Bill Watson (University of Illinois College of Law) has posted What Are We Debating When We Debate Legal Interpretation? (105 B.U. L. Rev. (forthcoming 2025)) on SSRN. Here is the abstract:
Debates over legal interpretation, such as those between textualists and purposivists or originalists and living constitutionalists, are familiar and longstanding. Yet there remains disagreement over what these debates are really about—over what interpretive theories aim to achieve. Do interpretive theories aim to grasp what legal texts communicate? Do they aim to explain how legal texts make law? Are they heuristics for discerning the law? Or are they instructions for how to go on when the law runs out? Answering this “meta-interpretive” question about what we are debating when we debate legal interpretation is key to making progress in these debates.
This Article frames the meta-interpretive question and explores how a widely held view in general jurisprudence—Hartian Positivism—answers it. Hartian Positivism holds that what counts as law in any jurisdiction depends on what officials in that jurisdiction generally accept and treat as law. If Hartian Positivism is right, then interpretive theories are primarily about interpretation in a remedial sense: they concern how legal actors should exercise discretion when the law runs out—how they should fill in the law’s gaps. This remedial answer, in turn, has important implications for how judges and theorists should (and should not) defend their preferred interpretive theories.
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