“… This Article offers an alternative theory of interpretation identified as probabilism. At its core, probabilism maintains that judges should view legal rules as a communication between individuals. The parties to that communication are the lawmakers, who give their commands in the form of rules, and the individuals who receive those commands. What these commands say and do not say is a purely empirical fact. Correspondingly, in order to identify the content of such communications, judges should proceed in the same way they carry out factfinding in a bench trial. Under probabilism, the question ‘What was communicated by the individuals who drafted the statute prohibiting the use of vehicles in the park?’ is a question of a potentially uncertain fact. This question is conceptually no different from the empirical question ‘What was communicated by Jane Roe to John Doe on January 1, 2020, when she wrote him a note saying that he should not use any of his vehicles in the park?’ …”
Alex Stein, Probabilism in Legal Interpretation 107 Iowa Law Review 1389 (2022)
First posted 2022-05-31 13:30:54
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