- 5-Year B.A., LL.B. (Hons.)
- Mar 2021
- Core Course
One of the central tasks of lawyers and judges is to read and interpret legislative texts. In the classic formulation, judges don’t make law, but simply interpret it to give effect to the meaning embodied in the text. However, within the extremes of textual and purposive interpretation lie uncertainties – either rooted in the ambiguity or indeterminacy of the text, or conflicting social, political or moral positions of the judges – which are not susceptible to easy resolution. The received wisdom that judges engage in a value-neutral, disinterested, objective analysis, in the image of the blindfolded Themis, seems to narrate an incomplete story. Whilst there is a broadly accepted technical grammar of legal interpretation – a range of concepts, rules and doctrines that we will cover in this course, and which you would have already encountered in your studies at law school – that operate as constraints on how judges may interpret text, scholars are divided over the question of what a coherent and principled account of interpretation looks like.
As in the appreciation of literature, art or music, legal interpretation carries a subjective and objective component – while there is a thing that requires interpretation (the legislative text), the interpretation requires us to travel beyond the object, depending on the perspective and psychological make-up of the interpreter. Any interpreter must conserve the essence of the object he or she seeks to interpret (whether by reference to the text, or to the intention of the author); yet there is an inescapably creative element that introduces something new to the text, something that adds (invents or discovers?) value. This tension between objectivity and subjectivity and between consistency, clarity and coherence and dynamism and evolution is at the heart of legal interpretation.