- The Institutional Theory of Legal Interpretation†
Legal theory has long been dominated by debates concerning the primacy of different high-level conceptual commitments, such as democracy and constitutionalism. Those who champion ideals of self-government are attracted to some version of legislative supremacy and are quick to point out the shortcomings of an account of legal interpretation that posits a robust and influential role for politically insulated and unaccountable judges. This can be contrasted with the stance taken by those who champion judicial activism and see the Constitution and the judicial branch of government as guarantors of individual rights and a vital and essential tempering force against the ‘tyranny of the majority.’ Because the judiciary is politically insulated in a way that legislatures are not, argue the proponents of robust judicial review, the Supreme Court can be viewed as the exemplar of ‘public reason’1 and thus trusted to be the final arbiter of many contentious social and political questions.
Conceptual analyses that emphasize the importance of judicial review often point to legal decisions that have helped promote and protect citizens’ fundamental rights and freedoms as evidence of the important role the courts play in guarding against the dangers inherent in majoritarianism. The most celebrated example from American constitutional law is the 1954 Supreme Court decision in Brown v. Board of Education,2 in which the Court outlawed racial segregation in public educational facilities. In his provocative and masterly book Judging under Uncertainty, Adrian Vermeule argues that Brown was actually the wrong decision, in the sense that judges have no business deciding that sort of question in the first place (280). Those who champion judicial supremacy – or, for that matter, legislative supremacy – have failed to take full stock of the [End Page 217] costs and benefits of the operating-level rules that they deduce from theoretical commitments such as constitutionalism and democracy.
Rather than championing a rival theoretical framework, Vermeule seeks to displace the dominance of what he calls ‘first-best conceptualism’ in legal theory and instead argues that interpretive law needs to take an institutional turn. Institutional questions, he argues, are inescapable: ‘It is impossible to move directly from high-level commitments – about democracy, language, or the nature of law – to the operational level of interpretative rules judges use’ (71). Vermeule claims that
[p]remises about democracy, or constitutionalism, or the nature of law, of statutes, or of language . . . are fatally abstract. Such claims are pitched too high; they typically lack the cutting power to resolve operational controversies at the ground level about what interpretive rules judges should follow. It follows, I shall suggest, that high-level premises are incomplete unless they are supplemented by lower-level institutional analysis. Indeed, I shall also claim, more ambitiously, that in some domains the high-level controversies may be bracketed as irrelevant to the operational problems and thus dispensed with altogether.(63)
Judging under Uncertainty is an ambitious book and a valuable contribution to legal theory. The book deals exclusively with American law, and Vermeule’s institutional approach to legal interpretation takes the existing status quo of the American system as a given. This, one might be tempted to complain, limits the scope and application of the institutional theory advanced by Vermeule. I shall raise some of these concerns toward the end of this review article when I consider some of the insights Canadian jurisprudence could contribute to the development of an institutional theory of legal interpretation (as well as the insights Canadian legal theorists can take from Vermeule’s compelling and important arguments).
Any misgivings one might have concerning Vermeule’s acceptance of the status quo must, however, take seriously the distinctively novel aim of his legal theory. So a charitable reading of his book will highlight the fact that, as Vermeule explicitly states, his theory of legal interpretation is an interim theory of legal interpretation, one that could apply to different legal regimes. By an ‘interim’ theory Vermeule means one that is ‘good only for an awkward transitional period in which academics and judges have begun to appreciate that the dispositive questions about the interpretive system are empirical and institutional rather than conceptual, but in which the relevant...