正 义 的斯卡利亚有合理的理论阐释-证据可采的意义和原则Scalia-Interpretation.pdf

DID JUSTICE SCALIA HAVE A THEORY OF INTERPRETATION? Boston University School of Law Public Law & Legal Theory Paper No. 17-01 forthcoming , 92 Notre Dame L. Rev. (2017) Gary Lawson Boston University School of Law This paper can be downloaded without charge at: /law/faculty-scholarship/working-paper-series/ DID JUSTICE SCALIA HAVE A THEORY OF INTERPRETATION? Gary Lawson* (forthcoming, 92 NOTRE DAME L. REV. – (2017)) ABSTRACT It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a the ory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determinatio