An Introduction to Courts’ and Principles-Based Interpretivism

Abstract

Abstract This book focuses on courts and financial disputes. We speak of ‘constitutional law’, ‘civil law’, or ‘administrative law’, but of ‘financial regulation’ as if finance’s rules and norms were something alien to, or distinct from, ‘law’. This emphasizes finance’s peculiarities, including the presence of regulatory norms, the use of soft law, the norm-producing status of administrative authorities, and the relevance of global standard-setting bodies i. In turn, finance presents unique problems for the law. Yet, this chapter shows that only law and courts can answer those problems by providing finance with the certainty it needs to operate, and the elasticity it needs to evolve. It offers many examples where, using principles-based interpretivism, courts reconcile finance’s technical complexity with a respect for the rule of law, especially when different pieces of legislation are inspired by different, sometimes competing goals or ‘narratives’. The chapter also argues that courts’ principles-based interpretivism can correct certain biases, and bolster the legitimacy of financial law. Alternative views, such as rules-based positivism or pragmatism do not fully capture the role of courts in financial law.