A popular argument is based on the premise that sounds or brands produced without intent make no sense. Proponents of this argument adopt this premise to imply that a text means what the author intends. From this argument, they conclude that the interpretation of the law must appeal to the will of the legislature. Given the claim that a text means what the author wants, the relevant intention is best understood as a communicative intention, and some of the theorists in this camp are explicit on this point. Given the nature of the argument, the relevant intentions must also be real intentions. Proponents of this type of intentionalism often tend to care surprisingly little about whether the relevant communicative intentions exist and, if so, how they might be determined. [20] In recent years, textualism has become the focus of discussions on legal interpretation. (As used here, it encompasses both textualism in the interpretation of the law and originalism of “public importance” 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 on how and if opposing positions differ (see, for example, Molot 2006; Manning, 2006; 2011; Nelson, 2005).
This section examines intentionalism (including purposivism) and textualism in more detail. It introduces several distinctions necessary to clarify what positions imply and raises important issues for positions. Some examples proposed by textualists suggest that they adopt the model of ordinary communication. In the famous Smith v. the United States, Smith offered to exchange a gun for cocaine. The Supreme Court was divided on whether he had been properly convicted under a law that provides for harsher sentences if the defendant.” a firearm” in the context of drug trafficking or violent crime. In an oft-cited dissenting opinion, Justice Scalia noted: “When someone asks you, `Do you use a cane?` he is not asking you whether you displayed your grandfather`s silver cane in the hallway; he wants to know if you walk with a stick” (508 U.S. 223, 242; see Manning 2003, 2460). Properly understood, the example shows that in an ordinary conversation, in the imagined situation, the speaker would probably ask you if you were walking with a stick. Communication would therefore be successful if the public correctly recognized this intention.
[27] Textualists also advocate the use of canons of linguistic interpretation which, properly understood, are rules of thumb to infer what a speaker is likely to want to communicate, as opposed to the literal meaning of words (e.g., Scalia 1997, 25-26). [28] Originalism encompasses the family of theories of constitutional interpretation that give precedence to an aspect of the Constitution at the time of ratification. This original aspect is variously considered as the intentions of the authors or ratifying of the Constitution, the meaning of the text, the way in which the text would have been understood by the ratifying officers of the Constitution, or the practices established at the time. [14] See entry on constitutionalism. Originalism thus encompasses both intentionalist and unintentionalist theories of interpretation. What different forms of originalism have in common is that they adopt the correct interpretation of the Constitution, determined by a particular characteristic of the Constitution at the time of ratification. It promotes clarity in order to formulate this central idea regarding the contribution of the Constitution to the content of the law (although originalists do not always do this): this contribution is determined by the relevant aspect of the Constitution at the time of ratification and does not change thereafter. In this position, theories of legal interpretation attempt to understand how determinants of the content of the law, such as the ratification of the constitution or the adoption of a law, influence the content of the law. There is a growing trend towards recognition of this position.
[11] In this approach, the linguistic meanings of legal texts are obviously a very relevant factor, but theories of legal interpretation seek more than just the linguistic meaning of legal texts; They are trying to determine the law. However, theories of legal interpretation do not purport to provide guidance on other issues, such as how to make discretionary decisions that are not governed by legal norms or how to comply with the law. Despite this point, it is customary to classify a theory as non-originalistic if it allows the application of the Constitution to be determined by the best available understanding of what falls within the broad language of the Constitution – especially if that language contains moral concepts. For example, a theory that allows punishments that were not considered cruel at the time of ratification of the Constitution to violate the Eighth Amendment because they are in fact cruel would be considered a non-originalistic theory by default. See article on constitutionalism, section 9. However, such a position is consistent with the Constitution`s contribution to the establishment of law through the original linguistic meaning of the text or through certain types of original intentions (see Whittington 2004, 610-11). There is therefore an anomaly in the use of the labels originalism and non-originalism: positions that correspond to the definition of originalism given by their own proponents are treated by default as non-originalist by both sides of the debate (cf. Eisgruber 2001, 27). Given these implications of well-known legal theories to defend theories of legal interpretation, it is worth returning to the arguments that legal interpretation theorists actually offer to support their favorite narratives.
As mentioned earlier, normative arguments are probably the most common. The typical argument is that a method is supported by a certain value – democracy or fairness, for example – because the method treats the sources of law as a contribution to the law in the way that value requires. The art or process of determining the intended meaning of a written document, such as a constitution, law, contract, deed or will. The argument, based on the three widely held theses, argues strongly in favour 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. The only kind of consensus among judges, however, are bland platitudes such as the original meaning or intent of the legislature. Such platitudes are too underspecified to achieve a clearly correct application. What original meaning? Semantic content? Communicative content? “Public importance”? How important exactly is the original meaning and what other factors are important and how? What kind of legislative intent? Opponents of the original jurisprudence argue that, on many issues, it is impossible to discern the intention of the drafters.
Even if the original intent is known, some opponents believe that this intent should not determine contemporary decision-making on constitutional issues. In their view, the Constitution is a living document that should be interpreted contemporarily. This interpretive philosophy would allow judges to read the Constitution as a dynamic document in which contemporary values help in the search for meaning. Appeals to actual legislative intentions in law and constitutional interpretation have been heavily criticized on several fronts – metaphysical, existential and epistemic. [17] In addition to the contrast between legal activism and judicial deference, other theories of judicial interpretation include: The question is not the nature, existence or determination of intentions, but the extent to which they should make a difference in legal interpretation. Let us assume that, according to the hypothetical philosophical narrative of the group leaders, the legislature that enacted a particular provision had a collective intention supporting an interpretation that is not apparent from the wording of the provision. Allowing such a legislative intent to control the interpretation of the provision raises serious questions of democracy, the rule of law and fairness. For example, the values of the rule of law require that legislation be readily available to the public. Democratic values run counter to the relevance of legislative intentions that have not been expressed in bills passed by the Legislative Assembly.
