This paper, a substantially revised version of a paper previously entitled (and posted as) ‘A Critical Examination of the Distinction between Interpretation and Construction’, argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the ‘construction zone’. For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.
Schauer, Frederick, Constructing Interpretation (October 19, 2020). Boston University Law Review, forthcoming, Virginia Public Law and Legal Theory Research Paper No 2020-74.