There are good reasons, I have argued, for the legislature to have authority to change the law by making known its intention to this effect: the constitution of any well-formed legal system makes provision for the legislature to act in this way and to this end. It follows that in the central case of interpreting a statute interpreters will aim to infer and understand the legislature’s lawmaking intention, which intention (as expressed in the enactment) changes the existing law in some way, a change which persists until it expires on its own terms or is amended or repealed by a subsequent legislature.
The central axiom of well-formed interpretive practice is that the legislature is an institution that aims to act responsibly for the common good. This axiom is no fiction for it responds to the rationale for legislative authority, giving subjects of the law reason to understand the legislature’s act to change what they should do and also animating and explaining the structure and operation of the legislature. The legislature is a type of institution that is capable of acting responsibly for the common good and in understanding particular exercises of legislative authority interpreters should presume that the legislature was what it should be and is capable of being: a rational, reasonable lawmaker. It follows that there is an important difference between how a court (or citizen) interprets an authoritative
legislative act and how a historian or political scientist explains legislators and their acts and
intentions.1 The subject of the law should be slow to hypothesize, and even slower to conclude, that the legislative act is vicious, arbitrary or irrational.2 For, while possible, any such hypothesis or conclusion is a postulation or judgment that the legislature has failed to do its duty. A mistaken or unjust exercise of legislative authority has intra-systemic validity, yet fails to be a central case of authoritative lawmaking. The relevant lawmaking choice changes the law in the way made clear, but fails fully to bind in conscience.
‘Interpretation’, Timothy Endicott argues, ‘is a creative reasoning process of finding grounds for answering a question as to the meaning of some object’.3 This definition is, I suggest, less than helpful, at least as it pertains to language use in general and legislating in particular (it may be
entirely fitting for dreams or sculpture). The problem is that it obscures the central point of
interpreting some person’s use of language or some legislature’s lawmaking act: to understand what they have said and done, which means to identify the intentions on which they acted and which they aimed—meant—to make recognizable. Endicott argues that interpretation is to be distinguished from understanding, but in elaborating the point he makes clear that this is a stipulation.4 Likewise, while his term ‘creative’ may suggest that the interpreter in some way constructs the meaning of the object in question, Endicott uses it to mean that the relevant interpretation involves stating not just that which is obvious to everyone who is ‘familiar with the object’, but rather a meaning that might be in dispute.5 The very expression ‘the meaning of some object’ obscures the fact that in interpreting
(understanding) some instance of language use one interprets (understands) a rational act (of using language with intent to convey some meaning). Endicott at times suggests that what falls to be
interpreted (understood) is something distinct from an agent or its action—say an order or a bylaw— yet in the end, he rightly says that the interpreter’s task is to elucidate some speech-act, which is to understand the speaker.6
I speak interchangeably of interpreting a statute and understanding the legislative act. The statute is, as the terms ‘Act of Parliament’ or ‘Act of Congress’ make clear, the legislature’s lawmaking act —or at least it is that act considered in its communicative and communicated content. When the legislature enacts a statute it chooses to change the law in specific ways for specific reasons. The legislature acts on a lawmaking proposal that sets out a plan for the community, a plan that consists in a set of propositions to be adopted by citizens and officials. The legislature promulgates its
lawmaking intention—its choice that this set of propositions is to form part of the law—by uttering the statutory text in the relevant context and making clear its intention to convey this or that
propositional meaning-content in uttering—the legislative act qua activity—the sentences (statements) that form the statutory text—the legislative act qua content and communicative product. The
legislature’s intended meaning expresses the propositions it has chosen, which is of central
importance precisely because it articulates the object of the legislature’s choice. The subjects of the law should respond to the legislature’s exercise of lawmaking authority by inferring the propositions it chose, which it acted to introduce into the law. Hence, interpreters should aim to infer the
legislature’s intended meaning, which is how it formulates the set of propositions it intends to introduce into the law. This intended meaning is the central object of statutory interpretation.7
The exercise of legislative authority is the making and promulgation of a choice. This truth frames how the legislature’s act changes the law. The legislature forms and acts on intentions, which it acts to make and make publicly known, and what the legislature adopts and promulgates is thereby
transformed from a proposal to law. The significance of the public act of lawmaking, of promulgating one’s authoritative intention, is that a well-formed legal system has good reason—consistent with full recognition of legislative authority—to provide that the meaning of the statute turns on what one
reasonably infers the enacting legislature intended. I do not mean at all that interpreters may substitute
their judgment of what the legislature in fact intended for what they think it would have been better for the legislature to have intended. Rather, the interpreter’s best inference about what was in fact
intended is decisive—he or she can do no other—even if this departs from what is in fact the legislative intent. The legislature changes the law by promulgating its intention to this effect. My discussion in chapter 7 and in this chapter makes very clear, I trust, that this does not mean that the semantic content of the text must explicitly assert as much, for the legislature’s intended meaning is readily open to be inferred from the utterance of the text in context. The importance of promulgation is
that the legislature’s intended meaning falls to be inferred from publicly available evidence, which is to say evidence that is open to the community.
Interpreters should aim to understand the legislature’s intended meaning. They should also aim to understand the reasoned choice that finds expression in this intended meaning. This may seem
surprising. It is true that the legislature aims to make clear the practical conclusions of its
deliberations—the set of propositions that confer (or remove) powers and impose (or cancel) duties —and does not aim to promulgate the chain of reasoning that supports those conclusions. However, the legislature’s lawmaking act is a reasoned choice of some scheme or plan for the common good. The reasons that the legislature had for acting in some or other way—for choosing some or other set of propositions—are highly relevant to the meaning it was likely to intend to convey in uttering the statutory text and hence to the inferences about intended meaning that it is plausible to make from what the legislature says in context. Further, there is good reason to think each provision, and each
particular set of propositions it introduces, forms part of a larger reasoned scheme, inference about which scheme thus informs inference about the likely intended meaning of each particular part.
The importance of inference about the reasoned scheme that the legislature chooses, in order to understand the propositions it acted to introduce into the law, is made clear in cases where the
legislature adopts an especially poor formulation of the propositions it acts to choose. Consider Inco
Europe Ltd v First Choice Distribution,8 in which the House of Lords had to determine whether the Court of Appeal had jurisdiction to hear an appeal from a decision of the High Court to stay legal proceedings in relation to an arbitration. The High Court’s jurisdiction was conferred by s 9 of the Arbitration Act 1996, which was silent on the question of whether an appeal lay to the Court of Appeal. However, s 18(1) of the Supreme Court Act 1981, as amended by s 107 and Sch 3, para 37 of the 1996 Act, provided:
No appeal shall lie to the Court of Appeal—…(g) except as provided by Part I of the Arbitration Act 1996, from any decision of the High Court under that Part.
The prima facie meaning of this provision is that the Court of Appeal has no jurisdiction to hear
appeals save where Part I of the 1996 Act expressly confers a right of appeal. Nowhere in Part I does this occur. Various provisions, such as ss 12(6) and 32(6) for example, specify restrictions on a right of appeal, but they take for granted that the right already exists. The prima facie meaning thus rules out
any appeal from a decision under Part I, making pointless the phrase ‘except as provided by Part I’
and the various restrictions on appeal specified in Part I. However, the words ‘provided by’ might be used to convey either ‘authorized (and controlled) by’ or ‘controlled (but not authorized) by’. The latter avoids the absurdity of the former and is consistent with the reasoned scheme of the 1996 Act, in which Part I takes for granted that there is, and does not aim to limit save as expressly specified, a right of appeal apart from the 1996 Act: that is, the Act itself did not create such a right, which instead arose from the grant of general appellate jurisdiction in ss 15 and 16 of the 1981 Act.
Section 107 made a series of amendments to other statutes consequential on the main provisions of the 1996 Act. The relevant part of s 107, reflecting the changes made by the rest of the Act, was
intended to bring the 1981 Act expressly into line with the 1996 Act, subjecting the jurisdiction of the Court of Appeal, which the 1981 Act establishes, to the limitations set out in the 1996 Act. (I say ‘expressly’ because the terms of the 1996 Act would in any case have limited the general grant of appellate jurisdiction in the 1981 Act by necessary implication; ironically, Parliament presumably chose to make this express to avoid the possibility of doubt.) The draftsman failed to express this
lawmaking intention as clearly as he should have in the text of the amended s 18(1)(g), yet it was still open to inference. The point of s 107 was to make such changes to other statutes as would bring them into line with the main terms of the 1996 Act, which means that the changes that section introduced are to be understood by reference to those main terms. Hence, the structure of the reasoned scheme that is the 1996 Act, in which general appellate jurisdiction is subject only to such limits as are specified, makes clear Parliament’s choice in s 107. Notwithstanding the awkwardness of its semantic content, the intended meaning of s 18(1)(g), which one infers by reasoning about the likely lawmaking choice, was that the Court of Appeal’s otherwise general jurisdiction was limited by the restrictions on appeal expressly set out in Part I of the 1996 Act.
The significance of the example, and of many similar cases, is that the focus of the interpretive inquiry is rightly on what it is plausible to infer Parliament intended in enacting the relevant statutory text—that is, what meaning-content it intended to convey, which is the primary and direct source, and prima facie the content, of the set of propositions the legislature acts to make law. Particular
provisions fall to be understood as part of the reasoned scheme that the legislature acts to introduce. The legislature acts for reasons and uses language rationally, which means that interpreters have good reason to reflect on the legislature’s likely chain of reasoning in order to determine the meaning that the legislature likely acted to convey, which sets out authoritatively some changes to the law—to the set of duties and powers otherwise in force.