Foreword
Canada is not badly served by books on statutory interpretation. Driedger on the Construction of Statutes by Professor Ruth Sullivan and The Interpretation of Legislation in Canada by Professor Pierre-André Côté are works by serious scholars that push well beyond the catalogues of conflicting maxims, canons, and theories that have traditionally passed for works on statutory interpretation.
Does the present work add any new value? I think it does. What Professor Graham proposes is a way of harmonizing the various theories of statutory interpretation. He argues that there are distinctive and recurring problems of meaning in statutes that can be classified into several categories — which he calls vagueness, ambiguity, subtext, and analogy — and that there is an appropriate method of dealing with each problem. The result is not exactly a single theory of interpretation, but rather an organizing principle under which there is a place for seemingly irreconcilable ideas, such as originalism and dynamic construction. The book thus suggests, with copious authority, practical and useful solutions to problems of statutory interpretation. It is, if you like, a path out of the swamp that practitioners, judges, and academics will appreciate when faced with difficult problems of interpretation and myriad approaches to their solution.
This book originated as a doctoral dissertation to which the examiners gave the accolade "outstanding." I was the supervisor of the dissertation. I can take little credit for the quality because Graham's research quickly exceeded the limits of my capacity to provide guidance. One of the great merits of the work is that he treats statutory interpretation as implicating theories of meaning that have been advanced outside the world of legal scholarship. Deconstruction is "explained" (if such a thing is possible) to those of us who simply quail in fear at the disappearance of all verities and marvel at our ability to keep dental appointments and stop at stop signs. The migration of deconstruction into law through the critical legal studies movement is also respectfully addressed. But, although Graham's work does not ignore these postmodern claims that all texts are indeterminate, he offers some gentle criticism of such nihilistic ideas. The fact is that legal texts must be given practical meaning, and he gets on with that task.
One of the worst things about being a lawyer is that you have to read so much bad writing. Graham's writing is a welcome relief. His style is graceful and witty and the book is a fascinating read. You will think that my affection and respect for the author have carried me over the top when I say that the book is actually hard to put down! I can only say: try it for yourself.
Peter W. Hogg
Dean, Osgoode Hall Law School of York University
February 19, 2001
Preface
In a perfect world, no one would ever write about statutory interpretation. Statutory language would be clear and unambiguous. Judges would have no trouble applying statutory language to whatever cases happened to come their way. Lawyers would never argue about a statute's “plain meaning,” and references to legislative intent would be abolished. Peace and harmony would prevail, and this book would be absolutely pointless. Unfortunately, our world is far from perfect, and legislative language often requires interpretation. To make matters worse, the growing number of theories concerning statutory construction simply adds to the confusion, leaving lawyers and judges wondering which of the many available theories is best suited for any given interpretive problem.
The purpose of this book is to develop a method of harmonizing the many discordant theories of statutory interpretation. For reasons that will become apparent, the method by which this purpose is pursued will be referred to as "the unified theory."
The unified theory is not the solution to all problems of construction. It can neither eliminate the need for statutory interpretation nor render prevailing theories of construction obsolete.At its most basic level, the unified theory is simply a method of deciding which of the various theories of construction is the most rational method of resolving particular problems of construction. The unified theory pursues this modest goal by (1) exposing the implications of typical patterns of language used by legislative drafters, and (2) linking these drafting patterns (and the problems that they cause) to interpretive theories that provide the best method of construing legislation that exhibits the relevant pattern. Drawing on elements of originalism, dynamism, deconstruction, and critical legal studies, the unified theory attempts to explain which component of the competing interpretive theories is best suited for resolving particular problems of legislative language. Whether the problem arises as a result of vagueness, ambiguity, subtext, or analogy, the unified theory recognizes the drafting practice that gave rise to the relevant problem and points the court toward the correct method of arriving at a solution. In this manner, the unified theory attempts to unify several theories of construction, drawing on their strengths while attempting to avoid their many pitfalls. By tying each of the relevant theories to specific problems of legislative language, the unified theory assists interpreters of statutes, helping judges choose the appropriate method of dealing with any problem of construction.