TABLE OF CONTENTS
Introduction
DOI: 10.7208/chicago/9780226445168.003.0000
[linguistics;legal interpretation;constitutional interpretation;law and language;statutory interpretation;semantics;pragmatics;Grice;Gadamer]
This chapter is an overview of the book. The arrangement of the chapters in this book represent various points on the spectrum of interdisciplinary contributions to legal interpretation, with perhaps the later chapters manifesting a more ambitious role for interdisciplinary scholarship in legal interpretation theory. To be sure, descriptive accounts of language and interpretation have the potential to impact legal interpretation in profound ways. Interdisciplinary scholars can significantly contribute to legal interpretation by exploring the ways in which the nature and structure of language interposes on legal discourse, and by describing whether legal interpretation accounts for the nature of language in valid and accurate ways. Yet, readers of this book should also consider whether scholars that bring a perspective from another discipline might legitimately and productively use their expertise to offer accounts of legal interpretation that are more normative in nature. If the answer is “no,” there will nevertheless remain a considerable area in which interdisciplinary insights should be relevant to legal interpretation. If the answer is “yes,” the possibilities of interdisciplinary insights to legal interpretation are significant indeed, and greater than many have imagined. (pages 1 - 13)
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Chapter 1. The Contribution of Linguistics to Legal Interpretation - Brian G. Slocum
DOI: 10.7208/chicago/9780226445168.003.0001
[law and language;linguistics;statutory interpretation;legal interpretation]
The main argument of this chapter is relatively simple. The content of a legal text is not solely an instance of linguistic meaning. Rather, legal concerns sometimes trump the linguistic meaning of the text. Nevertheless, the linguistic meaning of a text is generally an important aspect of the text’s legal meaning, and should be so. Especially because linguistic meaning is an important aspect of legal interpretation, knowledge of the ways in which language operates is important to the proper functioning of the law. Linguists are, by training, experts on language. Judges, in general, are experts on the law, and on principles of legal interpretation, but are not experts on language. It follows that judges can benefit from the expertise of linguists. One benefit is that linguists can demonstrate the contextual nature of language and the flaws of believing that linguistic meaning can accurately be determined without consideration of context. Another important benefit is that knowledge of language can reveal its indeterminacy. By not adhering to valid principles of language usage, judges risk interpreting legal texts in ways that mask the inherently normative nature of interpretation. (pages 14 - 45)
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Chapter 2. Philosophy of Language, Linguistics, and Possible Lessons about Originalism - Kent Greenawalt
DOI: 10.7208/chicago/9780226445168.003.0002
[constitutional interpretation;philosophy of language;legal interpretation;statutory interpretation]
This chapter first summarizes the author’s general sense of the degree to which the philosophy of language and linguistics can enlighten our understanding of how legal interpretation does and should proceed. It then turns to the issue of originalism in statutory and constitutional interpretation, asking how far these disciplines can inform us about whether some form of originalism is warranted, and about what kind or kinds of original understanding should count. Since everyone agrees that in virtually all contexts the original sense of what a statutory or constitutional provision conveyed carries some weight, this latter question is important even for non-originalists. A central concern about what assistance philosophy of language can provide is the extent to which its limitations in resolving practical questions about the reading of authoritative directions curtail its help in resolving the debates between originalists and non-originalists, and the disagreements within both camps over the crucial elements of original content. The author believes that the philosophy of language and linguistics can provide insights about how we understand language, including that in legal provisions, but cannot tell us exactly how legal interpretation by judges, other officials, and citizens should proceed. (pages 46 - 65)
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Chapter 3. Linguistic Knowledge and Legal Interpretation: What Goes Right, What Goes Wrong - Lawrence M. Solan
DOI: 10.7208/chicago/9780226445168.003.0003
[legal interpretation;language faculty;semantics;pragmatics;statutory interpretation]
The biggest problems for legal interpretation lie not in the syntax and semantics that linguists work so hard to describe. Rather, the bulk of the problems lie in the fact that our use of language relies heavily on our drawing pragmatic inferences, and that our concepts are looser, and more flexible than rule of law values require. For the most part, we do not experience our encounters with rules and laws as a mine field that we can never walk through safely. This is because our computational system of language works quite well, and our inferential systems are sensitive enough to draw the right conclusions about intended meaning most of the time. Nonetheless, the examples presented here should serve as a caution that when our interpretive systems break down, we must look outside the language of the law for answers. To the extent that the legal system relies too heavily on the texts of authoritative legal documents in the name of fidelity to the words used, it risks undermining the goal of determining the communicative intent of the author. (pages 66 - 87)
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Chapter 4. The Continued Relevance of Philosophical Hermeneutics in Legal Thought - Frank S. Ravitch
DOI: 10.7208/chicago/9780226445168.003.0004
[Gadamer;legal interpretation;constitutional interpretation;statutory interpretation;Japanese legal interpretation]
This chapter suggests that Gadamerian Heremeneutics remain relevant to descriptive understandings of law, and that the phenomena of dasein and interpretive horizons can be concretely demonstrated when we explore different legal and cultural systems. Of course, one need not learn a different legal system and culture to experience the impact of interpretive horizons and dasein. We experience these phenomena all the time whether we realize it or not. Yet my experience with Japanese culture and law has reconnected me with Gadamerian hermeneutics and fostered a better understanding of the need for a descriptive understanding of interpretation. Without a descriptive understanding of interpretation it is harder to effectuate normative approaches. (pages 88 - 104)
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Chapter 5. The Strange Fate of Holmes’s Normal Speaker of English - Karen Petroski
DOI: 10.7208/chicago/9780226445168.003.0005
[legal Interpretation;Oliver Wendell Holmes;normal speaker of English]
The puzzle this chapter addresses concerns a passage from Oliver Wendell Holmes’s well-known essay “The Theory of Legal Interpretation.” Judges following Holmes have used this essay as a kind of multi-purpose tool. Their opinions have cited the essay to support different interpretive conclusions and apparently contrasting theoretical commitments. And yet one of the most frequently cited passages in the essay refers repeatedly to a figure about which neither judges nor scholars have had much to say: the figure Holmes calls the “normal speaker of English.” Although judges sometimes mention this figure, they invoke it only about a third as often as they quote other passages from the essay or simply cite the entire essay. This neglect is odd because Holmes explicitly likens the “normal speaker of English” to another legal figure that has received a great deal of scrutiny: the reasonable person (or as Holmes calls it, the “prudent man”). Thus the puzzle: Why have judges and commentators paid so little direct attention to the figure of the normal speaker of English, given the evident attractions of Holmes’s essay as a resource for justification and analysis, and given the analogy Holmes drew between the normal speaker and the reasonable person? (pages 105 - 129)
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Chapter 6. Originalism, Hermeneutics, and the Fixation Thesis - Lawrence B. Solum
DOI: 10.7208/chicago/9780226445168.003.0006
[originalism;Gadamer;constitutional interpretation;fixation thesis]
Originalism is certainly controversial. Almost every version of originalism claims that the communicative content of the constitutional text is fixed at the time each provision is framed and ratified and that contemporary constitutional practice should be constrained by this fixed original meaning (unless the text is amended). In this chapter, the author develops a case for the claim that meaning is fixed and responds to an objection raised by Francis J. Mootz in Getting Over the Originalist Fixation. (Mootz 2016) Mootz’s objection draws on the wonderful and elegant account of hermeneutics developed by Hans-Georg Gadamer in his magnum opus, Truth and Method. (Gadamer 2004) The author’s reply draws on Gadamer as well, arguing that his views are broadly consistent with the idea of fixation—although taking his views into account may contribute to the enterprise of clarifying originalist claims about the nature of the original meaning of the constitutional text. The chapter begins by investigating the nature of originalism itself. (pages 130 - 155)
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Chapter 7. Getting Over the Originalist Fixation - Francis J. Mootz
DOI: 10.7208/chicago/9780226445168.003.0007
[hermeneutics;constitutional interpretation;Gadamer;legal interpretation;originalism]
The Fixation Thesis propounded by the new originalists is false. The practice of understanding in all its various manifestations is intransigently hermeneutical, despite the conceptually complex efforts of theorists to insulate highly selective legal practices (constitutional litigation at the Supreme Court level) from the destabilizing risk of hermeneutical activity. To put the matter bluntly, the legal order is too important for social survival to be led astray by palliative theorizing. The hermeneutics of legal practice reveals a great deal about our nature as hermeneutical beings because the legal system cannot afford the luxury of a conceptual fixation. By neglecting the ontology of human understanding, legal theorists permit the new originalist program to get off the ground with an intuitive appeal to a “fixed” meaning. Later efforts to argue on behalf of a “living constitution” will wilt in the face of the constraint principle: who can successfully argue against the comforting fantasy of judges who discern objective meaning without having to make judgments? Gadamer’s ontological account of hermeneutical activity and meaning derails the new originalist program at the outset, refusing to grant the seemingly minor concession of the Fixation Thesis. (pages 156 - 190)
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Chapter 8. Legal Speech and the Elements of Adjudication - Nicholas Allott, Benjamin Shaer
DOI: 10.7208/chicago/9780226445168.003.0008
[legal interpretation;Paul Grice;verdictive;statutory interpretation;interpretive;Endicott;adjudication;law and language]
In this chapter, the authors seek to show that legal speech is best seen not as a radically distinct verbal phenomenon but rather as one variety of verbal interaction, albeit with various distinctive properties that follow from the institutional nature and goals of the legal domain. The authors first sketch a general picture of verbal communication as essentially inferential, drawing on recent work in linguistic pragmatics that takes its inspiration from the work of Paul Grice. The authors then focus on the complex activity of adjudication. The authors analyse adjudication in speech act terms as a “verdictive”, explaining how this act encompasses a number of sub-activities. In doing so, the authors pay particular attention to Endicott’s (2012) claims about the “interpretative” and “non-interpretative” aspects of judging. Significantly, the authors reject some specific claims of his regarding the “non-interpretative” nature of certain components of adjudication. The authors argue (i) that the general picture of verbal communication implies that understanding the speech act content of the law is an interpretative, inferential activity; and (ii) that a court creatively determining extensions of vague terms is also performing interpretation, if it is attempting to respect certain intentions of the legislature in doing so. (pages 191 - 217)
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Chapter 9. Deferentialism, Living Originalism, and the Constitution - Scott Soames
DOI: 10.7208/chicago/9780226445168.003.0009
[Deferentialism;originalism;Living Originalism;constitutional interpretation;legal interpretation;law and language;semantics;pragmatics;Jack Balkin]
In this chapter, the author compares two recent versions of originalism – his own, which he calls “Deferentialism” and Jack Balkin’s Living Originalism. After beginning with a brief summary of the leading theoretical ideas of the former, the author contrasts those ideas with the conceptual apparatus provided by the latter. The final two sections of the paper illustrate the significance of conceptual differences between the two approaches to several constitutional test cases. So, although Deferentialism and Living Originalism arise from different conceptions of constitutional interpretation and employ different analytic tools, they can be used to reach similar results in some important cases. Nevertheless, the author remains skeptical about how far this convergence can be pushed. Whereas Balkin sees and celebrates the delegation of judicial authority to alter the basic tenets of our constitutional system, the author seeks to minimize that delegation by restricting needed alternations to those that are maximally deferential to original asserted content and rationale. If determinate constitutional rules are sacrosanct, then the rationales for, and determinate parts of, the asserted contents of all constitutional provisions are similarly sacrosanct. That, in a nutshell, is Deferentialism. It is also, I fear, what Living Originalism denies. (pages 218 - 240)
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Chapter 10. Deferentialism and Adjudication - Gideon Rosen
DOI: 10.7208/chicago/9780226445168.003.0010
[deferentialism;legal interpretation;constitutional interpretation;semantics;pragmatics;law and language;originalism;Due Process]
The author argues that Deferentialism offers a distinctive form of judicial restraint. In normal adjudication, the deferentialist judge seeks to apply the law made by the legislature, the content of which is fixed, not by the linguistic meaning of the legal text, and not by the intended downstream consequences of the enactment, but by what the legislators said or stipulated when they laid it down. The author suggests that we should identify this stipulated content with the content of certain intentions that an informed interpreter would impute to the authors of the law. The framers and ratifiers of (say) the 14th amendment may have any number of long term goals, and any number of beliefs about the consequences of their legislative act. But according to the deferentialist, these real intentions and expectations are irrelevant. If we want to know the legal content of the Due Process Clause, we should ask: What would an interpreter, apprised of the relevant history and context, take the framers and ratifiers to have intended the legal effect of the provision to be? The author’s view is that the deferentialist should regard this as a hard question for which there is no determinately correct answer. (pages 241 - 271)
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Response to Chapter Ten: Comments on Rosen - Scott Soames
DOI: 10.7208/chicago/9780226445168.003.0011
[Gideon Rosen;originalism;deferentialism;legal interpretation;constitutional interpretation;law and language;statutory interpretation]
In this chapter, the author makes some remarks on Gideon Rosen’s paper, “Deferentialism and Adjudication,” which raises issues useful for precisifying Deferentialism. Of course, Deferentialism tells us that many cases have been wrongly decided and that those mistakes have changed the content of the law. The actions of authoritative actors, including judges and justices, change law, whether or not the changes are justified. Moreover, not all judicial changes, justified or not, are created equal. Sometimes originally unjustified changes become so entrenched and widely embedded in our system that it becomes virtually impossible, and undesirable, to wholly reverse them. This is one way that the legal contents of constitutional provisions change over time. Still, changes due to judicial error retain a degree of vulnerability. They can be challenged by showing both (i) that an earlier decision failed to respect constitutional content and rationale, while a different resolution that is now possible does a better job, and (ii) that the new resolution does not seriously disrupt the existing body of law, constitutional or otherwise. (pages 272 - 282)
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Contributors
List of Cases
Index
