University Press, 2011), 42, 44.
Larry Solum, Chapter 3 of this book.
I have drawn this distinction since 1994: see Goldsworthy, chapter note, 162.
Clarifying interpretation can, of course, often resolve problems such as ambiguity, but not
pretation, and amounts to judicial amendment.
Goldsworthy, chapter note, 42, 62–3; J. Goldsworthy, ‘Interpreting the Constitution in Its Sec-
112
Jeffrey Goldsworthy
It is therefore useful to distinguish between three different processes that are
included in the broad term ‘interpretation’ when applied to legal texts:
(1) Clarifying Interpretation: revealing or clarifying a law’s pre-existing
meaning(s), including any implied as well as express meanings;
(2) Creative Interpretation, comprising:
(a) Supplementing Interpretation: supplementing those pre-existing
meanings in order to resolve indeterminacies; and
(b) Rectifying Interpretation: changing those meanings in order to cor-
rect or improve the law.
It should be noted that most judges are reluctant to admit their creative
role, which is partly why they use the same word, ‘interpretation’, without dis-
tinguishing between these different processes. But these distinctions can help
in analysing the role of different interpretive principles and arguments (such
as legal presumptions, maxims and canons of interpretation), including those
that concern implications. Consider the first distinction I drew, between impli-
cations that are common to both ordinary language usage and legal usage and
so-called implications that are peculiar to laws because they are determined
by distinctively legal interpretive principles. I will argue that implications of
the former kind are revealed by clarifying interpretation, whereas those of
the latter kind are really added to legal texts through rectifying interpretation.
I will call those of the former kind ‘genuine’ implications and those of the
latter kind ‘fabricated’ implications. The word ‘fabricated’ is not used to insin-
uate illegitimacy; to the contrary, I will argue that some of them are fully
justified.
17
Linguistics and philosophy of language have much to teach us about the
nature of linguistic meaning and communication. They have little to say
about supplementing or rectifying interpretation, which require legal, moral
and political, rather than linguistic, judgments. But they can illuminate clari-
fying interpretation, which aims at revealing or clarifying the law’s pre-existing
meaning(s), implied as well as expressed. In this regard, it is necessary to dis-
tinguish between ‘linguistic meaning’ and ‘legal meaning’. ‘Legal meaning’
is the meaning that judges ultimately assign to a provision, after applying all
relevant interpretive principles and techniques; it results from clarifying, sup-
plementing and rectifying interpretation. It does not precede but is the con-
sequence of, legal interpretation. But clarifying interpretation is concerned
with revealing or clarifying linguistic meaning that necessarily pre-exists legal
interpretation.
18
17
Ibid.
18
One might ask why pre-existing meaning does not depend on special legal interpretive prin-
ciples as well as ordinary ones. The answer is that the function of legal interpretive principles