Another example, of course, is the historical development in English statutory interpretation. English law appears to be one of the few legal orders where judges are actually forbidden to consult legislative history, according to a special so-called exclusionary rule.The case of Pepper v. Hart in 1992 is described as a landmark case in the history of English statutory interpretation, since it introduced an official exception to the exclusionary rule. For the first time, judges were officially permitted to consult legislative history, provided that certain conditions were met. This case has been the subject of much criticism. But that is irrelevant. The point I wish to make is that Pepper v. Hart, according to certain eminent scholars, confirmed a well established and well known practice among English judges.21The case thus served to bridge the gap between legal theory and law in real life. Pepper v. Hart simply indicated that even under English law, just as with American and EU law, statutory interpretation is more tied to legislative history than is officially admitted. What conclusions can one draw from these examples? My contention is that the importance of legislative history in statutory interpretation, judging from occurrences such as textualism, the case of Pepper v. Hart, the position of the European Commission in the case just described, and the recently proclaimed distrust of legislative history in legal orders where legislative history is nevertheless recognised as a source of law, such as Sweden, is underestimated.The historical behaviour of lawyers and judges, that is the extent to which legislative historyis used, simply does not correspond to the theoretical position advocated by certain judges and legal scholars - that is, the extent to which legislative history ought to be applied.What are the consequences of this gap? It is fair to assume that legal methodology should at least represent an accurate reflection of what the legally trained person does in the capacity of a professional - that it is, for instance, a correct description of the sources of law used when constructing a legal argument.This is necessary, as it is usually assumed that legal methodology not only has a descriptive function, but also a normative one. It instructs judges and lawyers in matters such as what sources of law are legitimate, what methods of statutory interpretation are to be used, and so on. It is of some re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 206 21 A good description of the historical development is given by S.Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent. Eine vergleichende Untersuchung der Rechtsprechung und ihrer historischen Grundlagen,Tübingen2001, bd. II, p. 967.
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