The nature of legal interpretation : what jurists can learn about legal interpretation from linguistics and philosophy

299 Pages·2017·1.75 MB·English

by  Brian G Slocum

The Nature of Legal Interpretation

The Nature of Legal
Interpretation
What Jurists Can Learn about Legal
Interpretation from Linguistics
and Philosophy
edited by brian g. slocum
the university of chicago press chicago and london
The University of Chicago Press, Chicago 60637
The University of Chicago Press, Ltd., London
© 2017 by The University of Chicago
Chapter 6, “Originalism, Hermeneutics, and the Fixation Thesis,” © Lawrence B. Solum
Chapter 8, “Legal Speech and the Elements of Adjudication,” © Nicholas Allott and
Benjamin Shaer
All rights reserved. No part of this book may be used or reproduced in any manner
whatsoever without written permission, except in the case of brief quotations in criti-
cal articles and reviews. For more information, contact the University of Chicago Press,
1427 E. 60th St., Chicago, IL 60637.
Published 2017
Printed in the United States of America
26 25 24 23 22 21 20 19 18 17 1 2 3 4 5
isbn- 13: 978- 0- 226- 44502- 1 (cloth)
isbn- 13: 978- 0- 226- 44516- 8 (e- book)
doi: 10.7208/chicago/9780226445168.001.0001
Library of Congress Cataloging-in-Publication Data
Names: Slocum, Brian G., editor.
Title: The nature of legal interpretation : what jurists can learn about legal interpretation
from linguistics and philosophy / edited by Brian G. Slocum.
Description: Chicago : The University of Chicago Press, 2017. | Includes index.
Identifi ers: lccn 2016041563 | isbn 9780226445021 (cloth : alk. paper) |
isbn 9780226445168 (e-book)
Subjects: lcsh: Law—Language. | Law—Interpretation and construction. |
Law—Language—Philosophy.
Classifi cation: lcc k487.l36 n38 201 7 | ddc 340/.14—dc23lc record available at
https://lccn.loc.gov/2016041563
This paper meets the requirements of ansi/niso z39.48– 1992 (Permanence of Paper).
Contents
Introduction 1
Brian G. Slocum
chapter 1. The Contribution of Linguistics to
Legal Interpretation 14
Brian G. Slocum
chapter 2. Philosophy of Language, Linguistics,
and Possible Lessons about Originalism 46
Kent Greenawalt
chapter 3. Linguistic Knowledge and Legal Interpretation:
What Goes Right, What Goes Wrong 66
Lawrence M. Solan
chapter 4. The Continued Relevance of Philosophical
Hermeneutics in Legal Thought 88
Frank S. Ravitch
chapter 5. The Strange Fate of Holmes’s Normal
Speaker of English 105
Karen Petroski
chapter 6. Originalism, Hermeneutics,
and the Fixation Thesis 130
Lawrence B. Solum
chapter 7. Getting Over the Originalist Fixation 156
Francis J. Mootz III
chapter 8. Legal Speech and the Elements of Adjudication 191
Nicholas Allott and Benjamin Shaer
chapter 9. Deferentialism, Living Originalism,
and the Constitution 218
Scott Soames
chapter 10. Deferentialism and Adjudication 241
Gideon Rosen
Response to Chapter Ten: Comments on Rosen 272
Scott Soames
Contributors 283
List of Cases 285
Index 287
Introduction
Brian G. Slocum
Language shapes and refl ects how we think about the world. It en-
gages and intrigues us. One prominent scholar of language reports
that he has never met a person not interested in language (Pinker 1994).
Yet, our language use seems quite effortless. A typical person comes
into contact with thousands of words in a single day and uses them with
great facility (i.e., seemingly without thinking) (Aitchison 2012). In a
real sense, we are experts on our native languages. For instance, judg-
ments by native speakers of the grammaticality/acceptability of sen-
tences (as well as other linguistic intuitions) have been the major source
of evidence for linguists when constructing grammars (Schütze 1996).
Our language skills also make us unique. One view is that the lan-
guage faculty governing human communication is markedly different
from that of other living creatures (Hauser, Chomsky, and Fitch 2002).
Viewing the world in linguistic terms is a unique and natural human pro-
cess. Consider categorization, which more generally is a psychological
process whereby people make judgments about whether an object falls
within a given concept. The ability to categorize is an integral aspect
of human development. Early in their development, humans demon-
strate the ability to countenance differences in order to generalize and
form categories based on similarities (Sloutsky 2003). The ability to cat-
egorize is benefi cial because it allows for the organization of knowledge
through the creation of taxonomies that include smaller classes within
larger ones (e.g., specifi c creature → Cleveland Bay → horse → animal).
As such, categorization is part of the process of inductive generalization,
where, for example, knowing that a creature has features similar to rec-
2 Brian G. Slocum
ognized members of the category “horse” enables one to characterize
the creature as a “horse.”
Despite the human language faculty and its natural ability to catego-
rize, as well as the widespread intuition that language users must nat-
urally be experts on the interpretation of their native language, issues
of language and meaning, and particularly categorization, have long be-
guiled judges (and commentators). Consider one of the most famous le-
gal hypotheticals (discussed in hundreds of scholarly papers and books),
H. L. A. Hart’s (1958, 607) no- vehicles- in- the- park scenario, which asks
the following questions:
A legal rule forbids you to take a vehicle into the public park. Plainly this for-
bids an automobile, but what about bicycles, roller skates, toy automobiles?
What about airplanes? Are these, as we say, to be called “vehicles” for the
purpose of the rule or not?
The hypothetical classically frames the challenges caused by the diffi cul-
ties of categorizing objects and defi ning words (such as “vehicle”) and
the consequent fuzziness (often labeled as vagueness) associated with
such attempts. The fuzziness associated with most natural language con-
cepts, such as “vehicle,” does not undermine most day- to- day verbal in-
teractions, where a high degree of precision is not necessary to success-
ful communication. The requirements of the legal system, however, are
different. Interpretive questions (e.g., does a certain object fall within
the scope of the “vehicle” concept?) need defi nite “yes” or “no” an-
swers, and frequently the dispute will involve some object at the margins
of the relevant concept (e.g., what about a car without an engine?).
Should a judge feel confi dent in defi ning common words in legal texts
without the aid of a linguist (or anyone else)? It might seem counterintu-
itive that speakers would need guidance about the nature and function-
ing of their native language. This is especially true for judges who are
generally well educated and highly trained in the use of language. Judges
often state that their own experience and knowledge of language (some-
times referred to by them as “common sense”) is suffi cient to accurately
determine the meaning of words in legal texts. Nevertheless, a judge to-
day would just as likely approach the meaning of the no- vehicles-i n- the
park provision by consulting a dictionary defi nition of “vehicle,” the
key term in the provision. In fact, judicial reliance on dictionaries is ex-
tensive and has dramatically increased since 1987 (Brudney and Baum
Introduction 3
2013). The manner, though, in which judges have relied on dictionar-
ies has been criticized by linguists and others. Judges are typically mo-
tivated to defi ne words in such a way as to avoid uncertainty in appli-
cation, which assists the judge in reaching the required “yes” or “no”
answer in what seems like an objective manner. This may involve select-
ing a dictionary and treating one of the defi nitions as though it sets forth
necessary and suffi cient conditions that when met guarantee member-
ship in the category represented by the word. Defi ning words through
dictionary defi nitions, and viewing these defi nitions as providing neces-
sary and suffi cient conditions of meaning, may seem to narrow interpre-
tive discretion. The result, though, is contrary to the empirical fi ndings
and theoretical work of linguists and psychologists regarding the nature
of word meanings (Slocum 2015). The judicial failure to acknowledge
this body of linguistic knowledge has come at the expense of accurate
defi nitions.
The famous no- vehicles- in- the- park hypothetical, with its illustration
of the uncertainties of word meanings, represents only one aspect of the
challenges raised by the use of natural language in legal texts. Indeed,
scholars have in various ways critiqued the linguistic methods by which
judges determine the meanings of legal texts. Notably, in 1995 Washing-
ton University held a conference where linguists and lawyers met to dis-
cuss how linguists might approach problems of legal interpretation and
whether their expertise could improve legal interpretation. Hart’s no-
vehicles- in- the- park hypothetical was discussed, as well as a then- recent
Supreme Court case involving the scope of modifi cation of adverbs.1
Some of the linguists, such as Cunningham and Fillmore (1995), demon-
strated how they would approach the interpretation of a specifi c provi-
sion. Other scholars, though, were skeptical of the relevance of linguists’
expertise to legal texts. Some, such as Popkin (1995), suspected that lin-
guists were attempting to turn legal interpretation into a science by ex-
aggerating the determinacy of language and the relevance of linguistics.
Similarly, Poirier (1995) argued, essentially, that there is no reason to de-
fer to the expertise of linguists on matters of language (i.e., the native
language users are themselves experts argument ). Another argument
questioned the legitimacy of theories of linguistic meaning (which con-
stitute much of the study of semantics). Campos (1995, 973, 981), for in-
stance, argued that “texts do not have conventional meanings” and that
there is something “troubling” about the “whole idea of attempting to
develop comprehensive theories of legal or linguistic meaning.” Instead,