RETRACTED ARTICLE: Comments on ‘Strategic Manoeuvring with the Intention of the Legislator in the Justification of Judicial Decisions’

Abstract

The Supreme Court’s 1892 decision in Holy Trinity Church versus United States that Eveline Feteris had chosen for her study demonstrating the importance of pragma-dialectical theory is a most prominent case in law theories. The case that goes back to 1892 is considered as being a classical case (in the US) of the debate whether judges should interpret statutes and the Constitution in a literal way or not. More technically speaking, the debate is about whether judges interpreting statutes should consult legislative history as a reliable and necessary interpretative source. The feature that had made Holy Trinity so prominent was that it is the first majority opinion of the Supreme Court to give legislative history sufficient weight to trump contrary statutory text. Among the manifold argument against the legislative-history position, there are two which are particularly important: First, according to the textualist position, statutes themselves are the law, reliance on legislative history encourages the assumption that legislative intent is the law and that statutes are merely evidence of that intent. Secondly, legislative intention is a meaningless concept because collective bodies do not have necessarily a coherent intention; consequently, consulting legislative history produces bad statutory interpretation. Against these assertions, defenders of the legislative history position usually argue that the constitutional provisions are prescriptive in their nature, however, these provisions do not forbid judges to use any particular method of statutory interpretation. And, hence, an interpretation as judge Brewer in the Holy Trinity case had offered it is most legitimate. For obvious reasons, Feteris’ demonstration is set out on the ground of the legislative-history position. A textualist position could hardly accept that argumentation theory would ever contribute to the solution of the Holy Trinity case. In the first part of her paper, Feteris describes the role of ‘‘the judge in the application of legal rules and his burden of justification when he wants to make an exception to