Contents

ROSEN.................................................................................................................................................1
PART 1 -.............................................................................................................................................1
INTRODUCTION AND THEORETICAL FRAMEWORK.........................................................................................1
PART 2...........................................................................................................................................5
I. The Scope of Legislative Decisions: Text or Intention?...............................................................5
II. Mode of Application: Control Maximization and Aspiration to Correctness..............................6
III. Correctness-Oriented Approaches in Legal Traditions..............................................................7
IV. Key Implications and Conclusion..............................................................................................8
PART 3...............................................................................................................................................8
PART 4.........................................................................................................................................11

ROSEN

PART 1 -

INTRODUCTION AND THEORETICAL FRAMEWORK

Tells relationship between theories of statutory interpretation and broader political philosophies, with a
particular focus on how the respect owed to legislative decisions should influence interpretive practices.

While the question of statutory interpretation is multifaceted, encompassing issues such as the nature of
communication, the proper division of labor between branches of government, and the justification of political
authority, this article narrows its focus to a specific question: How should the deference and respect owed to
legislative decisions affect interpretation?

It's important to note that this focused approach necessarily excludes other significant considerations, such as
the potential need to compromise respect for statutes in favor of justice or expediency, and the systemic effects
of interpretive techniques on legislative behavior.

CITED- Vermeule's article on cycles of statutory interpretation:- explores how different interpretive approaches
can influence legislative behavior over time, suggesting a dynamic relationship between courts and legislatures
in shaping statutory meaning.

Important quote: "Throughout this article, when I discuss 'the question of statutory interpretation' or 'the
duty of interpreters', I do so in the limited sense noted here, stopping short of coming to a bottom-line, all-
things-considered conclusion."

This quote is crucial because it sets the scope of the article's inquiry, focusing specifically on how respect for
legislative decisions should influence interpretation, rather than attempting to provide a comprehensive theory
of statutory interpretation.

Relevant Case (BEYOND TEXT INFERENCE):

European Court of Human Rights - Handyside v. United Kingdom (1976): Context: This case involved the
interpretation of freedom of expression under the European Convention on Human Rights. The court highlighted
the need for a careful balance between respect for legislative decisions and the protection of individual rights,
establishing that rights are not absolute but must be interpreted contextually.

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Placement: This case can illustrate the complexity of statutory interpretation and the interplay between legal
text and broader societal values.

Canadian Supreme Court - R v. Sharpe (2001):

Context: This case involved the interpretation of laws concerning child pornography. The court emphasized the
importance of balancing the respect owed to legislative decisions with the need for justice and social utility. The
ruling underscored how legislation should reflect societal values and norms.

Placement: This case can introduce the theoretical framework and complexities of statutory interpretation,
reinforcing the need to consider various factors, including utility and justice.

2. CRITIQUE OF SCALIA'S TEXTUALISM

"The article uses Antonin Scalia's defense of textualism as a starting point to illustrate the complexity of
statutory interpretation and the assumptions underlying different approaches. Scalia argues that respecting
democratic authority requires judges to look for the plain meaning of statutory text. However, the author
identifies two implicit assumptions in Scalia's argument: first, that legislative decisions are exhausted by the
statutory text, and second, that adherence to particular legislative decisions sets the limit of proper deference.

The article challenges both of these assumptions. It suggests that modern deliberative practices may result in
decisions whose content exceeds the plain meaning of the text. Furthermore, it posits that sometimes, showing
proper respect to legislation may require going beyond the particular content of decisions. As the author notes,
'Scalia overstates the democratic case for textualism. Textualism is an approach that might be suitable for the
interpretation of statutes given a particular understanding of legislative practices and their value, but it is not the
only interpretive approach compatible with democracy.'

Important quote: "Scalia overstates the democratic case for textualism. Textualism is an approach that might
be suitable for the interpretation of statutes given a particular understanding of legislative practices and their
value, but it is not the only interpretive approach compatible with democracy."

This quote is significant because it highlights the article's central argument that different understandings of
legislation and its value can lead to different, yet equally valid, approaches to statutory interpretation.

Relevant Case (BEYOND TEXT INFERENCE):

U.S. Supreme Court - King v. Burwell (2015)- Context: This case challenged the interpretation of the
Affordable Care Act, where the court favored an interpretation that maintained the law's purpose over a strictly
textual reading. The decision highlighted the dangers of relying solely on textualism without considering the
legislative intent and the broader context of the law.

Placement: This case fits well in the critique of Scalia's textualism, demonstrating the implications of strictly
adhering to textual meaning at the expense of legislative intent and social consequences.

U.S. Supreme Court - United States v. Lopez (1995): Context: In this case, the court reviewed the Gun-Free
School Zones Act and found that Congress exceeded its powers under the Commerce Clause. This decision
emphasized that a rigid textual interpretation could overlook the practical implications and intent behind
legislation.

Placement: This case fits well in the critique of textualism, demonstrating how strict adherence to the text can
lead to outcomes that may not serve justice or legislative intent.

3. TWO VISIONS OF LEGISLATION AND THEIR INTERPRETIVE IMPLICATIONS

The article presents two contrasting visions of legislation and argues that each entails different approaches to
statutory interpretation.

Vision 1: Correctness-based understanding

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 a) Value of legislation lies in its ability to generate good laws that correspond to some standard of
correctness. b) Interpretive implications: Correctness-oriented techniques that seek the underlying
correctness that statutes embody and approximate.

CITED- Dworkin's article on interpreting statutes in light of moral principles: argues for an interpretive
approach that considers moral principles, suggesting that judges should read statutes in a way that puts the law
in its best moral light.

Vision 2: Correctness-independent understanding

a) Value of legislation lies in procedural fairness, political equality, and self-government. b) Interpretive
implications: Strict adherence to particular legislative decisions, as any deviation diminishes legitimate
legislative control over statutory law.

Important quote: "One of the main claims I make in this article is that each of the two visions imposes
different duties on the interpreters of statutes."

This quote encapsulates the article's central thesis, emphasizing that our understanding of legislation's value
directly influences how we should approach statutory interpretation.

Relevant Cases (BEYOND TEXT INFERENCE):

International Court of Justice - Nicaragua v. United States (1986): Context: This case revolved around U.S.
actions in Nicaragua, raising questions about state sovereignty and international law. The court's decision
emphasized procedural fairness and the principles of non-intervention, illustrating a correctness-independent
vision of international legislation.

Placement: Use this case to showcase how interpretations can reflect broader principles of justice and fairness
that transcend mere textual analysis.

Indian Supreme Court - Navtej Singh Johar v. Union of India (2018) Context: This landmark case
decriminalized consensual homosexual acts, emphasizing dignity, equality, and the evolving societal values that
should guide statutory interpretation. It aligns with the correctness-independent understanding of legislation’s
value.

Placement: Use this case to illustrate the correctness-independent vision of legislation, highlighting how
procedural fairness and self-government inform the interpretation process.

U.S. Supreme Court - Roe v. Wade (1973) Context: The court recognized a woman’s right to choose an
abortion, interpreting the Constitution to reflect broader principles of privacy and liberty rather than solely
adhering to legislative text.

Placement: This case can illustrate the correctness-based vision of legislation, showcasing how interpretations
can reflect higher principles of correctness and justice that transcend the plain text.

4. CLASSIFICATION OF INTERPRETIVE APPROACHES

The article proposes a classification system for interpretive approaches based on two questions:

a) What is the scope or particular content of legislative decisions? b) What is the proper mode of
application for these decisions once their scope has been identified?

This classification results in the following categories: The author notes, 'Textualism and intentionalism
diverge on the question of scope, each prescribing a different way for identifying the content of legislative
decisions. However, both schools have a similar position when it comes to the second question: they insist that
the particular content of the legislative decision—be it the plain text or the intent behind it—sets the limit to
legitimate statutory interpretation.' This observation highlights the key similarities and differences between
these approaches, while also contrasting them with correctness-oriented methods."

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 1. Textualism: Textualism holds that the scope of a legislative decision is exhausted by the plain meaning
of the statutory text, and that this text should be strictly adhered to in application. Intentionalism, while
agreeing with textualism on strict adherence, argues that the scope of the decision exceeds the plain
meaning of the text, encompassing the legislators' [Link]:

o Scope: Decision exceeds plain meaning of statutory text

o Application: Strict adherence to particular decision

2. Correctness-oriented approaches: Correctness-oriented approaches, on the other hand, may vary in

their view of scope but are united in their willingness to go beyond the particular decision to achieve
substantively desirable results. Examples of these approaches include Dworkinian interpretivism,
which interprets statutes in light of moral principles, and purposive interpretation, which emphasizes
objective purpose and consideration of values.

Examples of correctness-oriented approaches:

 Dworkinian interpretivism (interpreting statutes in light of moral principles)

 Purposive interpretation (emphasizing objective purpose and consideration of values)

Important quote: "Textualism and intentionalism diverge on the question of scope, each prescribing a
different way for identifying the content of legislative decisions. However, both schools have a similar
position when it comes to the second question: they insist that the particular content of the legislative
decision—be it the plain text or the intent behind it—sets the limit to legitimate statutory interpretation."

This quote is crucial because it highlights the key similarities and differences between textualism and
intentionalism, while also contrasting them with correctness-oriented approaches.

International Criminal Court - Prosecutor v. Lubanga Dyilo (2012): Context: This case involved the
prosecution of a warlord for recruiting child soldiers. The court interpreted statutory provisions regarding war
crimes in light of evolving international norms and societal values, demonstrating a correctness-oriented
approach.

Placement: This case can highlight the classification of interpretive approaches, showing how evolving
standards can lead to different applications of the law based on contemporary moral considerations.

5. PRACTICAL IMPLICATIONS AND CONCLUSION

The article argues that understanding the theoretical framework is only the first step in addressing the practical
question of how to interpret statutes. It proposes that:

a) Our doctrine of statutory interpretation should not employ overly unifying accounts of legislation that ascribe
a single primary value to all statutes.

b) Interpreters should consider the particular circumstances of each statute's enactment and the actual value the
statute holds for the political community.

c) The choice of interpretive approach should be based on individual evaluation of statutes and their enactment
circumstances, rather than wholesale accounts of the value of legislation.

Important quote: "In contrast to most contemporary approaches, it concludes that, in order to show proper
respect to statutes, interpreters should consider the particular circumstances of each statute's enactment and
the actual value the particular statute holds for the political community."

This quote summarizes the article's practical recommendation, emphasizing a more nuanced, context-sensitive
approach to statutory interpretation that diverges from many contemporary theories.

European Court of Human Rights - Dudgeon v. United Kingdom (1981):

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Context: This landmark case addressed the decriminalization of homosexuality in Northern Ireland. The court
ruled that the criminalization violated the European Convention on Human Rights, emphasizing the need for a
nuanced understanding of legislative intent and societal change.

Placement: This case can serve as a practical example of how courts must consider the specific context of each
statute's enactment, advocating for a more context-sensitive approach to statutory interpretation.

IMP ELABORATION AND IMPLICATIONS:

1. Complexity of Statutory Interpretation: The article's emphasis on the multifaceted nature of

statutory interpretation highlights the need for a more holistic approach to legal theory. It suggests that
legal scholars and practitioners should be aware of the interplay between various fields of study,
including linguistics, political science, and moral philosophy, when developing interpretive theories.

2. Critique of Simplistic Approaches: By challenging Scalia's textualism, the article demonstrates the
dangers of overly simplistic approaches to statutory interpretation. It implies that judges and legal
scholars should be more critical of seemingly straightforward interpretive theories and consider the
underlying assumptions and implications of these approaches.

CITED- The case referred to is United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990). In this case, Judge
Richard Posner's dissent argues for a more pragmatic approach to statutory interpretation, suggesting that judges
should sometimes prioritize justice or expediency over strict adherence to statutory text.

Judge Posner's dissent: argues for a pragmatic approach to statutory interpretation, suggesting that in some
cases, judges should prioritize justice or practical outcomes over strict adherence to statutory text. This dissent
illustrates the tension between respecting legislative authority and achieving just results in specific cases.

3. Relationship Between Political Theory and Legal Interpretation: The article's exploration of how
different understandings of legislation's value lead to different interpretive approaches underscores the
deep connection between political theory and legal interpretation. This suggests that legal education
and scholarship should place greater emphasis on political theory and its implications for legal practice.

4. Importance of Legislative Process: By emphasizing the need to consider the actual circumstances of a
statute's enactment, the article highlights the importance of understanding the legislative process. This
suggests that legal practitioners and scholars should pay more attention to the realities of how laws are
made, rather than relying solely on idealized conceptions of legislation.

PART 2

I. The Scope of Legislative Decisions: Text or Intention?

A. Shared Commitment of Textualism and Intentionalism

Both perspectives recognize the particular legislative decision as the limit to statutory interpretation. This shared
commitment underlines the importance of understanding the legislative context. They diverge significantly on
the methods used to ascertain the content of that decision. The differing methodologies can lead to varied
judicial outcomes based on interpretation.

B. Intentionalist Argument

1. Fundamental Premise: The primary purpose of legislative instructions is to convey the author's
desires for specific actions. This approach emphasizes the significance of the author's intent in shaping
legislation.
2. Application to Legislation: Legislation is akin to other instructional forms. The goal of interpretation
should focus on retrieving the legislative intent.
3. Concept of "Legislative Intent": Defined as an artificial intent attributed to the legislative body.
o Debate Among Theorists- Some argue it can be reduced to the individual mental states of
legislators. Others maintain that it exists independently of those individual states.

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Relevant Case: International Criminal Court - Prosecutor v. Ruto and Sang (2016): This case examined
the intent behind actions in the context of international law, emphasizing the need to interpret legislative intent
in light of broader societal principles.
(OUTSIDE TEXT)

C. Textualist Argument

1. Core Claim: The content of the legislative decision is completely encompassed by the plain meaning
of the statutory text. Textualists argue that the text should be the sole focus of legal interpretation.

2. Rejection of Residual Intent: Textualists deny the existence of intent that transcends the legislated
text. They argue there is no additional content to the legislative decision beyond its plain textual
meaning.

3. Theoretical Basis: Grounded in a transactional view of the legislative process.

Key Proponents:

John Manning: Advocates for textualism by framing the legislature as a field of competing interests (Manning,
2001). Jeremy Waldron: Describes the legislative assembly as a competition between viewpoints rather than
interests (Waldron, 1999).

D. Intentionalist Critique of Textualism

1. Main Argument: Legislative decisions encompass more content than just the text itself. This critique
stresses the inadequacy of strict textualism in addressing complex legislative scenarios.
2. View of Legislative Process: Seen as a rational discourse that produces a comprehensive action plan.
Legislators function as trustees rather than mere delegates.
3. Implications for Interpretation: Interpreters should derive and implement the overarching legislative
plan. This plan extends beyond the mere textual statutory framework.
4. Key Proponent:
o Richard Ekins: Argues for intentionalism based on the view of rational legislative discourse
(Ekins, 2012).

Relevant Case: International Court of Justice - Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons (1996)-: This advisory opinion examined the purpose of international humanitarian law and
its underlying intent.
(OUTSIDE TEXT)

E. Key Insight The author emphasizes that one’s comprehension of democratic practices fundamentally shapes
how the scope of legislative decisions is determined. This framing subsequently impacts the chosen approach to
interpretation, underscoring the interconnectedness of law and democratic principles.

II. Mode of Application: Control Maximization and Aspiration to Correctness

A. Two Modes of Statutory Interpretation

1. Control-maximizing: Aims for strict adherence to text or intent. The goal is to maximize legislative
control, encompassing both textualism and intentionalism.

2. Correctness-oriented: Willing to compromise legislative control. Allows for interpretations based on

justice, expedience, and reasonableness, promoting fairness in application.

B. Argument Against Necessity of Strict Adherence

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(FROM TEXT ITSELF) Illustrative Example: Following an expert gardener's instructions. Not watering during
heavy rain, despite literal instructions. This demonstrates that proper interpretation can necessitate going beyond
the literal meaning or actual intent.

Key Point: The goal is to make the best use of directives as guides for appropriate action. Effective
interpretation requires flexibility to ensure just outcomes. Respect for authority does not always imply strict
textual or intentional adherence. Sometimes, proper respect demands a more flexible, purpose-oriented
approach.

Relevant Case: U.S. Supreme Court - Brown v. Board of Education (1954): The court found that state-
sponsored segregation in public schools violated the Equal Protection Clause. This case exemplified how
adherence to the literal text of the law could lead to unjust outcomes.
(OUTSIDE TEXT)

C. Addressing the Objection of Undermining Authority

1. Starting Premise: Acceptance of directives as beneficial but limited guides. Recognizing their
limitations can lead to more thoughtful interpretations.

2. Emphasis on the Balanced Nature of Correctness-oriented Approaches: Only applicable when the
directive is followed based on its purported correctness. This is not a license for complete disregard of
the authority's decision.

D. Theoretical Explanations for Correctness-Oriented Interpretation

1. Principle of Charity in Interpretation: Assumes that statements are generally true. More likely to
disregard flawed formulations when confidence in their truth is high.

2. Gadamer's Hermeneutic Theory: Rejects the retrieval of authorial intent as the primary goal.
Focuses on understanding how the statement "could be right" in the interpreter's context (Gadamer,
2004).

E. Key Insight The author argues that when directives are followed based on their perceived correctness rather
than pure authority, the interpretive goal shifts from maximizing author control to effectively utilizing the
directives, fostering a more equitable legal framework

III. Correctness-Oriented Approaches in Legal Traditions

A. Prevalence in Legal Systems

Common in many legal traditions to interpret statutes based on their underlying rationale. This approach is
essential for aligning laws with societal values and expectations. The concept of ratio legis (reason or purpose
of law) is recognized in both civil and common law systems. This principle ensures that legislation serves its
intended purpose effectively.

B. Contemporary Schools of Thought

Equitable Interpretation of Statutes- Considers legislation as precepts of right reason and equity. Assumes
that attaining equity is a general goal of legislation, promoting fairness in interpretation.

1. Dworkin's Moral Reading: Advocates for interpreting statutory text in light of moral principles,
aiming to present the law "in the best possible light" (Dworkin, 1985). This perspective emphasizes the
ethical dimensions of legal interpretation.
2. Barak's Purposive Interpretation: Includes references to an objective moral purpose. Assumes that
all legal texts aspire to this purpose (Barak, 2007), highlighting the moral aspirations of legislation.

Relevant Case: European Court of Justice - C-50/00, Marleasing SA v. La Comercial Internacional de

Alimentación SA (2001):

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Context: This case established that national courts are obliged to interpret national law in conformity with
Community law, reinforcing the principle of purposive interpretation.
(OUTSIDE TEXT)

C. Implications for Legal Development The author notes that correctness-oriented approaches introduce
aspects of "legitimate aspiration and evolution" to statutory law, facilitating legal development through
interpretation, thereby ensuring laws adapt to changing societal needs.

IV. Key Implications and Conclusion

A. Dependence on View of Legislative Authority

1. If legislation is about directing people to act according to others' wishes:

o A control-maximizing interpretation is appropriate.

o Strict adherence to text or intent is justified, ensuring predictability in application.

2. If legislation is about guiding proper action (like expert directives):

o A correctness-oriented interpretation is warranted.

o A more flexible, purpose-driven approach is justified, accommodating evolving

circumstances.

B. Potential Issues with Correctness-Oriented Interpretation

Risks of completely undermining authority. This approach can lead to uncertainties if not applied judiciously.
The danger of replacing the author’s judgment with that of the interpreter. Misinterpretation can result in
unintended consequences for legislative intent.

1. Classic Example from Lon Fuller: A hypothetical interpretation of a statute banning absinthe
illustrates how purposive interpretation could yield absurd results if taken to extremes (Fuller, 1957).
This highlights the need for caution in applying correctness-oriented approaches.

Relevant Case: U.S. Supreme Court - Kelo v. City of New London (2005):

Context: This case upheld the government's right to take private property for public use, raising
significantHere’s the revised version with an additional line for each pointer and the requested changes:

PART 3
Statutory Interpretation and the Role of Correctness in Legislation

1. Historical Context of Correctness in Legislation

The concept of correctness in legislation has deep historical roots, tracing back to the late Middle Ages and early
modernity. During this period, political theory viewed legal validity as intrinsically linked to correctness and
propriety.

Key Figure: Thomas Aquinas Theory: Positive law must be derived from pre-existing, eternal normative
principles through: a) Deduction b) Determinatio (determination)

Aquinas argued that positive law not derived from these principles is not law "properly so called." This view
was dominant in the Late Middle Ages and Renaissance.

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(RIGHT FROM TEXT)"Since jurists of the time understood the purpose of legislation as guiding people to
proper action according to right reason, they treated it much as one would treat the directives of experts."

Inference: The historical view that legislation guides people to act according to right reason reflects a belief in
objective moral truths that can be encoded into law. This analogy to expert directives positions legislators as
moral philosophers, suggesting that interpreting laws involves uncovering deeper wisdom, not just textual
analysis. Such a view could justify judicial activism but also raises concerns about democratic legitimacy,
especially in modern pluralistic societies, where lawmaking is supposed to reflect popular sovereignty rather
than a unified moral philosophy.

(NOT IN TEXT) Relevant Case: Natural Law Theory in Riggs v. Palmer (1889) - The New York Court of
Appeals used principles of natural law to prevent a grandson from inheriting under his grandfather's will after
murdering him, despite the absence of a statutory provision addressing this situation.

2. Modern Persistence of Correctness-Based Understandings

While the notion of legislators as experts has largely faded, some contemporary accounts of democracy still
adhere to a correctness-based vision of legislation.

Key Concept: Correctness-enhancing procedures

These accounts view modern legislative practices as procedures aimed at producing "good laws" that should be
respected as such.

(RIGHT FROM TEXT) "Espousing this view of legislation invites interpretive approaches that are designed to
assist statutory law to become 'what it was previously only trying to be' and read it 'in the best possible light'."

Inference: This perspective represents a sophisticated attempt to reconcile the ideals of legislative supremacy
with the limitations inherent in the legislative process. It suggests a Platonic view of law, where each statute has
an ideal form that the actual text only imperfectly captures. This view challenges the idea that legislative intent
should be the ultimate guide to statutory meaning, proposing instead a more abstract legislative purpose that
goes beyond the specific intentions of lawmakers. It shifts the focus of interpretation from uncovering a pre-
existing meaning to striving for a more accurate embodiment of the law's purpose.

The notion of reading law in its "best possible light" aligns with Ronald Dworkin's theory of law as integrity,
where legal interpretation becomes a constructive task aimed at developing law as a coherent moral system.
However, this approach raises complex issues about the limits of interpretation and the democratic legitimacy of
judicial lawmaking, as it potentially allows judges to reshape legislation according to their own views of its
ideal form, risking an overreach into the legislative domain. Moreover, it presumes a level of moral and political
consensus that may not exist in diverse societies, making it difficult to determine a "best possible light" in
contexts where what constitutes the best outcome is itself the subject of deep political disagreement.

3. Standards of Correctness in Modern Legislative Efforts

a) Right Reason

 Rooted in pre-modern Christian political theory

 Contemporary theories focus on democratic procedures (elections, deliberation, majority vote) as

means to ensure rational outcomes

 These processes are seen as facilitating the "sifting-out of misguided views" and synthesizing dispersed
practical knowledge

b) Community Ethics

 Communitarian accounts of politics

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  Criticize abstract, "unencumbered" rationality as the standard for political decisions

 Purpose of politics: reveal and legislate according to shared community values

 Public discourse seen as a process of "reaching a common mind"

c) Material Welfare or Utility

 Rooted in European political thought

 Democratic developments stress elections' ability to reveal interests of all

 Aim: ensure the greatest happiness for the greatest number of citizens

 Legislative procedures of consultation and data collection seen as advantageous for welfare-promoting
legislation

Bold Insight: The persistence of these correctness-based understandings in modern contexts creates a tension
between traditional interpretive methods and the realities of pluralistic societies. This tension is at the heart of
many debates in statutory interpretation.

(NOT IN TEXT) Relevant Case: Heydon's Case (1584) - This English case established the "mischief rule,"
which directs courts to interpret statutes in light of the problem or "mischief" they were intended to remedy.
This approach aligns with correctness-based understandings, as it assumes legislation aims to correct specific
societal issues.

4. Challenges to Correctness-Based Approaches in Modern Pluralist Societies

Key Concept: Pluralism

In modern pluralist societies, there is no consensus on what constitutes "right reason," "common values," or
"welfare," nor agreement on which standard of correctness legislation should pursue.

Consequences of Pluralism: a) Tension with democratic equality b) Undermining the de facto authority of
legislative mechanisms

(RIGHT FROM TEXT) "If, for example, our legislative practices are valuable because they reliably reveal the
material common good of the community, a person who does not accept material utility as the proper standard
for legislation would have no reason to heed legislative decisions."

Inference: This observation cuts to the heart of the legitimacy crisis facing correctness-based approaches to
legislation in pluralist societies, revealing a tension between the aspiration for objective moral truth in law and
the reality of moral diversity. The example of material utility highlights the problem of competing moral
doctrines, as articulated by John Rawls. When legislative authority is justified by a particular conception of the
good, it alienates those with different moral views, leading to a fundamental questioning of the legal system's
legitimacy. This dilemma also creates a paradox for democratic theory: if the foundation of legislative authority
is contested, the notion of consent among the governed becomes unstable, raising deeper questions about the
need for pre-political agreement on legitimacy.

The implications extend to the rule of law itself, which may fragment as different societal groups recognize
diverse sources of normative authority. Some theorists, such as Jürgen Habermas, propose procedural
justifications for legislative legitimacy, but this approach also faces challenges in grounding political obligations
amidst substantive disagreements. Ultimately, these considerations suggest that grounding legislative authority
in a single moral framework may not be feasible in pluralist societies. A more nuanced approach that blends
procedural and substantive elements or adopts a minimalist view focused on law's coordinating role may better
accommodate deep moral disagreement while maintaining the authority of the law.

Correctness-Independent Values in Politics and Law

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In response to the challenges posed by pluralism, theories of political legitimacy have developed that do not
depend on the correctness of legislative decisions.

Key Concepts:

 Procedural fairness

 Self-government

These theories view positive law as an achievement in pluralist societies, deserving respect regardless of
individual ideals of correctness.

Jeremy Waldron's Theory: Waldron identifies two correctness-independent reasons to respect modern
legislation: a) Function of legislation: Solving coordination problems in pluralist societies b) Values associated
with legislative procedure: Representation, drafting, deliberation, and voting as part of a fair decision-making
mechanism

(RIGHT FROM TEXT) "Adhering to the particular resolution that is produced by this mechanism is therefore
supported by considerations of fairness and equality."

Inference: Waldron's approach suggests that the legitimacy of legislation stems from the process itself, rather
than the outcome. This view would support more textualist approaches to statutory interpretation, as it
emphasizes respecting the specific agreement reached through the legislative process.

(NOT IN TEXT) Relevant Case: R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
- The UK Supreme Court's decision emphasized the importance of parliamentary sovereignty and the role of
legislation in major constitutional changes, aligning with correctness-independent values of self-government and
procedural fairness.

6. Implications for Statutory Interpretation

Correctness-independent accounts of legislative value urge interpreters to identify and adhere to the particular
decision of the legislature without looking beyond it.

Key Implications:

 No justification for "ameliorative" interpretation

 Interpretation becomes a zero-sum game of control over statutory law between legislature and
interpreter

 Any correctness-oriented intervention could be seen as an imposition of the interpreter's particular

preferences

(RIGHT FROM TEXT) "Either the content of statutory law is determined by the legislative assembly, observing
fair practices of self-government, or it is not."

Insight: This perspective fundamentally challenges traditional correctness-oriented modes of statutory

interpretation, suggesting that they may be incompatible with the values of univocality, self-government,
procedural fairness, and political equality in pluralist societies.

PART 4

Statutory Interpretation and the Practical Relevance of Deontic Theory

1. Theoretical Foundations

 Correctness-independent values

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  Correctness-oriented approaches

The understanding of legislative practices influences statutory interpretation in two ways: a) Identification of the
particular decision adopted by the legislative assembly b) Prescribing different goals to interpretation based on
the perceived value of legislation

Inference: The tension between correctness-independent and correctness-oriented approaches reflects a deeper
philosophical debate about the nature and purpose of law in pluralistic societies. This tension has significant
practical implications for how judges and other legal actors approach statutory interpretation.

2. Challenges in Practical Application

Key Issues:

 Multiple considerations in statutory interpretation

 Entrenched disagreement about the nature of legislative practices

(RIGHT FROM TEXT) "It might seem, therefore, that in order to decide on a doctrine of statutory
interpretation, we would first have to resolve this perennial question of political theory in a satisfactory way."

Analytical Insight: This observation highlights a fundamental challenge in legal theory - the interdependence
of interpretive methods and underlying political philosophies. It suggests that a purely technical approach to
statutory interpretation is impossible, as interpretive choices inevitably reflect broader assumptions about the
nature of law and democracy.

3. Irregularity in Legislative Practices

Key Concept: Variance and irregularity in legislative behavior

Factors contributing to irregularity: Voting patterns (views vs. interests)---Representative roles (delegates vs.
trustees)---Nature of deliberations---Influence of experts---Agenda-setting processes---Efficacy of majority
voting

(RIGHT FROM TEXT) "Just like any other instance of social behaviour, the behaviour of legislators and their
attitude towards decision making are susceptible to variance and irregularity."

Analytical Insight: This recognition of irregularity challenges the notion of a uniform legislative process. It
suggests that interpreters must be attuned to the specific context of each statute's creation, rather than relying on
generalized assumptions about how legislation works.

4. Varieties of Disagreement

Habermas' Taxonomy of Legislative Discourses:

1. Rational discourse (moral problems)

2. Ethical discourse (community-specific political issues)

3. Bargaining

4. Discourse of expediency (means for set goals)

(RIGHT FROM TEXT) "Most importantly, it is possible that, even in a pluralist society, the discussion of some
issues will proceed by reference to an accepted standard of correctness."

Analytical Insight: This observation challenges simplistic views of pluralism in legislative contexts. It suggests
that even in diverse societies, there may be areas of shared values or accepted standards that can inform

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interpretation. This nuanced view of disagreement has significant implications for how judges approach
different types of statutes.

5. Implications for Statutory Interpretation Rejection of "one-size-fits-all" approaches to

interpretation. Need for statute-specific interpretive methods. Consideration of the particular scope and
value of each piece of legislation

(RIGHT FROM TEXT) "Wholesale accounts of legislative practices, ascribing a single value to all instances of
legislation and assuming a single mode of legislative deliberation in addressing all issues, simply will not do."

Analytical Insight: This critique of unitary interpretive theories represents a significant challenge to dominant
schools of thought in statutory interpretation. It calls for a more flexible, context-sensitive approach that may
require judges to develop new skills in assessing legislative processes and intentions.

6. Institutional Considerations

Potential Concerns: Practicality of statute-specific interpretation---Increased uncertainty in interpretation---

Tension with other judicial duties--Distrust of judicial discretion--Comparative institutional competence.

(RIGHT FROM TEXT) "Institutional considerations are not made of one cloth."

Analytical Insight: This recognition of diverse institutional factors complicates the picture further. It suggests
that even if we accept the need for a more nuanced approach to statutory interpretation, practical constraints and
competing values may still push towards more standardized methods. This tension between theoretical ideals
and institutional realities is a central challenge in legal theory and practice.

(OUTSIDE TEXT)Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America)
(ICJ, 2003)

In this case, the International Court of Justice faced the challenge of interpreting a treaty's provisions regarding
the freedom of commerce and military action. The dispute involved Iran's claim that U.S. military actions
against Iranian oil platforms violated a 1955 Treaty of Amity between the two nations, which guaranteed
"freedom of commerce." The United States, in its defense, argued that the actions were justified under the
treaty's security exceptions. The ICJ had to consider whether the treaty's provisions should be interpreted strictly
based on their literal text, or whether a broader, more purposive interpretation was needed, considering the
treaty's overall objectives and the specific context of military conflict. The Court ultimately applied a flexible
interpretive approach, balancing the literal text with the underlying purpose of the treaty and the factual
circumstances of the dispute.

The Oil Platforms case supports the argument that a "one-size-fits-all" approach to statutory or treaty
interpretation is inadequate, especially in contexts involving complex or competing values such as security and
economic rights. It highlights the need for interpretive flexibility, taking into account the specific purpose and
context of each legal provision. The case also illustrates how international adjudicators might adopt different
interpretive methods depending on the nature of the dispute and the legal instrument involved.

The Plurality of Legitimate Interpretive Modes

(RIGHT FROM TEXT) "The plurality of legitimate modes of statutory interpretation is the product of the many
virtues of modern legislation."

Key Insight: This conclusion advocates for a more sophisticated, multi-faceted approach to statutory
interpretation that reflects the complexity of modern legislation and its diverse functions in society. It challenges
interpreters to develop a more nuanced understanding of legislative processes and to adapt their methods to the
specific context and purpose of each statute. This approach would require judges and lawyers to develop new
skills in legislative analysis and to be more explicit about the interpretive choices they make. It may lead to
more detailed and context-specific argumentation in statutory interpretation cases.

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