Practical reason and the ontology of statutes

Abstract

A common working assumption of theories of statutory interpretation is that the object of interpretation is uncontroversial. It is assumed that dispute only centers on the epistemics of interpretation. The assumption is unsound. Theories of statutory interpretation are importantly different from other sorts of theories. The subject matter of other sorts of theories can be identified uncontroversially. In the case of statutory interpretation, the object of interpretation is controversial. What counts as the object of interpretation therefore needs specification. Without the required specification, criteria of evidence and warrant justifying an interpretation are not well-defined. An adequate theory of statutory interpreation must contain both epistemic and ontological components. It must provide criteria for treating information as evidence relevant to, and standards for, interpreting a statute. Providing such criteria in turn requires also giving an account of the object of interpretation — what a statute consists in. Practical reason theories fail to provide acceptable criteria and standards for interpreting a statute. These accounts therefore fail to supply an adequate epistemic components for a theory of statutory interpretation. As to the ontological component, things are less clear. I have argued in sections II and III that this component is partly a matter of substantive political theory. Although practical reason theorists fail to offer a substantive political theory for defining the proper object of interpretation, their accounts are in principle ontologically unobjectionable. At most, practical reason accounts are incomplete. Of course, practical reason accounts might still be defective for other reasons. They may invoke a defective substantive political theory. Or the constraints imposed on properties of a statute or relations between them may not in fact affectuate the goals set by the theory. Such failings would be normative, not metaphysical. Since practical reason accounts are epistemically inadequate and ontologically incomplete, legal theorists should find the accounts less attractive than they do, even putting aside the normative soundness of the accounts.