ON STATUTORY INTERPRETATION AND THE (CANADIAN) RULE OF LAW: INTERPRETIVE PRESUMPTIONS AS BOUNDARY SETTING

Abstract

This article brings together debates in statutory interpretation, the rule of law, and legal interpretation. Examining theoretical accounts of the rule of law, the article incorporates a greater attention to questions of interpretivism and the historical context of the interpreter in order to give contextual content to the rule of law. Construing rule of law in terms of fundamental questions about legal interpretation (e.g., discretion, determinacy, objectivity), the article proposes viewing rule of law as a bounded claim space in order to front the boundaries of that space as focal points for rule of law analysis. Reviewing various presumptions of statutory interpretation in Canadian jurisprudence, the article suggests that these presumptions are proxies for the boundary conditions that define, demarcate, and delimit a distinctively Canadian rule of law tradition, thereby showcasing the analytic heft and limited scope of rule of law analysis.