The ‘Meta’-significance of Scalia’s A Matter of Interpretation: Reflections on a Theory and Ethics of Judicial Legislative Power

Abstract

Abstract The article focuses on a metatheory of legal interpretation as provided or implied in Antonin Scalia’s famous essay A Matter of Interpretation. It is not so much textualism itself what is being analysed here as its theoretical and philosophical foundations. Following this route, the article reveals a complex ideological framework of intersections between domains of democracy, common law, stare decisis, jusnaturalism and juspositivism. By moving judicial legislative power to the forefront, the analysis opens up the existence of two rather different, if not opposite, legislative strategies in the contemporary government: a regular one, exercised by its political institutions (parliament being the main one), and a specific one, exercised by the judiciary. The article proceeds with a critical analysis of two justifications of the latter—one more formal and another more substantial. Finally, the article develops a basic practical hierarchical structure of principles or rules that should settle down legislative powers by neutralising the apparent fundamental contradiction in Scalia’s essay (i.e., being pro-democrat and pro-liberal at the same time).