Strained Interpretations. (28th February 2019)

• Record Type: Journal Article
• Authors: Perry, Adam
• Is Part Of: Oxford journal of legal studies. Volume 39:Number 2(2019:Summer)
• Page Start: 316
• Page End: 343
• Publication Date: 2019-02-28
• Subjects: statutory interpretation -- evidence -- legal reasoning -- parliamentary sovereignty; Law -- Periodicals; Law reviews -- Periodicals; 340.05
• DOI: 10.1093/ojls/gqz001
• Languages: English
• ISSNs: 0143-6503

Abstract

Abstract: Judges often give statutes strained interpretations. What makes an interpretation strained? What, if anything, justifies a strained interpretation? Is there always a point past which an interpretation would be too strained, or are there some interpretations which judges are entitled to adopt, whatever a statute says? I claim to answer all of these questions. Using the formula about conditional probability known as Bayes' theorem, I offer a precise definition of a strained interpretation, and identify two reasons for strained interpretations. I claim that the case for strained interpretations is often stronger than is realised, and illustrate that claim with a novel defence of the House of Lords' decision in Anisminic Ltd v Foreign Compensation Commission . Finally, I suggest that even if a legislature is sovereign, there may be meanings which a legislature is unable to enact into law. Thus, there may be limits on even a sovereign legislature's powers.