Jonathan Green, a Harry A. Bigelow Fellow and Lecturer in Law at the University of Chicago Law School, has posted Interpretation in England:
American purposivists and textualists have both invoked the authority of the English statutory interpretation tradition to give their respective approaches pedigree and credibility. But both sides have misunderstood this history. The search for the purpose of the statute’s authors does not date to the sixteenth century, as Hart and Sacks suggested. Neither did the English courts categorically ban “legislative history” as an aid to interpretation in the 1760s, as Scalia claimed. The seminal case of Pepper v. Hart (1992), finally, did not mark the death knell of English textualism or the return of purposivism—at least as that term is usually understood.–Dan Ernst H/t: CB
This Article offers the first intellectual history of statutory interpretation in modern England. It begins in the early-nineteenth century, with the appearance of new evidentiary sources that made it possible, for the first time, to try to peer into the mind of Parliament. This triggered decades-long disagreement about whether the intentions of past legislators were relevant to statutes’ meaning—and whether, in turn, evidence of those intentions should be admissible in court. Late-Victorian judges ultimately rejected intentionalism for an approach centered on the “plain meaning” of the statute’s text. That formalistic method aimed to discipline construction and cabin judicial discretion, but its failure to do so led to its collapse in the late twentieth century. What emerged in its wake—the approach dominant in England today—was a novel kind of purposivism, one that centers the objective purpose of the statute and generally ignores evidence of the subjective intentions of its authors. The English courts’ contemporary approach, in other words, presents an alternative to the congressional-intent purposivism dominant on the federal courts today.
Retrieving this history, in turn, opens up new ways of thinking in the present. The history of interpretation in England suggests that textualists have been too quick to rule out evidence of the statute’s historical context; that purposivists have conflated the purpose of the statute and the purpose of its authors; and that today, when federal judges debate congressional intent, they are often talking past each other. The English tradition has much to offer us—just not what we think it does.
