Theories of Legal Interpretation
Formalism – we should only apply the black-letter law and not get into normative/interpretive issues. The statute means what it says. This has the flavor of syllogistic reasoning: all jaywalkers should be ticketed (law), this person is jaywalking (alleged fact), therefore this person should be given a ticket. But, it’s complicated. See: http://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html
Textualism – If we have to do any interpreting, we should
stick with the plain meaning of the text.
We all know what jaywalking is, so we don’t need to “interpret”
anything. Or do we? See:
Originalism vs Living Constitution theories -- Ok, so
if we do need to interpret, what guiding principle do we appeal to? What the word means to most people
today? What the word meant to the
authors of the law? What the word meant
to the average person at the time the law was enacted? What the authors of the law meant to
accomplish by writing the law? Turns
out there are several varieties of “originalism,” which oppose each other as
well as opposing the non-originalism some refer to as “living constitution.”
See this case for an interesting example: http://supreme.justia.com/cases/federal/us/471/84/
This case also comes up in the short reading in your packet by Richard Posner (page 89 in the packet); read that also.