Fallacies in Judicial Interpretation

Abstract

This thesis concerns fallacies in judicial interpretation. The central contention of this thesis is that judges commit certain fallacies when interpreting language and that it is possible to detect such fallacies and arrive at alternative, non-fallacious interpretations when they occur. An instance of judicial interpretation is fallacious when it takes into account an irrelevant consideration and it is most likely that a different result would have been reached if that consideration had been omitted, or when it omits a relevant consideration and it is most likely that a different result would have been reached if that relevant consideration had been taken into account. The thesis identifies two specific fallacies which involve judges introducing an irrelevant consideration and usually involve judges omitting relevant considerations. These two fallacies are errors of categorisation, and occur when judges make an interpretive decision on the basis of the irrelevant consideration of the verbal category to which an item can be assigned rather than the relevant considerations which determine the legal category to which it should be assigned. These two fallacies are detected by assessing whether an instance of interpretation is merely based on the verbal category to which an item can be assigned or whether it is justified by relevant considerations. Alternative, non-fallacious interpretations are arrived at by introducing any relevant considerations and omitting any irrelevant considerations.