As an interpretive method, textualism is the most widely used method of statutory interpretation. This method is often employed as the first step in interpreting the meaning of laws and statutes. In a strict sense, this method has four steps: 53(1) decide if the word in
53 With reference from Ren-Shou Yang, Methodology of Jurisprudence 47( San Min Book, 1986) (楊仁壽，
《法學方法論》 三民書局，頁 47，1986 年 11 月。
question is an ordinary expression or a term of a specialized field; (2) find both the denotative (narrow) and connotative (broad and implied) meaning and any grammatical implications by consulting the dictionary, referring to the history or purpose of the legislation, and analyzing the syntactic structure of the statute; (3) consider any vagueness or ambiguity involved in the meaning and construction; and (4) evaluate the results to see if it is necessary to apply other interpretive methods. Below are two examples of applying textualism first, crosschecked by the history and purpose of the then legislation when any type of vagueness or ambiguity occurs.
Take Article 321, Paragraph 3 of the Criminal Code of the ROC as an example. Pay attention to the usage of the word “weapon.” The statute states:
A person who commits larceny under one of the following circumstances shall be sentenced to imprisonment for not less than six months but not more than five years: (1) Entering at night a dwelling, a structure used as a dwelling, or vessel, or concealing himself therein; (2) Damaging a window, door, wall, or other protective feature; (3) Carrying a
dangerous weapon; and (4) Doing so in a group of three or more persons.54
54 Chinese Original of the ROC Criminal Code Article 321:犯竊盜罪而有左列情形之一者，處六月 以上、五年以下有期徒刑：
In clause 3, the word “weapon” needs clarification. Deciding that it is a term belonging to the forensic field, we might look it up in the online Black’s Law Dictionary, which defines
“weapon” as “An instrument used in fighting; an instrument of offensive or defensive combat.
The term is chiefly used in the statutes prohibiting the carrying of “concealed or deadly weapons.” In 1985, to clarify the meaning of “weapon” after the statue has been legislated for some time, the Taiwan judiciary decided that: “A ‘weapon’ is interpreted as an instrument which causes threat to the life, body, and safety of a human being, the carrying of which can be effected by either holding, grasping, wielding, or bringing (持、執、懷、帶).”55
In a dispute between Nicaragua and Costa Rica relating to a bilateral treaty on navigational rights, in 2009 the International Court of Justice (ICJ) had to interpret the term
objectos in the phrase “con objectos de comercio.” The interpretation of objectos can either
have a denotative (narrow) or connotative (extended) meaning. The result of the interpretation would determine whether the treaty allowed Costa Rica to transport passengers in addition togoods. Nicaragua interpreted this term narrowly, translating it as “with articles of trade,” thus
55 See Supreme Court year 74 (1985) the Third Criminal Court Meeting Final Resolution最高法 院 74 年度第 3 次刑事庭會議決議)
limiting its meaning to goods, and limiting the meaning of comercio to the purchase and sale of those goods or merchandise. Costa Rica then examined the purpose and history of the legislation and interpreted the phrase broadly, translating it as “for the purpose of doing commerce.” The ICJ finally decided to interpret it in an abstract way, according to the context of the phrase in the statute. The above two cases demonstrate how “textualism” is used as the primary interpreting method, crosschecked by looking at the history and purpose of the
legislation, to tackle a confusing statute or settle an international trade dispute.
In the early 1990s, a trend emerged in the US favoring the pure textualist approach and deemphasizing the historic and purposive methods. Professor William Eskridge has described the rise of this “new textualism” that Justice Scalia brought to the US Supreme Court.56
Professor Eskridge argues that once the court has ascertained a statute’s plain meaning, it is irrelevant to consider legislative history in interpreting statutory texts. New textualists contend that a collective body of people enacting laws may not be fully aware of their intent, and that legislators may not even be fully aware of the legislative history that some claim are indicative of its intent. Moreover, textualists argue that since legislation is often the byproduct of political compromise rather than affirmation of any intent, the search for intent should be restricted to what can be discovered from the statutory text. When words or phrases have
56 See William N. Eskridge, Jr., The New Textualism, 37 UCLA Law Review 621, 623, and note 11, 1990. In this book Eskridge discuses Justice Scalia’s rejection of any reliance on legislative history in the Court’s analysis of a statute’s plain meaning. He defines “new” in the term “new textualism” as “intellectual inspiration: public choice theory, strict separation of powers, and ideological conservatism.”
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multiple meanings, the correct interpretation can only be found by considering their context.
Later, Justice Alito brought a different flavor of textualism to the Court. For him, the text of the statutes still reigns superior, but the legislative history can be used to provide some
context in which the statutes should be read. In the legal field, his method is referred to as
“Newer Textualism.”57