Abstract
In this paper I examine the counterfactual test for legislative intention as used in Riggs v. Palmer. The distinction between the speaker's meaning approach and the constructive interpretation approach to statutory interpretation, as made by Dworkin in Law's Empire, is explained. I argue that Dworkin underestimates the potential of the counterfactual test in making the speaker's meaning approach more plausible. I also argue that Dworkin's reasons for rejecting the counterfactual test, as proposed in Law's Empire, are either too weak or unsound. A deeper reason for rejecting the counterfactual test as a method for the speaker's meaning approach is proposed in this paper. The difference between the counterfactual test and other tests for legislative intention which seem also to make use of counterfactual conditions in explained.
Similar content being viewed by others
Author information
Authors and Affiliations
Rights and permissions
About this article
Cite this article
Lee, WC. Statutory interpretation and the counterfactual test for legislative intention. Law Philos 8, 383–404 (1989). https://doi.org/10.1007/BF00172033
Issue Date:
DOI: https://doi.org/10.1007/BF00172033