, fn. 3).
7
Fallon 2015 assumes without argument that the different items that competing theories of legal interpretation seek
are all kinds of linguistic meaning. Similarly, Rickless 2005 takes for granted that legal interpretation seeks some
kind of linguistic meaning and argues that the relevant kind of linguistic meaning varies.

constructing meaning). But, with the important exception of Larry Solum (2010), it is clear from
their writings that they are not using the term “meaning” consistently for linguistic meaning,
often seeming to have in mind, for example, a legal norm or understandings about how a legal
norm was to be applied to specific cases (e.g., Whittington 1999a, 5-11; Barnett 2013, 419). For
further examples, see section 4.2. As suggested below, it is arguable that their view is best
reconstructed as holding that legal interpretation seeks the content of the law, which they hold to
be constituted by “public meaning.”
It is crucial not to conflate a provision’s linguistic meaning with its contribution to the content of
the law. It might turn out that a statute’s contribution is constituted by its linguistic meaning (or,
more precisely, by a specific kind of linguistic meaning), but this is a highly controversial claim
about how the content of the law is determined. If, in addressing the preliminary question of
what legal interpretation seeks, we simply conflate a statute’s contribution with its linguistic
meaning, then, among other mistakes, then we miss the need for a substantive argument for that
claim.
Despite the widespread assumption that legal interpretation seeks linguistic meaning, many
prominent and influential theories of legal interpretation—including purposivism, some forms of
intentionalism, Ronald Dworkin’s theory, and pragmatism—do not make any kind of linguistic
meaning the focus of their inquiry, though this fact is often obscured by confusions about the
nature of linguistic meaning as well as claims by the advocates of the theories. (See sections 3
and 4.) In fact, as we will see (section 4.2), there is a good case that even contemporary
textualism is not best understood as trying to ascertain linguistic meaning.
What can be said in favor of the claim that legal interpretation seeks linguistic meaning? It is
often taken as a starting point that interpretation is the activity of attributing meaning. (e.g.,
Knapp and Michaels 1982; 1983; Graglia 1992; Fish 2005; 2008; Michaels 2009; Alexander
2013). By definition, one version of the argument goes, interpretation of any object seeks its
meaning -- presumably in the strict sense of what that object symbolizes or represents. (If
“meaning” were intended in the loose sense of significance, the argument could yield no real
constraint on legal interpretation.) A different but related argument is that legal interpretation is
an instance of linguistic interpretation, and linguistic interpretation seeks linguistic meaning
(e.g., Soames, 2009; Alexander 2011).
The former argument does not take us very far. To begin with, the claim that interpretation of an
object is, by definition, the search for its meaning is dubious. Radiologists interpret x-rays, and
x-rays don’t have meanings in the strict sense. More to the point, the meaning of the word
“interpretation” or the nature of interpretation (in general, as opposed to legal interpretation
specifically) is peripheral to our concerns. Rather, as noted above, the central consideration is
what the paradigm theories – textualism, purposivism, and the like – are engaged in. If it turns
out that they are engaged in some enterprise that is not correctly designated “interpretation,” then
so be it. It would not be problematic if legal interpretation – the topic of this chapter – is not in
fact a type of interpretation properly so called (cf. Sunstein 2015).

The second argument – that linguistic interpretation in general seeks the linguistic meaning of
texts – begs the question because it starts from the assumption that legal interpretation is a type
of linguistic interpretation. It’s uncontroversial that legal interpretation typically involves
scrutinizing linguistic texts, among other things – even that interpreting linguistic texts is
typically part of what goes into legal interpretation. But in an inquiry into the constitutive aim of
legal interpretation, it is question begging to assume that legal interpretation is linguistic
interpretation in a sense that entails that legal interpretation has the constitutive aim of linguistic
interpretation.8
An important reason for rejecting the claim that legal interpretation seeks linguistic meaning
derives from three propositions that are widely shared by theorists of legal interpretation: 1) legal
interpretation often yields interpretations that resolve legal disputes; 2) in resolving disputes,
judges must follow the content of the law except in extremely unusual circumstances; 3) the
content of the law is often determinate enough to resolve disputes. Given these tenets, the output
of legal interpretation cannot be merely the linguistic meaning of the relevant texts. If it were,
and if judges must in general follow the content of the law, then legal interpretation would not be
able to yield outputs that resolve legal disputes; there would have to be a further step of
ascertaining the content of the law. In addition, as will be evident from the discussion in sections
3 and 4, most theories of legal interpretation make legal interpretation depend on factors that are
not relevant to ascertaining linguistic meaning.
It might be objected that finding the linguistic meaning of the relevant legal texts does resolve
disputes because the linguistic meaning constitutes the provision’s contribution to the law. This
objection concedes that legal interpretation seeks a provision’s contribution to the law, and
assumes that that contribution is constituted by linguistic meaning. The objection therefore
should be understood as taking the position that legal interpretation, by its nature, seeks the
(provisions’ contribution to the) content of the law, and further holding, based on a controversial
substantive claim about how the content of the law is determined, that the correct method of legal
interpretation is to ascertain linguistic meaning. At any rate, legal interpretation’s constitutive
aim should not be understood in a way whose plausibility depends on a controversial substantive
claim about how the content of the law is determined.
The argument based on the three widely shared propositions counts strongly in favor of either the
position that legal interpretation seeks the correct resolution of disputes or the position that it
seeks the content of the law. Let us address these positions in turn.
2.2 The Correct Resolution of Disputes

According to the former position, legal interpretation seeks something broader than linguistic
meaning and provisions’ contribution to the law. It seeks the resolution of disputes that come
before courts or other adjudicators. The position is not often explicitly defended. In fact, there
8
Even the assumption that what is being interpreted in the case of legal interpretation is a linguistic text is overly
simplistic. When we interpret a statute, say, what is being interpreted is (at least) the legislature’s enactment of a
particular text, not merely the text itself.

has been a recent tendency to insist on distinguishing between adjudication (understood as
encompassing everything that courts must do to resolve disputes) and interpretation.9
The most important factors favoring the dispute-resolution understanding of legal interpretation
(over an understanding on which legal interpretation seeks a provision’s contribution) are the
open-ended process characteristic of much legal interpretation and the ad hoc or eclectic
approach to evaluating methods of legal interpretation employed by much writing on legal
interpretation. Lawyers and judges typically take into account a wide range of factors in legal
interpretation without a well-structured conception of how and why these different factors are
relevant.
In addition, traditional writings on legal interpretation, as well as many contemporary ones, take
an eclectic approach to defending and evaluating methods of interpretation, appealing to
whatever aspects or consequences of a method are valuable or desirable. (E.g., Posner 1986, 201;
Molot 2006, 64-65.)10 This kind of approach seems better suited to identifying the best method
of resolving disputes than to finding the most reliable method of ascertaining a provision’s
contribution to the law. On the other hand, as noted above, the use of such an approach may
simply reflect the fact that most writers have not carefully considered the question what legal
interpretation seeks.
Several factors mitigate against the understanding of legal interpretation as seeking the best
overall resolution of disputes. First, this understanding would exclude the possibility that legal
interpretation can be engaged in by actors who are not resolving specific disputes. It would even
exclude the possibility of legal interpretation by an institution in an authoritative opinion
whenever the institution is not considering how to resolve a dispute. Second, more importantly,
on this understanding of legal interpretation, it would comprise several different activities:
ascertaining what the law is; creating so-called decision rules to implement broad legal norms,
such as constitutional doctrines; making discretionary decisions not governed by dispositive
legal standards, such as fixing criminal sentences under statutes that specify a range of
permissible sentences; fashioning new legal standards; figuring out how to resolve disputes when
not resolved by applicable first-order legal norms, for example by applying burdens of proof or
other closure rules; and deciding whether to depart from the law in cases of exceptional injustice
or extraordinary harm. But our paradigm theories of legal interpretation do not even address
most of these activities. For example, intentionalism, purposivism, and textualism have nothing
to say about how to fix defendants’ sentences within a statutory range, how to fashion new legal
standards, and whether to depart from the law in cases of exceptional injustice.
2.3 A Provision’s Contribution to the Content of the Law
On this position, theories of legal interpretation seek to discover how determinants of the content
of the law, such as the ratification of the Constitution or the enactment of a bill, affect the content
9
See, e.g., Lawson 2017, 2155-62; Rickless 2005, 521. A related idea is the common positivist criticism of Ronald
Dworkin that he confuses adjudication with ascertaining the content of the law.
10
Primus 2008 argues that different methods of constitutional interpretation – "sources of constitutional authority" –
serve different constitutional values and therefore should be used in different kinds of cases.

of the law. Increasingly, there is a perceptible trend toward recognizing this position.11 On this
approach, the linguistic meanings of legal texts are obviously a highly relevant factor, but
theories of legal interpretation seek more than just the linguistic meaning of legal texts; they seek
to ascertain the law. Theories of legal interpretation do not, however, purport to offer guidance
on other issues, such as how to make discretionary decisions not controlled by legal standards or
whether to follow the law.
The most important arguments in favor of this understanding of legal interpretation are the main
arguments against the linguistic-meaning and dispute-resolution understandings. If legal
interpretation is to resolve many disputes, and judges are in general bound to follow the law, then
(assuming that there often are relevant legal standards) legal interpretation must at least yield the
content of the law. On the other hand, theories of legal interpretation do not include components
that would be necessary if they were theories of how to resolve disputes generally. Similarly,
though the term “legal interpretation” is often used loosely and is sometimes used in a way that
encompasses activities such as creating law interstitially, when the different activities necessary
to resolve disputes are carefully distinguished, few would classify all of them as part of legal
interpretation. For example, it would stretch the term beyond recognition to categorize deciding
whether to refuse to follow the law as legal interpretation.
Moreover, if we use the term “legal interpretation” for the entire process of resolving disputes, it
will not pick out a theoretically unified subject. What is involved in, for example, ascertaining
the content of the law is extremely different from what is involved in fashioning new legal
standards, making discretionary decisions, and deciding whether to refuse to apply the law.
Understanding legal interpretation as seeking a provision’s contribution to the content of the law
has the great advantage that it gives legal interpretation a theoretically unified subject matter.
One objection is that many of the arguments that courts and theorists make suggest that they are
engaged in a broader enterprise than merely ascertaining the law (a point closely related to the
argument, noted in section 3.2, that the typically eclectic approach to evaluating methods of legal
interpretation favors the dispute-resolution understanding of legal interpretation). For example,
Justice Scalia, the most prominent advocate of textualism, often argued that any other approach
would leave judges less constrained and make them more likely to decide cases in accordance
with their personal preferences (e.g., 1997, 17-18, 23). And early originalists, including Scalia
and Robert Bork, used similar kinds of arguments to advocate originalism (Bork 1971, 7; Scalia,
1989, 862-63).
In the influential textualist and originalist movements, however, there has been a discernible
trend away from arguments about restraining judges and toward arguments that textualism and
originalism accurately identify the content of the law. Berman (2018, 1340-44) identifies this
trend in originalist scholarship. (See also Whittington 2004, 608-09.) As Randy Barnett puts it,
“the original meaning of the text provides the law that legal decision-makers are bound by”
(Barnett 2013, 417). See, e.g., Calabresi and Prakash 1994, 552; Bork, 1990, 5, 144. Similarly,
11
For examples of this trend in originalist and textualist writings, see the discussion in the text below. More
generally, see Berman and Toh 2013; Berman 2018; Baude and Sachs 2017; 2019; Barzun 2017; Greenberg 2011a;
2014; 2016; 2017a.

textualists seem to be gravitating towards the idea that “the text is the law.” Scalia 1997, 22;
Scalia and Garner 2012, 383, 397-98; Easterbrook, 2017, 82. As Berman (2018, 1343 n. 60)
points out, however, Scalia was not consistent in this regard. See Scalia and Garner 2012, xxviii-
xxix, 22, 364-66, 394-96.
On the other hand, as noted, prominent new originalists insist that the term “constitutional
interpretation” should be used for identifying the meaning of the constitutional text. As they
officially draw the interpretation/construction distinction, however, it contains no stage at which
a court ascertains the content of the law; when a court is not interpreting, it is engaged in
constitutional construction, which is supposed to be a creative and political process of
constructing meaning (Barnett 2013, 619; 1999, 645-46; Whittington 1999a, 7). See section 3.
A charitable reading of the new originalists might therefore take them to assume that a
provision’s contribution is constituted by the meaning of the text or simply to equate a
provision’s contribution with “the meaning of the text.” In that case, the new originalists may be
understood, despite their rhetoric, as taking legal interpretation to seek a provision’s
contribution.12 (In addition, as we will see in section 4.2, what the new originalists’ take to be
the meaning of the text – “public meaning” – is probably best understood as not a kind of
linguistic meaning at all.)
Resistance to understanding legal interpretation as the search for a provision’s contribution to the
content of the law may be due in some quarters to a tacit assumption that there is no clear line
between searching for a provision’s contribution to the law and creating legal norms or finding
ways of resolving disputes when there is no applicable first-order law. Although many lawyers
and judges seem to be attracted to some version of this assumption, it’s not entirely clear how to
make sense of it. On the face of it, the factors and decisions relevant to ascertaining the content
of the law are very different from those relevant to fashioning legal norms or to deciding how to
resolve disputes not controlled by legal norms.
One possibility is that lawyers and judges have a tendency, encouraged by early 20th century
movements like logical empiricism and American legal realism, to confuse uncertainty with
indeterminacy. See entry on "Logical Empiricism",
https://plato.stanford.edu/archives/fall2017/entries/logical-empiricism/. There is often
uncertainty about how a provision contributes to the content of the law. Any interesting legal
interpretation begins from such uncertainty. If one confuses such uncertainty with indeterminacy,
then one will conclude that legal interpretation includes cases in which it is indeterminate how
the relevant provisions contribute to the content of the law — and therefore that legal
interpretation must not be limited to ascertaining the content of the law.
A related point is that much legal interpretation seems to involve value judgments. If one
assumes a metaphysics of law according to which the content of the law cannot depend on such
12
Larry Solum (2010), however, cannot be understood in this way: he carefully distinguishes linguistic meaning
from the content of the law and explicitly urges the use of the term constitutional interpretation for ascertaining the
former and constitutional construction for ascertaining the latter (see Berman and Toh 2013; Greenberg 2016 7-8 &
n.6).
10

value judgments – as some legal theorists do – then one will think that legal interpretation must
not be merely a search for provisions’ contributions to the law.
These issues cannot be pursued further here. The discussion in sections 3 and 4 of different
substantive theories of legal interpretation will not assume a particular view of legal
interpretation’s constitutive aim. Section 5 develops the point that the plausibility of particular
substantive theories, and the aptness of arguments for and against them, depends on legal
interpretation’s constitutive aim.
3. Overview of Methods of Legal Interpretation

This section provides a brief overview of several well-known methods of legal interpretation.
The goal is to introduce readers to standard formulations, not to offer in-depth analysis of what
the methods actually come to. The section therefore sketches the way in which proponents
typically gloss their methods, without attempting to look behind these characterizations. In many
cases, there are serious questions concerning how to understand the methods (and even as to
whether the methods are coherent), some of which will be addressed in later sections.
Some of the methods sketched here, especially textualism and intentionalism, are addressed in
much more detail in section 4. For that reason, the summaries of those methods in this section
are especially brief.
Textualism
Textualists give priority in statutory and constitutional interpretation to the relevant texts.13
Textualism is typically formulated in opposition to intentionalism or purposivism, as it rejects
the search for legislative intentions or more general statutory purposes – at least to the extent that
they are not enacted in the text. If the meaning of a text is taken to be clear, textualists reject the
appeal to other sources to modify or depart from that meaning, even when the meaning of the
text seems to be in tension with apparent legislative purposes. (Eskridge 1990, 686; Scalia 1997,
17-23; Manning 2001, 7, 17; 2006, 92-93, 110-11).
In determining the meaning of the text, textualists commonly endorse a favored cluster of
“textual methods,” including the use of dictionaries, certain traditional interpretive canons, and
attention to the use of the same words in other provisions. Contemporary textualists accept,
however, that extra-textual context is relevant to ascertaining meaning. Manning 2006, 78-85;
Whittington 1999a, 60, 176-79. But a prominent feature of contemporary textualism is a
rejection of appeals to legislative history, which textualists regard as unreliable and manipulable
(Scalia 1997, 29-37; Scalia and Garner 2012, 376-78; Easterbrook 1990, 448-49; 1994, 65; 2017,
90-91; Manning 2011, 123-24).
13
On the use of "textualism" is a term for a method of constitutional as well as statutory interpretation, see section
4.2.
11

Intentionalism
Intentionalists maintain that the primary or exclusive role of the interpreter is finding the
intentions of the enacting legislature or of the constitutional framers or ratifiers (Bork 1971;
Alexander and Prakash 2004; Knapp and Michaels 2005; Fish 2005; 2008; Michaels 2009;
Alexander 2013). Although the meaning of the text is an important guide to the relevant
intentions, intentionalism contemplates that other evidence of intentions, including legislative
history, may override the evidence of the text. The discussion of intentionalism below will
distinguish between several kinds of legislative intentions that are frequently conflated in the
legal interpretation literature. These distinctions yield several kinds of intentionalism. See
below section 4.1.
Purposivism
One important strand of intentionalism has come to be called purposivism. According to the
seminal account, interpreters should “decide what purpose ought to be attributed to the statute
and to any subordinate provision of it which may be involved” on the assumption that the
legislature consisted of “reasonable persons pursuing reasonable purposes reasonably.” (Hart and
Sacks 1994, 1374, 1378). This formulation makes clear that the relevant purpose is not a
psychological state of any actual person or body, but, in an unfortunate but common
terminology, an “objectified” purpose that is imputed to the provision based on an idealization
(though some writers understand purposivism as making an empirical assumption about actual
intentions). (On “objectified” intentions, see section 4.1.) For purposivists, the meaning of the
words is to be subordinated to the purpose of the provision: purposivists “[i]nterpret the words
of the statute immediately in question so as to carry out the purpose” as well as possible (Hart
and Sacks 1994, 1374).
Originalism
Originalism comprises the family of theories of constitutional interpretation that give primacy to
some aspect of the Constitution at the time it was ratified. This original aspect is variously taken
to be the intentions of the framers or ratifiers of the Constitution, the meaning of the text, the
way in which the text would have been understood by the ratifiers of the Constitution, or well-
established practices at the time.14 See entry on Constitutionalism. Originalism thus includes
both intentionalist and non-intentionalist theories of interpretation. What the various forms of
originalism have in common is their taking the correct interpretation of the Constitution to be
fixed by a particular feature of the Constitution at the time of ratification. It promotes clarity to
frame this core idea in terms of the Constitution’s contribution to the content of the law (though
originalists do not always do so): that contribution is fixed by the relevant aspect of the
Constitution at the time of ratification and does not change thereafter.
The divide between originalist and non-originalist theories has been the central locus of debate in
the field of constitutional interpretation for several decades, though originalist theorists remain in
14
For a useful classificatory scheme for different types of originalism, see Berman 2009.
12

the minority. As Berman convincingly argues, in order to understand the originalist/non-
originalist debate, originalism should be understood not as the position that original intent or
original meaning is merely relevant or important, but that it is the exclusive object of
constitutional interpretation (Berman 2009). (There is one exception – originalist theories
typically find a way of accommodating the role of Supreme Court precedents.) Otherwise, a wide
range of interpretive theories that are standardly classified as opponents of originalism,
including, for example, pluralist theories, would count as originalist.
The original intent approach to constitutional interpretation flourished for a time in the second
half of the 20th century (fading in the 1980s), but, in recent decades, originalists have shifted
their focus to original meaning (see Whittington 2013, 379-82; Kesavan and Paulsen 2003, 1134-
48). Contemporary originalism tends to focus on “original public meaning,” by which
originalists mean, roughly speaking, the way in which reasonable readers of the Constitution
would have understood its meaning at the time it was ratified. See section 4.2 below.
New Originalism
A prominent camp of public meaning originalists are the new originalists (Whittington 2004;
2013; Barnett 1999; 2013; Solum 2010; 2013a; 2013b; 2015; see also Goldsworthy 1997).
In addition to the focus on public meaning, as mentioned in the previous section, a characteristic
position of the new originalists is an emphasis on – in their vocabulary – a distinction between
“constitutional interpretation” and “constitutional construction.” As the new originalists draw
this distinction, constitutional interpretation involves ascertaining the “public meaning” of the
Constitution at the time it was ratified. (On “public meaning,” see section 4.2.) Constitutional
construction, as defined by some of the new originalists, involves constitutional adjudication in
cases where the original meaning “runs out,” “fails to provide a unique rule of law,” or does not
“dictate a unique application”. Barnett 2013, 619; 1999, 645-46; Whittington 1999a, 7. In such
cases, the new originalists think that “an act of creativity beyond interpretation” – “the
construction of meaning” – is required. Whittington 1999a, 7. Solum (2010) and Barnett (2011)
draw the distinction importantly differently, taking constitutional construction to be the
ascertaining of the “legal effect” of a provision, including both its contribution and its
application to particular cases (see Berman and Toh 2013 564-70).
Solum (2010; 2013b) and Scott Soames (2009; 2011; 2013) have developed sophisticated
originalist accounts that are distinctive in 1) clearly distinguishing linguistic meaning from the
content of the law; 2) giving a prominent role to some kind of pragmatically conveyed contents;
15
and 3) expressly rejecting the claim that constitutional provisions’ contribution to the law is
fully determined by those contents. Like other theories of legal interpretation that rely on such
pragmatic contents, both theories encounter a range of difficulties in precisely explicating how
the relevant contents are determined. (See section 4.2 for discussion). In addition, neither has yet
offered a well-defined account of how provisions’ contributions are determined to the extent that
15
For the distinction between semantic and pragmatic content, see section 4.2.
13

they diverge from the relevant linguistic contents (see, e.g., Soames 2011, 244-53; 2009, 415-18;
Solum 2013b, 508-18).
Non-originalism
Non-originalism and living constitutionalism are terms used for positions that deny that the
proper interpretation of the Constitution is fixed at the time of ratification (e.g., Eisgruber 2001;
Breyer 2005; Strauss 2010). See entry on Constitutionalism. Aleinikoff 1988 and Eskridge 2005
are examples of non-originalist theories of statutory interpretation.
Notice that it is consistent with some versions of originalism that the correct application of
constitutional norms may be different from the way in which the Constitution was originally
intended and expected to apply. In one kind of case, the correct application of the Constitution
changes over time as a result of changes in circumstances. The commerce clause, for example,
specifies that Congress shall have power over “commerce among the several states” (U.S.
Constitution, Article I, section 8, clause 3). If the relevant original aspect of the Constitution is
the meaning of the words or the framers’ intention about what legal rule to adopt (on such
intentions, see section 4.1), then, without any change in constitutional law, changes in the
country’s economy may have the effect that types of businesses that were formerly not within the
scope of Congress’s power over interstate commerce may now be within the scope of the power.
(Greenberg and Litman 1998).
In a second kind of case, original intentions about the application of a provision were based on
beliefs now understood to be false. If the relevant original aspect of the Constitution is, say, the
rule that the framer’s intended to enact, the correct application of the Constitution will be
governed by the best understanding of what falls under that rule, not the original false beliefs. To
take a simple example, consider someone who, at the time of ratification, was believed to be
ineligible to be president because he was incorrectly believed to have been born in a foreign
country and therefore not “a natural born Citizen” (U.S. Constitution Article II, section 1, clause
5). In this case, the way in which the provision was originally understood to apply was incorrect
even at the time of ratification (Whittington 2013, 384).
Despite this point, it is common to classify a theory as non-originalist if it allows that the
application of the Constitution should be governed by the best available understanding of what
falls under broad language of the Constitution – especially when that language includes moral
terms. For example, a theory that allows that punishments not considered cruel at the time the
Constitution was ratified may violate the eighth amendment because they are in fact cruel would
standardly be considered a non-originalist theory. See entry on Constitutionalism, section 9.
Such a position is, however, consistent with the Constitution’s contribution to the law’s being
fixed by the original linguistic meaning of the text or by certain kinds of original intentions (see
Greenberg and Litman 1998; Whittington 2004, 610-11). There is thus an incoherence in the use
of the originalism and non-originalism labels: positions that meet the definition of originalism
given by its own proponents are standardly treated by both sides of the debate as non-originalist
(see Eisgruber 2001, 27).
14

Because non-originalism is simply defined as the denial of originalism, it does not pick out a
distinctive method of interpretation, but encompasses several different positions. For example,
common-law constitutionalism holds that courts develop constitutional law based on a body of
precedents and past practices in much the same way that they develop common law (Strauss
1996; 2010; Waluchow 2007). I now turn to several other non-originalist positions – Ronald
Dworkin’s view, pluralism, and pragmatism – that also apply to statutory interpretation.
Dworkin’s Law as Integrity

Ronald Dworkin’s extremely influential work yields a distinctive account of legal interpretation.
Two points are critical to an understanding of Dworkin’s contribution. First, Dworkin begins
from a general theory of creative (as opposed to conversational and scientific) interpretation –
one that encompasses, for example, literature, art, and non-legal social practices (1986, 50-51).
According to this theory, an interpreter tries to show the object of interpretation in its best light,
all things considered, by imposing a point or purpose on it. The best interpretation of an object is
the one that makes it the best of its type or genre that it can be. (Dworkin 1986, chapter 2).
Dworkin uses the term constructive interpretation for this distinctive type of interpretation
(Dworkin, 1986, 52).
Second, although I have included it in this section, Dworkin’s law as integrity theory is primarily
a theory of law – of how the content of the law is determined (metaphysically) – rather than a
theory of legal interpretation. See entry on Legal Interpretivism
https://plato.stanford.edu/entries/law-interpretivist/. According to law as integrity, the content of
the law is constituted by the best constructive interpretation of the legal system (as well as more
specific consequences that follow from those principles) (Dworkin 1986, chap. 7). Thus,
Dworkinian constructive interpretation figures centrally in his account of what determines the
content of the law. Dworkin further argues that the best interpretation of the legal system is the
set of principles that best fits and justifies the legal practices, including constitutional provisions,
statutes, regulations, and judicial decisions (1986, chaps. 4-10). And he offers a well-known
account of the dimensions of fit and justification (1986, especially chapter 7).
Thus, despite the importance of interpretation in Dworkin’s work, his focus is on the theory of
law, not on legal interpretation as it is understood here. He seems to take for granted that there is
little or no space between a theory of law and a theory of legal interpretation. (On the issue of
how such theories may come apart, see section 5.2.) Consequently, he assumes that, if he is right
that the content of the law is constitutively determined by constructive interpretation, then the
best way to ascertain a provision’s contribution is to ask which principles best fit and justify the
enactment or ratification of the provision.
Dworkin’s work has inspired other theories of constitutional interpretation. A notable example is
Sager’s (2004) justice-seeking theory of constitutional interpretation.
Pluralism
15

Judges, lawyers, and legal academics are commonly pluralists, relying on many different kinds
of sources, methods, and modes of reasoning, including, for example, textual analysis, purposive
reasoning, consideration of historical sources, precedent-based reasoning, forward-looking
assessment of consequences, and appeals to moral values such as fairness, democracy, and rule
of law (e.g., Fallon 1987; Eskridge and Frickey 1990; Breyer 2005; see Berman 2018, 1341-42).
Philip Bobbitt, the best-known pluralist theorist of constitutional interpretation, distinguished six
modalities of constitutional argumentation. These include, for example, structural, ethical, and
prudential argumentative modalities. (Bobbitt 1982; 1991). Bobbitt’s work is neither merely
descriptive of existing practice, nor based on a larger underlying theory, e.g., of what determines
the content of the law. Instead, Bobbitt takes constitutional practices generally to legitimate the
use of the different modalities, though in some instances offers criticisms of existing practices
(Bobbitt 1982; 1991).
Pluralism is probably the approach to interpretation employed by a majority of practitioners and
legal academics (though often not under that name). (See Berman 2011, 413-414; Griffin 1994,
1758-61.) (It is more difficult to say whether it is the most commonly endorsed approach among
scholars who explicitly theorize about statutory and constitutional interpretation.) 16
An obvious question for pluralism is how to resolve conflicts between different interpretive
sources and methods. For the most part, pluralist theorists have not tried to give a rigorous
answer to this question (Berman 2011, 414; Griffin 1994, 1764-65; but see Berman 2018;
forthcoming).
Pragmatism
Pragmatism is most prominently associated with Judge Richard Posner (Posner 1998; 2003;
2008).17 The basic idea is to resolve cases in the way that produces the best results.
Constitutional provisions, statutes, judicial decisions, and the like are relevant only to the extent
that paying attention to them will yield better results. According to Posner, pragmatism seeks
“the best decision having in mind present and future needs, and so does not regard the
maintenance of consistency with past decisions as an end in itself, but only as a means for
bringing about the best results in the present case” (Posner 1998, 238). As he explains,
pragmatism does not regard past decisions as irrelevant: “The pragmatist judge thus regards
precedent, statutes, and constitutions both as sources of potentially valuable information about
the likely best result in the present case and as signposts that he must be careful not to obliterate
or obscure gratuitously, because people may be relying upon them” (Posner 1998, 238).18
16
Molot (2006, 60) cites Eskridge and Frickey 1990, 321 for the divide “between the ‘grand’ theory that pervades
academic writing and the ‘eclectic’ approach that dominates the work of practicing lawyers.
17
Posner earlier advocated a specific form of intentionalism that appeals to what the legislature would have intended
had it considered the relevant issue (Posner 1986). See below, section 4.1.3.
18
Dworkin (1986, chapter 5) develops and criticizes a version of pragmatism. Strictly speaking, this account is a
pragmatist theory of law, rather than of legal interpretation, though as noted in the text he assumes that a theory of
law dictates a corresponding theory of interpretation.
16

In sum, although the pragmatist judge will take into account authoritative texts, he or she does
not regard them as binding, but merely as factors that are relevant to what will produce the best
results. Given this emphasis on producing the best results going forward, pragmatism gives more
weight to empirical matters, including both the specific facts of the controversy and empirical –
especially economic – theory than to the authoritative texts (Posner 1998, 238-241).
Pragmatism’s attitude towards legal rights and duties thus bears comparison with
consequentialist approaches to moral rights and duties. See entry on Consequentialism.
https://plato.stanford.edu/entries/consequentialism/
Pragmatism as I have explicated the position is almost never endorsed by judicial opinions and
has few advocates among theorists of legal interpretation, though, as Berman (2011, 415) notes,
some pluralists who emphasize the importance of results, classify themselves as pragmatists
(e.g., Eskridge and Frickey 1990).
This chapter will focus on a few of the positions sketched above, especially textualism,
intentionalism, purposivism, and original public meaning originalism. One reason for this focus
is that the debate between textualism and intentionalism or purposivism has dominated recent
theoretical discussion in the statutory field. And, in the constitutional field, originalism has set
the terms of debate. (As explained below, original intent originalism will be included in the
discussion of intentionalism and public meaning originalism will be included in the discussion of
textualism.) Space constraints do not permit in-depth exploration of all of the positions in the
field, and the focus adopted here provides a natural and topical way of introducing many of the
fundamental issues concerning legal interpretation.
In addition, there are specific reasons for not devoting attention to some of the other methods
sketched above. For example, despite the prevalence of a pluralist approach to interpretation, a
collection of miscellaneous sources and modalities does not constitute a theory or method of
legal interpretation. If pluralism is not to be just a hodgepodge, it needs a governing structure
that determines, e.g., when different techniques are relevant and how conflicts between
techniques are to be resolved. More fundamentally, not only does pluralism lack a conception of
the underlying goal in the service of which the techniques are being employed – in this respect, it
is no different from many interpretive methods – it is unclear how a grab bag of sources and
types of argument could reliably serve an appropriate goal such as ascertaining the content of
existing law (cf. Berman 2011, 417). Berman (2018; forthcoming) begins to develop an account
of how the content of the law is determined that would yield a pluralist theory of interpretation.
For somewhat different reasons, the chapter will not further address pragmatism. As noted,
pragmatism does not play much role in contemporary debates over legal interpretation.
Depending on how we understand the constitutive aim of legal interpretation, pragmatism may
not even qualify as a method of legal interpretation, as opposed to, say, a method of adjudication,
given that its goal is not to discover a provision’s contribution or its meaning (e.g., Posner 2008,
40-41).
Dworkin’s view also will not receive much discussion. As the sketch above makes clear, the role
that interpretation plays in Dworkin’s work is very different from its role in typical accounts of
17

legal interpretation; on Dworkin’s view, interpretation is fundamentally part of what makes legal
norms obtain, not a way of ascertaining anything. As noted, Dworkin takes his position on legal
interpretation -- as that term is understood here -- simply to fall out of his theory of law.
Discussion of his position therefore belongs in a discussion of the nature of law (and of what
determines the content of the law) rather than in a chapter on legal interpretation. Cross-
reference to Stanford chapters on The Nature of Law; Legal Positivism; Natural Law Theories.
And Dworkin’s theory has a chapter of its own. See entry on Legal Interpretivism
(https://plato.stanford.edu/entries/law-interpretivist).
There are powerful reasons for thinking that adjudicating between competing theories of legal
interpretation ultimately requires turning to a theory of law. See section 4. Greenberg 2017;
2016. But that larger inquiry is beyond the scope of this chapter.
4. Theories of Legal Interpretation
In recent years, textualism has taken center stage in discussions of legal interpretation. (As the
term is used here, it includes both textualism in statutory interpretation and “public meaning”
originalism in constitutional interpretation. See section 4.2.) There is a lively debate between
textualism on the one hand and intentionalism and purposivism on the other, including a debate
about how and whether the opposing positions differ (see, e.g., Molot 2006; Manning 2006;
2011; Nelson 2005). This section examines intentionalism (including purposivism) and
textualism more closely than the previous section. It introduces several distinctions necessary to
get clear about what the positions involve and raises important problems about the positions.
4.1. Intentionalism and Purposivism
Intentionalists give primacy to the intention of the legislature or of the framers or ratifiers of the
Constitution. The interpreter should effectuate those intentions even when they conflict with the
meaning of the text. Accordingly, the interpreter should consult evidence of the relevant
intentions other than the text.
Legislative intent is probably the most common factor cited by courts in statutory interpretation,
and the original intent approach to constitutional interpretation flourished for a time in the
second half of the 20th century (fading in the 1980s). The importance of legislative intent in
statutory interpretation and of original intent in constitutional interpretation is often thought to
follow from ideas about democracy. A familiar democratic idea, for example, is that courts
should faithfully carry out the intentions of the people’s chosen representatives. Intentionalism
18

has been subjected to a battery of important criticisms, however. Only recently have strong forms
of intentionalism made a comeback.
As noted, I include original intent originalism in the present discussion of intentionalism and
original meaning originalism in the discussion of textualism in section 4.2. Although it would be
valuable in a more narrowly gauged discussion to address differences between constitutional and
statutory interpretation, for present purposes, constitutional and statutory interpretation can be
considered together.
4.1.1 Types of Legislative Intentions
In the literature on legal interpretation, an important three-way distinction is made between 1)
actual, or subjective, intention; 2) conventional, or presumed, intention; and 3) objectified
intention. An actual intention is a real psychological state of the relevant body.
A conventional intention is a rationale treated as if it were the intention of the relevant body
regardless of psychological reality. For example, a court might treat as the legislature’s intention
a rationale explicitly offered for a statute by its sponsors or other legislative leaders in reports of
legislative committees, floor debates, or the like.
Finally, an objectified intention is the intention that a reasonable person would attribute to the
legislature under specified conditions. Since intentions are mental items, and conventional and
objectified intentions are not – a body can have such “intentions” despite the absence of any
corresponding mental state – conventional and objectified intentions are not genuine intentions at
all.
This actual/conventional/objectified distinction concerns the metaphysical status of the intention.
A second distinction, not generally recognized in the literature, involves the content of the
intention. A lawmaking body may have many intentions with different contents with respect to
one provision. A minimal legislative intention is an intention to enact legislation by voting for a
particular bill. A semantic intention is an intention that concerns semantic matters, such as an
intention to use particular words with particular meanings in a given combination. A
communicative intention is an intention, by uttering specific words, to communicate a particular
message at a relatively granular level such as that of individual sentences. A legal intention is an
intention to create a particular legal norm. An application intention is an intention that a
particular type of entity or situation be covered by or excluded by a legal standard. A policy
intention is an intention to achieve some policy goal, for example to stimulate the economy. An
interpretive intention is an intention concerning what method of interpretation should be used
(see Bassham 1992, 29).
Discussions of legislative intentions often fail to distinguish between these different kinds of
intentions. It is especially common to conflate legal, application, and communicative intentions.
A legislature might intend a legal rule that requires (all and only) persons with contagious
diseases to be quarantined for two weeks (a legal intention). The legislature might also intend
that a particular disease that is in fact not contagious, e.g., psoriasis, be included within the
quarantine (an application intention). These two intentions are in conflict with each other, so it is
19

important for an intentionalist to be clear about which one is the relevant one (see Greenberg and
Litman 1998, 585-86; 599-603). Similarly, a lawmaker may intend to use a particular sentence
to communicate a particular content in the service of creating a complex legal norm, not
recognizing that the intended communication is ill-suited to accomplish the legal intention
(Greenberg 2011a, 241-50; 2016). One might think that it would require carelessness to make a
mistake about whether a particular communicative content is well-chosen to effectuate a given
legal intention, but in complex statutes, the way in which information conveyed sentence by
sentence relates to the creation of an intended legal norm is not straightforward (see citations to
recent empirical work below).
The metaphysical-status and content distinctions cut across each other. In order to specify the
relevant intention, we therefore need to specify both dimensions. For example, we might be
interested in actual communicative intentions, conventional legal intentions, or objectified legal
intentions. Unfortunately, theorists tend to write simply of “legislative intent.” Traditional
intentionalists are probably best understood as concerned with actual intentions, but it is less
clear where they stand with respect to the second distinction.
4.1.2 Problems with Legislative Intentions

Appeals to actual legislative intentions in statutory and constitutional interpretation have been
powerfully criticized on several fronts – metaphysical, existential, and epistemic.19
The metaphysical problem concerns what would constitute a collective intention of the framers
or ratifiers in the case of a constitution or of a multimember and bipartite or tripartite legislature
under the complex, competitive, and disunified conditions typical of contemporary legislatures.
Even if we understood what would constitute the intention of a legislature (or of a constitution’s
framers or ratifiers), we face the existential problem: do the relevant bodies in fact typically have
collective intentions – and ones that are precise and detailed enough to be helpful in resolving
difficult questions of legal interpretation?
Finally, the epistemic problem is how such intentions could be reliably identified if they existed.
Space does not permit a thorough discussion of these problems with actual legislative intentions.
Instead, the flavor of the difficulties will be briefly sketched.
It is plausible that groups, such as families, can have genuine intentions, at least when the groups
are relatively small, cohesive, and cooperative. In the circumstances of contemporary multi-
member bicameral legislatures, however, there are many problems. To begin with, it is unclear
what constitutes the relevant group. In the case of the U.S. Constitution, is it a group composed
of the members of the state conventions that ratified the Constitution? Or, more plausibly, the
19
See, e.g., Radin 1930, 870-72; Brest 1980, 214-22, 230-31; Moore 1981, 246-70; Easterbrook 1983, 547-48;
1988, 62-66; 1994, 68; Dworkin 1985, 162-64; 1986, 317-21; Hurd 1990, 969-976; Waldron 1995, 645-56;
Manning 2003, 2408-19; Solum 2008, 14-15; Scalia and Garner 2012, 391-96.
20

group composed of the state conventions, each of which may have its own collective intention?
What about the delegates to the Constitutional Convention?
In the case of Congress or state legislatures, is the relevant collective intention that of both
houses and the president or governor who signs the legislation? Or is the relevant group
comprised only of those in the majority who voted for (or signed) the bill? Or is the collective
intention constituted by the intentions of pivotal political actors who occupy veto gates in the
legislative process? (see McNollgast 1992; 1994). What about statutes that are enacted piecemeal
by different legislatures over time? Suppose, for example, that a later legislature amends a small
part of a complex statute. In such a case, in interpreting the complex statute, including the
amendment, is the relevant intention that of a collective comprising both the original legislature
that enacted most of the existing statute and the later legislature that passed the amendment?
(See, e.g., Texas v. United States.)
Even more pressing, when, as is often the case, the relevant members of a legislature have
extremely different and often competing attitudes, what makes it the case that a particular
intention is the collective intention of the group? Even among members who vote for the bill,
there will typically be a great deal of disagreement about, for example, the intended legal effect.
(For simplicity, let’s suppose that what matters is only the legislature’s legal intentions, not its
communicative or application intentions.) To take a concrete example, in United Steelworkers of
America v. Weber, the Supreme Court faced the question whether employers could voluntarily
adopt affirmative action programs under Title VII of the Civil Rights Act of 1964, which
specified that employers may not "discriminate . . . because of ... race” in hiring. Some of the
legislators who voted for the Civil Rights Act may have intended to establish a legal rule banning
only invidious discrimination; others may have intended to establish a legal rule banning any use
of race. Many members may have had little or no intention with respect to legal effect – they
may have voted for the bill for irrelevant motives without giving much thought to what legal
effect it would produce. Granting that groups can have collective intentions in some
circumstances, how plausible is it that the Congress and President in fact had a collective
intention on the crucial issue in this case?
In criticizing intentionalism, contemporary textualists have emphasized the messiness and
opacity of the legislative process, and the importance of compromise in that process (see
Manning 2001, 71-78; 2003, 2408-19; Easterbrook 1983, 540-41; 1988, 63-64; 1990, 444-48;
1994, 68; 2010, 916, 922; 2012, xxii; Scalia and Garner 2012, 392-93). Individual legislators
who originally propose legislation may have a specific legal intention – to enact a particular legal
rule. But, in order to secure passage of the legislation, compromises have to be made. Legislative
bargains are often verbal rather than substantive — that is, they often take the form of adding
particular words to the legislation without reaching agreement on the net effect of the change in
wording. Indeed, compromises are often successful precisely because controversial issues are left
opaque and unresolved. In the case of complex and controversial legislation, there may be no
reason to think that there is a coherent and discoverable legal intention. (That’s not to say that
there isn’t a semantic intention – to use these words – or a minimal intention – to modify the law
by passing this bill.) Even setting aside the metaphysical question of what would constitute a
collective intention in the relevant circumstances, it is often extremely implausible that a
collective legal intention exists and that, if it did, courts could reliably identify it.
21

It is even less likely that the legislature has communicative intentions with respect to most
provisions that generate interpretive controversies. Recall that a communicative intention is an
intention to communicate a particular message by uttering specific words. Most members of the
legislature will not have read a typical provision and, in statutes of any complexity, lack the
technical skill to understand what message would need to be communicated in order to create a
particular legal norm or achieve a specific policy goal. (For recent empirical work suggesting
that members of the legislature rarely engage with the details of the statutory text and, even if
they did, would not be capable of working out whether the text is well calculated to effect their
legal or policy intentions, see Bressman and Gluck 2013; 2014.) Thus, even if members of the
legislature had relevant legal intentions with respect to provisions that are at the center of
interpretive disputes, it is far-fetched to take them to have corresponding communicative
intentions.
In response to skeptics who make these kinds of points – for example, that many individual
legislators do not have the relevant intentions, and that, even when they do, the intentions of
individual legislators conflict with each other – it is sometimes objected that individual
legislators’ intentions are not the issue. Despite difficulties regarding individual intentions, the
legislature as an institution may still have a collective intention. It is plausible that collective
intentions are not mere aggregations of individual intentions. But pointing out the mere
possibility that a collective intention exists, despite deep conflict between – and in many cases an
absence of – individual intentions, does not take us very far. Without further development of an
account of the nature of collective intentions that shows them not to depend on harmony between
-- or even the existence of -- individual intentions, it is difficult to evaluate the claim that, in the
circumstances of contemporary legislation, there will often be collective intentions capable of
resolving interpretive controversies (and reliably identifiable by later interpreters).
According to the most developed proposal, because the legislature has a standing secondary
intention “to stand ready to change the law when there is good reason to do so,” which all
legislators share, when the legislature enacts a bill, the legislature has a primary legal intention
whose content is the content of the bill, regardless of the intentions of individual legislators
(Ekins and Goldsworthy 2014, 65; Ekins 2012, 56-58, 224). The proposal faces an uphill battle
to establish the psychological reality of its central claim. The proposal runs into further difficulty
by explicating the “content of the bill” as what the speaker intended to communicate (which may
go well beyond the literal meaning of the text) (Ekins 2012, chap. 7; Ekins and Goldsworthy
2014, 66-67).20 The proposal therefore seems to address worries about the existence of collective
legislative intentions by appealing to a collective legislative intention. In addition, in the case of
contemporary legislation, it is typical that a form of words is chosen as a compromise in order to
enable a bill to pass without agreement on what that form of words is to communicate (or what
legal norm it is to create). See section 4.2. So it is question begging to assume the existence of
the crucial communicative intention that is supposed to constitute the content of the text and, in
turn, the legislature’s primary intention. When the verbal formulation constitutes the
compromise, it is of no help to say that “the nature of [legislators’] compromise may be
20
On the distinction between semantic content and pragmatically conveyed content, see section 4.2.
22

discernible from the text and publicly available contextual and purposive evidence” (Ekins and
Goldsworthy 2014, 66).
4.1.3 The Relevance of Different Kinds of Legislative Intentions
There is another type of problem with the suggestion about collective intention. Suppose that a
philosopher of mind develops an account of what constitutes the collective intention of a large,
diverse group whose members’ attitudes conflict with each other. According to this account,
let’s further suppose, the collective intention of such a group depends in a complex way on how
the group would behave in various counterfactual circumstances. (One complication is that it
might be that what constitutes the collective intention of a group is relative to the purposes for
which the question is asked. But let’s set this complication aside for the sake of argument.) Even
if the philosopher’s account is a correct account of the nature of group minds, it is a further
question whether and to what extent legal interpretation should care about the intentions
specified by such an account. That question cannot be resolved by philosophy of mind, for the
answer depends on distinctively legal concerns, and the details of the putative account of
collective intentions would obviously matter.
This type of problem is one of legitimacy. The problem concerns not the nature, existence, or
ascertainment of the intentions, but to what extent they should make a difference in legal
interpretation. Suppose that, according to the hypothetical philosophical account of group minds,
the legislature that enacted a particular provision had a collective intention that supports an
interpretation not discernible from the words of the provision. Allowing such a legislative
intention to control the provision’s interpretation raises serious questions of democracy, rule of
law, and fairness. For example, rule of law values require that legal rules be readily publicly
available. Democratic values militate against the relevance of legislative intentions that were not
expressed in the bills voted on by the legislature. (This kind of point is closely related to familiar
textualist arguments against the use of legislative history (see section 4.2).
The legitimacy problem is really an aspect of a larger issue about the relevance of different kinds
of legislative intentions in light of what legal interpretation seeks. For example, if legal
interpretation seeks the linguistic meaning of the relevant legal texts, then legal, as opposed to
semantic and communicative, intentions will have little or no relevance. The linguistic meaning
of a text does not depend on what legal rules people intend to create by adopting the text.21
Similarly, application intentions are only weak evidence of linguistic meaning (see Greenberg
and Litman 1998). By contrast, for example, communicative intentions are highly relevant to
pragmatically conveyed content such as speaker meaning (see section 4.2 and entries on
Pragmatics; Implicature; Paul Grice).
On the other hand, if legal interpretation seeks a provision’s contribution to the content of the
law, then the relevance of different legislative intentions depends on the bearing of those
intentions on the content of the law. Does the content of the law depend on what legal rule the
legislature actually intended? Or on what legal rule a reasonable person under specified
21
At best, legal intentions may be highly indirect and unreliable evidence of communicative intentions, which, as
noted, themselves have an important bearing on speaker meaning.
23

circumstances would have taken a hypothetical coherent lawmaker to have intended to create by
uttering the words of the provision? Or, perhaps, on what the legislature asserted or said?
Legitimacy arguments might be relevant at this juncture. For example, there may be reasons of
democracy why legal intentions have an important bearing on the content of the law only if they
are publicly available in certain authoritative sources.
One variation on actual legislative intention is counterfactual intention (see Posner 1986). To say
that the legislature had a particular counterfactual intention is to say that, if the legislature had
considered the relevant issue, it would have had the intention in question. The metaphysical,
existential, and epistemic problems are especially severe for counterfactual intentions. Moreover,
because the focus is on what the legislature would have intended with respect to the specific
issue before the court, counterfactual intentions tend to be understood as counterfactual
application intentions rather than as counterfactual legal or communicative intentions. And the
legitimacy problem is particularly strong for application intentions (see Greenberg and Litman
1998; Berman 2007, 385; 2009, 28; McConnell 1997, 1284; Whittington 2013, 382-83).
Conventional intentions exist and can be identified when the relevant sources, such as committee
reports, floor debates, and the like, identify rationales for the relevant legislation. Of course,
when the sources identify conflicting rationales, the existence of conventional intentions
becomes problematic. More fundamentally, however, conventional intentions face a severe
legitimacy problem. As critics of the use of legislative history have emphasized, it is relatively
easy for legislators to insert ostensible purposes for legislation into the legislative history (see
Scalia 1997, 29-37; Scalia and Garner 2012, 376-78; Easterbrook 1990, 448-49; 1994, 65). Such
rationales are often offered with extraneous motives, such as to defeat the legislation by making
its purposes seem unacceptably broad or to increase the chances of passage by making the
purposes seem unexceptionable. There is no reason in general to take such proffered rationales as
representative of the attitudes of members of the legislature, and they are not part of what is
voted on by the legislature. Probably for this kind of reason, conventional intentions are assigned
a relatively minor role by most contemporary theorists of legal interpretation. For a critique of
reliance on conventional intentions, see Eskridge 1994, 18-21.22
4.1.4 Objectified Intentions and Purposivism

Objectified intentions are imputed to the legislature by making various, typically counterfactual,
assumptions about the audience and the author of the legislation. For example, we might ask
what legal norm a reasonable person would have taken a coherent and reasonable lawmaker to
have intended to create by enacting the words of a statutory provision.
Because there are many possible objectified intentions of the legislature depending on what
idealizing assumptions are made, any specific set of assumptions needs defense. Talk of
objectified intentions is, in fact, misleading; the methodology of asking what a reasonable
member of the audience would attribute, given certain stipulations, is really just a way of
22
An interesting exception is Soames 2013 who gives an important role to the publicly stated rationale, allowing it
to trump what the legislation says in some circumstances.
24

constructing a content – whether that content is taken to be an intention, a provision’s
contribution to the content of the law, a linguistic content, or something else.
Purposivism is best understood as a form of intentionalism that is concerned with objectified
intentions. Given the closeness in meaning of the terms intentions and purposes, it is confusing
that intentionalism and purposivism are frequently distinguished in the legal interpretation
literature. The term intentionalism tends to be used for positions that focus on relatively specific
communicative, application, or legal intentions of the legislature that enacted the statute, while
purposivism is reserved for positions that give central place to more general legal or policy
purposes that might reasonably be attributed to the statute.
According to the seminal account of purposivism, interpreters should “decide what purpose
ought to be attributed to the statute and to any subordinate provision of it which may be
involved” on the assumption that the statute consisted of “reasonable persons pursuing
reasonable purposes reasonably” (Hart and Sacks 1994, 1374, 1378). This formulation makes
clear that the relevant purpose is not that of any actual person or body, but a purpose that is
imputed based on an idealization. In addition, the meaning of the words is to be subordinated to
the objectified purpose: purposivists “[i]nterpret the words of the statute immediately in question
so as to carry out the purpose” as well as possible (Hart and Sacks 1994, 1374). Barak (2005,
chaps. 6-8) develops a more complex position that gives a role to both actual and objectified
purpose.
As noted, the relevant type of purpose seems to be legal or even policy, certainly not semantic or
communicative (see Eskridge 1993, 1744-45; 1994, 29; Hart and Sacks 1994, 148; Barak 2005;
Dickerson 1975, 88-90; Manning 2006; Scalia and Garner 2012, 35-39). The famous purposivist
case of Church of the Holy Trinity illustrates this point. The case concerned whether a statute
that made it unlawful to facilitate the immigration of a foreigner under a pre-existing contract to
perform “labor or service of any kind” applied to a church’s attempt to hire an English minister.
The Supreme Court relied on evidence outside of the text of the statute to find that the purpose of
the statute was limited to regulating the immigration of manual laborers, though the Court
conceded that the meaning of the words covered the work of a clergyman.
Writers have criticized purposivism on the ground that the assumption that the legislature
consists of reasonable people with reasonable purposes is false (Posner 1985, 288-89). The
assumption is best understood not as an empirical one, however, but as an idealizing stipulation
used to construct a content. As noted, objectified intentions are not genuine intentions at all.
Purposivism, like any theory of legal interpretation that appeals to constructed contents based on
counterfactual assumptions, faces challenges both to specify the relevant assumptions in a way
that yields a unique content and, more fundamentally, to explain why the content thus
constructed should be given primacy in legal interpretation (see further discussion in section
4.2). For example, the simple democratic rationale that may seem to support an appeal to actual
intentions – that courts should carry out the intentions of the elected representatives of the people
– does not apply to objectified intentions, as they are not in fact the intentions of the legislature.
25

4.1.5 Linguistically Motivated Intentionalism
As noted, traditional forms of intentionalism were motivated by democratic ideas, including
especially the idea that the courts should be faithful agents of the legislature. A relatively recent
development is the emergence of a strong form of intentionalism driven by linguistic arguments.
One popular argument starts from the premise that sounds or marks produced without intentions
are meaningless. Proponents of this argument take this premise to imply that a text means
whatever the author intends it to mean. From this proposition, they conclude that legal
interpretation must seek the intention of the legislature. In light of the claim that a text means
whatever the author intends, the relevant intention is best understood as a communicative
intention, and some of the theorists in this camp are explicit on this point. Also, given the nature
of the argument, the relevant intentions must be actual intentions. Proponents of this kind of
intentionalism often tend to be surprisingly unconcerned about whether the relevant
communicative intentions exist and, if so, how they could be ascertained.23
Even if we grant for the sake of argument the not-at-all-obvious premise that marks without
intentions are meaningless, the proposition that a text means whatever the author intends does
not follow (see Sinnott-Armstrong 2005; Berman 2009, 47-49) — and it is false. Given the
premise, the marks “the cat is on the mat” would have no meaning unless their maker produced
them intentionally. So, let’s assume that an author produces those marks intentionally –
specifically, with the intention of using those words in English – and, in addition, intends the
words to mean that dogs are carnivorous. Regardless of the latter intention, the sentence “the cat
is on the mat” does not mean that dogs are carnivorous, though (by hypothesis) the speaker, in
uttering it, means that dogs are carnivorous.
The argument runs roughshod over the distinction between word meaning and speaker meaning.
The proponents of the argument deny the existence of word meaning, claiming, in effect, that the
only meaning is speaker meaning. But their argument does not support the denial, and much of
what speakers mean (and successfully communicate) would not be possible if it were not for
word meaning.24 You could not use the words, “children under 11 may enter free” to mean that
children 11 and over must pay for admission if the words did not have a stable conventional
meaning in English.
There is a more fundamental and more interesting problem with the position – one that is
endemic to much literature on legal interpretation. The position moves without argument from a
claim about linguistic meaning to a conclusion about the correct method of legal interpretation.
Even if it were true that a text meant whatever the speaker meant or intended to communicate, it
would not follow that legal interpretation should seek the speaker’s communicative intention.
Substantive argument is needed to derive claims about legal interpretation from claims about
23
See, for example, Knapp and Michaels 1982; 1983; 2005; Campos 1993; Alexander and Prakash 2004, 974-78;
Alexander 2011; 2013, 539-40; Fish 2005; 2008; Goldsworthy 2005; Nino Graglia 1992; Richard Kay 1988; 1989;
see also Whittington 1999, 177-179.
24
Even if word meaning could ultimately be reduced to speaker meaning, as Paul Grice (1968) famously argued, it
would not follow that words mean whatever a speaker on a given occasion intends them to mean or whatever a
speaker means in uttering the words. See entry on Paul Grice.
26

language and communication. As set out above, there are powerful reasons for thinking that legal
interpretation seeks at least a provision’s contribution to the content of the law. (Even if it seeks
the overall best resolution of disputes, it must still ascertain a provision’s contribution, given the
importance of the law to the resolution of disputes.) A provision’s contribution to the content of
the law may be something other than its linguistic meaning, such as the objectified legal
intention, the best justification for the enactment of the provision, or a complex function of
multiple factors.25 And there are strong reasons for rejecting the general proposition that the legal
impact of an action is constituted by the actor’s communicative intention (see Greenberg 2011a).
4.2 Textualism
In recent decades, in part in reaction to skepticism about actual legislative intentions, theorists of
both statutory and constitutional interpretation have moved away from accounts that focus on
intentions. One important trend has been toward textualism in statutory interpretation and
“public meaning” originalism in constitutional interpretation. (Textualism here will be used to
encompass public meaning originalism, including the position of the so-called new
originalists.26)
The core idea of textualism is that the text prevails over other factors. Traditional textualism
focused on “plain meaning” and held that, if the plain meaning is clear, a court should not
consult other indications of legislative intent. This older textualism saw itself as seeking
legislative intent, but took the position that a clear text is the best evidence of that intent.
The focus here will be on a more recently influential form of textualism, sometimes called new
textualism. New textualists are skeptical about the existence of coherent and discoverable
legislative intentions. For reasons for such skepticism, see section 4.1. They emphasize, not
plain meaning, but a reasonable reading of the text in context.
Textualism’s emphasis on the text has to be understood as an emphasis on the linguistic meaning
of the text, rather than the text understood as marks on a page. Within linguistic meaning, there
are two basic types: semantic content and pragmatically conveyed content (or pragmatic content,
for short). See entry on Pragmatics. There is a lively debate in philosophy of language and
25
A few theorists, influenced by philosophy of language and linguistics, have argued that legal interpretation must
seek the total pragmatically conveyed content of the legal texts because that is what linguistic interpretation
normally seeks (Neale 2008; Soames 2009; Ekins 2012; 2017; Alexander 2011). Because of the central role of the
speaker's communicative intentions in determining pragmatically conveyed content, the resulting position is very
similar to that discussed in the text. The position suffers from the problem described in the text; it attempts to move
without argument from claims about linguistic interpretation to claims about legal interpretation. This is another
example of intentionalism motivated by appeal to a proper understanding of language.
26
Textualism is often used specifically for a position on statutory rather than constitutional interpretation. But there
is a corresponding position with respect to constitutional interpretation, and I will generally discuss them together.
In principle, textualism is distinguishable from originalism because one could focus on the text without privileging
its original meaning. In practice, textualists care about original meaning rather than what the words mean or would
be taken to mean at a later time, so constitutional textualism is in practice a form of originalism that claims that the
relevant original aspect of a constitutional provision is its original meaning. See Scalia 1997, 37-38. The “new
originalists” are one prominent camp that emphasizes "original public meaning." See sections 3 & 4.2.
27

linguistics over how exactly to draw the line between semantics and pragmatics. Roughly
speaking, however, semantic content is what is conventionally encoded in the words, and
pragmatic content is what a speaker or author, by an utterance of words on a particular occasion
in a particular context, manages to convey beyond, or different from, the semantic content of the
words.27 Central to pragmatic content are the communicative intentions of the speaker. To take a
well-known type of example, when one says to a new acquaintance at a dinner party, “I have
three children,” one likely intends to communicate that one has exactly three children and the
hearer will likely recognize that intention, though the literal meaning of the words is that one has
at least three children. This chapter uses “linguistic content” to encompass both semantic
content and pragmatic content.
On the face of it, pragmatic content seems a poor candidate for what textualists are after, given
their skepticism about legislative intentions (though we will see that much of what they say
points toward pragmatic content nevertheless).
Given textualism’s emphasis on text and objective meaning, it would be natural to understand it
as seeking semantic content.28 This cannot be the right understanding of contemporary
textualism, however. Leading textualists explicitly reject literal meaning (a rough synonym for
semantic content), which they associate with the more traditional “plain meaning” textualism.
They insist that textualism seeks a reasonable reading in context, not a literal one (Scalia 1997,
23-24; Easterbrook 1994, 64, 67; Manning 2001, 108-15; 2003, 2457-58; 2006, 79-81; see also
Whittington 1999a, 176-77). As Justice Scalia puts it: “A text should not be construed strictly…;
it should be construed reasonably, to contain all that it fairly means” (Scalia 1997, 23).
At first blush, the idea of a reasonable reading seems hard to quarrel with. On closer
examination, however, it raises a host of problems largely unrecognized by textualists. To begin
with, what is reasonable depends on what one seeks and what one knows or believes.
In ordinary communication, in interpreting a note from one’s spouse or an instruction manual,
say, the goal is normally to identify what the speaker or author meant or intended to
communicate, as opposed, for example, to what the words literally mean or what a reasonable
person with certain assumptions would take the speaker to have intended to communicate. In
other words, one is successful in interpreting in ordinary communication just to the extent that
one accurately recovers what the speaker intended to communicate.29 A reasonable interpretation
27
This chapter will use the term "semantic content" in the standard way. Unfortunately, but understandably, legal
theorists use the term differently. For example, John Manning (2006) seems to use "semantic content" or "semantic
meaning" for some form of pragmatically conveyed content (see also Berman and Toh 2013, 548; 562). Readers in
this area must be wary of this difference in usage given that "semantic content" in philosophical usage is standardly
opposed to pragmatically conveyed content. One complication that can be set aside here is that there is a further
distinction between word meaning and semantic content. According to a common view, for example, the speaker's
semantic intentions determine such matters as the sense of ambiguous expressions and the referent of
demonstratives, thereby yielding semantic content.
28
Semantic content does not depend on communicative intentions at all, though it depends on semantic intentions,
e.g., about which word to use. See previous note and note XX below [on context sensitivity].
29
Of course, what speakers can intend to communicate will depend on what they believe the intended audience will
be able to recognize in the context. Unless you are crazy or there is a special background, you can’t use words that
mean “the cat is on the mat,” intending to communicate that Sherlock Holmes lives on Baker Street.
28

in a conversational setting is therefore one that is reasonably calculated to recover the speaker’s
communicative intentions given the audience’s beliefs about the speaker and the situation. On
the other hand, if one is engaged in a different enterprise – playing a word game, trying to decide
whether a witness committed perjury (see Bronston v.United States), interpreting a poem, or
working out the impact on the law of the enactment of a provision – what is reasonable might be
quite different. Textualists do not clearly address what a reasonable reader is supposed to be
seeking in part because they have not recognized the issue, saying things that point in different
directions.
Some examples that textualists offer suggest that they are assuming the model of ordinary
communication. In the well-known case of Smith v. United States, Smith had offered to trade a
gun for cocaine. The Supreme Court divided over the question whether he was properly
sentenced under a statute that provides for increased penalties if the defendant “uses . . . a
firearm” in a drug-trafficking or violent crime.” In a much-quoted dissenting opinion, Justice
Scalia pointed out that “When someone asks ‘Do you use a cane?’ he is not inquiring whether
you have your grandfather's silver handled walking stick on display in the hall; he wants to know
whether you walk with a cane” (508 U.S. 223, 242; see Manning 2003, 2460). Properly
understood, the example illustrates that, in ordinary conversation, in the imagined situation, the
speaker would likely intend to ask whether you walk with a cane. The communication would
therefore be successful if the audience correctly identified that intention.30 Textualists also
endorse the use of linguistic canons of interpretation that, properly understood, are rules of
thumb for inferring what a speaker likely intended to communicate, as opposed to the literal
meaning of the words (e.g., Scalia 1997, 25-26).31
So the examples that textualists give involving the interpretation of ordinary communications
and their use of certain canons of interpretation suggest that the relevant inquiry is what it would
be reasonable to take the speaker to intend to communicate. Indeed, textualists often assert that
what words mean is what a reasonable person would take the speaker to mean or to intend to
convey – thus confusing word meaning with reasonable inferences about communicative intent
(e.g., Scalia and Garner 2012, 16, 56). Similarly, textualists often say that the relevant inquiry is
“objectified legal intention,” understood as what a reasonable person, given the context, would
take the legislature to have intended.32
30
Scalia mischaracterizes what the example shows. See below. For another example of reliance on the model of
ordinary communication, see Manning 2001, 111-112 n.434.
31
On the other hand, they also endorse the use of canons of interpretation and interpretive practices and conventions
that are not ways of ascertaining linguistic meaning of any sort. E.g., Manning 2003, 2466-67, 2470.
Scalia 1997, 27-28; 2012.
32
Textualists and non-textualists often quote Justice Scalia on objectified intentions as if Scalia were endorsing the
position, though it is unclear that he means to do so: "We look for a sort of 'objectified' intent – the intent that a
reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris." See,
e.g., Barnett 1999, 620-21; Richard Fallon 2015, 1275; John Manning 2006, 79; Alexander and Prakash 2004, text
accompanying note 5). Because contemporary purposivism and textualism are best understood as appealing to
constructed content – "objectified intentions" – there is an important question how they differ (see Molot 2006;
Manning 2006). As suggested in the text, while theorists are not always consistent and do not explicitly recognize
the relevant distinctions, purposivists tend to appeal to legal or policy intentions, while textualism may be best
reconstructed as appealing to communicative intentions. According to John Manning (2006, 91): "Textualists give
primacy to the semantic context – evidence about the way a reasonable person conversant with relevant social and
29

The notion of what a reasonable person would take a speaker to have intended to communicate is
coherent (and underspecified), though it does not have an important role in the contemporary
study of language and meaning. In the case of legislation, however, by the textualists’ own
lights, it is not reasonable to take the legislature to have intended to communicate anything.
(For skepticism about communicative intentions, see section 4.1.)
Textualists have not recognized this problem in part because they misunderstand what the
examples from ordinary communication illustrate. An especially common misunderstanding
concerns the role of context. Contemporary textualists often explicate the idea of a reasonable
reading by appealing to a notion of what words mean in context:
Words take their meanings from context, of which there are many – other words, social
and linguistic conventions, the problems the authors were addressing. Texts appeal to
communities of listeners, and we use them purposively. The purposes, and so the
meaning, will change with context. (Easterbrook 1994, 61 (quoted by Manning 2003,
2462 n.273).
Like many writers about legal interpretation, textualists take for granted that what words mean
changes from context to context (see, e.g., Manning 2001, 108-11; 2003, 2457-65; 2006, 75, 78-
85; Easterbrook 1990, 443; Barnett 1999, 632-33, 644; 2013, 419; Whittington 2004, 610; Scalia
and Garner 2012, 56).33 (Indeed, they sometimes suggest that words have meaning only in
context (Manning 2006, 77). And they further assume that the notion of the “ordinary meaning
of words in context” or the “public meaning” of words is unproblematic and requires little
explication.34
In the study of language, there are competing accounts of context, but the core idea is that
context is what varies from utterance to utterance. See entry on Pragmatics. Thus, for example,
the standing conventions about the meaning of words are not part of the context. (In philosophy
of language, speakers’ intentions are often taken to be part of the context, but because legal
linguistic practices would have used the words. Purposivists give precedence to policy context – evidence that goes
to the way a reasonable person conversant with the circumstances underlying enactment would suppress the
mischief and advance the remedy."
33
Barnett (1999, 632-33) suggests that constitutional interpretation, like contract interpretation, should use an
"objective approach" that "looks to the publicly-accessible meaning that a reasonable person would attach to these
words in context.". Many textualist examples involve cases in which the reader uses context to infer which sense of
a word or phrase the speaker intended to employ (see, e.g., Manning 2003, 2458-59 n. 262). Manning illustrates
what he takes to be the way in which words vary in meaning in different contexts with Puffendorf’s example of a
medieval statute imposing criminal penalties on anyone who "drew blood in the streets," Manning (2003, 2461-62)
writes: "a modern textualist, however, would place different glosses on the phrase 'drew blood' in different contexts.
In some contexts, that phrase refers to a violent piercing of the skin…. In different contexts, however, it might refer
to a medical procedure…. Accordingly, under a modern understanding of textual interpretation, dismissing the
charges against Puffendorf's surgeon would comport with the ordinary meaning of the statute in context.”
34
E.g., Whittington 2004, 609-610. Barnett (1999, 620) quotes Robert Bork approvingly: "when lawmakers use
words, the law that results is what those words ordinarily mean.". The passage confuses what words mean with what
hearers would ordinarily take a speaker who utters the words in a particular context to mean. See also Barnett 1999,
634 ("searching for the 'generally accepted' or reasonable meaning within a particular community of discourse").
30

writers do not typically understand context to include intentions, to avoid confusion, “context”
will be used in a way that excludes intentions.)
Words do not in general take on different meanings in different contexts – with qualifications
concerning context-sensitive terms that are generally unimportant in the case of legal texts
(because legal texts tend to avoid the use of such terms).35 Textualists’ discussion of Smith
illustrates the misunderstanding. Scalia and other textualists maintain that, in the provision at
issue in Smith, the words “using a firearm” take on a particular narrow meaning in the context,
different from their dictionary definition. John Manning, textualism’s most sophisticated
contemporary theorist, writes: “Focusing on what 'using a firearm' means in the context of
committing a crime, Justice Scalia simply read the text to require penalty enhancement only for
brandishing a gun in connection with drug trafficking" (Manning 2003, 2461 (emphasis added)).
But the words “using a firearm” do not take on a special, narrow meaning “in the context of
committing a crime” (see Soames 2011, 237-39; 2009, 413-15; Neale 2008; see also Greenberg
2014, 1327). Rather, as noted above and as the “using a cane” example illustrates, the audience
uses context to infer what the speaker intended to communicate, which may be different from the
meaning of the words uttered.
In general, context is used to make inferences about a range of different matters, some of which
involve the meaning of words, such as which meaning the speaker intended (e.g., financial bank
or riverbank), others what the speaker intended to communicate, and still others having little to
do with linguistic meaning.
Even if word meaning turns out to be more context-dependent than standard views take it to be –
there a range of positions in the literature – much of what textualists say about context suggest
that what they are after is not a form of linguistic meaning at all (e.g., Easterbrook 2017, 91-92).
Some textualist discussions suggest that the reasonable reader is supposed to ascertain what legal
norm the legislature intended to adopt or how the legislature intended the legal norm to be
applied.36 Others suggest that the question is simply what legal norm the lawmaker adopted37 or
what a reasonable contemporaneous reader would take to be the impact of the enactment on the
content of the law (an alternative that would presumably yield indeterminacy to the extent that it
35
There are explicitly context-sensitive words, such as “here,” “now,” and “I,” whose meaning or “character”
remains constant, but whose reference changes depending on the context in a way specified by conventional rules
built into the meaning of the words. More controversially, there may be implicitly context-sensitive words, such as
“tall” or “strong.” See entries on Indexicals; Theories of Meaning. The explicitly context-sensitive words are almost
never used in constitutional, statutory, and regulatory texts, and even the putatively implicitly context-sensitive ones
are generally not used without some explicit specification.
36
E.g., Easterbrook 1983, 5; 1994, 61-62; Manning 2001, 109, 113-14; 2003,
2457-58 & n.258, 2470 n.308; 2006, 78, 80-82, 84-85 & nn. 53 & 54; Whittington
1999, 186-87; 2013, 386.
37
E.g., Whittington, 2004, 611; 2013, 381, 384, 386, 390; Easterbrook 1994, 64,
67.
31

was controversial how statutory and constitutional provisions contribute to the content of the
law).38
Although the textualist cannot appeal to notions that depend on what a reasonable person in the
context would have taken the legislature to have intended, it is certainly possible to construct
related contents by stipulating false assumptions about the speaker or the situation. For example,
we might ask what a reasonable person would take the communicative intention to be if the text
had been uttered by one coherent speaker in ordinary conversation with the goal of
communicating a message. Plainly, there are multiple such counterfactual-based notions
depending on exactly how we specify the various counterfactual assumptions (Alexander 2011,
91-93).
One option would be to appeal to contemporary accounts of pragmatic contents, e.g., of what is
asserted, that have an objective cast, relying in part on norms or conventions of communication
rather than the speaker’s communicative intentions.39 See entry on Assertion. Given the norms in
force in a particular context, the speaker may be, for example, committed to a content even if the
speaker does not intend to communicate that content. The difficulty is that, in the actual context,
the relevant norms or conventions are those of lawmaking and legal interpretation, which just
returns us to the question of which principles govern legal drafting and interpretation (see
Greenberg 2010, 6-10; Marmor 2008, 435-40). Alternatively, the relevant norms or conventions
could be taken to be those of some counterfactual context, such as that of ordinary conversation
– bringing us back to counterfactual contents.
Once the notion of a reasonable reading is explicated in terms of counterfactual assumptions
about the speaker or the context, however, its relevance and appeal fade. Why should the
interpreter be focused on what would be reasonable for a reader who had certain false
assumptions about the authorship of the text or the context in which it was uttered?
Why, in particular, should the question be what it would be reasonable to take the speaker to
have intended or to be committed to if the text had been uttered in ordinary communication? The
assumption that legal interpretation should be modeled on the interpretation of ordinary linguistic
communication is problematic, as lawmaking has very different goals, presuppositions and
circumstances from ordinary communication (Greenberg 2011a, 241-56). For example, the
shared purpose of efficiently exchanging information plays a crucial role in the conversational
case (Grice 1989, 28). Given the cross-purposes and lack of cooperation both within the
legislature and between the legislature and various parts of the audience, it is difficult to see what
would be an analogous purpose shared by the legislature and audience across all legislation
(Greenberg 2010, 6; Marmor 2008, 429, 435- 40). And the reasons why legal interpretation
38
E.g., Easterbrook 2017, 84-85; Manning 2003, 2466-69; Manning 2006, 77.
39
Soames (2009; 2011; 2013) offers hints in this direction, though it is unclear how
he takes the relevant contents to be determined, and, in particular, to what extent
they depend on the speaker’s communicative intentions (e.g., 2011, 239-43).
32

should not seek the intentions of the author or speaker are themselves powerful reasons for
rejecting ordinary communication as a model for legal interpretation.
In order to clarify how textualism should understand what the reasonable reader seeks, we can
turn to the underlying justification for textualism. The most sophisticated argument offered by
contemporary textualists begins from the idea that, in a democracy, judges must act as faithful
agents of the legislature (or of constitutional lawmakers) – an idea that that is often taken to
motivate intentionalism and purposivism as well. (Manning 2003, 2393-94 & n.18; 2006, 91-
111; Easterbrook 2010; Whittington 2010, 129; 2013, 399-400). Given the way the Constitution
structures the legislative process, minorities have the power to block legislation. Compromise is
therefore necessary to pass legislation. In light of the realities of the legislative process and the
lessons of public choice theory, it is highly problematic to attribute coherent intentions to a
legislature under the circumstances of contemporary legislation. As Manning puts it: “The reality
is that a statutory turn of phrase, however awkward its results, may well reflect an unrecorded
compromise or the need to craft language broadly or narrowly to clear the varied veto gates
encountered along the way to enactment” (Manning 2003, 2417). In other words, what can be
presumed to be agreed on is merely the words of the legislation.40 A court that is genuinely
acting as a faithful agent of the legislature must effectuate the details of these legislative
bargains. Attributing a coherent legal or policy purpose to the legislature and interpreting the
statute accordingly would undermine such bargains.
This argument does not offer any help with the question of how “a reasonable reading of the
text” should be understood. If the result of legislative bargaining is merely an agreement on a
form of words, then there is, by hypothesis, no intention to be implemented by the faithful agent
(see Marmor 2008, 436-38; Greenberg 2011a, 239-41).41 The words are the bargain. So,
implementing the bargain requires implementing the words. But what does it mean to implement
words?
We have seen that “a reasonable reading of the text in context” is underspecified, and textualists
offer glosses that are in tension with each other. Textualists thus face a challenge to specify a
coherent and unique content, one based, say, on precise counterfactual stipulations about the
speaker or the context. But the more fundamental challenge is to explain why legal interpretation
should be focused on the content thus constructed rather than one of the many other candidates.
Greenberg (2011a, 244-56). Although an appeal to faithful agent theory with some handwaving
about democracy doesn’t take us very far, more fully developed arguments from democracy, rule
of law, or fairness, might meet the challenge.
Are such arguments the appropriate place for theories of legal interpretation to turn? In the next
section, I turn to the question of how to argue for and evaluate theories of legal interpretation.
40
See Manning 2003, 2395. “Judges can rarely, if ever, tell if a law’s specific wording… was instead crafted to
navigate the complex legislative process.”). 2006, 74 ("the final wording of a statute may reflect an otherwise
unrecorded legislative compromise, one that may – or may not – capture a coherent set of purposes.")
41
What does a faithful agent do when the principal has no intention with respect to what the agent should do?
Consult the principal, perhaps? If that’s not possible, and action has to be taken, perhaps act in the way that the
agent believes best advances the principal’s interests? Whatever faithful agent theory would say here, it doesn’t
seem relevant to legislation in a contemporary nationstate.
33

What kinds of arguments are relevant in this enterprise depends on what legal interpretation
seeks – its constitutive aim. As we will see, if legal interpretation seeks a provision’s
contribution to the law, whether arguments sounding in democracy and other values are relevant
depends on how the content of the law is determined, and, in particular, whether the way in
which sources contribute to the content of the law depends on normative factors.
5. How to Argue for and Evaluate Theories of Legal Interpretation

5.1 Theories of Legal Interpretation and Theories of Law
In the literature on legal interpretation, theorists offer various arguments in favor of their
preferred theories of legal interpretation. As noted, normative arguments, appealing to moral
values such as democracy, fairness, and the rule of law, are the most common. For example, both
textualists and intentionalists offer arguments based on democracy (see Eskridge 1994, 13;
Eskridge and Frickey 1990, 326; Barak 2005, 248; Alexander 2013, 540; Easterbrook 1994, 63).
According to Justice Scalia, for example, “it is simply incompatible with democratic
government, or indeed, even with fair government, to have the meaning of a law determined by
what the lawgiver meant, rather than by what the lawgiver promulgated.” (Scalia 1997, 17.)
Typical linguistic arguments defend a particular approach to legal interpretation by appealing to
claims about how language or communication works. For example, in section 3, we saw that a
recent form of intentionalism is defended on the ground that any linguistic text must mean
whatever its author intends it to mean. And theorists influenced by philosophy of language have
argued that the proper approach to legal interpretation is to find the total pragmatically conveyed
content of the legal texts, on the ground that that is what linguistic interpretation normally
seeks.42
Conceptual arguments claim that a particular approach to legal interpretation follows from the
concept of interpretation, the concept of law, the concept of authority, or some other relevant
concept (e.g., Neale 2012; see Berman 2009, 37-68). For example, as noted in section 2, some
writers have argued that any approach to a text that does not seek the intentions of the author
does not count as interpretation (Fish 2005; Graglia 1992).43
Such arguments for particular theories of legal interpretation are typically offered without any
account of why these arguments are the relevant ones and often without consideration of other
kinds of arguments. What is the appropriate way to choose between competing theories of legal
interpretation? What kinds of arguments are relevant? How do we adjudicate between competing
arguments if they conflict? It is unusual for theorists to explicitly address the question of how to
choose between competing theories of interpretation. For exceptions, see, e.g., Shapiro 2009
chaps. 1, 12-13; Greenberg 2016; 2017a; Fallon 1999.
42
See note 25 above.
43
Much less common is an argument that a particular method of interpretation is required by substantive legal
standards. See, e.g., Baude and Sachs, 2017; 2018.
34

Section 2 made the point that which method of legal interpretation is correct – and which reasons
or arguments count in favor of a method – depends on what legal interpretation seeks. To a first
approximation, whether a method of legal interpretation is correct depends on whether it reliably
yields what legal interpretation seeks. For example, if legal interpretation seeks the best
resolution of disputes, then a method of legal interpretation is correct if, and only if, it yields the
best resolution of disputes.44
We saw that the strongest candidate for what legal interpretation seeks is provisions’
contribution to the content of the law. (As noted, even if legal interpretation seeks the best
resolution of disputes, legal interpretation must begin by seeking provisions’ contributions, given
plausible assumptions. See section 2.) If that is what legal interpretation seeks, then a method
cannot be a good one unless it reliably yields the content of the law.
Let’s use the term legal facts for facts about the content of the law, for example, the fact that, in
California, contracts for the sale of land are not valid unless in writing.45 Legal facts are not
among the most basic facts of the universe. They are determined by metaphysically more basic
facts, such as facts about what various people and institutions have said and done and decided
and, on some views, moral or other normative facts. A theory of law is an account of how the
more basic, determining facts determine the legal facts.46 Different theories of law make
different claims about what the determining facts are and how they combine to determine the
legal facts.
The most widely held theory of law, at least in law schools, is HLA Hart’s (1994) inclusive
positivist theory, and many theorists of legal interpretation profess to accept Hartian positivism
(Alexander 2015; Baude and Sachs 2018; Baude 2015, 2364-65; Sachs 2014, 2261; 2015, 825-
26; Fallon 2018, 90-91; Goldsworthy forthcoming). What are its implications for legal
interpretation? On Hart’s account, the content of the law is determined at the most fundamental
level by the convergent practices of judges and other officials.47 In Hart’s well-known
terminology, judges’ convergent practices and attitudes constitute a rule of recognition that
specifies how the content of the law is determined (Hart 1994, 100-10).48 (For simplicity, I
restrict attention to judges.) To illustrate with respect to statutes, if judges (in a particular
jurisdiction): (1) regularly treat statutes as contributing to the law in a particular way; (2) are
disposed to criticize other judges who fail to do so (or threaten to fail to do so); and (3) regard
44
For qualifications, see section 5.2.
45
Legal facts are relative to a legal system and a time, but for brevity I omit these qualifications.
46
The term "determine" is ambiguous between a metaphysical sense and an epistemic sense. In the metaphysical
sense, to determine the content of the law is to make the content of the law what it is. In the epistemic sense, to
determine the content of the law is to ascertain or figure out what the content of law is. To avoid confusion, I will
use the term determine (determination, determinant, and so on) exclusively in the metaphysical sense.
47
To say that the content of the law is determined in a particular way at the most fundamental level is to say that the
content of the law is determined in that way and that it is not the case that it is determined in that way because of
some further determinant. Jurisprudential theories like those of Hart and Dworkin offer accounts of how the content
of the law is determined at the fundamental level.
48
For more detail, see Greenberg, 2006, 271–73. I will usually write simply of judges, setting aside other officials.
35

such criticisms as justified, then the rule of recognition in the jurisdiction is that statutes
contribute to the content of the law in that way. (See entry on Legal Positivism.)
In addition to the rule of recognition’s specification of how sources of law contribute to the
content of the law at the most fundamental level, legal norms that are themselves validated by
the rule of recognition could further specify how sources of law are to contribute to the content
of the law.
Thus, if Hart’s theory is true, in order to defend a preferred theory of legal interpretation, a
theorist must argue either: 1) that the way in which the theory takes a provision to contribute to
the content of the law is incorporated in the rule of recognition because it is treated as correct by
a large majority of judges; or 2) that the way in which the theory takes a provision to contribute
to the content of the law is validated by a criterion that is treated as correct by a large majority of
judges.49 This would be a challenging task. (As these are the only two possibilities that Hart’s
account allows, to the extent that there is no consensus on a theory of legal interpretation and no
criterion grounded in consensus that validates a particular theory of interpretation, it is
indeterminate which theory of interpretation is correct.)50
Take the first possibility. There seems to be no consensus among judges about the proper method
of legal interpretation. Instead, there is widespread controversy (Hart and Sacks 1994, 1169;
Eskridge 1994, 13-47; Eskridge, Frickey & Garret 2007, 689-846; see, for example, the various
methods employed and advocated in the United States Supreme Court’s decisions in Smith,
Bond, Yates, Weber, and King v. Burwell). A theorist could try to argue that, at a high level of
generality, there is a consensus among judges on the theorist’s preferred method of
interpretation, and that the disagreement is in the application of that consensus.
The only kind of consensus among judges, however, is on bland platitudes such as that original
meaning matters or legislative intention is important. Such platitudes are too underspecified to
yield a uniquely correct application. Which kind of original meaning? Semantic content?
Communicative content? “Public meaning”? Exactly how does original meaning matter, and
what other factors matter and in what way? Which kind of legislative intention?
The second possibility is a little more promising. It is possible for judges to agree on a criterion
(or chain of criteria) that validates a particular method of legal interpretation, yet be unaware that
the criterion does so because the application of the criterion is controversial. Thus, for example, a
theorist could try to argue that the judges agree on a normative criterion, but they disagree about
what that criterion, properly understood, entails. Or a theorist could argue that judges converge
on a descriptive criterion, but they have a factual disagreement about what that descriptive
criterion entails. Perhaps there is a forgotten custom, validated by the rule of recognition, that
specifies (when understood as the rule of recognition requires) that statutes contribute to the law
according to their literal meaning, and there are no conflicting norms validated by the rule of
49
Or that there is a chain of criteria of validity leading back to the rule of recognition. This point will not affect the
argument, so I will set it aside for the most part.
50
For expository purposes, this section simplifies by assuming that the correct theory of legal interpretation is
simply one that treats legal sources as contributing to the content of the law in the way that they in fact contribute to
the content of the law. As discussed in section 4.2, this assumption requires qualification.
36

recognition. Such possibilities can’t be ruled out a priori, but it is clear that it would be a tall
order to show that there is consensus on a criterion that, properly understood, yields a
controversial method of interpretation.
In sum, on Hart’s theory of law, it is difficult to defend any controversial theory of legal
interpretation.51 (But see Baude and Sachs 2017; 2018.)
Dworkin’s well-known “law as integrity” theory of law, sketched above, is the most influential
alternative to Hart’s account. See section 3. (Dworkin 1986, 225, Ch. 7.) As discussed,
Dworkin does not consider the distinction between theory of law and theory of legal
interpretation. He assumes that, if his theory of law is true, the proper method of legal
interpretation is simply to seek the set of principles that best justify the legal practices.
In principle, however, a proponent of a different theory of legal interpretation, textualism, say,
could argue that Dworkin’s theory of law in fact supports textualism. The theorist would have to
argue that textualism is the best method of ascertaining the set of principles that best justify the
legal practices – perhaps, for example, a judge who adheres to textualism will more reliably
identify the relevant principles than a judge who tries to identify those principles directly.
In light of these implications of well-known theories of law for how to defend theories of legal
interpretation, it’s worth returning to the kinds of arguments that theorists of legal interpretation
in fact offer to support their preferred accounts. As already noted, normative arguments are
probably the most common. The typical argument is that a method is supported by a certain
value, democracy, for example, because the method treats sources of law as contributing to the
law in the way that that value requires.
It may be that theorists give such arguments simply because they have not carefully considered
what legal interpretation seeks. But are such arguments apt – that is, are they an appropriate way
of defending a theory of legal interpretation given the assumption that legal interpretation seeks a
provision’s contribution to the content of the law?
The fact that a method of legal interpretation treats a provision as contributing to the law in the
way that is supported by fairness (say) is an argument in favor of the correctness of that method
only if fairness is relevant to the method’s ability to identify a provision’s contribution to the
content of the law. But whether fairness is relevant in this way depends on how the content of the
law is determined. Thus, whether typical normative arguments are apt depends on how the
content of the law is determined. For example, if normative factors play no role in determining
the content of the law, then it’s hard to see how the fact that a method of interpretation treats a
source as contributing to the law in a way that is fair bears on whether it accurately identifies a
provision’s contribution to the content of the law.
Returning to Hartian positivism, normative factors can play a role if, and only if, there is a
consensus among judges that does the necessary work (or a consensus on another criterion that
picks out those normative factors). If, as seems likely, there is no consensus among judges that
does the necessary work, Hart’s theory implies that normative factors do not play a role in
51
For fuller discussion, see Greenberg 2017a, 114-17.
37

determining the content of the law. In that case, the fact that a method of legal interpretation is
supported by democratic values has no bearing on whether it accurately ascertains the content of
the law.
Exclusive positivist theories of law, by contrast with inclusive accounts like Hart’s, maintain that
normative factors can play no role in determining the content of the law at any level (Raz 1979;
1994; Shapiro 2011, 271-81; Leiter 1998, 535-36; see entry on Legal Positivism). On such
accounts, it is clear that normative arguments have no bearing on whether a theory of
interpretation is true.
As we saw above, Dworkin’s theory makes normative arguments relevant. But the type of
normative argument that it makes relevant is very different from the normative arguments
typically offered in favor of theories of legal interpretation. On Dworkin’s theory, the way to
show that a method of interpretation accurately identifies how sources contribute to the law is to
show that the method yields the principles that best justify the legal practices. An argument that a
method yields the best justification of legal practices is, however, very different from the kind of
normative argument typically offered in favor of theories of legal interpretation.
One theory of law – really a family of theories – offers a natural explanation of the relevance of
the typical normative arguments. Theories in this family hold that legal obligations are a subset
of genuine normative (or moral) obligations.52 For example, according to the moral impact
theory, the relevant obligations are, roughly speaking, those that obtain in virtue of the actions of
legal institutions (Greenberg 2014; 2017b). At the fundamental level, therefore, what the
determinants of the content of the law are – and how they contribute to the content of the law – is
determined by all relevant values. Thus, for example, a statute’s contribution to the content of the
law is the impact of its enactment, in light of fairness, democracy, rule of law, and any other
relevant factors, on our obligations (and rights, permissions, powers, and so on). Consequently,
on the moral impact theory, a natural way to argue for a method of interpretation is to argue that
the way in which the method of interpretation takes sources to contribute to the content of the
law is supported, on balance, by the relevant values.
The moral impact theory thus seems to fit nicely the way in which theorists of legal
interpretation employ normative arguments to defend their theories (see Greenberg, 2017b, 308-
11). And, perhaps surprisingly, on many competing theories of law, it may be difficult to defend
the aptness of such normative arguments. Of course, the moral impact theory implies that it is not
enough to argue, as theorists often do, that a particular democratic or fairness consideration
supports a preferred theory of interpretation. What is needed is an argument that the way in
which a theory takes sources to contribute to the content of the law is supported, on balance, by
all relevant values.
According to normative relevance theory (normative relevance, for short), a legal provision
should be interpreted in the way that is supported, on balance, by all relevant values. Whether,
52
This family of theories has recently attracted a great deal of interest. Berman forthcoming; Dworkin 2011; 2013;
Greenberg 2004/2006; 2006; 2011a; 2011b; 2014; 2017b; Hershovitz 2015; Sager 2016; Schaus 2015; Stavropoulos
2012; 2016; Waldron 2013.
38

for example, the literal meaning of a statutory provision, the communicative intentions of the
legislature, or some kind of constructed objectivist purpose matters – and how much and in what
way it matters – depends on democracy, fairness, rule of law, and any other relevant values.
(Greenberg 2014, 1325-37.)
Normative relevance is not often articulated as a theory or method of legal interpretation. As I
have noted, theorists often appeal to normative arguments in a relatively ad hoc way to support
preferred accounts of statutory interpretation (e.g., Scalia, 1997, 22, 25; Scalia 1989, 854;
Barnett 2004, 53-86; McGinnis and Rappaport 2007). It could be argued, however, that appeals
to normative arguments to support particular theories of interpretation presuppose the position
that legal instruments should be interpreted in the way that is most supported by all relevant
values.53
The normative relevance theory of legal interpretation seems especially well suited to the moral
impact theory of law. For normative relevance simply treats legal sources as contributing to the
content of the law in the way that is supported, on balance, by all relevant values – in other
words, in the way that the moral impact theory specifies. Normative relevance allows, however,
that, on balance, the relevant values support a particular method of interpretation that does not
make explicit reference to normative considerations, such as textualism or intentionalism. For
example, it might be that following a general rule better promotes the relevant values than
making provision-by-provision calculations about what those values support. Thus, the kinds of
normative arguments commonly offered for theories of legal interpretation could be used to
argue that a preferred theory, textualism, say, follows from the normative relevance theory.
5.2 Ideal and Non-Ideal Theories of Legal Interpretation

In the preceding subsection, I relied on the simplifying assumption that, if legal interpretation
seeks the content of the law, then whether a method of legal interpretation is correct depends
only on whether it treats the determinants of the content of the law as contributing to the content
of the law in the way that they in fact do so. On this assumption, there is no gap between a theory
of law and a theory of legal interpretation. If the correct theory of law is that the content of the
law is determined by, say, the semantic content of the authoritative legal texts, then the best
method of legal interpretation is to ascertain the semantic content of the authoritative legal texts.
53
It might be objected that the relevant values are those required by the Constitution or the law more generally (see
Manning 2003; 2006). According to this objection, what matters is what method of interpretation is supported by,
say, a particular, possibly flawed, conception of democracy enshrined in the Constitution. Any such objection will
encounter several difficulties. It will have to rely on a controversial method of legal interpretation, which is
problematic for an argument that supposed to help us establish how to evaluate which method of legal interpretation
is correct. And the objector will have the task of establishing what the particular flawed conception of democracy
entails for the correct method of legal interpretation – a task in which he or she cannot simply appeal to the best
normative arguments.
39

Depending on how we understand the province of a theory of legal interpretation, it may be
important to qualify this straightforward approach in several ways. To begin with, legal
interpretation is sensitive to evidentiary considerations in a way that the theory of law is not.
Thus, a theory of legal interpretation may provide guidance as to what kinds of evidence are
most reliable. Differently, there may be legal or moral reasons – as opposed to reasons of
accuracy – not to permit consulting certain kinds of evidence. For example, it is plausible that,
for reasons of democracy and fairness, private diaries of legislators are not appropriate kinds of
evidence, even if consulting them would yield more accurate conclusions about the content of the
law.
More generally, the theory of legal interpretation may take into account goals other than
accurately identifying a provision’s contribution. For example, it is often suggested that courts
should adhere to the plain meaning of a provision in order to provide an incentive for good
drafting. Improving the drafting of statutory and other provisions may in the long run help legal
interpreters to identify provisions’ contributions. In the short run, however, the goal of improving
the drafting of legal texts may conflict with the goal of accurately identifying a provision’s
contribution. There is an important question to what extent it is appropriate for legal
interpretation to pursue the former goal at the expense of the latter.
Another important departure from the straightforward assumption that the correct theory of legal
interpretation simply tracks the true theory of law would take into account the abilities and
limitations of legal interpreters. I will assume that legal interpretation is concerned with agents
who are intelligent, cognitively normal adult humans who have been trained as lawyers and are
not personally interested in the issue at stake. Even with this qualification, consideration of
bounded rationality raises important issues for a theory of legal interpretation.54 Judges, to take
an especially important group, operate with limited time and information and they are subject to
human cognitive biases and other limitations much discussed in recent literature. See entry on
Bounded Rationality. Given these facts, it might be counterproductive for judges to directly aim
to treat legal sources as contributing to the law in the way that they in fact contribute. They
might do better overall at accurately identifying the way in which sources contribute to the
content of the law if they instead follow some kind of relatively simple rule of thumb.55
Similarly, we might also have special accounts for other participants in the legal system, for
example, for legislators, executive officials, and police officers.
It could be debated whether taking into account agents’ abilities and limitations properly belongs
in the theory of legal interpretation. It might be, for example, that the proper place to take into
account judges’ biases and limitations is the theory of adjudication. I set this question aside here.
Instead, let us distinguish between, on the one hand, an ideal theory of legal interpretation, which
specifies how an intelligent, legally trained human being works out what a provision’s
contribution is – in light of the legally permissible sources, but without taking into account
bounded rationality -- and, on the other hand, a non-ideal theory of legal interpretation that asks
how agents with specific abilities and limitations would, under real-world conditions, do best at
identifying provisions’ contributions.
54
See Greenberg 2014, 1335-1336.
55
Evidentiary considerations may be relevant here as well. For example, given the biases and tendencies of judges,
they may do a better job of accurately identifying a provision's contribution to the content of the law if they do not
consider certain kinds of evidence.
40

Given the implications for legal practice of non-ideal theory, it is clear that non-ideal theorizing
is a worthwhile enterprise. It might be questioned, however, why we should be concerned with
ideal theory of legal interpretation. See Vermeule 2006. There are several answers. First, the
topic of legal interpretation understood as ideal theory is of independent theoretical interest,
whatever the practical importance of non-ideal theory.
Second, non-ideal theory has to be relative to a particular type of institution, with its particular
limitations. But legal interpretation is not only a matter of practical rules for specific institutions.
A theorist or scholar can care about the correct approach to legal interpretation without any
specific institution in mind.
Third, it may well be that non-ideal rules have to be imposed as a matter of overall system
design. At least in Anglo-American legal systems as they are presently constituted, there is a
strong argument that it is not legally permissible for a judge (or other institutional actor) to
unilaterally decide to follow a non-ideal rule. Following a non-ideal rule makes a difference
only when it leads a judge to decide a case differently from the way in which the judge would
have decided the case if the judge had attempted to decide the case according to the applicable
legal rules directly. Plausibly, a judge who believes that one party has a legal right to prevail on
substantive legal grounds may not simply decide to resolve the case against that party on the
basis of a non-ideal rule on the ground that adherence to that rule is likely to lead to more legally
correct outcomes in the long run. (And, if that is right, it is presumably impermissible for a
judge to circumvent this problem by not attempting to ascertain which party has a legal right to
prevail.) Similar arguments apply to other institutional actors. Thus, although non-ideal theory is
important for system designers or reformers, it may not be of practical relevance to ordinary
judges, prosecutors, and administrative agencies as things now stand.
Finally, and most importantly, ideal theory has metaphysical and epistemic priority over non-
ideal theory. The metaphysical priority is obvious. The correctness of the ideal theory does not
depend on non-ideal theory, but the correctness of a non-ideal theory depends on which ideal
theory is true.
With respect to epistemic priority, in order to work out which non-ideal rules particular actors or
institutions would do best to follow, we need to know what ideal interpretation would look like.
Whether it is true that a particular institution, with particular limitations, would (in the long run)
be most successful at complying with ideal theory by following particular non-ideal rules is a
difficult empirical question. Investigating the question requires comparing how well an agent
with particular limitations would succeed in complying with ideal theory by trying to follow
ideal theory directly as compared with how it would do by following candidate non-ideal
theories. Thus, we need to know the ideal theory in order to ascertain which non-ideal theory is
correct.
Adrian Vermeule (2006) argues that, in some cases, even without resolving underlying debates
about how the law is determined, we can be confident that judges would do better to follow a
non-ideal procedure. He gives the example that intentionalists and textualists should both accept
that, given the limitations and tendencies of judges, judges would come closer to correct
interpretations of the law by restricting their attention to clear and specific statutory language and
not considering other evidence of legislative intention.
41

In principle, differences in ideal theory can make a difference to which non-ideal rules would
produce the best results. Vermeule’s claim is that, in practice, all plausible ideal theories of legal
interpretation would yield the same non-ideal rules. But given the diversity of theories of legal
interpretation and how little we know about the results that different institutional actors would
likely produce if they attempted to follow different approaches, any such claim is both
tendentious and premature.
Moreover, it is the job of theorists to work out which ideal theories of legal interpretation are
plausible. Typically, the way in which a field as a whole comes to views about which theories
are plausible is through particular theorists’ efforts to develop and defend their preferred
accounts. Without the development and defense of competing ideal accounts, we would not be
in a position to evaluate the relative plausibility of different candidates.
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Related Entries
Legal Interpretivism; Legal Positivism; Constitutionalism; Law and Language; Naturalism in
Legal Philosophy; Pragmatics; Consequentialism; Logical Empiricism; Paul Grice; Theories of
Meaning; Bounded Rationality; Precedent and Analogy in Legal Reasoning; Assertion.
Acknowledgments
I thank Mitch Berman, David Dolinko, Erik Encarnacion, Russell Korobkin, Jennifer Mnookin,
Steve Munzer, Seana Shiffrin, and many other UCLA colleagues for helpful comments. For
excellent research assistance, I am grateful to Sarah Burns, Jennifer Erickson, Zak Fisher, Ricky
Fox, Martin Gandur, Shahin Mohammadi, and Jordan Wolf.
52

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2. What Legal Interpretation Seeks

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2.1 Linguistic Meaning

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2.2 The Correct Resolution of Disputes

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3. Overview of Methods of Legal Interpretation

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Dworkin’s Law as Integrity

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4. Theories of Legal Interpretation

4.1. Intentionalism and Purposivism

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4.1.2 Problems with Legislative Intentions

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4.1.4 Objectified Intentions and Purposivism

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5. How to Argue for and Evaluate Theories of Legal Interpretation

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5.2 Ideal and Non-Ideal Theories of Legal Interpretation

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