Title: Statutory Interpretation, Morality, and the Text
Abstract: In this essay, I wish to explore the question of whether certain approaches to statutory interpretation can be regarded as wrongful. My argument concerns instances in which interpreters take advantage of linguistic accident to license arguments that flout the intent or purpose of a law. Philosopher Bernard Williams calls reliance on literal meaning in this manner “fetishizing assertion,” and considers it tantamount to lying. If linguistic practices that rely too heavily on linguistic accident are wrongful, then serious ethical questions present themselves to the legal system. For if we acknowledge the problem, we then are forced to ask ourselves how comfortable we are with a rule of law that cannot rely fully on the law as written to sustain its legitimacy. In this brief essay, I raise these issues, and comment on their relationship to questions of judicial candor in cases concerning the interpretation of statutes. I conclude that especially when there is doubt about meaning, or suspicion that the legislature has erred, it is essential to turn to the purpose of the law in order to avoid the moral consequences of assertive fetishism. I further argue that recourse to purpose, contrary to the views of many, actually reduces the range of judicial discretion, and that those who associate purposive interpretation with judicial activism appear to be subject to a cognitive bias—the conjunction fallacy.
Publication Year: 2011
Publication Date: 2011-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 13
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