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Deferentialism: Soames on legal interpretation

Abstract

This essay explores themes raised by Scott Soames in Chapter Twelve of The World Philosophy Made. Soames’s key contribution is the articulation of a general theory of legal interpretation and more specific theory, Constitutional Deferentialism, that is a form of public meaning originalism. His development of the connections between the philosophy of language and legal interpretation have been especially important and influential.

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Notes

  1. Page numbers in parenthesis that are not preceded by a name are references to The World Philosophy D.

  2. The word verdict in American law refers to the decision rendered by a jury.

  3. For an example, see Goldberg (2006).

  4. There are several different members of the originalist family, including: (1) original intentions originalism, (2) original public meaning originalism, and (3) original methods originalism. (Solum, 2019).

  5. There are many different forms of living constitutionalism. Important members of the family include: (1) constitutional pluralism, which holds that constitutional doctrine should result from a complex argumentative practice that incorporates multiple modalities of reasoning, including text, precedent, historical practice, constitutional values, and consideration of institutional capabilities, (2) common law constitutionalism, which asserts that constitutional law should be made by judges through a case-by-case common law method, and (3) the moral readings theory, which asserts that the legal content of constitutional law should be determined by the moral theory that best fits and justifies constitutional practices as a whole. (Solum, 2019).

  6. I am grateful to Scott Soames for clarification of the relationship between the normative and positivist dimensions of his theory with respect to this issue.

  7. A search using the string “Scott Soames” in the Westlaw “Law Reviews & Journals” database yielded 118 hits on July 24, 2021.

  8. The passage is from Jones v. Governor of Fla., 975 F.3d 1016, 1104–05 (11th Cir. 2020). The internal quotation is to “Stephanie H. Barclay, Brady Earley, & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Ariz. L. Rev. 505, 528–29 (2019).”

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Acknowledgements

I owe thanks to Scott Soames for comments on a draft.

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Correspondence to Lawrence B. Solum.

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William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law and Douglas D. Drysdale Research Professor of Law, University of Virginia School of Law.

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Solum, L.B. Deferentialism: Soames on legal interpretation. Philos Stud 179, 2097–2107 (2022). https://doi.org/10.1007/s11098-021-01752-8

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Keywords

  • Statutory interpretation
  • Constitutional interpretation
  • Construction
  • Semantics
  • Pragmatics