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The Role of Contextual Meaning in Judicial Interpretation

Published online by Cambridge University Press:  24 January 2025

Jonathan Crowe
Jonathan Crowe*
Affiliation:
T C Beirne School of Law, University of Queensland
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Abstract

This article examines the relevance to judicial interpretation of contextual meaning: the meaning legal texts hold when considered in full light of their social and moral context. I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any more restricted form of textual interpretation; that is, the contextual meaning of a legal text is its ordinary meaning. I then contend that, as a normative matter, judges should presumptively apply ordinary or contextual meaning when construing legal materials. The remainder of the article explores the nature and limitations of the contextualist model of judicial practice. The possibility of conflicts between contextual factors at different levels of abstraction makes it necessary to distinguish narrow and wide versions of the contextualist methodology. I argue that wide contextualism offers the best overall account of judicial interpretation. I conclude by examining the practical and normative limitations of this model.

Type
Research Article
Information
Federal Law Review , Volume 41 , Issue 3 , September 2013 , pp. 417 - 442
Copyright
Copyright © 2013 The Australian National University

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Footnotes

I would like to thank Jim Allan, Nick Aroney, Tom Campbell, John Gardner, Eric Ghosh, Julian Lamont, Suri Ratnapala, Brad Sherman and the anonymous referees for their helpful comments on earlier (in some cases, much earlier) versions of this article.

References

1 For some prominent examples of the former view, see Barnett, Randy, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2004) ch 4Google Scholar; Scalia, Antonin, ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849.Google Scholar For the latter approach, see Kay, Richard S, ‘Original Intention and Public Meaning in Constitutional Interpretation’ (2009) 103 Northwestern University Law Review 703Google Scholar; Whittington, Keith E, Constitutional Interpretation (University Press of Kansas, 1999).Google Scholar

2 See, for example, Posner, Richard A, The Problems of Jurisprudence (Harvard University Press, 1990)Google Scholar; Posner, Richard A, Overcoming Law (Harvard University Press, 1995)Google Scholar; Holmes, Oliver Wendell, ‘The Path of the Law’ (1897) 10 Harvard Law Review 457.Google Scholar

3 The distinction between mechanical translation of syntax and real semantic understanding is brought into sharp focus, albeit with a very different point in mind, by John Searle's famous ‘Chinese room’ thought experiment. Imagine an English speaker in a room who receives questions in Chinese characters and uses a massive English instruction book to generate an appropriate Chinese response. The person could succeed in giving comprehensible Chinese answers to the questions, but she would not have a real understanding of the language. See Searle, John R, ‘Minds, Brains and Programs’ (1980) 3 Behavioral and Brain Sciences 450.CrossRefGoogle Scholar

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6 For further discussion of pre-reflective thought processes and their role in legal reasoning, see Crowe, Jonathan, ‘Pre-Reflective Law’ in Del Mar, Maksymilian (ed), New Waves in Philosophy of Law (Palgrave Macmillan, 2011).Google Scholar

7 Heidegger, Martin, Being and Time (John Macquarrie and Edward Robinson trans, Harper and Row, 1962) 189Google Scholar [trans of: Sein und Zeit (first published 1927)]. Heidegger distinguishes two different terms that might normally be translated by the English interpretation. Auslegung is used in a general sense to mean any interpretation of something as something. Interpretation is used in a more restricted sense to designate theoretical or systematic interpretation, for example in the case of textual analysis. In what follows, where the English term interpretation is used in relation to Heidegger, the more general meaning is intended, unless otherwise indicated.

8 Ibid 190. Compare Crowe, ‘Pre-Reflective Law’, above n 6; Crowe, Jonathan, ‘Levinas on Shared Ethical Judgments’ (2011) 42(3) Journal of the British Society for Phenomenology 233CrossRefGoogle Scholar; Crowe, Jonathan, ‘Levinasian Ethics and the Concept of Law’ in Manderson, Desmond (ed), Essays on Levinas and Law: A Mosaic (Palgrave Macmillan, 2009) 44–7.Google Scholar

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14 Australian Constitution, s 113.

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20 Heidegger, above n 7, 191.

21 See also Goldie, above n 13, 351–3; Crowe, ‘Pre-Reflective Law’, above n 6, 116–8.

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24 Saussure, above n 15, 24–5; Derrida, Jacques, Of Grammatology (Gayatri Chakravorty Spivak trans, Johns Hopkins University Press, 1976) 30–1 [trans of: De la grammatologie (first published 1967)].Google Scholar

25 Derrida, Of Grammatology, above n 24, 41.

26 Saussure, above n 15, 9–11; Culler, above n 15, 62–4. Emile Durkheim defines a social fact as ‘every way of acting, fixed or not, capable of exercising on the individual an external constraint’ or ‘every way of acting which is general throughout a given society, while at the same time existing in its own right independent of its individual manifestations.’ See Durkheim, Emile, The Rules of Sociological Method (Sarah A Solovay and John H Mueller trans, Free Press, 1964) 13Google Scholar [trans of: Les règles de la méthode sociologique (first published 1895)].

27 Culler, above n 15, 63.

28 Heidegger, above n 7, 194–5; Palmer, Richard E, Hermeneutics: Interpretation Theory in Schleiermacher, Dilthey, Heidegger and Gadamer (Northwestern University Press, 1969) 131–2.Google Scholar

29 Gadamer, Hans-Georg, Truth and Method (Garrett Barden and John Cumming trans, Sheed and Ward, 1979) 269Google Scholar [trans of: Wahrheit und Methode (first published 1960)].

30 Ibid 217.

31 Ibid 271.

32 Ibid 273.

33 Ibid 337.

34 For a sophisticated version of this approach, see Murphy, Mark C, Natural Law in Jurisprudence and Politics (Cambridge University Press, 2006) ch 5.CrossRefGoogle Scholar For critical discussion, see Crowe, Jonathan, ‘Natural Law in Jurisprudence and Politics’ (2007) 27 Oxford Journal of Legal Studies 775, 786–8.CrossRefGoogle Scholar

35 See Hart, H L A, ‘Are There Any Natural Rights?’ (1955) 64 Philosophical Review 175CrossRefGoogle Scholar; Rawls, John, ‘Legal Obligation and the Duty of Fair Play’ in Hook, Sidney (ed), Law and Philosophy (New York University Press, 1964)Google Scholar; Rawls, John, A Theory of Justice (Harvard University Press, revised ed, 1999) 96–8, 301–8.CrossRefGoogle Scholar For a more recent version of this approach, see Klosko, George, The Principle of Fairness and Political Obligation (Rowman and Littlefield, 1992).Google Scholar

36 See Finnis, John, Natural Law and Natural Rights (Oxford University Press, 2nd ed, 2011) ch 9Google Scholar; Finnis, John, ‘The Authority of Law in the Predicament of Contemporary Social Theory’ (1984) 1 Notre Dame Journal of Law, Ethics and Public Policy 115.Google Scholar Compare Wellman, Christopher, ‘Samaritanism and the Duty to Obey the Law’ in Wellman, Christopher and Simmons, A John, Is There a Duty to Obey the Law? (Cambridge University Press, 2005).CrossRefGoogle Scholar For further discussion, see Crowe, Jonathan, ‘Natural Law Beyond Finnis’ (2011) 2 Jurisprudence 293, 301–3CrossRefGoogle Scholar; Crowe, Jonathan, ‘Five Questions for John Finnis’ (2011) 18 Pandora's Box 11.Google Scholar

37 For some preliminary arguments in support of a version of the coordination approach, see Crowe, ‘Natural Law in Jurisprudence and Politics’, above n 34, 786–91. See also Crowe, ‘Natural Law Beyond Finnis', above n 36, 301–3; Crowe, ‘Five Questions for John Finnis', above n 36, 15–16.

38 I discuss this problem at greater length in Crowe, ‘Natural Law in Jurisprudence and Politics', above n 34, 786–91.

39 For a more wide ranging discussion, see Solum, Lawrence B, ‘Virtue Jurisprudence: A Virtue-Centered Theory of Judging’ (2003) 34 Metaphilosophy 178.CrossRefGoogle Scholar

40 See especially Dworkin, Ronald, Law's Empire (Belknap Press, 1986).Google Scholar For further discussion, see Crowe, Jonathan, ‘Dworkin on the Value of Integrity’ (2007) 12 Deakin Law Review 167.CrossRefGoogle Scholar

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42 Cf Crowe, ‘Pre-Reflective Law', above n 6.

43 Goldsworthy, Jeffrey, ‘Implications in Language, Law and the Constitution’ in Lindell, Geoffrey (ed), Future Directions in Australian Constitutional Law (Federation Press, 1994) 151Google Scholar; Goldsworthy, Jeffrey, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ (1997) 23 Monash University Law Review 362, 362.Google Scholar

44 Goldsworthy, ‘Implications in Language, Law and the Constitution', above n 43, 151.

45 Ibid 151–2.

46 Ibid 152; Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue', above n 43, 362.

47 Goldsworthy, ‘Implications in Language, Law and the Constitution', above n 43, 151.

48 Posner, Richard A, ‘Statutory Interpretation – in the Classroom and in the Courtroom’ (1983) 50 University of Chicago Law Review 800, 818.CrossRefGoogle Scholar

49 Ibid 817.

50 (1972) 128 CLR 221 ('King’).

51 The High Court has since ruled that the provision no longer has any effect: R v Pearson; Ex parte Sipka (1983) 152 CLR 254.

52 The two conceptions, as well as the labels used to describe them, are loosely based on the well-known distinction in moral theory between narrow and wide versions of reflective equilibrium. Reflective equilibrium in ethics was first described by John Rawls. See especially John Rawls, A Theory of Justice, above n 35, 17–19, 40–6. For some influential and accessible formulations of the distinction, see Daniels, Norman, ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’ (1979) 76 Journal of Philosophy 256, 258–9CrossRefGoogle Scholar; DePaul, Michael R, ‘Two Conceptions of Coherence Methods in Ethics’ (1987) 96 Mind 463, 463–5.CrossRefGoogle Scholar

53 It bears noting, in order to forestall a possible confusion, that the difference between narrow and wide versions of contextualism is not that the former is concerned with denotation and the latter with connotation. Rather, the two conceptions reflect different approaches to determining the connotation of the terms under consideration.

54 I draw here on the test suggested by David Brink for determining the dominant purpose of a legal enactment. See Brink, David O, ‘Legal Theory, Legal Interpretation and Judicial Review’ (1988) 17 Philosophy and Public Affairs 105, 125–9Google Scholar; Brink, David O, ‘Legal Interpretation, Objectivity and Morality’ in Leiter, Brian (ed), Objectivity in Law and Morals (Cambridge University Press, 2001) 26–30.Google Scholar A possible objection to the use of counterfactuals here will be considered below.

55 Compare the role of Justice Hercules in the theory of adjudication advanced by Ronald Dworkin. See especially Dworkin, Ronald, Taking Rights Seriously (Harvard University Press, 1978) 129–30Google Scholar; Dworkin, above n 40, 258–66.

56 Hart, H L A, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 607–8.CrossRefGoogle Scholar For discussion, see Crowe, Jonathan, Legal Theory (Thomson Reuters, 2009) 122–3.Google Scholar

57 Stoljar, Natalie, ‘Counterfactuals in Interpretation: The Case Against Intentionalism’ (1998) 20 Adelaide Law Review 29.Google Scholar

58 Lewis, David, Counterfactuals (Blackwell, 1973) 94.Google Scholar

59 As Lewis notes in a different context, ‘a credible theory must be conservative'; it cannot hold credence if it rejects too much of what we previously believed. See Lewis, David, On the Plurality of Worlds (Blackwell, 1986) 134.Google Scholar This point applies to interpretive theories as much as to other forms of reasoning. An interpretive theory is not credible if it departs radically from our ordinary understanding of what particular terms mean.

60 Barnett, above n 1, ch 4–5; Whittington, Constitutional Interpretation, above n 1; Whittington, Keith E, Constitutional Construction (Harvard University Press, 1999).Google Scholar For a useful overview, see Solum, Lawrence B, ‘The Interpretation-Construction Distinction’ (2010) 27 Constitutional Commentary 95.Google Scholar

61 See especially Dworkin, above n 40. For further discussion, see Crowe, ‘Dworkin on the Value of Integrity’, above n 40.

62 Dworkin, above n 40, 219.

63 For further discussion, see Detmold, Michael, ‘Law as Practical Reason’ (1989) 48 Cambridge Law Journal 436CrossRefGoogle Scholar; Detmold, Michael, The Unity of Law and Morality (Routledge, 1984) 27–30.Google Scholar

64 Cf Crowe, ‘Pre-Reflective Law’, above n 6, 116–8.

65 CfRaz, Joseph, Practical Reason and Norms (Oxford University Press, 1999) 154.CrossRefGoogle Scholar For further discussion, see Crowe, ‘Levinasian Ethics and the Concept of Law', above n 8, 47–52.

66 I explore the interplay between these two stages in Crowe, ‘Dworkin on the Value of Integrity’, above n 40.

67 For further discussion, see Crowe, Jonathan, ‘Clarifying the Natural Law Thesis’ (2012) 37 Australian Journal of Legal Philosophy 159, 162–4Google Scholar; Crowe, ‘Natural Law in Jurisprudence and Politics’, above n 34, 786–91. See also Crowe, ‘Natural Law Beyond Finnis', above n 36, 301–3.

68 For further discussion, see Jonathan Crowe, ‘Between Morality and Efficacy: Reclaiming the Natural Law Theory of Lon Fuller’ (2013) 4 Jurisprudence (forthcoming).

69 Barnett, above n 1, 118–21; Whittington, Constitutional Interpretation, above n 1, 7.

70 King v Jones (1972) 128 CLR 221, 229.

71 Cf Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 556–7 per curiam. For further discussion, see Stone, Adrienne, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668.Google Scholar See also Ratnapala, Suri and Crowe, Jonathan, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) ch 10.Google Scholar