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Should Common Law Doctrines Dynamically Guide the Interpretation of Statutes?

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Abstract:

Common law and statute have a complex relationship. Some literature has examined if statutory developments should influence common law doctrines; however, the literature has not examined if and how common law doctrines should influence the interpretation of statutes. Dynamic guidance is one approach to the relationship between common law and statute. Dynamic guidance has two limbs: first, it allows common law doctrines to influence the interpretation of statutes, and second, it allows courts to update interpretations if common law doctrines change. However, the normative validity of dynamic guidance is unclear. This article considers if dynamic guidance is valid. This article argues that dynamic guidance is valid; and thus, that common law doctrines should dynamically guide the interpretation of statutes.

Keywords: COHERENCE; DYNAMIC INTERPRETATION; VAGUE WORDS

Document Type: Research Article

Publication date: November 1, 2009

More about this publication?
  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
hart/legis/2009/00000003/00000002/art00002
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