ABSTRACT
In considering the interpretation of legal documents, there is a well-known debate between so-called ‘textualists’ (sometimes ‘originalists’) and those who adopt a ‘living tree’ (sometimes, ‘living constitution’) account. The view defended here suggests that there is a sense in which a version of both interpretive views is correct, and that the seeming conflict between living tree and textualist accounts is only apparent. In fact, it is argued that the very intuition that underlies a textualist conception of legal interpretation, that the meaning of a legal test is fixed by the meaning of the words as used by the law's ratifiers, supports an idea of the law as living. The resolution relies on lessons that can be gleaned from the philosophy of sport, and in particular from an ‘ethos’ account of rules and game-playing. On a version of an ethos account of games, the game-players are the ones who are empowered to interpret and apply the rules to which they are subject (to which they subject themselves). Indeed, they are the original ratifiers of the rules of their game. The analogy then is that a contemporary citizenry, being the ‘players in the game’, are the true ratifiers of the rules (laws) to which they are subject. Thus, the meaning of a legal text is determined relative to the text's contemporary meaning.
