Workshop- Laws, Words, and Meanings

About this event
Martin David Kelly (Edinburgh) The Novelty Issue: Should Judges Recast Laws To Deal With New Developments?:
Judges across the world are increasingly having to decide how laws should apply to ‘novelties’: inventions and new technologies, and new types of situation (such as significant improvements in our understanding and changes in social attitudes), that were not known to (or foreseen by) the law-maker. This creates a serious problem: as the novelty was not in the contemplation of the law-maker when it chose which words to enact, it is (at least partly) arbitrary whether that novelty falls within those words; hence, applying such laws according to their meaning can (and does) generate unsatisfactory outcomes. In this article, I examine how courts should address this novelty issue. Drawing on cases from several common-law countries — including the UK, Australia, Canada, and New Zealand — I argue that judges should have power, subject to certain tightly-drawn constraints, to recast laws — to read a law as if it were worded differently — to avoid generating unsatisfactory outcomes for a novelty.

Filipa Paes (Oxford) Using Degree Expressions in Law (Or, On Choosing One’s Words Carefully):

In this paper I argue in favour of the use of degree expressions in statutory drafting. In doing so, I discuss concerns that both the drafter and the interpreter of a statute may have when it comes to the use of degree expressions, and the tensions that arise between these two legal actors with regard to questions of degree. The paper departs from two assumptions. First, the idea that it is common practice in statutory drafting to avoid degree expressions, such as ‘substantial’ and ‘significant’, unless one’s task is to codify existing common law. And second, that judges use degree expressions both when they “make new law” but also when they interpret (and discuss the proper interpretation of) statutory provisions. Yet, we should pause before assuming that judges are careless with their words. There may indeed be reason for a legal system to make use of degree expressions (both where it concerns statutory and judge-made law), and that is what the present paper investigates. Ultimately, the paper considers the reasons why one should, at times, use degree expressions, and the occasions in which these expressions, in all the forms and shapes in which they exist, are suitable in statutory drafting, as well as the instances in which they may not be the most appropriate tools for statutory drafters.

Andy Yu (Western Ontario) The ‘Always Speaking’ Principle of Statutory Interpretation:
According to the “always speaking” principle of statutory interpretation, statutes are “always speaking” - but what exactly does this mean? The principle has long been part of the law in Commonwealth jurisdictions, with legislatures codifying the principle in interpretation statutes and courts recognizing the principle in the common law. But it has only been in the last few decades, and especially the last few years, that judges, lawyers and academics have started to pay more serious attention to the principle. Can we make sense of the principle, or is it irremediably unclear or confusing? Does the principle do substantive work, or is it redundant given other principles of statutory interpretation? Can it be helpful to invoke the principle, or should we abandon the principle? The doctrine and scholarship on the principle reflects a range of answers to these fundamental questions, but the lack of consensus on what the principle even is, let alone its significance to legal reasoning, is concerning. Judges and lawyers are increasingly invoking (or purporting to) invoke the principle in various cases, while academics are increasingly interested in the theory and doctrine underlying the principle. In this article, I articulate and develop a theoretical account of the principle that clarifies what the principle is and explains its significance to legal reasoning. The account incorporates insights from the philosophy of language and vindicates the doctrine on the principle. Ultimately, I seek to show that we can make sense of the principle, that the principle does substantive work, and that it can be helpful to invoke the principle.

This is not a pre-read event, but the papers will be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.

 

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