DOCSLIB.ORG

Interpretation of Statutory Rules As Application: a Legal Hermeneutics

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Interpretation of Statutory Rules As Application: a Legal Hermeneutics INTERPRETATION OF STATUTORY RULES AS APPLICATION: A LEGAL HERMENEUTICS CHRISTOPHER JAMES WALSHAW A thesis for conferral of the degree of Doctor of Philosophy at the University of Otago, Dunedin, New Zealand. April 2012 i Abstract The thesis critically examines the judicial interpretation of statutory rules, now the source of most of our law. Courts in adopting a traditional two-step approach denoted as prospective interpretation (first ‘understand’ the meaning and then apply that meaning) have promulgated conditions that effectively rewrite statutory rules and limit their accessibility, so presenting a challenge to the separation of powers and to rule of law values. My research critically examines the tenability, completeness and utility of prospective interpretation, in particular by analysis of the work of Neil MacCormick. An alternative approach, denoted as concurrent interpretation: judicial interpretation by correspondence of the words of the rule with the facts of the particular case, is explored. The conceptual legitimacy of, and methods for, concurrent interpretation are found in philosophical hermeneutics and its account of language. The perceived problem that philosophical hermeneutics has nothing to say about method is confronted. By drawing on the work of Arthur Kaufmann, Paul Ricoeur and Jarkko Tontti in particular I introduce a legal hermeneutics as a practice of legal argument in the context of the judicial interpretation of statutory rules. ii Preface The thesis research would not have begun without the encouragement of John Burrows, John Fogarty and Lindsay Trotman. I am grateful to them for this and for sticking with the project right through to completion. John Burrows had taught me as an undergraduate and his knowledge of interpretation is without par in New Zealand. In his usual quiet way he was able to steer me past a few blind alleys and in a sense I hope I have promoted theoretical ideas in support of application that would please him. All of them have made valuable time for my project and me. The esoteric nature of my research presented a challenge to my supervisors and it is pleasing that Mark Henaghan and Michael Robertson rose to the challenge especially in the last year. Mark’s eye for the finished product is legendary. He made a special effort to keep my research grounded in legal practice and as accessible to lawyers as possible. Also as Dean he has been brilliant in facilitating my attendance at conferences, in promoting my University Scholarship and in many other material ways. Michael took up with enthusiasm my presentations of research in respect of a succession of drafts, challenged many of my ideas and provided invaluable and repeated editing of the whole thesis. This is an opportunity to thank Michael for his considerable investment in time and knowledge to my project. Also thanks to Simon Currie for proofreading. An enjoyable aspect of my research has been making extensive contacts mostly overseas, many of whom have become good friends. I am sorry I can only mention a few of you: Arthur Glass and Nicholas Aroney who kept a close interest in my work, Alexandra Kolb for her enthusiasm and advice, Jay Mootz who has given me the confidence to believe I might be on the right track and has sent me his books, and especially Torben Spaak who made me so welcome at Uppsala and has become a good friend with a reciprocal and genuine interest in our academic endeavours. iii Table of Contents Abstract ........................................................................................................................... i Preface ............................................................................................................................ ii Table of Contents ......................................................................................................... iii Abbreviations ............................................................................................................... vi 1. Introduction ............................................................................................................... 1 2. Foundations 2.1 Introduction ................................................................................................... 5 2.2 Statutory rules ............................................................................................... 7 2.3 Rule of law .................................................................................................. 12 2.4 Separation of powers .................................................................................. 15 2.5 The need for interpretation and current statutory interpretation ................ 18 2.6 Interpretation as concurrent interpretation ................................................. 23 2.7 Interpretation as prospective interpretation ............................................... 32 2.8 Summary .................................................................................................... 34 3. Arguments in support of prospective interpretation – Part I 3.1 Introduction ................................................................................................ 36 3.2 Interpretation and questions of law ............................................................. 37 3.3 Interpretation and preliminary rulings 3.3.1 Preface ...................................................................................... 44 3.3.2 European Court of Justice .......................................................... 45 3.3.3 Preliminary rulings and prospective interpretation .................... 49 3.4 Summary judgment, declarations and strike out applications ................. 54 3.5 Summary ..................................................................................................... 60 4. Arguments in support of prospective interpretation – Part II 4.1 Introduction ................................................................................................. 62 4.2 MacCormick and Legal Reasoning 4.2.1 Institutional normative order ..................................................... 63 4.2.2 Arguing about interpretation ...................................................... 66 4.2.3 Engaging with MacCormick’s ideas .......................................... 69 4.3 Analogy/deduction 4.3.1 Preface ......................................................................................... 72 4.3.2 The legal syllogism ...................................................................... 74 4.3.3 Analogous reasoning .................................................................. 77 iv 4.3.4 Defending deductivism ............................................................... 79 4.3.5 Graz ............................................................................................. 81 4.4 Discovery/Justification 4.4.1 Introduction, references and a delimitation ................................ 82 4.4.2 American realists ........................................................................ 85 4.4.3 Positivist response ...................................................................... 86 4.4.4 Discovery and science ............................................................... 89 4.4.5 Bankowski ................................................................................. 92 4.4.6 MacCormick and discovery ....................................................... 93 4.5 Particular/universal ................................................................................... 95 4.6 Bringing the three topics together ............................................................. 101 4.7 Analogy and North American jurisprudence ........................................... 105 4.8 Summary .................................................................................................. 109 5. Concurrent interpretation and philosophical hermeneutics 5.1 Introduction .............................................................................................. 111 5.2 Philosophical hermeneutics: an introduction 5.2.1 Preface ...................................................................................... 113 5.2.2 Language .................................................................................. 114 5.2.3 Expressive versus designative ................................................. 116 5.3 The common law response to philosophical hermeneutics 5.3.1 North American jurisprudence .................................................. 122 5.3.2 English and Commonwealth common law ............................... 129 5.3.3 Gadamer and legal hermeneutics .............................................. 139 5.4 A perceived problem with philosophical hermeneutics ........................... 143 5.5 Summary .................................................................................................. 147 6. Concurrent interpretation: a legal hermeneutics 6.1 Introduction .............................................................................................. 150 6.2 Arthur Kaufmann 6.2.1 Introduction ............................................................................... 152 6.2.2 Realising law ............................................................................. 155 6.2.3 Further observations of Kaufmann ........................................... 159 6.3 Ricoeur’s development of philosophical hermeneutics 6.3.1 Introduction and sources ............................................................ 162 6.3.2 Conflict of interpretations .......................................................
Load more

Recommended publications
  • Δ ࡚ ࢲ Ւ! the North American Lasallians
    Δ࡚ࢲՒ! The North American LaSallians Aug 2009 40th Anniversary Reunion Reminders Class of 1969 Edmonton Annual BBQ Please mark your calendar! The class of 1969 will be hosting their 40th Anniversary Date Saturday August 29, 2009 Reunion in Hong Kong between November 3 and 7, 2009. The 69ers also wish to Time 3:30 pm – 9:00 pm Venue 7315 – 149 Avenue extend their invitation of this reunion to ALL LaSallian of that era and Bring your family and don’t forget to reserve your spouses/relatives as an opportunity to re‐kindle old friendships and to reminisce our seat with Calvin at [email protected] good old La Salle days. In addition to the main Gala dinner on November 6, 2009, folks may be interested in joining other side social events (on November 3 and 7) and Southern California the optional sightseeing trip to 番禺 or local (Hong Kong) hike on November 4 and 5, Monthly Dim Sum Luncheon 2009. Date noon August 2, 2009 Interested party can contact any one of the following organizers: Venue Empress Harbor Seafood Restaurant 111 N. Atlantic Blvd., 3/F, Monterey Park Hong Kong: Cost: $15 per person Tommy Lam [email protected] Edmond Lau [email protected] Toronto Dennis Law [email protected] Annual Picnic & BBQ Alexius Wong [email protected] Date: Sunday August 30, 2009 Time: 11 am to 3 pm Venue: Thomson Park – Scarborough (Brimley Rd. north of Lawrence Avenue) Overseas: Charge: FREE Bring your family and friends Philip Chan (Vancouver) [email protected] . Thomas Lau (Toronto) [email protected] John Lau (65) Performing Tommy Leung (USA) [email protected] Date: Saturday August 29, 2009 and Sunday August 30, 2009 Time: 7 p.m.
    [Show full text]
  • Constitutional Jurisprudence of History and Natural Law: Complementary Or Rival Modes of Discourse?
    California Western Law Review Volume 24 Number 2 Bicentennial Constitutional and Legal Article 6 History Symposium 1988 Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. McCauliff Follow this and additional works at: https://scholarlycommons.law.cwsl.edu/cwlr Recommended Citation McCauliff, C.M.A. (1988) "Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse?," California Western Law Review: Vol. 24 : No. 2 , Article 6. Available at: https://scholarlycommons.law.cwsl.edu/cwlr/vol24/iss2/6 This Article is brought to you for free and open access by CWSL Scholarly Commons. It has been accepted for inclusion in California Western Law Review by an authorized editor of CWSL Scholarly Commons. For more information, please contact [email protected]. McCauliff: Constitutional Jurisprudence of History and Natural Law: Compleme Constitutional Jurisprudence of History and Natural Law: Complementary or Rival Modes of Discourse? C.M.A. MCCAULIFF* The Bill of Rights provides broadly conceived guarantees which invite specific judicial interpretation to clarify the purpose, scope and meaning of particular constitutional safeguards. Two time- honored but apparently divergent approaches to the jurisprudence of constitutional interpretation have been employed in recent first amendment cases: first, history has received prominent attention from former Chief Justice Burger in open-trial, family and reli- gion cases; second, natural law has been invoked by Justice Bren- nan in the course of responding to the Chief Justice's historical interpretation. History, although indirectly stating constitutional values, provides the closest expression of the Chief Justice's own jurisprudence and political philosophy.
    [Show full text]
  • Retaining Judicial Authority: a Preliminary Inquiry on the Dominion of Judges
    William & Mary Bill of Rights Journal Volume 12 (2003-2004) Issue 1 Article 4 December 2003 Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges Larry Catá Backer Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Courts Commons, and the Supreme Court of the United States Commons Repository Citation Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003), https://scholarship.law.wm.edu/wmborj/vol12/iss1/4 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RETAINING JUDICIAL AUTHORITY: A PRELIMINARY INQUIRY ON THE DOMINION OF JUDGES Larry Catd Backer* Why do the people and institutionsof democratic states, and in particularthose of the United States, obey judges ? This article examines the foundationsofjudicial authority in the United States. This authority is grounded on principles of dominance derivedfrom the organization of institutionalreligion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionallyunderstood. Rather, the authorityof the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestlyfunction developed in the philosophy of FriedrichNietzsche. Focusing on the United States Supreme Court and the European Court of Justice, this paper examines the manner in which high-courtjudges have successfully internalizedthe characteristicsof Nietzsche's Paul and his priestly caste within the "religion" of Western constitutionalism. Paul wanted the end, consequently he also wanted the means.
    [Show full text]
  • Rupee Slide Hits Outbound
    PPS 619/02/2013(022926) No. 1661/June 15 – 21, 2012 Hotels Regional airlines Singapore China centric or eccentric? China’s big four lift off Rising expectations PAGE 12 PAGE 14 PAGE 15 www.ttgasia.com Rupee slide BREAKING hits outbound GROUND Domestic travel rises in popularity among Indians After transforming the way travel is bought, can online travel companies continue to make By Divya Kaul ing as much as 40 per cent of NEW DELHI A depreciating tourists from West Bengal this huge, not incremental, innovations? Barney rupee, coupled by a steep rise in season, compared to 20 per cent Harford, president & CEO of Orbitz Worldwide, airfares, has hit India’s outbound last year,” said Angshuman Basu, market, driving up tour package co-partner, Destination Tours. says yes and shows Raini Hamdi how he is prices by as much as 25 per cent. At the same time, room rates breaking ground at Orbitz – see page 6 The Indian rupee has plunged across popular Indian destina- by about 20 per cent against the tions are also clearly on the rise, US dollar in recent months. based on the latest Hotel Price In- “Even though queries have dex (HPI) report by Hotels.com. Win A Coaching Programme Worth US$7,000 not dropped drastically, conver- Average room rates in New Delhi Tipsheet columnist Adrian Caruso (refer to page 8) is giving away a three-month online coaching course sion rate has gone down,” said have seen a nine per cent increase to provide one winner with a makeover of their travel agency business.
    [Show full text]
  • Can Legislatures Constrain Judicial Interpretation of Statutes? Anthony D'amato Northwestern University School of Law, [email protected]
    Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2010 Can Legislatures Constrain Judicial Interpretation of Statutes? Anthony D'Amato Northwestern University School of Law, [email protected] Repository Citation D'Amato, Anthony, "Can Legislatures Constrain Judicial Interpretation of Statutes?" (2010). Faculty Working Papers. Paper 71. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/71 This Article is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. Can Legislatures Constrain Judicial Interpretation of Statutes? by Anthony D’Amato*, 75 Va. L. Rev. 561-603 (1989) Abstract: An aspect of the battle over deconstruction is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts. I examine the same issue by recounting my own quest for determinate meaning in statutes—a sort of personal legislative history. I do not claim for jurisprudence the role of ensuring faithful reception of the legislature's message, for that is impossible. At best, jurisprudential theory only reduces the degrees of interpretive freedom, and then only probably, not necessarily. The more significant thesis of this article is that all theories of statutory interpreta- tion can only do that much and no more. Tags: legislative intent, statutory interpretation, jurisprudence, deconstruction, doctrinalists [pg561]** An aspect of the current battle over deconstruction [FN1] is whether resort to legislative intent might help to determine the content of a statutory text that otherwise, in splendid isolation, could be deconstructed by simply positing different interpretive contexts.
    [Show full text]
  • Why Do Nations Obey International Law?
    Review Essay Why Do Nations Obey International Law? The New Sovereignty: Compliance with InternationalRegulatory Agreements. By Abram Chayes" and Antonia Handler Chayes.*" Cambridge: Harvard University Press, 1995. Pp. xii, 404. $49.95. Fairness in International Law and Institutions. By Thomas M. Franck.- Oxford: Clarendon Press, 1995. Pp. 500. $55.00. Harold Hongju Koh Why do nations obey international law? This remains among the most perplexing questions in international relations. Nearly three decades ago, Louis Henkin asserted that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time."' Although empirical work since then seems largely to have confirmed this hedged but optimistic description,2 scholars Felix Frankfurter Professor of Law, Emeritus, Harvard Law School ** President, Consensus Building Institute. Murray and Ida Becker Professor of Law; Director. Center for International Studtcs. New York University School of Law. t Gerard C. and Bernice Latrobe Smith Professor of International Law; Director. Orville H, Schell, Jr., Center for International Human Rights, Yale University. Thts Essay sketches arguments to be fleshed out in a forthcoming book, tentatively entitled WHY NATIONS OBEY: A THEORY OF COMPLIANCE WITH INTERNATIONAL LAW. Parts of this Review Essay derive from the 1997 \Vaynflete Lectures. Magdalen College, Oxford University, and a brief book review of the Chayeses volume in 91 Am. J. INT'L L. (forthcoming 1997). 1 am grateful to Glenn Edwards, Jessica Schafer. and Douglas Wolfe for splendid research assistance, and to Bruce Ackerman, Peter Balsam, Geoffrey Brennan. Paul David, Noah Feldman. Roger Hood, Andrew Hurrell, Mark Janis, Paul Kahn, Benedict Kingsbury, Tony Kronran.
    [Show full text]
  • Judicial Interpretation of Statutes April 2020
    Judicial Interpretation of Statutes April 2020 Executive Summary Courts in the United States serve several functions. They oversee civil and criminal trials, issue orders requiring or prohibiting certain actions, decide whether a particular law violates the constitution, and determine the meaning of language in a contract or law. This publication discusses the role the courts play in interpreting statutes. The primary focus of statutory interpretation is the language of a statute. Courts only move beyond that language when there is ambiguity. This publication discusses the tests and tools the court uses to resolve ambiguity and includes questions for legislators to consider when crafting legislation. Authority to Interpret Statutes The judicial system in the United States adopted the common law system from England.1 Under that system there were few statutes. Courts developed the law by relying on general principles, following decisions of prior courts, and applying that guidance to the specific facts of a case. The common law tradition gave courts great power to say what the law was, and there was an understanding that courts in the United States retained that power. In one of the most famous decisions by the United States Supreme Court, Marbury v. Madison, the court said: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”2 Every court has the authority to interpret statutes. Minnesota has three levels of courts— district courts, the court of appeals, and the supreme court.
    [Show full text]
  • Elections/Election 2 Le Syndrome Chinois Hak Se Wui / Hak Se Wui Yi Wo Wai Kwai Hong Kong 2005 / 2006, 100 / 92 Minutes Charles-Stéphane Roy
    Document generated on 09/29/2021 8:40 p.m. Séquences La revue de cinéma Elections/Election 2 Le syndrome chinois Hak se wui / Hak se wui yi wo wai kwai Hong Kong 2005 / 2006, 100 / 92 minutes Charles-Stéphane Roy Léo Bonneville 1919-2007 Number 250, September–October 2007 URI: https://id.erudit.org/iderudit/58970ac See table of contents Publisher(s) La revue Séquences Inc. ISSN 0037-2412 (print) 1923-5100 (digital) Explore this journal Cite this review Roy, C.-S. (2007). Review of [Elections/Election 2 : le syndrome chinois / Hak se wui / Hak se wui yi wo wai kwai Hong Kong 2005 / 2006, 100 / 92 minutes]. Séquences, (250), 41–41. Tous droits réservés © La revue Séquences Inc., 2007 This document is protected by copyright law. Use of the services of Érudit (including reproduction) is subject to its terms and conditions, which can be viewed online. https://apropos.erudit.org/en/users/policy-on-use/ This article is disseminated and preserved by Érudit. Érudit is a non-profit inter-university consortium of the Université de Montréal, Université Laval, and the Université du Québec à Montréal. Its mission is to promote and disseminate research. https://www.erudit.org/en/ CRITIQUES I LES FILMS E ELECTION/ELECTION 2 I Le syndrome chinois Après trop d'années passées dans l'ombre de John Woo et Tsui Hark, le Hongkongais Johnnie To lâche deux bombes sur les Triades et expose tout son talent une fois pour toutes, près de 50 réalisations après ses débuts, proposant du même coup au genre une nouvelle valeur-étalon.
    [Show full text]
  • Review of “Judge Learned Hand and the Role of the Federal Judiciary,” by Kathryn Griffith
    Washington University Law Review Volume 1975 Issue 2 January 1975 Review of “Judge Learned Hand and the Role of the Federal Judiciary,” By Kathryn Griffith G. Michael Fenner Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Judges Commons Recommended Citation G. Michael Fenner, Review of “Judge Learned Hand and the Role of the Federal Judiciary,” By Kathryn Griffith, 1975 WASH. U. L. Q. 518 (1975). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1975/iss2/12 This Book Review is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. 518 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 1975:514 just over eight hundred pages, a prodigious undertaking in any event. The book's primary market will undoubtedly be among practicing lawyers, and its effectiveness can really only be tested by practitioner use of the book. If the success of the Illinois volume is any indication, the federal version is likely to meet a warm reception. Nevertheless, the prudent prospective purchaser might be well advised to await publi- cation of a second edition, which would incorporate the new FRE as enacted by Congress. Based upon the history of the Illinois volume, a second edition might be expected within the next year. But, for the attorney who is not bothered by the necessity to use the promised pocket part supplementation, the amount of investment required for this volume seems well worth the potential reward.
    [Show full text]
  • Human Dignity and Judicial Interpretation of Human Rights
    The European Journal of International Law Vol. 19 no. 4 © EJIL 2008; all rights reserved .......................................................................................... Human Dignity and Judicial Interpretation of Human Rights Christopher McCrudden * Abstract The Universal Declaration on Human Rights was pivotal in popularizing the use of ‘ dignity ’ or ‘ human dignity ’ in human rights discourse. This article argues that the use of ‘ dignity ’ , beyond a basic minimum core, does not provide a universalistic, principled basis for judicial decision-making in the human rights context, in the sense that there is little common under- standing of what dignity requires substantively within or across jurisdictions. The meaning of dignity is therefore context-specifi c, varying signifi cantly from jurisdiction to jurisdiction and (often) over time within particular jurisdictions. Indeed, instead of providing a basis for principled decision-making, dignity seems open to signifi cant judicial manipulation, increas- ing rather than decreasing judicial discretion. That is one of its signifi cant attractions to both judges and litigators alike. Dignity provides a convenient language for the adoption of sub- stantive interpretations of human rights guarantees which appear to be intentionally, not just coincidentally, highly contingent on local circumstances. Despite that, however, I argue that the concept of ‘ human dignity ’ plays an important role in the development of human rights adjudication, not in providing an agreed content to human
    [Show full text]
  • The Temptation and Fall of Original Understanding
    BOOK REVIEW The Temptation and Fall of Original Understanding Anthony E. Cook* A Review of THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW, by Robert H. Bork (Free Press, 1989). INTRODUCTION On Friday, June 26, 1987, Lewis Powell announced his resignation from the Supreme Court of the United States.' Five days later, President Reagan announced his intention to nominate United States Court of Ap- peals Judge Robert H. Bork to fill the vacancy. 2 The nomination set the scene for the most heated and prolonged campaign for a Supreme Court vacancy in recent history. When the smoke cleared from the battle- ground of the Senate Caucus Room of the Russell Senate Office Building, nearly four months after President Reagan's ringing endorsement, the Senate had rejected Judge Bork's nomination. The fierce, politically- charged battle captured the attention of the American public. Senator Edward Kennedy set the tone of the debate in a nationally televised statement that warned of the disastrous implications of a Bork confirmation: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters [and] rogue police could break down citizens' doors in midnight raids... ."-3 Interlocutors waged much of the ensuing struggle on ideo- logical turf, characterizing Judge Bork's judicial philosophy as either flowing with or sailing against the values of the American mainstream. Judge Bork attempted to situate himself between both ideological camps and instead characterized his philosophy as "neither liberal nor con- * Associate Professor of Law, University of Florida School of Law.
    [Show full text]
  • Interpretation and Deference for Justice Scalia
    Yeshiva University, Cardozo School of Law LARC @ Cardozo Law Articles Faculty 1991 Textualism and Taboo: Interpretation and Deference for Justice Scalia Michael Herz Benjamin N. Cardozo School of Law, [email protected] Follow this and additional works at: https://larc.cardozo.yu.edu/faculty-articles Part of the Law Commons Recommended Citation Michael Herz, Textualism and Taboo: Interpretation and Deference for Justice Scalia, 12 Cardozo Law Review 1663 (1991). Available at: https://larc.cardozo.yu.edu/faculty-articles/71 This Article is brought to you for free and open access by the Faculty at LARC @ Cardozo Law. It has been accepted for inclusion in Articles by an authorized administrator of LARC @ Cardozo Law. For more information, please contact [email protected], [email protected]. TEXTUALISM AND TABOO: INTERPRETATION AND DEFERENCE FOR JUSTICE SCALIA Michael Hen* Under the big bang theory of creation, the universe is the prod­ uct of a gigantic explosion, before which there was neither time nor space. It is meaningless to ask what produced the big bang.' This is also Antonin Scalia's view of the United States Code. The statute exists—it is meaningless to ask what produced it. History begins only with the big bang, just as a statute's history begins only with its enact­ ment. "Legislative history" thus does not exist. Or perhaps the more precise analogy is to the formation of matter in the initial chaos: mat­ ter and statutes are both the product of a disordered, incoherent, un­ conscious, anarchic sequence of events.^ Justice Scalia trusts statutory text, not the process of its creation.
    [Show full text]