Kara Sears
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation, and frequently used vocabulary. While parliaments make the law, judges are tasked with interpreting the law and applying it to specific cases. Judges have a measure of discretion and creative power in the manner in which they interpret legislation. There are several schools of thought on how judges should interpret the law, including originalism, textualism, and legal structuralism. Originalism involves interpreting the law according to its original meaning in its historical, literary, and political context. Textualism interprets the law based on the ordinary meaning of the legal text. Legal structuralism involves interpreting a particular constitutional principle in the context of the larger constitutional document.
| Characteristics | Values |
|---|---|
| Schools of legal interpretation | Textualist school, Non-textualist "progressive" trends, Originalism, Strict constructionism, Textualism, Judicial restraint, Judicial activism, Balancing, Judicial conservatism |
| Interpretative role | Judges have a measure of discretion and creative power |
| Methods | Interpreting the text literally, Looking beyond the text at the reason for its enactment, Using extrinsic material, Referring to previous statutes, Referring to the constitution, Referring to the intention of Parliament |
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What You'll Learn
- Judges interpret law based on the ordinary meaning of the legal text
- Judges have some leeway in their interpretation when higher courts are silent
- Originalism involves applying the original meaning of constitutional provisions
- Textualism is dominant in the US Supreme Court
- Judges may consider parliamentary debates when interpreting the law
Judges interpret law based on the ordinary meaning of the legal text
Judges interpret the law by applying different theories of judicial interpretation. One of the most popular theories is textualism, which interprets the law based on the ordinary meaning of the legal text. Textualism is the dominant theory in the US Supreme Court. Textualism involves reading the text enacted by the legislature, in its entirety, in its grammatical and ordinary sense, and in harmony with the scheme of the Act, the object of the Act, and the intention of Parliament.
Textualism is a broad term that encompasses both functionalist and formalist approaches. It primarily interprets the law based on the ordinary meaning of the legal text. An example of textualism is seen in Bostock v. Clayton County, where both the majority opinion and dissents adopted a textualist approach. The difference was in the "flavour of textualism" employed. The majority opinion, written by Justice Neil Gorsuch, utilizes a very narrow and literal textualist interpretation, which is essential to the ruling in Bostock and the precedent it set.
The ordinary meaning doctrine looks to the outside and follows the canons that guide an ordinary person's understanding of the legal text. This doctrine is about the ordinary understanding of language in rules. It is important to note that the canons do not apply wherever there is "ordinary language" or "legal language". Instead, they apply to the interpretation of rules. A judge interpreting a rule from the outside may consider dictionary definitions, but these definitions must be based on rule-like contexts to reflect the understanding of "ordinary readers".
In Canada, the current approach to statutory interpretation is that the words of an Act are to be read in their entire context and in their grammatical and ordinary sense, in harmony with the scheme of the Act, the object of the Act, and the intention of Parliament.
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Judges have some leeway in their interpretation when higher courts are silent
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation, and frequently used vocabulary. In the United States, Australia, and Canada, the supreme courts can overturn laws made by their legislatures through a process called judicial review. This means that the interpretation of the law by judges can have a significant impact on the legality of certain issues.
When it comes to interpreting the law, judges have some discretion and creative power. They can consider the ordinary meaning of the legal text, the historical, literary, and political context of the framers, and the underlying principles. In civil law systems, judges often fill in the finer details of legislation that sets out general principles. This is known as the purposive approach, which allows judges to look beyond the words of the statute to determine its purpose and give it effect.
When higher courts are silent and the legislature is unclear, trial judges have some leeway in their interpretation. They can follow whichever jurisprudential philosophy they adhere to, such as originalism, textualism, or strict constructionism. Originalism involves applying the "original" meanings of constitutional provisions by interpreting them in their historical, literary, and political context. Textualism interprets the law based on the ordinary meaning of the text, while strict constructionism focuses on the exact wording without drawing inferences from previous statutes.
However, it is important to note that judges must also consider the intention of the legislature and the common law principles. Interpretation statutes direct courts to give enactments a "fair, large, and liberal construction and interpretation" to ensure the attainment of its objects. Judges may consider parliamentary debates and the rules of interpretation, such as the mischief rule, to guide their decisions.
In summary, when higher courts are silent, judges have some leeway in interpreting the law. They can choose from different schools of legal interpretation and consider the context, underlying principles, and purpose of the legislation. However, they must also respect the intention of the legislature and follow interpretation statutes to ensure a fair and just outcome.
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Originalism involves applying the original meaning of constitutional provisions
Judges have a certain degree of freedom when it comes to interpreting the law. In some cases, they may have to follow a specific Act that dictates how to interpret the law. However, in civil cases, statutory law tends to be unclear, allowing a judge to decide on the basis of their beliefs of what is fair, equitable, or just.
Originalism is a theory of constitutional interpretation that involves applying the original meaning of constitutional provisions. Originalists believe that the constitutional text should be interpreted according to the public meaning it had when it became law. This meaning can be discerned from dictionaries, grammar books, legal documents, legal events, and public debates from the time. Originalism acknowledges that the present has obligations to both the past and the future, and that each generation has the power to change the laws of the past while reserving the means to do so in a consensus-based way.
Originalism can be contrasted with the competing concept of the Living Constitution, which asserts that a constitution should evolve and be interpreted based on the context of the current times. Living constitutionalists believe that the meaning of the constitutional text changes over time as social attitudes change. For example, they believe that racial segregation was constitutional from 1877 to 1954 because public opinion favored it, and it only became unconstitutional after the Supreme Court decision in Brown v. Board of Education (1954). In contrast, originalists argue that the Fourteenth Amendment always forbade racial segregation, regardless of social attitudes or Supreme Court decisions.
Originalism has influenced American legal culture, practice, and academia, with some Supreme Court justices describing themselves as originalists. However, it has also faced criticism, with some arguing that originalism is a new concept not espoused by the founders, and that certain aspects of the constitution were intentionally broad and vague to allow for future generations to interpret them.
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Textualism is dominant in the US Supreme Court
Textualism is a school of legal interpretation that focuses on the text enacted by the legislature. It is currently the dominant interpretive theory in the US Supreme Court. Textualism was first used in a Supreme Court opinion by Justice Robert Jackson in the Youngstown Sheet & Tube Co. v. Sawyer case in 1952. In this case, Justice Jackson argued against the rigidity of textualism, wishing to give "scope and elasticity" to the enumerated powers. Justice Antonin Scalia, who served on the Supreme Court from 1986 to 2016, was a prominent advocate of textualism. He argued that the court's role was to follow what the law says and not the intentions of legislators. Scalia's views influenced American jurisprudence, and Justice Neil Gorsuch is considered the most notable textualist on the Supreme Court since Scalia.
Textualism promises simplicity and objectivity by focusing solely on the text. However, the newest version of textualism practised by the Justices has revealed inherent complexities and internal divisions within the Court. Interpretive disputes among textualist Justices centre around the conceptual underpinnings of textualism and its definition. The normative foundation of textualism is the rule of law, including values such as the stability of legal rules, transparency and predictability of rule application, and neutrality and objectivity for judges.
While textualism is dominant in the US Supreme Court, it has faced criticism and challenges. The "Text Wars" highlight that the newest textualism may not deliver the expected rule-of-law benefits. The textualist approach, which focuses on the "plain meaning" of the text, has resulted in less predictable outcomes in statutory cases. Additionally, the claim that textualism yields more objective and predictable results has been undermined by recent divisions among textualist Justices.
Despite these challenges, textualism continues to influence the US Supreme Court. Several Justices, including former Justice Anthony Kennedy, current Justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts, are placed on a textualist "spectrum" by legal scholars. The influence of textualism in the Court has led to debates and discussions about statutory interpretation, with some Justices, like Ruth Bader Ginsburg and Stephen Breyer, adopting a more nuanced approach that considers text, structure, purpose, and legislative history.
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Judges may consider parliamentary debates when interpreting the law
Judges have a certain degree of freedom when it comes to interpreting the law. They can interpret legislation in a way that gives it effective meaning, and they have a measure of discretion and creative power in how they do this. This is because the language used in legislation can often be ambiguous, obscure, or meaningless, and so judges need to interpret the law to provide it with a clear meaning.
There are several schools of thought on how judges should interpret the law. One is to discern legislative intent, based on facts like newspaper articles or legislative committee reports. Another is to look exclusively at the text enacted by the legislature, known as the Textualist school, which is dominant in the US Supreme Court. A third approach is to seek justice according to some social principle, rather than the text of the law or the original legislators' intent.
In the UK, judges are entitled to look at Law Commission reports, Royal Commission reports, and the reports of other official commissions, which may clarify a piece of legislation's specific purpose or the meaning of any provision within it. Judges may also consider parliamentary debates recorded in Hansard, though they should not take individual or ministerial statements as indicative of the intention of Parliament as a whole. This is in line with the idea that judges should attempt to discern legislative intent.
While judges have some freedom to interpret the law, they are ultimately accountable to Parliament, which can legislate to reverse the effect of a judicial decision or change the law as established or interpreted by a judge. The judiciary does no more than interpret and apply the law enacted by Parliament and only has the power that Parliament gave it in the Human Rights Act 1998. Judges may be invited to give evidence to Parliamentary Committees, but they must be cautious about what they say to avoid influencing public perception of their impartiality and independence.
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Frequently asked questions
Judicial interpretation is the way in which the judiciary construes the law, particularly constitutional documents, legislation, and frequently used vocabulary.
There are several types of judicial interpretation, including:
- Textualism: Interpreting the law based on the ordinary meaning of the legal text.
- Originalism: Applying the "original" meanings of different constitutional provisions by interpreting them in their historical, literary, and political context.
- Strict constructionism: Interpreting the text only as it was written and avoiding inferences from previous statutes or the constitution.
- Legal structuralism: Searching for the meaning of a constitutional principle by reading it against the larger constitutional document or context.
- Judicial restraint and judicial activism: A continuum of judicial interpretation with different viewpoints.
Judges have a measure of discretion and creative power when interpreting legislation. They may consider the full statute, parliamentary debates, and the rules of interpretation. There are two main approaches: the restrictive, literal approach and the more permissive, purposive approach. The purposive approach allows judges to look beyond the words of the statute to pursue the reason for its enactment.
