Dynamic interpretation of canonical legal rules
Lastly, there has emerged a competitor to intentionalism and textu- alism as methodologies for interpreting canonical legal rules. That competitor methodology is called ‘dynamic statutory interpretation' or ‘practical reason interpretation'.
The hallmark of this methodology, aside from its rejection of both intentionalism and textualism, is its ecumenical view of the considerations that are material to the correct interpretation of canonical legal rules. Its proponents assert that, in interpreting a law, the interpreter should look at some combination of various of the following items: the meanings of the authors' words, the authors' purposes, norms regarding institutional relationships, rule of law virtues, social norms, efficiency, and justice. For example, Richard Posner asserts that statutory interpretation is a product of language, purpose, and values (Posner 1990). William Eskridge in one place argues that statutory interpretation involves the text, its purposes, and the interpreter's own values (Eskridge 1990; 1987). In other places, he and Philip Frickey argue that it is a product of some combination of text, purpose, and current values, and in one place they throw ‘history' into the list of considerations (Eskridge and Frickey 1990). And Cass Sunstein maintains that statutory interpretation is a non-mechanical exercise of practical reason that involves the text, history, purpose, and background values (Sunstein 1989).These positions are, unfortunately, hopelessly confused. To demonstrate this, one needs to disaggregate three different things: what the meaning of a statute or other canonical legal text is - the ontological question; what things should one look to in order best to discover the meaning of the canonical text - the epistemological question; and what one should do in light of the meaning of the statute or other canonical text once one has discovered that meaning - the authority question.
Suppose one agrees with us that, as an ontological matter, a legal text means whatever was the meaning the lawmaker intended that the legal text communicate. Obviously then, of all the items on the lists of the proponents of dynamic statutory interpretation, only the lawmaker's intended meaning pertains to the meaning of the statute and, indeed, is synonymous with it. On the other hand, legislative purposes and the text (qua utterance meaning) would be material evidence of that statutory meaning. The history of the text's applications might be weak evidence as well, insofar as it reveals what other interpreters thought was the text's intended meaning. On the other hand, whether the consequences of the text offend currently held values would not bear at all on the meaning of the text, either ontologically or epistemically. However, if there are higher-order legal rules or standards that refer to such values and constrain the legislator(s) whose text is at issue, then those values could bear on the text's legal authority. And the history of the statute might bear on its authority as well, either through the doctrine of precedent or through reliance, again if there are high-order rules or standards that so dictate.
What is surely not a possibility, however, is that a legal text could ontologically consist of such combinations of factors. Some of these factors are factual, and some are normative. Some are about facts at one historical moment, and some are about facts at different historical moments. If the dynamic interpretation approach is ontological - if it purports to tell us what legal texts are - then why is not the metaphysical mixing of facts about one time, facts about another, and moral norms as incomprehensible as asking someone to mix pi, green, the categorical imperative, and the Civil War? Dynamic statutory interpretation, were it a real possibility, would most definitely involve a special form of reasoning not employed outside the law. It is not a real possibility, however.
4.3