Although the first year of law school is weighted towards the study of common law subjects (contracts, common law crimes, property, and torts) with perhaps some civil procedure and constitutional law, most modern law involves statutes and regulations. This entry in the Legal Theory Lexicon provides a basic introduction to theories of statutory interpretation and construction with an emphasis on the three most basic approaches to statutory interpretation (textualism, intentionalism, and purposivism). As always, the Lexicon is aimed at law students with an interest in legal theory.
Interpretation and Construction
For the purpose of this Lexicon entry, the terms "interpretation" and "construction" are given technical definitions, as follows:
Interpretation refers to the activity of discovering the linguistic meaning of the statutory text.
Construction refers to the activity of determining the legal effect to be given to a statutory provision.
Many legal theorists do use these terms interchangeably to refer to the conjunction of these two ideas. For the purposes of this Legal Theory Lexicon entry, a complete theory of statutory interpretation and construction would both provide an account of the linguistic meaning of the statutory text (interpretation) and the legal effect to be given that meaning (construction). Most of the disagreements concern "construction"--although there are some controversies about "interpretation" as well. Textualists believe that statutory construction should be constrained by statutory interpretation: legal effect should follow linguistic meaning. But intentionalists and purposivists have a different view; they believe that the linguistic meaning of statutory texts ought to be subordinated to other considerations (legislative intent or objective statutory purpose).
Let us take a look at the three most basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism.
The first approach is "textualism" or "plain meaning textualism." The core idea of this approach is simple: the legal effect of a statute should be consistent with the statute's linguistic meaning. So when a judge interprets a statute, the judge ought to determine what the language of the statute means. That meaning can then be translated into an authoritative construction of the statute and applied to particular issues and cases.
There is more than one possible candidate for the "linguistic meaning" of a statute. The least plausible candidate is the "literal meaning" of the words. The problem with literal meaning is that it fails to take context into account, but without consideration of context, most statutes are likely to be irreducibly ambiguous. For example, context is necessary in order to determine whether a statute that regulates "banks" is targeted at river banks or financial institutions. Plain meaning textualism takes context into account by focusing on the meaning of the statutory text that can be grasped by considerations of the whole statute and the general purpose the statute is designed to serve. The words of the statute control, but those words are to be understood contextually.
A second approach to statutory interpretation focuses on the intentions of the lawmakers. In the case of a federal statute, that relevant body is Congress and hence intentionalists aim for a construction of the statute that accords with congressional intent.
Intentions are mental states, but the the legislators who draft and then enact statutes can have many different mental states that a relevant to statutory interpretation and construction. One kind of intention can be called the "communicative intention" of the legislature. Communicative intentions specify the content that the legislature intended readers of the statute to grasp. If the drafters of the statute used words in their usual and ordinary senses, we would expect that the communicative intentions of the legislators would be very similar to the plain meaning of the statutory text.
But there is another kind of legislative intent that might be relevant to statutory interpretation and construction. Legislators may intend for a statute to produce certain effects, to effectuate certain purposes, to achieve certain goals, or to be applied in certain ways. These subjective intentions may be reflected in the legislative history of a statute and could then be used to guide the process of statutory construction--determining the legal effect that courts will give the statutory text.
Whereas plain meaning textualism focuses on the meaning of the text itself, this second kind of intentionalism prioritizes legislative history--in cases in which the legislative history provides clear evidence of what effects, purposes, goals, or applications were intended by the legislature. As I am using the word "intentionalism," it refers to the view of statutory interpretation that prioritizes the will of the legislature as expressed in the legislative history of the statute.
One way of using the phrase "statutory purpose" could refer to the subjective intentions of the legislature, but the phrase can be used in another way to refer to the "objective purpose of a statute"--the purpose that a reasonable or idea legislature would have had if it had passed the statute. Anyone who is familiar with the ways in which actual legislatures word will realize that the actual purposes of real-world legislators may be quire different from the idealized purposes of reasonable legislators. Real-world legislators may pass legislation with the aim of favoring a politically powerful special interest group, whereas an ideal legislature will always have a purpose that advances the public good.
As I am using the term "purposivism" it refers to the approach to statutory interpretation that maintains that the legal effect of a statute should be determined by the objective purpose of the statute. That is, statutes should interpreted to have their reasonable meaning--even if that meaning diverges from the plain meaning of the text or the subjective intentions of the actual lawmakers.
The relationship between "intentionalism" and "purposivism" is tricky. Some theorists run these two approaches together, and others use the terminology in different ways. For the purposes of this Lexicon entry, intentionalism is a subjective approach that emphasizes legislative history as guide to the will of the legislature whereas purposivism is an objective approach that focuses on an inquiry into the purposes that an ideal legislature would have had if it had enacted the statute to achieve the public good.
Other Approaches to Statutory Interpretation and Construction
The three simple approaches to statutory interpretation and construction outline above just scratch the surface of the theoretical landscape. One of the most important contemporary theorists of statutory interpretation is Professor William Eskridge, who is an advocate of the approach that he calls "dynamic statutory interpretation." The dynamic approach, as defined by Eskridge, requires judges to interpret statutes "in light of their present societal, political, and legal context." Judge Richard Posner has developed an approach to statutory interpretation that reflects his general approach to jurisprudence, which he calls "pragmatism." And there are many other contemporary approaches to the theory of statutory interpretation and construction.
Descriptive and Normative Theories
As in other areas of the law, it is important to distinguish between descriptive and normative theories of statutory interpretation and construction. The descriptive question is what do courts actually do when they engage in statutory interpretation and construction. The best answer to this question may be somewhat messy. Different judges apply different approaches in statutory cases, and even the same judge may use different methods on different occasions. The normative question asks what judges should do when they interpret statutes. The arguments for textualism are likely to emphasize the idea of the rule of law and the concerns for legitimacy and separation of powers that counsel a modest judicial role. The arguments for textualism are likely to be based on the superior democratic legitimacy of legislatures and the idea that the role of judges should be that of a faithful agent of the legislature. The arguments for purposivism and for dynamic and pragmatic approaches are likely to focus on outcomes and the idea that judges can improve statutes if they are given authority to consider arguments of policy and principle when they determine what legal effect should be given to statutory text.
Statutory interpretation and construction is certainly one of the most important topics in contemporary legal theory. This Lexicon entry provides a very basic introduction to the three basic approaches (textualism, intentionalism, and purposivism).
Related Lexicon Entries
- Legal Theory Lexicon 019: Originalism
- Legal Theory Lexicon 022: Intention
- Legal Theory Lexicon 030: Textualism
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 056: Pragmatism
- Legal Theory Lexicon 063: Interpretation and Construction
- Legal Theory Lexicon 071: The New Originalism
- Legal Theory Lexicon 079: Communicative Content and Legal Content
- William Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987).
- Victoria Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70-152 (2012).
- Richard A. Posner, What Has Pragmatism to Offer Law?, 63 So. Cal. L. Rev. 1653 (1990).
(First version posted on May 21, 2017.)