The Contribution of Linguistics to Legal Interpretation

Abstract

Is the expertise of linguists relevant to the interpretation of legal texts? If so, can this expertise contribute to a more sophisticated understanding of legal interpretation than currently exists? This chapter addresses the value of linguists’ expertise to legal interpretation by examining the determinants of meaning of legal texts. On one view, the meaning of a legal text should have little to do with objective theories of meaning (i.e., how people normally use language). Instead, each instance of interpretation requires an archaeological-type dig for the meaning that the author(s) intended, or an interpretive process that focuses neither on language nor authorial intent. On another, conflicting, view, the meaning of a legal text is dependent at least somewhat, and sometimes entirely, on objective determinants of meaning that relate to how people normally use language (both inside and outside of the legal context), and which may be said to in part constitute the ‘linguistic meaning’ of the text. Linguists are experts on various aspects of language and communications, including the inferential reasoning processes through which a speaker’s meaning is ascertained. The application of this knowledge to the interpretation of legal texts can greatly increase our understanding of legal interpretation (see Chapter Eight for an example of the application of such expertise). Nevertheless, the question of what jurists can learn from linguistics is particularly salient if objective determinants of meaning are aspects of legal interpretation, as these objective determinants involve a multitude of language phenomena to which linguists are experts. It might seem incontrovertible that objective determinants of meaning are aspects of the legal meaning of a legal text. Even so, the question of the usefulness of linguistics is particularly important and interesting if objective features of language are, in fact, significant determinants of legal meaning.

It is intuitive that the work of those disciplines that study language and how it is used, such as linguistics (as well as philosophy and psychology), should have some influence on how judges interpret legal texts. The extent, though, to which these non-legal academic disciplines have actually influenced the interpretation of legal texts is debatable, and detailing the possible influences is beyond the scope of this chapter. Rather, this chapter primarily addresses the controversial normative issue of whether the discipline of linguistics (in which philosophy of language and related disciplines will be included for purposes of succinctness) should influence the way that judges interpret legal texts. This chapter will assume that linguists are experts on language and that their expertise exceeds that of the typical judge. If one doubts this (obvious) assumption, a single chapter would not likely convince the doubter otherwise.

Despite the expertise of linguists, and the inherently linguistic nature of legal texts, some have questioned whether the expertise of linguists can benefit legal interpreters. Solan (1995, 1069-70), for example, notes that “[t]o the extent that judges need to interpret statutory or other language in performing [their] tasks, they are as able as anyone else to do so without the help of a linguist, and linguistic theory tells us that this is so.” Solan, though, has been prolific in using linguistic theory to explain the various ways in which judges fail to understand how language works. In addition, many linguists have filed amicus curiae briefs with the Supreme Court explaining how some aspect of language should be understood. In any case, instead of detailing the various ways in which judges fail to understand (at least explicitly) various aspects of language, or extolling the expertise of linguists and listing the ways in which linguistic expertise has influenced judges, this chapter will address the importance of linguistic meaning to legal interpretation as a way of establishing the relevance of linguists’ expertise to legal interpretation.

The argument made in this chapter proceeds as follows. The second section describes how courts, as an empirical matter, focus on linguistic meaning when deciding cases. The third and fourth sections explain that the position that the linguistic meaning of a provision is of “little value” to the interpretation chosen by the court fails to appreciate the ineliminable relevance of linguistic meaning to any plausible theory of textual interpretation. The fifth section argues that determinants of meaning that are based on generalized notions of intent, such as the ordinary meaning doctrine, are necessary due to the inadequacies of confining interpretation to a search for actual authorial intent and the consequent need to focus on the language of the text. The section describes how the ordinary meaning doctrine reflects epistemic uncertainty about authorial intent and is an important aspect of the sequential nature of judicial decision-making. The sixth section argues that criticisms of so-called ‘plain meaning’ decisions may correctly criticize the interpretation chosen by the court but often overlook that the criticized interpretation was based on an erroneous (or at least disputable) view of language. Finally, section seven offers a conclusion and explains that far from exaggerating the determinacy of language, linguistics can illustrate its indeterminacy and, if their expertise is taken seriously, force courts to explicitly acknowledge their policy choices. For purposes of explication, this chapter will distinguish amongst several terms. The ‘legal meaning’ of a text is the authoritative meaning given to it by a judge. The legal meaning may differ from the ‘linguistic meaning,’ which refers to the meaning communicated by the language of the text in light of the appropriate context of the communication. A typical determinant of linguistic meaning is ‘ordinary meaning,’ which, roughly, refers to the sense that an expression usually has in the context at issue. The ‘ordinary meaning’ may differ, though, from the linguistic meaning. For example, the legislature might stipulate an unusual definition for a term that differs from its ordinary meaning. Similarly, context may indicate that a word should be given a technical or specialized meaning rather than its ordinary meaning.

Like ‘ordinary meaning,’ courts often refer to ‘plain meaning’ or the ‘plain meaning rule.’ One definition is that the plain meaning rule dictates that statutes are to be interpreted according to the ordinary meaning of the relevant language, unless the terms are otherwise defined in the statute (Tiersma, 1999). The plain meaning rule, though, has been used by judges to peremptorily declare textual language to be clear, and its use has consequently been criticized by scholars as representing a simplistic view of language. One criticism is that the plain meaning rule views statutes as commonly being unambiguous and capable of being straightforwardly applied in specific cases based on considerations only of language (Ibid.). Contrary to this conception of the plain meaning rule, though, the linguistic meaning of a text, even in context, may be ambiguous or vague. A search for the linguistic meaning of a legal text should not therefore assume a high degree of confidence in people’s potential to communicate successfully, at least in a narrow, determinate sense. To the contrary, as this chapter argues, an epistemically modest view of the determinacy of communication should be concomitant with any determination of meaning.

Keywords: linguistics, statutory interpretation, language and law, textualism, plain meaning, legislation