CONVENTION, SOCIAL TRUST, AND LEGAL INTERPRETATION

This chapter argues that the importance of trust between actors within the legal system has important implications for legal method. Governance by law is a conventional practice. Conscientious officials prefer to follow the law if other officials do so as well, even at some cost to their other aims. But they are unlikely to do so when the law conflicts with their other goals unless they believe that officials with differing moral or political views will also follow the law in similar circumstances. For this reason, trust between actors in the legal system plays an important role in creating and maintaining the rule of law. This has implications for both legal interpretation and institutional design. In general, we should prefer legal methodologies that increase agreement about the content and proper application of the law independently of any epistemic considerations. Theories of statutory interpretation should therefore be chosen in part on the basis of how much agreement they generate between different interpreters. Different methodologies may be preferable in different areas of law. Textualist methodology may yield greater agreement in areas of law in which pervasive moral disagreement generates stark differences in legal intuitions, while purposivist methodologies may be preferable in areas of law in which there is wide convergence in judgment about the underlying normative issues. The result is a modest relativism about interpretive method