MODULE 1: THE NEED FOR INTERPRETATION

The Law is a Fractal - no matter how many general rules you create, at great cost, there will always be specific situations that escape its ambit
- you end up with more ambiguity than you had to begin with
The Aquinas quote: the more cases you bring and the more law you create in the quest to anticipate everything, the more confusion and
ambiguity you create
An example of an “inappropriate rule” *Riggs v Palmer*: the law is silent bc if you look at the facts, a person kills his grandfather, serves time,
and demands his grandfather’s property - and as per the explicit law, he should be able to
So what ends up happening is that law is created after something has happened, prospectively applicable
Stumpff: the car in the park example and the number line, where it is impossible for two points to be “next to” each other - how long will you
create laws while trying to anticipate every possible circumstance?
No matter how many general rules you create, at great cost, there will always be specific situations that escape its ambit - you end up with more
ambiguity than you had to begin with
Hart: the open texture of the law - and within the open texture of the law, it is the judiciary who must interpret the law to suit specific situations
Legal Pragmatism – Farber, Gray, Radin and Posner
1. the importance of context - all legal decision-making takes place in a specific and unique context that is key to ascertaining meaning. Posner -
there is an unavoidable presence of a specific context
- Spelunkean explorers - the importance of context in this case
- it is worth thinking about how without context, the field of torts would not exist
- donoghue v stevenson - the consideration of what equity demands and the neighbor principle
2. Anti-foundational - a pragmatist rejects the idea that correct outcomes can be deduced from some overarching principles or set of principles.
the solution adopted is inducted.
3. Instrumentalist - less interested in precedent and more based on an “orientation towards the future”. the pragmatist judge looks to the worldly
implications of his or her decision. e.g. corporate law cases - the interests of ALL stakeholders must be considered before giving a decision. A
pragmatist would allow other kinds of data - sociological/economic, to access the individual case at hand properly. emphasises the primacy of
consequences
e.g. Olga Tellis: the law brought in to remove the pavement dwellers is correct, as recognised by the court, but you also have to
provide rehabilitation to those that leave their state to travel to yours to work - the right to work means that there is a responsibility to
rehabilitate those that cannot afford a place to stay
4. Unavoidable presence of alternate perspective: everything is messy, open-ended, and subject to change - nothing is constant. there is a
suspicion of broad generalities and an acknowledgement of eclectic manners of description.
But, this must be circumscribed within a reasonable boundary.
- E.g. Vishaka case - the one-off case where the judiciary created the law: not judicial activism, but judicial law-making: and this is what
Dworkin opposes - he is against judicial activism
Dworkin – Constructive Interpretation – Law as Integrity – Hard Cases
The law as it has developed is respected but that judges are still accountable to its underlying moral and political principles. To be anti-
foundational would mean delivering impulsive judgements in a specific social context – which will always change. For example, pragmatism’s
instrumentalism would focus on a decision’s immediate practical but this would detract from principles of justice, fairness and procedural due
process which guide the law’s working, emerging from the depths of the legal system. This is important because all legal rights, especially
fundamental rights like the freedom of expression, could theoretically have infinite interpretations as time progresses. Leaving too much to
judicial discretion would be undemocratic – the judiciary cannot make the law.
Dworkin’s Aesthetic and Political Hypothesis – the Correct Interpretation is the one that reveals a statute as the best work of art
Suggests that a judge must construct a political/moral theory that justifies existing legal material, including legislation and precedent. He posits
that the best interpretation of a literary work, including statutes, would hope to show it as the best work it could be, without changing its core
tenets. Hence, every judicial choice must preserve the identity, integrity, and internal coherence of the law. For example, if I was to adapt the
series Dune into film, I could not do so without retaining its central themes and sources – colonialism and religious fanaticism – without altering
it entirely. Dune is the canonical text and this reading of it makes it most valuable. Similarly, Similarly, there is one interpretation of a statute that
provides the best answer, illustrating the value of laws about FOE by finding the best principle it serves. As you interpret a statute, would
simultaneously form and alter my own political theory, or my ‘legal philosophy’ – because interpretation is inherently political. My chosen
interpretation would have this epistemological base, rooted in the politics I attach to the FEA and its aims. Essentially, my interpretation should
be consistent with the moral principles emanating from the political community, disregarding the authorial intent behind the statute. No stock in
authorial intent bc where it cannot be found, judges would end up relying on their own personal beliefs. It follows that as an interpreter aiming at
maintaining the integrity of the system, I would base my reasoning on the author (and critic) who came before me. This is the chain novel – I
have a responsibility to create a unified novel which consolidates a consistent theme and characterisation. My job is to ensure this makes sense –
I must build on the principle legal history has produced, unless it necessarily produces an incoherent/absurd result (the ‘doctrine of mistake’ ).
Cases – empirical v theoretical disagreements
Dworkin – hard cases can raise 3 different issues: issues of fact (what actually happened); issues of law (what the pertinent law is - less
straightforward kind of disagreement, about what law is applicable to a case. an example is when there is a disagreement about what test to
use.; issues of political morality and fidelity (what a just outcome should be). According to positivists, there can be no theoretical
disagreement about what the law is bc law is a matter of what legal institutions have decided in the past and what is written down in records.
When judges think they are arguing about what the law is, they are actually arguing about what the law ought to be.
Propositions of law - the various statements and claims people make about what the law allows or prohibits. Can be general or less general
or very concrete.
Elmer’s case: Was the statute vague? Not really - it was completely silent on the situation. the words are impeccable, from the legislature’s POV.
“just as a literary critics need a working theory to construct the poem behind the text, so judges need something like a theory of legis. to do this
for statutes. Was there any active intention evident in this matter? What is so unique about this case is that there was no theoretical disagreement
– the only difference is that Justice Earl was looking at context - the disagreement is about whether a judge should apply principles of equity
where the law is silent (the 4th situation Dworkin highlighted – should judges decide adventurously, making the law as fair as possible?). Should
a person who murdered somebody benefit from that murder? If the law is silent, refer to general principles of law – did they provide an answer?
Yes. Judge Gray’s dissent based on the theory of literal interpretation - what is the acontextual meaning of the text - but this is impossible. Earl –
majority – intentionalism.
Snail Darters - Protests against the construction of a dam in Tennessee - ecological disturbance. They convince the Secretary of the Interior to
enlist a specific fish as an endangered fish - which was done. This stops the construction of the dam - challenged in court on the basis that the
construction started way before the law came in force, and that the law must only have prospective effect. Court: SC holds that construction
should stop - when the text is clear, the court has no right to stop it even if the effect is silly - the epitome of the literal rule; if the acontextual
 interpretation gives you the right approach, follow it. Dworkin: here, there was no apparent disagreement between the judges - both assumed that
congress never envisioned that the law created would never be used to stop the construction of a dam, they do not disagree about the facts - what
they disagreed about was the question of law; what was the intention of the congressman - was it to protect the species or to create the dam and
ultimately, what purpose takes priority? According to Dworkin, the decision in this case was just - bc it is clear that the first is more important
than the latter.
Mcloughlin’s Case - relaxed doctrine of precedent - if the moral principles assumed in earlier cases for some reason do not apply to the current
plaintiff. woman suffers emotional shock after her family is in a car accident - files claim against drivers for compensation for the emotional
injury, claims it was foreseeable. However, for this to be the case, she would have either had to have been at the accident or arrived immediately
after, here she arrived 2 hours after. So trial court denies claim. Appellate - disagrees with the reasoning, obviously it was foreseeable, but on
policy grounds, cannot allow compensation bc it would open the floor for more litigation and also lead to an increase in insurance liability costs.
HOL - reverses decision bc the reasoning employed was baseless. floodgates argument is irrelevant, not the job of the court to ensure that does
not happen - it is the court’s duty to grant a right where it is just to do so. Further, if the cost of insurance liability goes up, that is also irrelevant
to a judge’s role. Competition permitted. What is relevant here is that precedent was ignored in the final judgement - compensation granted bc
that was what was required to achieve justice.
MODULE 2: THE PRESUPPOSITIONS AND FW OF INTERPRETATION
Paul Armstrong – The Conflict of Interpretations and the Limits of Interpretation
Summary – Debates about the limits of interpretation in literary theory. Limitless interpretation (radical relativist) v textual interpretation
(monoists). It is important to identify some of the pluralist readings as wrong, not simply different - this is the need for a theory of limited
pluralism to explain the paradox of legitimate disagreements about literary works’ meanings while being able to identify strong and weak
disagreements - this is a response and a critique of radical relativism - while he is a radical relativist, he recognises the need for a theory that
limits it - we cannot go to the extreme end with interpretation.
Hermeneutic circle: interpretation is a circular process. Assume a concept is a circle, wholly understood as A. The whole is comprised of parts.
When something new comes to light, we question the concept as a whole and then start looking at that thing from a new perspective. For
example, the UNGC defines a social group - if someone questions whether LGBTQ+ people can constitute a social group and then starts
engaging with the concept critically, the entire idea of a social group as a circular idea changes - which is why and how concepts change and
evolve over time, and can apply differently in different circumstances. Hence, Armstrong argues that the HC holds that we can only comprehend
the details of a work by projecting a sense of the whole, and we can only achieve a view as a whole by working through its parts.
Legal Herm – evaluates the nature of legal meaning – how has it been attributed to a term, its relevance. What personal/political/cultural goals
are the meanings of law rooted it, where did they come from? Legal interpretivism is positioned b/w the natural and positive law theories.
Dworkin is an example of an LI, blurring the line b/w both - his principles are both rules and possess a normative quality similar to moral
tenets - these rules and normative guidelines together shape and form what the law is and what it means - law gains its legitimacy and
authority from legal principles emanating from legal practice. there is no foundation to the law for the legal hermeneutist - similar to the
pragmatist school bc it says that a legal meaning is anti-foundational - there can only be better or worse interpretations. It can never be
incorrect or correct, it can only be good or bad. You must search for legal meaning, not for objective interpretation. This involves both
critical engagement with previous and current interpretations and includes an analysis of the conditions for the possibility of both - they
would consider all possible interpretations before choosing the best one for the circumstances. calls the interpreter of legal texts first and
foremost to the fact that every act of understanding a law is an act of interpretation (*this is an extreme stance). Contemporary LH are
usually non-originalists buts what separates them from other non-originalists is a high degree of respect for the text of the Const as an
interpretive starting point for his further understanding of things, alongside a call to heightened self-reflexivity regarding the degree to which
one’s own pre-judgements and those of previous interpreters which may affect the interpretive process - these are pre-suppositions.
Meaning in the law takes place according to context-dependent and practical factors like power, social relations and other considerations -
which is why herm. is at the centre of critical legal thought.

Armstrong - There are radical relativists (influenced by Nietzsche - innumerable number of readings exist of a work and no criteria exists to
judge a “right” one - all interpretations are ultimately wrong bc they change over time) and monists (textual meaning is singular and
ultimately discoverable, arguing that interpretation should lead to a definitive understanding of the text, appealing to the author’s intention,
norms within the work, or common sense). Points of difference: interpretive pluralism, criteria for correctness, conflicts of belief, conflicts of
presupposition. Interpretation is circular - you can only comprehend the details of the work by projecting a sense of the whole and we can
only achieve the whole by working through the parts. all interpretation requires an act of faith and the creation of a hypothesis that is tested
over time. every interpretive approach has its own anticipatory understanding of literature, reflecting its most basic presuppositions. these are
both enabling and limiting as they give us a vantage point from which it to construe the work but also limits off the potential modes of
access. On presuppositions: interpretation is never w/o presuppositions, when we seek to reproduce a work w/o presu. we do not escape them
- we reproduce them for our own assumptions. To embrace a type of interpretation is to make a leap of faith by accepting one set and
rejecting others – this is where they are limiting in nature.

Relativists Monists
Relationship bw author and reader - the interpretation is not constrained by the reader’s interpretation is constrained by the author’s intentions or the
the author’s intentions or the text - the reader’s interpretation is a a product text itself, suggesting that the author’s intentions or the text itself provides
of their own subjective experience and interpretive FW a FW to understand it

Ricoeur – divides herm into two – archaeological interpretation (rule for reading is suspicion) and teleological (rule is trust). Interpretations
conflict w/ e/o when they embody opposite presuppositions. To resolve this, you must identify weak disagreement - when there are multiple
approaches within the same theory; bc there are so many schools of thought within the same theory, the theory itself is weak bc it is uncertain;
and strong disagreements – divergences b/w the basic presuppositions underlying the opposing methods.
Armstrong, 3 tests of validity: [Link] – Every time a single word which is being interpreted is able to include within itself multiple
meanings is a good interpretation. This inclusivity is good till it does not conflict with other interpretations; 2. Intersubjectivity – This
interpretation should stay the same across subjects and jurisdictions.; [Link] – This is to see if the hypothesis you have provided can reach
new results. Efficacy of any particular word in resulting in a new discovery or a new meaning.
All three of these combined act as constraints on interpretation. Only if the interpretation meets these three thresholds, will it become a valid
interpretation. The problem is that it is very hard to reach these thresholds. E.g., Odyssey shows intersubjectivity – In literature, it is a character’s
journey; In legal context, it signifies a law’s journey.
Biggest problem – two people’s interpretation are never the same – one man’s interpretation is another man’s irrelevance.

Arie Rosen’s Statutory Interpretation and the Many Virtues of Legislation – Divides the approaches to SI into 2- [Link] maximising –
interpretation should be literal in nature so as to make the interpretation similar to what the legislative wanted it to be.
a. Textualism – only objective nature of what the words are saying
b. Intentionalism – what is the intention of the framers and what it meant to a common man then
Both want the legislature to have control. Therefore, they do not deviate from the text of the law. Sticking to the text of the law is fidelity.
2. 2. Corrections oriented – Similar to purposive interpretation and Dworkin’s theory – the idea that interpretation may result in absurdity,
therefore morals and common principles are to be used to correct these absurdities. Intelligent fidelity – if there are fallacies, you should have
the power to change the law.
The author develops two arguments i.e., (1) which traces the way varying understandings of modern legislation and alternative accounts of the
value of legislative practices entail different modes of statutory interpretation and (2) which criticises existing theories of statutory interpretation
for assuming a monolithic account of the value of legislation and suggests that diff. approaches to statutory interpretation may be appropriate for
dealing with diff. exercises of legislative power.
Considering these ideas of fidelity, this paper looks at how the deference and respect we owe to legislative decisions affect the way we interpret
them.
Our hermeneutic standpoint could be – “When government-adopted texts are given a new meaning, the law is changed; and changing written
law, like adopting written law in the first place, is the function of the first two branches of government—elected legislators and ... elected
executive officials and their delegates”
Rosen notes that – Textualism is an approach that might be suitable for the interpretation of statutes given a particular understanding of
legislative practices and their value, but it is not the only interpretive approach compatible with democracy.
Scalia makes TWO assumptions –
1. Legislative decisions are exhausted by the statutory text – Descriptive assumption. The text is not limiting, as there are different
meanings beyond the text.
2. Adherence to the particular legislative decision sets the limit to which passes for deference – going beyond the particular content of the
decision of the legislature, it becomes usurpation. Sometimes, exhibiting proper respect to legislation means employing what Scalia calls ‘the Mr
Fix-It mentality’ of the common law judge. That is, sometimes, it is right for interpreters—as a matter of the respect they owe legislation—to
adopt ameliorative, forward-looking approaches in their interpretation of statutes. [this is what Scalia and Bryer agreed on –Where it is NOT
possible to make a literal interpretation, you have to take up the common law approach. Elmer’s case is a good example of this]. The conflict is
hence on how one respects the law.
Visions of Legislation and Virtue - The first vision sees the value of legislation in its ability to generate good laws for our community; laws
whose content corresponds to some standard of correctness or is more likely to correspond to such a standard than decisions of other institutions
or individuals. In the second vision, the value of legislation lies elsewhere, in correctness-independent values of political morality such as
procedural fairness, political equality and self-government.
Two broad visions impose different duties on interpreters of statutes.
(a) Correctness-based understandings of the value of legislation prescribe correctness-oriented interpretive techniques, which cut through
the particular legislative decision and seek the
correctness that statutes embody and approximate.
(b) Correctness-independent understandings of the value of legislation cast interpretation as a zero-sum game in which any interpretive
deviation from the particular decision of the legislature diminishes its legitimate control over the content of statutory law.
Textualists v Intentionalists - Waldron – Jeremy Waldron employs a similar transactional logic in his account of legislation but describes the
legislative assembly as a field of competition between views rather than between interests. According to Waldron, since the legislative process is
oriented at the adoption of a text, and since legislation takes place against the background of disparate views about what should be done and
why, the statutory text that is adopted articulates in full the agreement between members of the legislature. Therefore, there can be no disjunction
between the legislative decision and the statutory text. Ekins – He insists that decisions in the legislature hold more content than what is
explicitly expressed in their text. Ekins claims that legislators do not represent the views of their constituencies as delegates, but serve the
community as its trustees, and that the procedures they observe are designed to facilitate a rational discourse and an informed choice of plan for
the community. The legislative decision that this process produces is not an arbitrary transaction, but a rational choice of a complete plan of
action.
Standards of Correct-ness – Ascertaining whether a law is correct: Proper mode of interpretation depends on the sort of authority the modern
legislative assemblies exercise - judicial decision-making then reflects and respects the logic underpinning the Parl and the Executive. When it
does not, there are consequences. For example, what happened to Khanna J in the aftermath of his dissent in ADM Jabalpur.
Correctness in Legislation
We should not base statutory interpretation on the interpretation of expert instructions. there tends to be conflicts of interpretation by judges
constantly, reflecting the way contemporary political theory, as attached with correctness and propriety (moral and social behavior), constantly
changes and evolves
Example: Thomas Aquinas’ theory of legislative authority - for law to be properly so-called, it would need to be derived from existing
normative principles ascertainable through the use of reason, and the role of the legislator is to legislate accordingly - since jurists of the time
understood the purpose of legislation as guiding people to proper action according to right reason, they treated it much as one would treat the
directives of experts
Standards of Correctness
1. Rationality/’Right Reason’ - you look at whether the procedure used to enact a statute was correct. For example, how key members of
the Rajya Sabha were suspended and it was during this period that critical and controversial bills were passed, leading to critique that they are
undemocratic. In this way, no law is perfectly rational - this ultimately becomes a criticism of the control-maximising approach from the POV of
the correct-ness approach
2. Shared values/community values - public discourse as a process of ‘reaching a common mind’ by revealing values already shared by
members tof the community and tracing their conclusions - such underlying implicitly shared values constitute an alternative ethical standard of
correctness against which legislative decisions can be evaluated and to which they can be said to aspire. E.g. - Niyamgiri Hills and the Orissa
Mining Corporation - based on community practice. Similar to the pragmatic approach
3. Material welfare of society - legis. should aim at the promotion of the material common good of the community - should stress the
ability of elections to reveal the interests of all

and the ability of political decision-making to ensure the greatest happiness for the greatest number of citizens BUT
a. what about the people who voted against the majority party
b. how many of us actually believe our elected officials can put our concerns forth in Parl?
c. also enforces a majoritarian approach - appeasement politics. the welfare of the minority is sacrificed for the happiness for the greatest
number - appeals to the utilitarian approach