Originalism is so called because it involves interpreting a statute by reference
to its original intention, purpose or object – these expressions variously refer
to the policy of those who made the statute (this policy being labelled the
original or authentic policy). Behind legislative legitimacy is the notion that the
“historical intention [behind the statute] is permanently set, and can never be
changed with the passage of time”.
952
The interpreter’s role resembles that “of
an historian or an archaeologist, in quest of an ancient thought of which the
enactment may contain traces”.
953
Through the process of statutory
archaeology the originalist interpreter sifts through the statute’s text in an
attempt to unearth the intention of the drafters.
954
Legislative legitimacy is squarely based on the notion that “any deviation from
the originalist construction is an improper judicial intrusion into the
legislature’s role”.
955
Originalism is a widely accepted view on how
interpretation should be performed, so much so that it “verges on the
canonical,”
956
although it also has fierce critics.
Proponents of originalism argue that society makes an apparently rational
choice for making law by amalgamating individual choices in the practice of
representative democracy. To make a similarly rational social choice for
interpreting law, the legal system needs to impose a duty on judges to interpret
statutes according to the policy on which they are based.
957
Legislative Legitimacy in Principle
A perfect judge will read each work of wit
With the same spirit that its author writ.
958
Introduction
To be logically supportable, legislative legitimacy must rest on certain
foundations. These foundations comprise the following propositions:
#
Proposition 1: The legislature is perfectly democratic.
#
Proposition 2: When the legislature has passed a statute it has
fully
(or at least sufficiently)
and clearly revealed its intention as to what this
statute means or as to what its purpose is.
#
Proposition 3: The task of a court interpreting this statute is to
interpret the statute by reference to this revealed intention.
___________________
952
Schacter (1995) p 594
953
Coté, Pierre André, (1992) The Interpretation of Legislation in Canada
2nd ed
Cowardville Quebec: Les Editions Yvon Blais, Inc 1992, p 6
954
Graham (2002) p 93
955
Graham (2002) p 97
956
Schacter (1995) p 594
957
See Symmons (1977).
958
Alexander Pope, An Essay on Criticism
 |
 |
 |