The Role of Contextual Meaning in Judicial Interpretation
| Author | Jonathan Crowe |
| DOI | 10.22145/flr.41.3.2 |
| Published date | 01 September 2013 |
| Date | 01 September 2013 |
| Subject Matter | Article |
THE ROLE OF CONTEXTUAL MEANING IN JUDICIAL
INTERPRETATION
Jonathan Crowe*
ABSTRACT
This article examines the r elevance to judicial interpretation of contextual meaning: the
meaning legal texts hold when considered in full light of their social and moral context.
I argue first that, as a descriptive matter, contextual meaning is necessarily prior to any
more restricted form of textual interpretation; that is, the contextual meani ng of a legal
text is its ordinary meaning. I then contend that, as a normative matter, judges shou ld
presumptively apply ordinary or contextual meaning when construing legal materials.
The remainder of the article explores the nature and limitations of the contextualist
model of judicial practice. The possibility of conflicts between contextual f actors at
different levels of abstraction makes it necessary to distinguish narrow and wide
versions of the contextualist methodology. I argue that wide contextualism offers the
best overall account of judicial interpretation. I conclude by examining the pra ctical
and normative limitations of this model.
I INTRODUCTION
The primary role of the judge is to a pply the law. This often requires judges to
interpret legal material s. So much, I take it, is relatively uncontroversial. How exactly
judges should go about this interpretive task is, of course, far more contentious. This
article outlines a response to that question. I argue that, as a descriptive matter, what I
call the contextual meaning of a legal text is its ordinary meaning and, as a normative
matter, judges should presumptively apply ordinary or contextual meaning when
construing legal materials. These claims pr ovide the basis for a theory of ju dicial
interpretation that I call wide contextualism.
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* Associate Professor, T C Beirne School of Law, University of Queensland. I would like to
thank Jim Allan, Nick Aroney, Tom Campbell, John Gardner, Eric Ghosh, Julian Lamont,
Suri Ratnapala, Brad Sherman and the anonymous referees for their helpful comments on
earlier (in some cases, much earlier) versions of this article.
418 Federal Law Review Volume 41
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I begin by presenting a descriptive account of the notion of contextual meaning: the
meaning a legal text holds when considered in the full light of its context. I argue that
contextual meaning is ne cessarily prior to any more restricted f orm of textual
interpretation; that is, the contextual meaning of a lega l text is its ordinary meaning. I
then make two related points about the nature of this type of meaning. Specifically, the
contextual meaning of a te xt is both holistic, in the sense that it takes into account the
whole context for the text, and dynamic, si nce it is not fixed, but changes gradually over
time.
In the second part of the article, I examine the normative implications of the
descriptive account of contextual meaning outlined above. Specifically, I advance two
arguments for the proposition that, other things being equal, judicial interpretation of
legal texts ought to follow their ordinary or contextual meaning. The first argument
draws on debates about the possible sources of the moral force of law. The second
relies on what I call judicial v alues: the core values that, on any plausible account,
judicial practice ought to pursue.
The normative case for the application of contextual meaning in legal interpretation
raises the question of what methodology judges should apply in pursuing this aim.
The third pa rt of the article examines this question. I begin by examining the
relationship between contextual meaning and original intent. The possibilit y of
conflicts between the meanings suggested by contextual factors at different levels of
abstraction makes it necessary to distinguish between narrow and wide ve rsions of the
contextualist methodology. I argue that wide context ualism offers the best account of
judicial practice.
The fourth and final part of the article explores the normative limits of the wide
contextualist outlook. I begin by considering two possible objections to the wide
contextualist model of judicial practice, which I call the complexity objection and the
vagueness objection. I then consider the possibility of conflicts between wide
contextualism and the wider demands of moral value. I argue that no account of
judicial interpretation can plausibly claim more than presumptive moral force.
Nonetheless, wide contextualism represe nts a morally favourable starting point for the
wider process of judicial reasoning.
The arguments presented in this article might be placed roughly into two
categories. Some of what I say, particularly in the opening sections on the descriptive
and normative priority of contextual meaning, may strike many readers as fairly
uncontroversial. However, the assumptions about meaning set out in those sections are
not always clearly articulated by those who hold them and, for this reason, their full
implications may go unappreciated.
The la ter sections of the article on the nature and limits of the wide contextualist
methodology will strike at least some readers as more contentious. The theory of
judicial practice set out i n those sections runs counter to two fairly common views of
judicial interpreta tion. Wide contextualism contradicts those views that hold that the
meaning of a legal text is determined by its original public meaning or the actual
intentions of the legislators.
1
It also challenges the view that judicial interpretation is
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1
For some prominent examples of the former view, see Randy Barnett, Restoring the Lost
Constitution: The Presumption of Liberty (Princeton University Press, 2004) ch 4; Antonin
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