Book Review: Statutory Interpretation: Pragmatics and Argumentation
Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.
Statutory Interpretation: Pragmatics and Argumentation. By Douglas Walton, Fabrizio Macagno, and Giovanni Sartor. New York, NY: Cambridge University Press, 2021. 331p. Includes figures, tables, and bibliographic references. ISBN 978-1-108-42934-4 (hardcover) $126.95.
Reviewed by Emily Da Silva
Research Librarian (Education, Law, Management, and Social Sciences)
University of Ottawa
In CLLR 46:3
The product of a long-standing and fruitful international collaboration, this work is a unique multidisciplinary contribution to the literature on statutory interpretation. Authors Douglas Walton (1942–2020), adjunct professor in the Department of Philosophy and Distinguished Research Fellow at the Centre for Research in Reasoning, Argumentation and Rhetoric (CRRAR) at the University of Windsor; Fabrizio Macagno, assistant professor of Philosophy and Communication at the Universidade Nova de Lisboa; and Giovanni Sartor, professor of legal informatics at the University of Bologna, combine their diverse research interests in argumentation, legal theory, pragmatics, dialectics, and artificial intelligence to present a framework for identifying, representing, and assessing the argument structures that underlie statutory interpretation.
The work is divided into six sections, each progressively building on the concepts elaborated in the previous section. Drawing on a diverse body of literature in legal theory and linguistics, in the first section the authors establish their characterization of statutory interpretation as a fundamentally argumentative activity and then introduce the notion of argumentation schemes (typologies of arguments or interpretative canons) that is further explored in depth in the subsequent sections.
In the second section, the authors argue that statutory interpretation is a species of problem-solving dialogue. Building on the instrumentalist theory of statutory interpretation, as well as the deliberation dialogue model of formal argumentation from the field of artificial intelligence, the authors distinguish statutory interpretation as dialectical problem solving from adversarial legal argumentation in which opposing parties seek to establish that a claim is acceptable to a required standard of proof. The authors contend that the goal of statutory interpretation “is not to establish the acceptability of a viewpoint, but rather to make a decision on the meaning to attribute to a legal statement” (p 55). They create a general argumentation model of problem solving that can be represented diagrammatically and apply this technique to analyze the argumentation and decision-making process in Google Spain v Costeja González (2014), in which data protection regulations are interpreted in relation to search engines and the right to be forgotten.
In the third section, the authors explore the concept of ambiguity through the lens of pragmatics and philosophy of language. They contend that so-called linguistic or textual arguments derive from pragmatic inferences. To support this argument, they apply linguistic techniques to analyze the treatment of syntactic and semantic ambiguity in several well-known U.S. Supreme Court cases and diagram the relationships among the various linguistic arguments and counterarguments to reveal their structure. For example, the authors’ analysis of District of Columbia v Heller (2008), a case that addressed whether a ban on handguns violated the Second Amendment right to “keep and bear arms,” reveals that both the majority and dissenting views rely on “pragmatic enrichment” of the text to resolve ambiguity.
The fourth section further develops the possibility of the pragmatics of legal interpretation by examining the relationships among Paul Grice’s pragmatic maxims, the legal cannons of interpretation, and the types of interpretative arguments and by seeking to order the underlying presumptions in a logical hierarchy. The fifth section builds upon the authors’ previous work on the logical analysis of interpretive arguments to classify interpretative arguments into five main types, laying the groundwork for the formalization of these types as argumentation schemes, which they define as “abstract structures that allow the identification of the different types of premises used, and the assessment of both the acceptability of the inference and the strength of the evidence used” (p 151). In the sixth section, the authors propose that these argumentation schemes can be modelled using a formal and computational argumentation system in which graphs with nodes represent propositions and relationships among them. To illustrate, the authors use the Carneades argumentation system to map out the complex legal reasoning (premises, conclusions, supporting arguments, attacks, counterattacks, and inferences) employed in Dunnachie v Kingston-upon-Hull City Council (2004), a case dealing with the interpretation of the term “loss” in the Employment Rights Act 1996 (UK).
This work contributes meaningfully to the literature on legal reasoning by presenting a compelling case for further examination of an instrumentalist and pragmatic approach to statutory interpretation, which in turn opens new avenues for research in the application of computation and artificial intelligence to the field. The strength of this work is the extensive use of real-world examples drawn from both common law and civil law cases to illustrate the application of the authors’ analysis. The authors do not assume extensive prior knowledge of the five varied disciplines that the work integrates, defining key concepts as needed and pointing out relevant areas of controversy in the literature. However, the work falls short of its ambitious aim to offer practitioners and laypeople the tools necessary to render comprehensible the logic and justification of statutory interpretation. The culminating section where the argumentation schemes are fully developed using formal computation argumentation systems will be challenging for those without a background in computational logic. This work will be of primary interest to researchers in artificial intelligence and law, statutory interpretation, argumentation theory, and pragmatics.
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