The Common Law and Statutes

Controversies about statutory interpretation and the proper roles for judges in interpretation are particularly noticeable in the Supreme Court but have penetrated downward throughout the judicial system. What I mean to explore here are some implications of our common law heritage and the presuppositions of a common law system for these controversies, that seem rarely noticed in the ongoing debates. I mean by this not only common law judging, but also what we might call common law legislating – that is, the practice of creating statutes to achieve marginal changes in existing law in response to perceived deficiencies, rather than legislating comprehensively as continental codes seek to do. At its most basic, my argument will be that our fundamental commitment to the common law, including our commitment to the system of precedent in statutory interpretation, is inconsistent with one approach to interpretation strongly bruited in the debates; this approach argues that the only proper (perhaps even the only constitutionally permissible) aim of interpretation is determining the textual meaning of a statute as of the date of its passage. My argument is premised in the reactive, pragmatic, and precedential qualities of a common law system. Before getting to this doubtless controversial proposition, however, it seems useful to lay some groundwork that I hope will be less problematic