If the law of interpretation doesn’t come from our lawmakers, why should we follow it? Isn’t this “law without mind”?
Some of the law of interpretation will come from our lawmakers — just on an earlier occasion. (That’s what Title 1 of the U.S. Code is — some law of interpretation enacted by our earlier lawmakers.)
But more importantly, there can be reasons to follow even non-lawmaker law — what we generally call customary or “common” law. Those customs provide defaults to allow our system to get by while we fight about whether we can do better.
To be sure, not all interpretive customs are good, just as not all customs are good. So sometimes we want our lawmakers to overturn crazy customs, if enough of us can agree on a better one. But customs in law are more good than bad, which is why our default rule is to follow the common law unless it is overturned.
Does anybody (besides Larry Alexander) actually hold the “standard picture” that you described?
Well, anybody who found themselves asking the first question likely has standard-picture instincts. I do think the standard picture is a fairly common non-academic view of law, but even if most people don’t hold the pure version, it’s a useful generalization. Its basic instincts pop up in interpretive debates a lot.
Will these legal rules eliminate all judicial discretion or hard cases?
No. No, they will not. The rules can be complicated and introduce new difficulties. It is also possible — although I am not convinced it is the case — that the rules will be incomplete, creating gaps or conflicts that some other principle must resolve (as one of our critics has already argued).
Then what’s the point of all this? Aren’t you just telling judges to keep doing what they’re doing anyway?
At a very high level, yes, our argument is an attempt to make sense of existing practice, not to radically reform it. At the same time, we see plenty of judges and others getting confused in a way that the law of interpretation can help straighten out. For instance:
- Even for textualist judges, it should not be a problem that there are “normative” canons of construction not found in the statute’s text.
- Relatedly, the fact that such non-textual canons are used to interpret a statute does not necessarily imply that judges have the power to invent their own new canons to use instead.
But perhaps I am getting ahead of myself. We should get back to figuring out what the law of interpretation is before we argue more about whether it is any good . . .