VLS Jurisprudence II (July-Aug 2020)
Uploaded by
qubrex1VLS Jurisprudence II (July-Aug 2020)
Uploaded by
qubrex1Jurisprudence II (Theories of Adjudication and Interpretation)
Virtual Law School (July-August 2020)
Instructor: Sidharth Chauhan, Assistant Professor, NALSAR Hyderabad.
Course Rationale:
Questions about interpretation in the law have been principally examined from the
viewpoint of a judge who is called upon to read and apply legislative materials. It goes
without saying that judges are constantly dealing with the uncertainties that arise in the
continuum between the opposite ends of literal construction (or plain meaning) and
purposive interpretation. It would be an oversimplification to think of these two
seemingly divergent approaches as exhaustive of the various approaches to legal
interpretation. Much like a reader who interprets a piece of prose, an individual who is
trying to make sense of a painting or one who is listening to music, legal interpretation
also depends on the specific circumstances surrounding the act of creation (by the author
or the artist) as well as the standpoint of the one who reads a text, observes a painting or
listens to music. It is quite foreseeable that the act of creation might have been motivated
by a set of concerns that are at variance with those of the reader, viewer or listener. In
some cases, the social meaning attached to the specific words and images used by the
creator might change with time.
Interpretation in the common law tradition has to account for the overarching preference
for certainty, clarity and consistency in the law. While these qualities cannot be present in
an absolute sense, they do command the attention of those who claim to be familiar with
the law, either as legislators, judges or lawyers (or more simply ‘lawmen’ as described by
Karl Llewellyn). From the prism of inclusive legal positivism, the authoritative force of
legal provisions bears a strong correlation with coherence in their interpretation, both
from the viewpoint of those who are asked to apply them and those who are asked to
follow the law.
There are two distinctive methods for teaching a course that is centered on the
interpretation of legal texts. The established method requires students to learn the canons
of statutory interpretation by examining how they have been applied and explained in
past decisions. However, the newer method that seems to be gaining ground locates
statutory interpretation as a sub-field in the philosophy of language. In particular, the
analysis of legislative materials draws heavily from literary theory. We can also examine
the institutional dynamics of the legislative process, which can be roughly divided into
three phases, namely the pre-enactment phase, deliberations inside the legislature and
post-enactment history. There will also be an effort to survey some frequently cited
literature that engages with theories of adjudication in common law settings.
1
CORE READINGS
Part I: Situating Legal Interpretation
Lon L. Fuller, ‘The Case of the Speluncean Explorers’, 62(4) Harvard Law
Review 616-645 (1949).
H.L.A. Hart, 'Positivism and the Separation of Law and Morals', 71 Harvard Law
Review 573-629 (1958).
Lon L. Fuller, 'Positivism and Fidelity to Law-A Reply to Professor Hart', 71
Harvard Law Review 630-672 (1958).
Frederick Schauer, 'Formalism', 97(4) Yale Law Journal 509-548 (1988).
Part II: Law as Literature
James Boyd White, ‘Reading Law and Reading Literature’, 60 Texas Law Review
415-445 (1981-1982).
Ronald Dworkin, ‘Law as Interpretation’, 60 Texas Law Review 527-550 (1981-
1982).
Stanley Fish, ‘Working on the Chain Gang: Interpretation in the Law and in
Literary Criticism’, 9(1) Critical Inquiry 201-216 (Sept. 1982).
Part III: Analysing Judicial Discretion
Kent Greenawalt, ‘Discretion and Judicial Decision: The Elusive Quest For the
Fetters that Bind Judges’, 75(2) Columbia Law Review 359-399 (1975).
Ronald Dworkin, ‘Hard Cases’, 88(6) Harvard Law Review 1057-1109 (April
1975).
Bruce Ackerman, ‘Beyond Carolene Products’, 98 Harvard Law Review 713-746
(February 1986).
Part IV: Current Debates About Judicial Review
David A. Strauss, ‘Common Law Constitutional Interpretation’, 63(3) The
University of Chicago Law Review 877-935 (1996).
Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, 115(6) Yale
Law Journal 1346-1406 (2006).
T.K. Naveen, 'Use of Social Science Evidence in Constitutional Courts: Concerns
for Judicial Process in India', 48(1) Journal of Indian Law Institute 78-93 (2006).
Pratap Bhanu Mehta, 'The Rise of Judicial Sovereignty', 18(2) Journal of
Democracy 70-83 (2007).
2
Recommended Books (for Research)
1. Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal
Interpretation (Harvard University Press, 2006).
2. Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy
(Oxford University Press, 1995).
3. Brian Bix, Law, Language and Legal Determinacy (Oxford: Clarendon Press,
1993).
4. D. Neil MacCormick, Legal Reasoning and Legal Theory (Oxford University
Press, 1978).
5. D. Neil MacCormick & Robert S. Summers (eds.), Interpreting Statutes: A
Comparative Study (Dartmouth Press, 1991).
6. Francis Bennion, Statutory Interpretation, 7th edn. (LexisNexis UK, 2017).
7. Justice G.P. Singh, Principles of Statutory Interpretation, 14th edn. (LexisNexis
India, 2016) [Revised by Justice A.K. Patnaik].
8. Joseph Raz, Between Authority and Interpretation: On the theory of law and
practical reason (Oxford University Press, 2009).
9. Kent Greenawalt, Legal Interpretation: Perspectives from other disciplines and
private texts (Oxford University Press USA, 2010).
10. Luc J. Wintgens, Legisprudence: A new theoretical approach to legislation
(Oxford: Hart Publishing, 2002).
11. N.S. Bindra, Interpretation of Statutes, 12th edn. (LexisNexis India, 2017)
[Revised by Amita Dhanda].
12. P. St. J. Lagan, Maxwell on the Interpretation of Statutes, 12th edn. (Butterworths,
1969) [Indian Reprint 2010].
13. Timothy A.O. Endicott, Vagueness in Law (Oxford University Press, 2000).
14. Vepa P. Sarathi, Interpretation of Statutes, 4th edn. (Eastern Book Company,
2003).
15. William N. Eskridge, Jr., Dynamic Statutory Interpretation (Harvard University
Press, 1994).
16. William N. Eskridge, Jr., Philip Frickey & Elizabeth Garrett, Cases and Materials
on Legislation, Statutes and the creation of Public Policy, 4th edn. (Thomson
West, 2007).
