The second option is a little more promising. It is possible for judges to agree on a test (or chain of criteria) that validates a particular method of legal interpretation, but are unaware that the test does so because the application of the test is controversial. For example, a theorist might try to argue that judges agree on a normative criterion, but they disagree on what that criterion, properly understood, implies. Or a theorist might argue that judges agree on a descriptive criterion, but have a factual disagreement about what that descriptive criterion entails. Perhaps there is a forgotten custom that is confirmed by the recognition rule, which states (if understood as required by the recognition rule) that laws contribute to the law in their literal meaning, and that there are no conflicting norms validated by the recognition rule. Such possibilities cannot be ruled out a priori, but it is clear that it would be a major task to show that there is consensus on a criterion which, properly understood, results in a controversial method of interpretation. When a court interprets a statute, it is guided by the rules of legal interpretation. Judges should first try to find the “clear meaning” of a law solely on the basis of the wording of the law. If the law itself is not clear, a court can use external evidence, in this case legislative history, to interpret what Parliament meant when the law was passed. It is now common for statutes to contain “interpretive clauses” that contain definitions of keywords that often appear in statutes. These clauses are intended to promote the clear meaning of the law and to prevent the courts from finding their own meaning. Another significant departure from the simple assumption that the correct theory of legal interpretation simply follows true legal theory would take into account the abilities and limitations of legal interpreters. The consideration of limited rationality raises important questions for a theory of legal interpretation.
Judges, to take a particularly large group, work with limited time and information and they are subject to human cognitive limitations and biases that are much discussed in recent literature. See the entry Bounded rationality. Given these facts, it may be counterproductive for judges to work directly to treat sources of law in a way that contributes to justice in the same way that they actually contribute to it. Overall, they could better identify precisely the ways in which sources contribute to the content of the law if they instead follow a relatively simple rule of thumb. [41] Similarly, we may also have special accounts for other participants in the justice system, such as legislators, law enforcement officers and police officers. In addition to the emphasis on public importance mentioned in the previous section, a characteristic position of the new originalists is the emphasis – in their vocabulary – on a distinction between “constitutional interpretation” and “constitutional construction.” Although the new originalists make this distinction, constitutional interpretation involves establishing the “public scope” of the constitution at the time of its ratification. (For “public importance,” see section 4.2.) Constitutional construction, as defined by some of the new originalists, implies constitutional jurisdiction in cases where the original meaning “expires,” “does not provide a single rule of law,” or “dictates no single application.” Barnett, 2013, p. 619; 1999, 645–46; Whittington, 1999a, p. 7. In such cases, the new originalists believe that an “act of creativity beyond interpretation” – “the construction of meaning” – is necessary.
Whittington 1999a, 7th Solum (2010) and Barnett (2011) make the significantly different distinction in that they understand constitutional interpretation as the conclusion of the “legal effect” of a provision, including its contribution and application to certain cases (see Berman and Toh 2013 564-70). Typical linguistic arguments defend a particular approach to legal interpretation by invoking claims about the functioning of language or communication.