A Dynamic Judicial Approach to Diachronic Legislative Integrity

(2020) 33:2 Canadian Journal of Law & Jurisprudence 481

11 Pages Posted: 28 Oct 2020

See all articles by Michaël Lessard

Michaël Lessard

University of Toronto, Faculty of Law

Date Written: September 11, 2020

Abstract

Courts are committed to promoting the diachronic integrity of legislative bodies, whether or not the latter are devoted to it. Such commitment materializes through theories of statutory interpretation that assume the law forms a consistent, coherent and complete whole. Courts assume that legislative bodies already —and have always— abided by ‘diachronic integrity’, that is, a commitment to consistency and coherence over a series of legislative decisions. Yet, contrary to this assumption, legislatures do not do so. Legislative bodies may change their mind over time.

I argue that a realistic respect for diachronic legislative integrity should account for the dynamism of legislative activity. Whereas a ‘static’ account assumes that legislative bodies have reached some sort of reflective equilibrium where each piece of legislation is consistent and coherent with the others, a ‘dynamic’ account understands that legislative bodies are instead in an ongoing process of building this consistency and coherence and revising their judgments and principles upon learning new information, discovering undesirable outcomes and changing decision makers. Such a dynamic judicial approach to diachronic legislative integrity is more respectful of democracy.

Keywords: Statutory interpretation, diachronic integrity, democracy, reflective equilibrium

Suggested Citation

Lessard, Michaël, A Dynamic Judicial Approach to Diachronic Legislative Integrity (September 11, 2020). (2020) 33:2 Canadian Journal of Law & Jurisprudence 481, Available at SSRN: https://ssrn.com/abstract=3691109

Michaël Lessard (Contact Author)

University of Toronto, Faculty of Law ( email )

Toronto
Canada

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