Bill Watson (University of Illinois College of Law) has posted What Are We Debating When We Debate Legal Interpretation? (105 B.U. L. Rev. (forthcoming 2025)) (51 pages) on SSRN. Here is the abstract:
Debates over legal interpretation, such as those between textualists and purposivists or originalists and living constitutionalists, are familiar and longstanding. Yet there remains disagreement over what these debates are really about—over what interpretive theories aim to achieve. Do interpretive theories aim to grasp what legal texts communicate? Do they aim to explain how legal texts make law? Are they heuristics for discerning the law? Or are they instructions for how to go on when the law runs out? Answering this “meta-interpretive” question about what we are debating when we debate legal interpretation is key to making progress in these debates.
This Article frames the meta-interpretive question and explores how a widely held view in general jurisprudence—Hartian Positivism—answers it. Hartian Positivism holds that what counts as law in any jurisdiction depends on what officials in that jurisdiction generally accept and treat as law. If Hartian Positivism is right, then interpretive theories are primarily about interpretation in a remedial sense: they concern how legal actors should exercise discretion when the law runs out—how they should fill in the law’s gaps. This remedial answer, in turn, has important implications for how judges and theorists should (and should not) defend their preferred interpretive theories.
Via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!"
RELATED: Also at Legal Theory Blog, Professor Solum has this entry in his Legal Theory Lexicon: Textualism. From the introduction:
Four Levels of Interpretive Theory
I find it helpful to separate out four different “levels” at which theories of legal interpretation can operate:
Level One: Meta Theories of Interpretation—One kind of theory examines questions like, “What does ‘interpretation’ mean?,” "What is interpretation?," and “How is ‘interpretation’ possible?”
Level Two: Communicative Theories of Interpretation–A second kind of theory aims at the recovery of the contextualized linguistic meaning (or "communicative content") of a text.
Level Three: Normative Theories of Interpretation—A third kind of theory addresses the normative question, “What should legal interpretations (or constructions) aim at?” Among the answers to this question are: (a) the morally best reading of the legal text; (b) the intentions of the authors of the legal text, and (c) the plain meaning of the legal text.
Level Four: Methodological Theories of Interpretation—A fourth kind of theory aims to provide practical advice to legal actors (judges, lawyers, administrative officials, and citizens) about the techniques they can use to interpret various types of legal texts. For example, a methodological theory might require (or forbid) interpreters to examine the legislative history of a statute.
Textualism
Textualism, the subject of this post, can operate at the second, third, or fourth levels. That is, textualism could be the view that what legal texts really mean (as a "fact of the matter") is their plain meaning. Or textualism could be the view that legal interpreters ought to adopt constructions of legal texts that correspond to their plain meaning, even if that does not correspond to the linguistic meaning or communicative content of the text. Or textualism could simply be a practical technique—a method that judges should employ. In this post, the primary focus will be on levels two and three—textualism as a semantic or normative theory—with some discussion of level four (textualism as practical methodology).
Posted at 6:21 AM