In his new article, Reading Statutes in the Common Law Tradition (forthcoming Virginia Law Review), Professor Jeff Pojanowski examines the role common law tradition plays in statutory interpretation. Jurists and scholars concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. Professor Pojanowski notes that they simply differ over whether the common law tradition is worth preserving. Contemporary debate offers a choice between continuing with common law tradition or formalist interpretation that breaks with that heritage.
Professor Pojanowski states that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation.
More broadly, Professor Pojanowski says that we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. He states in his article that there are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system.