A recent consequentialist resurgence in transnational legal scholarship urges judges in cases involving authoritative texts to make decisions based on which outcomes will be best for society. Some consequentialist scholars assert that judges should openly disclose these reasons, while others advocate replacing them with any plausible argument employing the traditional language of interpretation. This article argues that making consequentialism the primary basis for judicial decision-making runs counter to the long history of legal interpretation, is contrary to the insights of modern decision science, and raises significant separation of powers issues, even when it is fully disclosed. Covert consequentialism is even less likely to lead to good consequences, and it poses substantial threats to both the separation of powers and the rule of law.
Donald L Drakeman, Consequentialism and the limits of interpretation: do the ends justify the meanings?, Jurisprudence. Published online: 28 Nov 2017. https://doi.org/10.1080/20403313.2017.1395244.