Between probabilism and pragmatism: an essay on statutory interpretation

Abstract This article examines the credentials of the three dominant modalities of statutory interpretation: textualism, intentionalism, and purposivism. This article argues that these modalities share an unfulfillable epistemic ambition: the quest to uncover the empirically true meaning of a statute—a communicative act of the individuals authorized to legislate—under conditions of uncertainty. Through critical analysis and examination of the English law classics, this article demonstrates that this ambition collapses under the weight of factual indeterminacy. Textualism fails when the ordinary meaning of statutory language is unclear; intentionalism falters when the legislator’s intent is uncertain; and purposivism turns ineffectual when the scope of statutory purpose is unverifiable. This article contends that, in practice, textualism and intentionalism inevitably devolve into probabilism—a procedure that identifies the statute’s most probable meaning based on available evidence—whereas purposivism gives way to pragmatism, which prioritizes cost–benefit analysis and social welfare-maximization. This article then juxtaposes probabilism and pragmatism against each other and concludes that the choice between these two viable modalities depends on whether one prefers to enhance democracy over welfare-maximization, or vice versa.