Private Law Theory

ABSTRACT
What kinds of reasons should matter in choosing an approach to constitutional or legal interpretation? Scholars offer different types of reasons for their theories of interpretation: conceptual, linguistic, normative, legal, institutional and reasons based on theories of law. This Article argues that normative reasons, and only normative reasons, can justify interpretive choice. While many believe that normative reasons – such as those related to the realization of justice, fairness, or the rule of law – play some role in interpretive choice, no one holds explicitly that non-normative reasons should be irrelevant. Many find intuitive the idea that, for example, the very concept of interpretation, or the nature of communication or law, constrain interpretive choice. Even scholars who make the case for the role of normative reasons in interpretation grant some independent weight to non-normative reasons. This Article formulates the normative choice thesis explicitly for the first time, and it offers a systematic analysis of the different kinds of reasons usually canvassed to defend theories of interpretation, showing why each type of non-normative reasons cannot justify interpretive choice.

The Article highlights some implications of the normative choice thesis, the most important of which is ‘contingency’. If interpretive choice cannot be grounded in some immutable truth about the idea of interpretation or language, but only on normative reasons, then it is liable to change with circumstances. There should be no expectation that a single approach to constitutional or statutory interpretation will always be the right one. This challenges some well-established features of our legal culture, such as the common practice of committing to a single approach of interpretation (‘I’m an originalist’, ‘I’m a living constitutionalist’), or of expecting judges to be consistent in their approaches to interpretation.

Urbina, Francisco Javier, Reasons for Interpretation (February 9, 2024).