Interpretation and determinacy: reply to Brunet and Poggi

Pierre Brunet and Francesca Poggi advocate radical scepticism about the ability of lawyers and judges in civil law jurisdictions, when they interpret statutes, to discover objective meanings capable of resolving legal disagreements. Radical sceptics deny that there are any easy cases in which such objective meanings exist and can be discovered; legal disagreements can only be resolved by creative acts of judicial will. While I agree with their rejection of formalism and literalism, I am sceptical about their scepticism, and defend the orthodox view that there are easy cases in which objective meanings exist and are discoverable. I defend a theory of statutory interpretation as it is actually practiced in the common law world, which I argue is based mainly on the constitutional principle of legislative supremacy. This theory gives prominence to legislative intentions and purposes. I then compare this with Brunet’s and Poggi’s account of statutory interpretation as it is practised in the civil law world. I acknowledge that there may be substantial differences between the two worlds, with respect to the judicial interpretation of statutes. In particular, neo-constitutionalism—as described by Brunet and Poggi—seems to be less viable in common law jurisdictions. Nevertheless, I conclude that radical scepticism remains implausible in both worlds.