Rizzo & Rizzo, arguably Canada’s leading case on statutory interpretation, has now been cited at least 4581 times according to CanLII. Specifically, the following passage has been cited by courts at least 2000 times. This passage, to many, forms the core of Canada’s statutory interpretation method:
21 Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
This paragraph has reached the status of scripture for Canadian academics. To many, it stands as a shining example of how Canadian law has rejected “plain meaning,” or “textualist” approaches to law (though these are not the same thing at all, scholars as eminent as Ruth Sullivan have confused them). Most notably, as Sullivan argues, the practice of the Supreme Court of Canada under the auspices of the modern approach could be considered pragmatist. In many ways, pragmatism is considered by many in related fields to be an implicitly desirable good. Pragmatism in statutory interpretation, to its adherents, pulls the curtain back on judicial reasoning in statutory cases, asking courts to candidly weigh the factors they think are most important to reaching the proper result.
Pragmatism can be seen as a sliding scale—where one factor (such as text) is most persuasive, other factors (such as extrinsic evidence) will need to be stronger to overcome the text. In other cases, the opposite may be true. Notably, as championed by people like Richard Posner, pragmatism is focused on achieving sensible results. Therefore, the methodological approach used to achieve those results matters less than the results themselves.
While I am not sure proponents of pragmatism would classify Rizzo, particularly its leading paragraph, as a pragmatic judgment, in my view, Rizzo alone illustrates the key problem with pragmatism as an organizing and standalone theory of statutory interpretation. The Rizzo formula simply presents a laundry list of factors which should guide judicial decision-making, but fails to prescribe weights ex ante to those factors. It seems to assume that, in each case, the weights to the various factors are either (1) equal or (2) assigned by the judge in a given case. This is the key virtue of pragmatism. But it is also its vice, because “…without an advance commitment to basic interpretive principles, who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law?” (see here, at 820). In other words, in a pragmatic approach “[e]verything is up for grabs” (820). Specifically, pure pragmatism has a number of potential issues:
- It ignores that, in our legal system, the text of the statute (read in light of its context and purpose, sourced in text) is what governs, and for that reason, should be given the most weight in all interpretation, even if the text is open-textured. Courts must do the best they can to extract meaning from the text, read in light of its context. Call this formalism, call it textualism, call it whatever. The Supreme Court has said that the task of interpretation cannot be undertaken in order to impeach the meaning of text with extra-textual considerations (Telus v Wellman, at para 79).
- Aside from the in-principle objection, there is a practical problem. While pragmatists claim that they are bringing the judicial reasoning process into the open, forcing judges to justify the weights they assign to various interpretive factors, in truth a fully-discretionary approach permits judges to reach any result they might wish, especially if they take into account broad “values-based” reasoning, as Sullivan advocates, or source purpose at some high level of abstraction, untethered to text.
- Finally, the invitation to consider all factors in statutory interpretation, invited by Rizzo and the pragmatists, seems to assume that each interpretive factor will have something to say in a range of cases. But there are inherent problems with each interpretive factor, including text. The question for statutory interpretation methodology is, in the run of cases, which factors are more persuasive and controlling? By failing to provide an ex ante prediction about this question, pragmatists run close to abridging the idea that courts are supposed to develop norms—guiding principles—for statutory interpretation (see 2747-3174 Quebec Inc, at 995-996).
In order to develop these arguments, and address powerful (and some not-so-powerful) counter-arguments, I will be launching a series on Double Aspect on statutory interpretation, designed around the idea of pragmatism. The second post in the series will summarize Rizzo and why it is indicative of a pragmatist approach. The third post in the series will point out, using Rizzo itself, the flaws of pragmatism. It will also laud the Supreme Court and lower courts for, in recent years, blunting the edge of the pragmatist approach. Overall, this series will be designed to show that while text, context, and purpose are relevant interpretive factors, the task of interpretation is one that must be guided by ex ante guiding principles, not an “anything goes” approach. To this end, a recent attempt by Justice David Stratas and David Williams to assign ex ante weights to statutory interpretive factors is laudable and desirable. It should be followed.
A note of caution: the point of this series is not to advocate for a purely text-based approach, or a “plain-meaning approach.” Many have fallen into the trap of simply labelling arguments that highlight the primacy of text as being “textualism” or “plain-meaning.” Many resist the idea of text as a governing factor in interpretation because they believe it is equal to a literal reading, or because it does not take context into account. Virtually no one advocates for this line of thinking anymore. It is a strawman.
Additionally, the point of this series is not to impugn pragmatism wholesale. Instead, the point of this series is to point out that while pragmatism and flexibility have their place in interpretation, those things cannot come at the expense of an interpretive methodology that guides judges according to the core tenets of our legal system, including the separation of powers, as understood by the Supreme Court (see again Telus v Wellman, at para 79).
6 thoughts on “Against Pure Pragmatism in Statutory Interpretation I”
Mark, I like your project, but I think there is a problem with it.
I like it because I think Canadian statutory interpretation law, as currently understood, lacks rigour and is potentially dangerous. It depends too much on some half-remembered bad philosophy of language in which the law school grad has a vague sense that Wittgenstein or Derrida or somebody proved that words don’t really mean anything, so we might as well get the best result possible. This is a bit of a parody, but just a bit. When Posner is talking about “pragmatism”, what he really means is consequentialism. Since he acknowledges that negative systemic effects on formalist values like consistency and the authority of the legislator (or contracting parties) are part of the relevant consequences, even if you accept this, we still have the problems that downgrading the text too much imply for democracy, contractual autonomy or certainty. So I am with you.
The problem with your project is one that a lot of theoretical ideas in law have. You need to avoid the Scylla of saying something no one could really disagree with and therefore has no normative or critical bite as well as the Charybdis of saying something that is so distant from actual legal practice as to be a sectarian or utopian criticism of it. Text cannot possibly be everything in the application of statutes or contracts, as Pufendorf already established with his example that a law against spilling blood on the streets of Bologna could not have the effect of criminalizing emergency surgery. Language is inherently vague and defeasible, and sometimes legal texts are vague and defeasible on purpose. You can’t necessarily get a contract or a constitution if everyone knows how all the cases will be decided.
In Rizzo, the Court takes an offence that could not possibly apply – as an offence – to an insolvent firm (“thou shalt not dismiss without cause unless thou pays severance”) and turns it into a claim that can become part of an insolvency (“a corporation owes its employees severance and that obligation shall rank as any other unsecured debt”). Now to me that is not so much a question of linguistic interpretation as a defeasible legal principle that a statutory prohibition on taking an action without paying money in certain contexts creates a debt, regardless of whether the person would be legally culpable for the action. Even to understand what is at stake requires a set of background presumptions about the difference between public law offences and private law liabilities that cannot plausibly be a matter of textual interpretation.
There is a plausible argument against Rizzo, based on the principle in Saskatchewan Wheat Pool that we should keep offences and liability separate. But that principle is just as much a matter of legal policy as the contrary principle that Rizzo establishes that statutory requirements to pay employees amount to debts and should be treated like them, rather than like crimes.
Now if the problem is that they took a paragraph of Elmer Driedger’s out of context, then that is true. If you keep reading, he actually says the rule is “follow the text unless there is an ambiguity”, which is not the same as “text, context and purpose all ineffably work together to determine legal results.” I think there are real problems with the “follow the text unless there is an ambiguity” because it confuses ambiguity with vagueness and defeasbility and it ignores the point that when we intuitively and pre-reflectively interpret a text, we already take context and purpose into account. But that is what Driedger actually thought, so it is weird that he becomes the poster child of some allegedly “modern” approach. And I have to say I do not think it is a particularly elegant paragraph, so I do not know why it became *the* summary of Canadian interpretation law.
I wonder if you would agree with a starting point like, “The text must make a difference.” (There may be “out of abundance of caution” exceptions unfortunately). In other words, if a legislature is sovereign or parties have contractual autonomy, then it follows that when they say something, it has to change the universe of possibilities that existed before they said it. Their having said it constrains the possibilities available to a good faith adjudicator.
I think we are saying the same thing. I certainly don’t mean to say text is everything—quite the contrary! Such a position is untenable, to my mind. But that is quite different from saying text shouldn’t be the leading consideration, assigned the most weight–which is what I mean to say. I am specifically writing against the notion that all of the interpretive tools are thrown into the hopper and a result is spit out; and that this is a meaningful mode of interpretation. Assigning ex ante weights to various interpretive factors as presumptions does not make text “everything.” If you look at Justice Stratas’ + David Williams’ piece quoted in the post, you can certainly see the approach I am advocating.
I should read the Stratas/Williams piece.
It seems to me that it is *never* OK to say that an authoritative text means P, but the legal rule I will apply is not-P. If it is an unconscionable contractual provision or an unconstitutional law, then it isn’t authoritative and we are outside the realm of interpretation anyway. If what we are doing is interpreting, then it just can’t be right that we don’t apply what the text means because a better rule would be something else.
The problem is that it is easy to confuse this point with the point that rules are often stated in a way that is implicitly defeasible. So “Congress shall make no law abridging the freedom of speech” can’t mean it can’t impose negative consequences on trying to hire a hit man or falsely claim that the mining company whose stock you are promoting found gold. That isn’t really any more mysterious than the fact that when I say, “No one has had anything to eat”, I don’t mean no one anywhere and I don’t mean the folks in the room have never eaten.
The other thing that is that legal language is *supposed* to be general (about types, not tokens, in philosophy jargon), so there is always work left over to the adjudicator to apply it to a fact situation. And legal language can also be deliberately vague, either because the authors have disagreements of application they want to avoid for the sake of getting a deal or because they realize there are situations they cannot foresee and want to leave to whoever is supposed to interpret the text. Anyone who delegates any authority at all faces a trade off between defeating their own purposes by being too prescriptive or by leaving too much discretion in the hands of the delegate.
Generally, the question of when a public law obligation to pay money should be treated like a debt in bankruptcy has been a difficult one, and I wouldn’t necessarily say the Supreme Court has handled it coherently. But one of the reasons it is difficult is that it is the kind of question that legislators don’t think about, so don’t make clear. So I wonder how far we can go with arguments about text or purpose, and how much we have to just say lawyers need to make up their own approaches to these things – which legislators can decide to displace if they think about it, but which prevail when they don’t.
I wonder if “pragmatism” is what you are targeting, partly because I take Cheryl Misak’s view that there is a huge difference between Peirce-style pragmatism and James/Dewey. In the legal theory world, Holmes was a part of the circle of US pragmatists, and he directly influences the legal realists and then critical legal studies and Posner-style law-and-economics. But Misak draws a line from Peirce through Ramsey to the later Wittgenstein, which we could then draw to Oxford ordinary language philosophy and then H.L.A. Hart. I am sympathetic to Hartian pragmatics, which is quite different from Holmes’ “bad man” theory of the law as a prediction of negative consequences from courts.
This is obviously a complicated area and hard to explain simply. William James was notorious for identifying what is true with what is useful. The Peirce tradition would accept the common sense point that there is a difference, because any particular truth might turn out not to be useful and any particular useful belief might turn out not to be true. But while it is declarative sentences that combine concepts (“The cat is on the mat”) that are either true or false, the question of usefulness arises at the level of whether to use a concept at all. So it may be right that we talk about cats and mats because that is useful to us as pet owners in industrialized countries with mass production of mats. If it wasn’t useful, it wouldn’t mean that “The cat is on the mat” is false, but we just wouldn’t formulate it in the first place.
Moving to legal terminology, it becomes right to see the practice of making contracts or statutes or adjudicating in hierarchical courts as social practices that live and die by their usefulness without saying that what a specific statutory provision means just comes down to how useful it would be to interpret it one way or the other.
Which is all a long winded way of saying “#notallpragmatists”