Jesse Wall, Being and Owning: The Body, Bodily Material, and the Law, Oxford: Oxford University Press, 2015, 256pp, hb £60.00.

Date01 November 2017
DOIhttp://doi.org/10.1111/1468-2230.12309
Published date01 November 2017
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REVIEWS
Allan C. Hutchinson,Toward an Informal Account of Legal Interpretation,
New York: Cambridge University Press, 2016, 188pp, hb £69.99.
As stated in its title, this book urges the legal community to embrace what the
book’s author, Allan C. Hutchinson, describes as an ‘informal’ explanation of
legal interpretation. Hutchinson employs ‘interpretation’ broadly to encompass
the activities of finding the law, applying the law, and justifying the result.
‘Interpretation’ covers statutory and constitutional interpretation as well as
judicial pronouncements of common law. Basically, then, ‘interpretation’ is
synonymous with judicial activity and, by extension, the activity of lawyers and
others involvedwith the law. The final chapters of the book sketch Hutchinson’s
‘account’ of what is ‘informal’ in legal interpretation. It will be seen that
‘informal’ signifies more than a mere rejection of what Hutchinson terms
‘formalist’ interpretive methods.
But before Hutchinson can begin to present his explanation of legal inter-
pretation, he must first demonstrate that the explanations of others are unsat-
isfactory. To do so, he tackles the question, ‘What is law?’; and in so doing, he
vigorously assails the contention that the province of the law can be fenced off
from ideology. Specifically, Hutchinson describes and debunks the positivism
of H. L. A. Hart, the natural law theories of Lon Fuller and Ronald Dworkin,
the originalism of Antonin Scalia, the incrementalism of Cass Sunstein and
Melvin A. Eisenberg, and the hard-line positivism of Joseph Raz. Finally,
Hutchinson drafts the blueprints for a school of thought and analysis that
might be called Informalist Jurisprudence. Informalist Jur isprudence implies
a nuanced approach to law that balances the constraints of the legal system,
including judicial collegiality, with the political and ideological views of the
judges and their apprehension of contemporary community values. Hutchin-
son’s book cuts a very wide swath in fewer than 200 pages. This review will
measure and probe that swath, and assess whether Hutchinson has achieved his
goal, as stated in his Preface, of writing a book for law students.
Hutchinson begins his book with an entertaining and elucidating first
chapter, ‘An Informal Opening’, in which he exposes the inability of the
law-versus-ideology dichotomy to explain how seemingly simple cases are de-
cided. Building on Hart’s imaginary example of a prohibition against vehicles
in a hypothetical park, Hutchinson employs two real-life cases from Canada
in which the potential violation of prohibition orders against two convicted
paedophiles turns on the interpretation of the statutory ter m ‘public park’.
Provocatively, one man is found to have violated his prohibition order by be-
ing present in a public park, and the other not. The juxtaposition of these
cases and the reasoning employed by the judges serve to whet the reader’s
appetite for the formalist-versus-anti-formalist debate discussed in the chapters
that follow.
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited. (2017) 80(6) MLR 1178–1202
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Reviews
Chapter 2, ‘Among the Formalist Ghosts’, warns the reader that the ghosts
of discredited formalism haunt and hamper modern thinking about law and
interpretation, much in the way that the common law forms of action (in
Maitland’s famous phrase) still ‘rule us from their graves’. Hutchinson utilises
Richard Posner’s definition of ‘formalism’ as the ‘belief that all legal issues
can be resolved by logic, text, or precedent, without a judge’s personality,
values, ideological leanings, background and culture, or real-world experience
playing any role’(R. A. Posner, Reflections on Judging (Cambridge, Mass: Harvard
University Press, 2013) 1). According to Hutchinson, positivists are formalists
because they believe that judges in most cases can make decisions in a detached
and impartial manner, although most acknowledge that this is not so for the
‘hard case’ that occasionally arises. Naturalists are also formalists, according to
Hutchinson, because they insist that law itself contains its own political morality
so that judicial decision-making, though drenched in values, is a self-contained
enterprise. ‘Orig inalists’ are formalists, according to Hutchinson, for while
originalists are willing to let down the drawbridge to admit witnesses to the
‘prevailing views and values’ (22) at the time of the enactment, they work
within a formalist fortress that denies that judges bear any responsibility for the
contemporary justness of their decisions. Hard positivists, Hutchinson writes,
are unrepentant formalists who hold a metaphysical faith that the ‘legitimacy
of the whole legal enterprise’ rests on the solemn mission of judges to act in
an ‘objective and detached’ manner (23). Finally, incrementalists are those who
embrace formalist dogma, but reserve for themselves the task of making modest
revisions to the law in response to changed circumstances in society. As will
be seen, Hutchinson finds fault with all of these formalist approaches and, in
his conclusion, calls for ‘a defiant and decisive act of ghost-busting’ (26) with
the goal of contributing to a more informed and authentic account of legal
interpretation and judicial decision-making.
In the chapter that follows, Chapter 3, ‘Walking Softly: The Positivist Con-
tribution’, Hutchinson convincingly demonstrates the weaknesses of Hart’s
theories. This is not a head-on, Dworkian assault on Hart, but rather the
remarks of a man disappointed that ‘Hart’s ideas run out of steam at the
very point that they are most needed’ (27). Particularly successful, and impor-
tant for law-student readers, is Hutchinson’s criticism of Hart’s ‘all-important
distinction between the core and penumbra of a rule’, which is the same
distinction made in 1914 by Philipp Heck, who employed the terminology
Begriffskern for the core and Begriffshof for the penumbra (P. Heck, Gesetzes-
auslegung und Interessenjurisprudenz (1914) 107–108). It is at this point that
Hutchinson makes brilliant use of Hart’s hypothetical prohibition against vehi-
cles in the park and Hutchinson’s own, real-life Canadian cases construing the
term ‘public park’. Hutchinson concludes that there is no plain meaning; it is
all penumbra.
Hutchinson then turns his attention to Fuller and Dworkin in Chapter
4, ‘Walking with Purpose: A Naturalist Turn’. In the 16 pages that he de-
votes to both Dworkin and Fuller, Hutchinson expertly extracts only those
elements of Fuller and Dworkin’s writings that are germane to Hutchinson’s
own search for reliable constraints on judicial discretion. Again employing
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(6) MLR 1178–1202 1179

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