Form And Function In A Legal System - A General Study Part 7 ppt

P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 8  FORMS OF LEGAL METHODOLOGIES – STATUTORY INTERPRETATION “[T]he words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning. . . . ” – L. Hand 1 “There is no surer guide in the interpretation of a statute than its purpose when that is sufficiently disclosed. . . . ” – L. Hand 2 section one: introduction Alegalmethodology may be defined as a systematic general approach to the duly purposive and consistent execution of a recurrent type of major task arising in the making or application of law. A methodology is thus a special type of functional legal unit. A legislature may adopt tenets of a methodology more or less all at once or a highest court may evolve tenets of a methodology case by case over time. A methodology may not be fully developed in a jurisdiction at a given time. In many jurisdictions within developed Western systems, generally authoritative methodologies are recognized in some measure for the duly purposive and consistent execution of at least the following major types of tasks: interpreting statutes, interpreting contracts, and interpreting written constitutions. Method- ologies may also exist forthe application of case-law precedent, and for the drafting of statutes, and of contracts. The use of a methodology for the duly purposive and consistent execution of a major and recurrent type of task arising in the making or application of law is to be contrasted with purported execution of such a task without resort to any methodology. The principal differences are twofold: First, a methodology is constructed on the basis of theory and experience as to what steps are generally most likely to lead to the duly purposive execution of the 1 Cabell v. Markham, 148 F.2d 737, 739 (1945). 2 Federal Deposit Insurance Corp. v. Tremaine, 133 F. 2d 827, 830 (1943). 241 P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 242 FormsofLegal Methodologies – Statutory Interpretation task. A well-designed methodology is purposively and systematically arranged for effective execution of the task, and thus takes an overall form. Nonmethodological execution of such a task involves no resort to a purposive systematic arrangement, and is therefore relatively formless. Second, those who follow a well-designed formal methodology take the same general approach – a uniform approach – to execution of the task as it arises. Those who purport to execute a task nonmethodologically are much less likely to take a uniform approach and are much less likely to execute the task in consistent fashion over time. To e xplicate the overall form and constituent formal features of a methodology and thereby advance understanding of such a functional unit, and to attribute credit to the form of such a unit for purposes served, it will not be necessary here to address any particular methodology in any given system. It will be enough to concentrate merely on a schematic paradigm of the overall form of, constituent features of, and complementary material or other components of, one major type of methodology. For this purpose, I have chosen to offer a schematic analysis of a paradigm of a methodology for interpreting statutes. Such a methodology exists in varying degrees in alldeveloped Western systems. Interpretive methodologies vary somewhat from system to system, and thus converge differently on the paradigm. The schematic mode of analysis offered in this chapter can be applied to the overall forms of particular interpretive methodologies for statutes in particular systems, and can also be applied, mutatis mutandis,toother types of interpretive methodologies for other species of law, such as those for contracts and constitutions. The functional legal unit of an interpretive methodology presupposes the existence of other units, including, of course, the very statutory, contractual, or other legal units to be interpreted. In all Western legal systems, statutory interpretation is an important and recurrent task. 3 The purposes of the overall form and other components of a methodology for interpreting statutes include objective, reasoned, faithful, consistent, predictable, efficient, and purpose-fulfilling interpretation. A well-designed interpretive methodology is a systematic means to realization of the policy or other immediate purposes of statutes. It is also a systematic means to the realization of more ultimate purposes such as democracy, legitimacy, and the rule of law. Thus, such a methodology is “purpose-built” and its purposes inform its overall form and constituent features. This form defines and organizes how interpretive 3 Forasystematic general study of interpretive methodologies for statutes in Western systems, see D. N. MacCormick and R. S. Summers eds., Interpreting Statutes: A Comparative Study (Dartmouth Pub. Co. Ltd., Aldershot 1991). Much of this chapter derives from this study. Not all statutes operate in ways posing the usual interpretive problems. Some statutes merely confer vast power on courts to create and develop whole branches of the law. See generally, G. Lovell, Legislative Deferrals – Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge University Press, Cambridge 2003). P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 Section One: Introduction 243 reasoning is to be formulated and brought to bear to resolve particular issues of interpretation. 4 An interpretive methodology for statutes is a functional legal unit. Its overall form and the constituent features thereof define and organize the unit. Given the founding purpose to create such a methodological unit in the first place, reason dictates adoption of this overall form and its constituent features. The main constituent features of the overall form ofaduly designed methodology for the interpretation of statutes are: (1) a primary criterion of the faithfulness ofinterpre- tations to the form and content of the statute being interpreted, for example, conformity to standard ordinary, technical, or special meanings of the statutory words in light of purpose and context, (2) recognized types of interpretive arguments implementive of the foregoing primary criterion, or if applicable, implementive of a secondary criterion and (3) principles prioritizing such arguments. Judges, officials, lawyers, and still othersina developedWestern system generally seek to interpret statutes in accord with an authoritative methodology. I will now contrast an interpretive approach that takes an overall methodological form with an approach that is not methodological. I develop this contrast primarily to advance understanding of the nature of a methodological approach and to show how major credit is due well-designed methodological form here. 5 The most important defining and organizing purposes of the overall form of a particular interpretive methodology are to serve the policies and other ends of statutes through consistent and predictable interpretations supported by objective and reasoned interpretive argument faithful to the form and content of the statutes. 6 To understand how an interpretive methodology can honor such purposive methodological commitments, it is necessary to lay bare the makeup, unity, instrumental capacity, and distinct identity of a schematic paradigm of this type of functional legal unit. Aspecific jurisdiction within a developed Western system generally strives to develop and follow a single methodology for interpreting statutes. 7 The schematic methodological paradigm I now set forth is abstracted from common features of actual methodologies in use in developed Western systems. 8 From this realistic paradigm, we can readily see what is formal about particular interpretive methodologies. We can also see how a grasp of the overall form and constituent features of such a paradigm can advance understanding of particular methodologies 4 As we will see, another purpose is to facilitate effective legislative drafting. 5 Idonot claim that just any particular methodological approach is necessarily good. A methodological approach could be quite ill designed. 6 Foranextended argument that a methodology can structure the rational exercise of judgment and thus make it more objective, see K. Greenawalt, Law and Objectivity (Oxford University Press, New York, 1992). 7 See MacCormick and Summers, supra n. 3. 8 This is based largely on the extensive study cited supra n. 3. P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 244 FormsofLegal Methodologies – Statutory Interpretation operative in particular jurisdictions. We can see, as well, how duly designed overall form and its constituent features in particular methodologies should, when applied, have some credit for ends served through the statute. Contrary to those theorists who embrace rule-oriented analysis, the best way to study the overall form, constituent features, and material or other components of a particular interpretive methodology, or of a paradigm of such a methodology, is not to study merely the contents of any reinforcive legal rules purporting to prescribe its makeup. Although some facets of a methodology for statutes can be prescribed in rules and such a methodology is typically so prescribed to some extent in particular systems, a form-oriented analysis must have primacy here, too, and for several reasons. First, the purposes of an interpretive methodology, its overall form, and the constituent features of this form, must be formulated before anyone could even draft legal rules purporting to prescribe this overall form and its features. This requires the articulation of purposive rationales for such overall form, and, as we have seen, rules are generally silent as to these. A specification of the desiderata of form, which we will soon take up, is logically prior to the formulation of any rules purporting to prescribe such form. Second, some of the constituent features of the overall form of a methodology consist of very general principles or maxims and, therefore, cannot be felicitously formulated as rules. For example, when interpretation requires resolution of conflicts between interpretive arguments, many courts first seek to invoke general priorital principles or maxims, rather than rules. When no such principles or maxims apply, or when they conflict, interpretive reasoning may take the form of weighing and balancing of interpretive arguments, a process that also cannot be specified at all fully in rules, yet can be meaningfully described partially in terms of form, as we will see. Third, a form-oriented analysis is more holistic than a rule-oriented one. A form-oriented approach embraces not only the constituent features of the overall form (and complementary material or other components) of an interpretive methodology, but also the various inter-relations between each of these features and between features and components. These inter-relations together make the methodology an integrated whole that is more than the sum of its individual parts. For example, and as we will see in detail, a language-oriented criterion of the faithfulness of an interpretation to statutory form and content is a major formal feature that, together with recognized types of language-oriented arguments – another formal feature, figures in such an integrated whole. Fourth, a form-oriented approach frontally addresses the issue of due credit to the overall form of a methodology, whereas a merely rule-oriented analysis does not. Indeed, a rule-oriented analysis does not even differentiate, within the contents of rules, between overall form and material or other components of a P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 Section Two: Sources of Needs for A Well-Designed Methodology 245 methodology, and therefore cannot attribute general credit to methodological form assuch. Fifth, and as will be explained, a form-oriented analysis, unlike a rule-oriented one, reveals how an interpretive methodology interacts with a drafting methodology in synergistic ways. section two: sources of needs for a well-designed methodology to interpret statutes Ifastatutory rule is to serve its purposes, the addressees of the statute – officials, judges, lawyers, and private parties – must be able to interpret it and construct reasons for determinate action or decision under it that are faithful to its form and content. 9 Even when a statutory rule is as well-designed and well-drafted as feasible, this cannot prevent doubts and disputes from arising about the meaning of the statute in application to some particular circumstances. Indeed, issues of interpretation can arise even with respect to the most perfectly drafted statute. It is true that an ill-designed methodology may yield interpretations that resolve interpretive issues. As we will see, however, an approach in accord with a well- designed interpretive methodology, not only can resolve interpretive issues, but can resolve them in a more objective, more reasoned, more faithful, more consistent, more predictable, more efficient, and more purpose-fulfilling fashion. When agenuine issue arises, appropriate interpretive arguments should be constructed, and the issue resolved in light of these. A well-designed interpretive methodology, purposively and systematically arranged, is needed to construct these arguments, to resolve any conflicts between them, and, ultimately, to facilitate the formulation of a reason for determinate action or decision under the statute that is faithful to its form and content. 10 Interpretive issues may arise even under a well-drafted statute. Here, a well- designed interpretive methodology still meets needs although it may not be necessary for the interpreter to invoke the methodology at all elaborately. I will draw anumber of my illustrations here from penal statutes, but the lessons will be more widely applicable. Consider, for example, one type of case of an offense arising under a penal statute, a case to which the statute can be seen clearly to apply even without elaborate invocation of a methodology. Assume that a statute imposes a penalty, not merely for stealing a vehicle, but also a further special penalty upon one who “steals a vehicle and knowingly drives it across the border from one state within a federal system into another state of that system.” Assume the drafter of this penal statute justifiably assumed that interpreters under the particular 9 In interpreting a statute, these addressees may or may not need the advice of lawyers. Much depends on the nature of the statute. 10 The essential commitment to reasoned resolution is central. On this, much more later. P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 246 FormsofLegal Methodologies – Statutory Interpretation interpretive methodology in force would generally be required to interpret such a statute in accord with the leading principle that standard ordinary meanings of ordinary words in a penal statute, as construed in light of text and context, must control. In accord with this methodological principle, the foregoing statute would clearly be violated if the facts were that the wrongdoer stole an automobile and knowingly drove it across the border. Thus, such a clear case of an offense would give rise to a highly determinate reason for a driver to conclude in advance that he or she may not steal and drive the vehicle across the border in the first place, without incurring the special penal liability under the statute. This would also afford a prosecutor a clear basis to prosecute and afford any jury or court a clear basis to impose the special further penalty for such action. Under such a statutory rule well-designed in prescriptiveness, generality, defi- niteness, clarity of expression, and other formal features, nearly all types of possible addressees of the statute could, in light of the foregoing leading interpretive principle for interpreting penal statutes, readily classify the foregoing facts as falling within the ordinary meanings of the terms of the rule. In such a clear case of an offense under the statute, the need for a discrete functional legal unit consisting of a well-designed interpretive methodology to guide addressees in constructing determinate reasons for action or decision under the statutory rule might not seem all that pressing. Yet even in such a clear case, the foregoing leading interpretive principle, as incorporated in a known and binding interpretive methodology, would as applied to the case, at least serve the important, although limited, purpose of providing further authoritative justificatory confirmation of the conclusion that an offense had been committed. Especially where the power of the state to punish is being exercised, this further confirmation deriving from application of the authoritative methodology itself to the statutory language and the facts, still serves an important purpose. An “interpretation” derived from an ill-designed methodology would very likely not serve this limited confirmatory purpose. Many types of less clear cases of statutory applicability often arise, and in these cases, a more pressing need arises for resort to an interpretive methodology. Sup- pose the defendant, as the alleged thief, hadtestifiedthat his son was actually doing the driving, albeit under orders from the defendant, and, therefore, argued that he, the defendant, did not “drive” the vehicle across the state line as that word appears in the statute. Under our schematic interpretive methodology, this case would still be a clear case of violation, though marginally not quite as clear as the one in which the actual driver was the defendant. After all, even in standard ordinary usage, one can still be said to “drive” a car through someone over whom one is exercising control. Here our hypothesized methodological principle for interpreting penal statutes also fulfills a need. That is, a conclusion that an offense had occurred in this marginally less clear case (the defendant driving through a defacto agent P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 Section Two: Sources of Needs for A Well-Designed Methodology 247 under the defendant’s control), would at least be reinforced by application of an interpretive methodology incorporating a principle calling for interpretation of a penal statute in accord with standard ordinary usages of the words in the text of the statute, taken in context. A nonmethodological interpretation could provide no such reinforcement here, yet with penal liability at stake, such reinforcement has special importance. Notall cases of an asserted offense, even under a very well-drafted statute, will in the end be so clear. Rather, some will be significantly borderline, and these may even frequently occur. For example, what counts as a stolen “vehicle” under our statute? A stolen automobile is a clear case. But is a stolen horse-drawn carriage? A stolen bicycle? A stolen airplane? Not even the most imaginative and accomplished legislative drafter can anticipate and dispose of all borderline cases in advance through use of suitable general language, and statutes drafted with sufficient detail toaddress all such particular cases on their own would be unwieldy and might even be confusing. This reveals a further basic source of the general need for an interpretive methodology, namely, the inevitability of significantly borderline cases calling for the kind of well-justified resolution that resort to a methodology can provide. Awell-designed interpretive methodology can explicitly incorporate, for example, not only a basic principle authorizing resort, in penal matters, to standard ordinary meanings of statutory words that in light of context readily resolve or confirm the resolution of relatively clear cases of liability, but also a further principle authorizing resort to immediate statutory purposes evident from the face of the statute and context, as a further aid in resolving borderline cases arising under it. Indeed, all well-drawn statutes may be said to be freighted with such immediate purposes. Let us assume that these immediate purposes in our statute making it a special crime to steal and drive a car across a state line include: (1) prevention of highway trafficking in stolen vehicles and (2) prevention of escape of wrongdo- ers using the highways. These immediate purposes would afford some systematic guidance to interpreters in the foregoing borderline cases. For example, in light of the second of these immediate purposes, the statute would cover the horse- drawn carriage, although probably not the stolen airplane flown over state lines. “Interpretation” without regard to the interpretive principle embracing resort to the immediate purposes of the statute evident from text and context could not provide the further guidance or justificatory grounds to dispose of such cases. 11 The borderline nature of some of the cases that inevitably arise under the terms of ordinary language in a statutory rule is not the only further fertile source of the need for guiding and justificatory principles of the kind that the discrete 11 This is not to say that such a methodology can be applied mechanically, obviating all need to exercise judgment. P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 248 FormsofLegal Methodologies – Statutory Interpretation functional unit of a well-designed interpretive methodology embraces. Even a tolerably well-drafted statute may include a technical word that has two technical meanings, or a technical word with no settled meaning, or a technical word the meaning of which is in process of change in the relevant realm of usage at time of drafting. Also, a statute may be well-drafted on its own terms, yet fail to mesh well with pre-existing yet still valid statutes on the same subject. Furthermore, a well-drafted statute may come into conflict with a general legal principle widely recognized in the law. And more. Accordingly, further methodological principles are required here. It is not possible for good drafting to eliminate all sources of interpretive issues. Indeed, that some interpretive issues later arise is not even inconsistent with drafting of the highest quality. Methodological principles or tenets, then, are needed to guide the formulation of interpretive arguments, to specify their general scope, and to prioritize as between types of conflicting arguments. As we will see, a methodology well- designed in form and in its other components incorporates such further interpretive principles and tenets. In light thereof, the interpreter can usually construct reasons for determinate action or decision under a statutory rule far more faithfully to its form and content than would be possible on a nonmethodological or merely ad hoc approach. Still another major source of the need for a well-designed interpretive methodology is that some statutes are poorly drafted. A statute can be plagued with unduly vague terms, elliptical expressions, syntactical ambiguity, internal inconsistency of usage of the same term, inept punctuation, gaps, and a host of other sources of interpretive issues familiar to all who have had any extensive experience with interpretation. Interpretation without regard to awell-designed methodology also affords little or no systematic guidance with respect to such statutes. Although a well-designed interpretive methodology cannot resolve all cases involving poor draftsmanship, it can often be highly useful. For example, it can incorporate interpretive principles calling for resolution of issues of vagueness under statutory language by reference to what would qualify as a clear standard case for application of the statute in light of its linguistic and factual context, in light of its immediate purposes, and in light of how far the case at hand is similar to (or different from) the features of what would be a clear standard case for application of the vague language. Or, for example, if the statute includes an elliptical expression, the methodology may incorporate an interpretive principle calling for resolution of the ellipsis in light of evidence of how ordinary or other users of the language in related contexts would resolve such ellipses. Earlier,I suggested that there is stilla further major source of thegeneral need for awell-designed interpretive methodology, one often overlooked. Without being able to predict the methodology that interpreters would apply to a proposed statutory rule in course of being drafted, legislative drafters could not themselves P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 Section Two: Sources of Needs for A Well-Designed Methodology 249 know best how to draft such a rule well in the first place. A drafter needs to be able to draft with a special eye to the prevailing methodology that judges in the jurisdiction would apply to resolve issues of interpretation under the statute. Forexample, if the drafter knows that official addressees of a penal statute will, under the authoritative interpretive methodology, generally be required to give a relevant ordinary word in the statute the ordinary meaning it would have in light of context, then the drafter will know that such a word can be reliably used in the statute in a given way for the purpose of drafting its form and content. Since significant variations in interpretive methodologies are possible, there is special need for a single authoritative methodology, and the jurisdictions in developed systems have gone far in this direction. 12 If,however, interpreters of statutes were to interpret without regard to the principles and tenets of a well-designed interpretive methodology, a drafter who would otherwise be methodologically self-conscious would have little to go on when drafting statutory rules, and many more interpretive issues would arise for addressees. Yet if drafters do their work in light of a well-designed interpretive methodology, interpreters awareofthis influential drafting methodology can interpret more faithfully. In this synergistic interaction, one plus one equals three, and the overall forms of the two methodologies in combination should have more total credit than if operating alone and without coordination. Numerous examples illustrate this. A simple and schematic one is this. If, according to the governing interpretive methodology, the primary criterion of faithfulness of a particular interpretation of a criminal statute is conformity to the standard ordinary meanings of the words used in light of the context, a legislative drafter who knows this will be in position to draft more effectively than a drafter who is in the dark about any such primary criterion, and,of course, far more effectively than a drafter who is consigned to drafting for interpreters who have no definite and consistent interpretive methodology to follow at all. At the same time, an interpreter aware of the methodology applied in drafting the statute is in a position to interpret more faithfully. Interpreters who must interpret without regard to a well-designed methodology may even be at sea as to the primary criterion of interpretive faithfulness, whether it be conformity to the language of the statute, the intent of the legislature, or whatever.An ill-designed methodology may be devoid of any authoritative primary criterion for judging the faithfulness of a possible interpretation, or may not provide authoritative formulations of recognized general types of interpretive arguments implementive of such a criterion. It might give interpreters no guidance at all in the construction of such arguments. It may not prioritize, even in presumptive fashion, as between conflicting types of arguments. 12 See MacCormick and Summers, supra,n.3,especially Chapter Four on the German system. P1: PJL 0521857651c08 CB966B/Summers 0 521 85765 1 December 5, 2005 19:14 250 FormsofLegal Methodologies – Statutory Interpretation With many different official and other addressees and, therefore, with many different interpreters of the same statute at the same time and over time, a methodological approach is far superior in securing faithfulness to the policy or other content of the statute, and in securing objective, reasoned, consistent, predictable, efficient, and purpose-fulfilling interpretations. Also, there are many other ends that only a well-designed methodological interpretive approach can serve well. These include the ends of the rule of law, and other fundamental political values as we will see. An ill-designed interpretive methodology could be devoid of any purposive systematic arrangement of overall form and its constituent features. These truths also remind us of the considerable credit that can be due to the form of a well-designed interpretive methodology. section three: study of the overall form of aparticular interpretive methodology as an avenue for advancing understanding In agiven jurisdiction within a Western legal system, the main principles and other tenets of the functional legal unit of an interpretive methodology may be explicitly and authoritatively set forth in one place in a constitution, in a general code, or in a special statutory scheme. When the principles and other tenets of a methodology are generally recognized, but are merely left scattered through general case law interpreting particular statutes, the authors of treatises or of encyclopedias may draw these principles and other tenets together and systematize them into a coherent whole purportedly faithful to the overall form of the methodology.In the absenceof such a treatise or encyclopedia, an interpreter must work directly with the case law on method. 13 Iwill now identify the main constituent features of a schematic paradigm of the overall form of a methodology of statutory interpretation. On the basis of such a paradigm, particular counterpart methodologies in jurisdictions within Western systems can be readily identified. The overall form, constituent formal features and complementary components, may be characterized in terms ofmakeup, unity, instrumental capacity, distinctive identity, and other attributes. In light of this schematic paradigm, one can also identify, analyze, and advance understanding of, a particular counterpart methodology within a jurisdiction of a given Western system. One can also readily see how its overall form and constituent features, if well-designed, leave major imprints or other effects on particular interpretations. These imprints, in turn, contribute to objective, reasoned, faithful, consistent, 13 Simply because a methodology in a given system has to be constructed from bits and pieces of case law, it does not follow that the methodology does not truly take an overall form, that is, a purposive systematic arrangement. A highest appellate court is capable of coherent action here over time. Scholars can render explicit the overall form and constituent features as expressed in the case law. [...]... appear to think that it is simply not possible for a legal academic to be an advocate of well-designed form and the formal in statutes, and of well-designed form and the formal in an interpretive methodology, without somehow embracing, or at least encouraging, formalistic statutory interpretation Some well known critics of formalistic interpretation of statutes have failed to 36 37 38 See, e.g., Paragon... “language-oriented” argument are wide-ranging and deep,23 far more so than many observers assume Most of the words of nearly all proposed statutes are ordinary words in ordinary language The language in all proposed statutes is in the syntax of ordinary language Also, the language used in committee study, legislative deliberation, and debate on the floor of the legislature is overwhelmingly ordinary... following schematic illustration Assume the criterion is language-oriented and that a given argument favors one ordinary meaning of a statutory word, whereas another argument favors a generally recognized technical meaning of the same word For example, assume a statute makes it a crime to “steal or take property by fraud.” The defendant knowingly infringed a copyright Here let us assume that the ordinary... typical language user, the immediate purposes of usage insofar as evident from the text and context, usage in parallel circumstances in ordinary life, special factual knowledge fairly attributable to the language user, reminders of factual considerations already familiar, the use of hypothetical case analysis testing the scope of usage, usages of analogous words, standards of linguistic consistency, systematic... criteria A mode of argument that appeals to the ordinary meanings of ordinary words insofar as used carefully in the statute is usually also highly determinate, and thus relatively susceptible of even-handed application across time and space in the hands of different interpreters, whether they be judges, other officials, or lay addressees, as duly advised This is true partly because this mode of argument... political values, including democracy, legitimacy, rationality, and justice in the application of law It is also a central purpose of the overall form of an interpretive methodology to define and organize every interpretation from beginning to end as a process of objective and reasoned argumentation A nonmethodological approach to interpretation simply cannot leave truly methodological imprints on particular... (2) general values of the rule of law including fair notice and consistent treatment of like cases, (3) fundamental political values, especially democracy, rationality, legitimacy, and justice, and (4) rational and duly coordinated drafting technique 20 21 See generally, MacCormick and Summers, supra n 3 Other things equal, a system should favor the methodology that can yield the interpretive practices... intent-oriented argument, for example, reliance on a quotation in a committee report or in other legislative history, may also sometimes support a particular language-oriented argument, as when such a quotation reveals in which of two ordinary senses the law-makers may have used a given word or phrase in the statute.) A primary faithfulness criterion may call for interpretation in accord with the ultimate... genuinely interpretive in nature A genuine interpretation must be of authoritative language The language of a valid statute is the only language that the legislature has adopted as law Indeed, as we have seen, a legislature can only adopt, as a statute, a chosen set of words in fixed verbal sequence, and a legislature typically does this quite purposively to achieve purposes Second, experience indicates that... meaning of “steal” is limited to physical property, but that in some contexts “steal” has a technical meaning that could be extended to infringing a copyright If the force of these arguments is roughly equal (a matter for analysis and judgment), a priorital principle may provide that the argument favoring the ordinary meaning takes priority One rationale for this could be that, in the absence of an argument . can readily see what is formal about particular interpretive methodologies. We can also see how a grasp of the overall form and constituent features of such a paradigm can advance understanding. legislative drafter can anticipate and dispose of all borderline cases in advance through use of suitable general language, and statutes drafted with sufficient detail toaddress all such particular. methodology in force would generally be required to interpret such a statute in accord with the leading principle that standard ordinary meanings of ordinary words in a penal statute, as construed in

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