Andy Yu (Western): The ‘Always Speaking’ Principle of Statutory Interpretation

Andy Yu is an assistant professor at Western Law, and will be presenting the fourth paper of Trinity Term: “The ‘Always Speaking’ Principle of Statutory Interpretation".

Abstract:

According to the “always speaking” principle of statutory interpretation, statutes are “always speaking”, but what exactly does this mean? The principle has long been part of the law in Commonwealth jurisdictions, with legislatures codifying the principle in interpretation statutes and courts recognizing the principle in the common law. But it has only been in the last few decades, and especially the last few years, that judges, lawyers and academics have started to pay more serious attention to the principle. Can we make sense of the principle, or is it irremediably unclear or confusing? Does the principle do substantive work, or is it redundant given other principles of statutory interpretation? Can it be helpful to invoke the principle, or should we abandon the principle? The doctrine and scholarship on the principle reflects a range of answers to these fundamental questions, but the lack of consensus on what the principle even is, let alone its significance to legal reasoning, is concerning. Judges and lawyers are increasingly invoking or purporting to invoke the principle in various cases, while academics are increasingly interested in the theory and doctrine underlying the principle.

 In this article, I articulate and develop a theoretical account of the principle that clarifies what the principle is and explains its significance to legal reasoning. On the account, statutory language is generally “always speaking”, and statutory language that is “always speaking” expresses what I call a “live” concept rather than what I call a “frozen” concept. The account incorporates insights from the philosophy of language by employing the distinction between a concept’s intension, or criterion of application, and the concept’s extension, or range of application. While a frozen concept must have constant extensions and intensions, live concepts can have variable extensions across time. Further, the account vindicates the doctrine on the principle.

 Ultimately, I seek to show that we can make sense of the principle, that the principle does substantive work, and that it can be helpful to invoke the principle. We can make sense of the principle given more general considerations from the philosophy of language. The principle does substantive work in that, while the modern principle of statutory interpretation holds that we are to interpret statutory language given the whole context, including the purpose and history, the “always speaking” principle holds that the concept that statutory language expresses is live. And it can be helpful to invoke the principle, as doing so permits and requires us to give effect to the concept expressed by statutory language as the concept exists at the time of interpretation rather than as it existed at the time of enactment.

This seminar takes place in Massey Room, at Balliol College, University of Oxford (Broad St, Oxford OX1 3BJ) at 5:00pm on Thursday 15 May.

This event is open to anyone. No registration needed.

Pre-reading is desirable and strongly suggested, but not a requirement to attend.

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