A Statute's Meaning Need not be its Law
| Author | Jamie Blaker |
| Published date | 01 September 2018 |
| Date | 01 September 2018 |
| DOI | 10.1177/0067205X1804600305 |
| Subject Matter | Article |
A STATUTE’S MEANING NEED NOT BE ITS LAW
Jamie Blaker*
ABSTRACT
There is a theory of statutory interpretation that is simple, elegant and well-subscribed.
The theory is known as the meaning thesis, and it holds that the law of a statute consists
in the ordinary linguistic meaning that is communicated by the statute’s language. In a
recent article Dale Smith has sought to discredit the meaning thesis. Here I will seek to
discredit the thesis further, this time by drawing on the accomplishments of linguistics
and the philosophy of language. In order for the meaning thesis to succeed, it must be
demonstrated that the thesis is consistent with the established common law rules of
interpretation. However, some of these rules appear to require that judges defy the plain
linguistic meanings of statutes in limited circumstances. The meaning theorist’s
challenge, then, is to find some way to show that the established rules of interpretation
do not truly cause judges to defy the language of statutes, despite appearances to the
contrary. In this article, I will explain why the meaning theorist only has bad options in
this regard. Of the available options, meaning theorists have settled for an argument that
is premised on a flawed theory of how language communicates meaning. The theory of
communication in question was proposed by H P Grice in the 1950s, but discredited by
his contemporaries.
I INTRODUCTION
Before a judge can say what the law of a statute is, she must first have a way of deciding
what the law of the statute is. The various ‘ways of deciding’ the laws of statutes are
referred to, by lawyers and academics, as theories of interpretation. As the moniker
suggests, a theory of interpretation is an abstract thing; it is not an actor in the physical
world, but an immaterial set of rules that governs the behaviour of judges. A theory of
interpretation could not mail you a speeding ticket, issue orders against your employer,
turn out the lights of a decommissioned school, or call on you to fight a war.
Nonetheless, theories of interpretation matter because, however abstract they are, they
can cause these kinds of things to happen. A judge’s way of deciding the law of a statute
can affect her decision as to what the law is, and this in turn can affect t he fortunes of
individuals, organisations and entire communities.
* LLB (Monash), LLM (Cambridge). The paper has benefited greatly from the insight of Tiffany
Gibbons, Julian Lynch, Elise Thomas, Duncan Wallace, the Editors and the anonymous
referees. All errors are my own.
456 Federal Law Review Volume 46
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Because theories of interpretation matter in this way, academics, lawyers and judges
have spent decades trying to articulate the most defensible theory of interpretation: the
way of interpreting statutes that is most justified, all things considered. The search for
such a theory has not been a collaborative effort. As things stand, individuals create
theories of interpretation, which are then advocated for, usually by a small group of
proponents. Then, the proponents of the various theories attack each other’s theories in
an attempt to show that each other’s theories are false. Although this process may seem
untidy, it can be depended upon to produce increasingly defensible theories so long as
the theories developed are fallible, and proponents give up their theories once the
theories ar e disproven. Under these conditions, only those theories resistant to
objections should survive and remain to be considered.
1
In a recent article in this journal, Dale Smith sought to bring us one step closer to a
defensible theory of interpretation, not by proposing a new theory, but by seeking to
dispose of an old one.
2
The theory that he criticised was the theory that the ultimate aim
of interpretation is to ascertain the meaning communicated by the language of the
statute. Smith called this theory the meaning thesis. Smith’s professed reason for
criticising the meaning thesis was that the High Court of Australia had, in Smith’s view,
accepted the thesis, and so needed to be corrected.
3
I am not convinced that the High
Court d oes subscribe to the meaning thesis.
4
Nonetheless, I think that the thesis has
enough subscribers elsewhere to deserve examination. The thesis is supported by a
number of academics who, in recent years, have given sophisticated defences for the
thesis. Despite their differences, thinkers such as Jeffrey Goldsworthy, Richard Ekins,
John Manning and Frank H Easterbrook (to name only a few) have all advanced theories
of interpretation that reduce to the meaning thesis.
5
While Smith’s article has performed much of the work needed to refute the meaning
thesis, the article has also left some work to do. The work performed by Smith was to
demonstrate the meaning theorist’s basic difficulty, which is that certain common law
principles of interpretation appear to determine the statute’s law on bases other than the
meaning of the statute’s language. For example, owing to one principle of interpretation,
criminal offences established by statute are presumed to contain a mens rea element,
whether or not the statute’s language communicates a mens rea element.
6
As Smith
explains: ‘If [that is] so, we cannot say that the aim when interpreting [the relevant]
provision is simply to ascertain its linguistic content, since this would be to overlook the
role played by the presumption of mens rea’.
7
1
See Karl Popper, Conjectures and Refutations (Routledge, 1963).
2
Dale Smith, ‘Is the High Court Mistaken about the Aim of Statutory Interpretation?’ (2016)
44 Federal Law Review 227.
3
Ibid 227–9.
4
For my own understanding of the High Court’s theory of interpretation, see Jamie Blaker, ‘Is
Intentionalist Theory Indispensible to Statutory Interpretation?’ (2017) 43 Monash University
Law Review 238 pt III.
5
See Richard Ekins and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative
Intention’ (2014) 35 Sydney Law Review 39; Frank H Easterbrook, ‘Text, History and Structure
in Statutory Interpretation’ (1994) 17 Harvard Journal of Law and Public Policy 61; John
Manning, ‘What Divides Textualists from Purposivists?’ (2006) 106 Columbia Law Review 70.
6
He Kaw Teh v The Queen (1985) 157 CLR 523; Smith above n 2, 235.
7
Smith, above n 2, 235–6.
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