RS 25

whose legislative history forms a proper source of law.The development in EU law seems to be one of a growing divergence between legal theory and the expression of law in real life. On the one hand, legislative history is not recognised as a source of law, while on the other, its importance in statutory interpretation is growing. If that is the case, the same gap also distinguishes American and English law today. We shall now briefly revisit Justice Scalia and the school of textualism. Why has this school come about?Why suddenly advocate a return to the objective wording of the statute and proclaim that legislative history is not to be trusted?The main cause of Scalia’s textualist initiative seems to be the historical situation existing today - that is, the irrefutable fact that lawyers actually make use of legislative history regardless of quality, content, or availability, and that such use is increasing.This complaint lies at the heart of Scalia’s criticism. American lawyers pay too much attention to legislative history and waste time and money digging through endless heaps of materials of legislative history in desperate attempts to find some support for any interpretation that can be construed as an expression of legislative intent, when in fact they should know better.According to Scalia This description of how American lawyers conduct themselves when presenting their arguments before the US Supreme Court is confirmed by the sheer number of books and internet databases, their sole purpose being to help lawyers (and judges) to distinguish which parts of this material are important and where they can be retrieved. Manuals of statutory interpretation indicate that legislative history plays an important role in statutory interpretation, despite textualist pleadings.20 r i chard nordqu i st 205 19 Scalia p. 31. 20 Research of legislative history has even turned into profitable business; see www.legintent.com In the past few decades, however, we have developed a legal culture in which lawyers routinely - and I do mean routinely - make no distinction between words in the text of a statute and words in its legislative history. My Court is frequently told, in briefs and oral argument, that ‘Congress said thus-and-so’ - when in fact what is being quoted is not the law promulgated by Congress, nor even any text endorsed by a single house of Congress, but rather the statement of a single commit- tee of a single house, set forth in a committee report.19

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