The Nature of Legal Interpretation – What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy, 2017

The Nature of Legal Interpretation – What Jurists Can Learn about Legal Interpretation from... It is the unique burden of legislation and judge-made law that it uses a single medium—language—both to create and to promulgate it. This dual use frequently creates considerable tensions: the clearest and simplest way to create the law may not be the most helpful or effective way to communicate it, and attempts to communicate it in a clearer or more reader-friendly way, are likely to overcomplicate it and create risks of unintended legal consequences. Not all readers of legislation or judicial decisions appreciate the difficulty of trying to satisfy the competing requirements of creation and promulgation. In particular, the more that the legislative drafter or judge tries to use words or phrases that have a natural language resonance, the greater the danger that the reader will fail to appreciate that, as Brian Slocum says in the introduction to this work, ‘Even in situations not involving ambiguity or vagueness (or some other indeterminacy), the linguistic meaning of a text may differ from its legal meaning’. The premise of this book is therefore that although aspects of legal interpretation will necessarily depart from normal rules of understanding other forms of literature, that ‘does not entail that descriptive insights about language are of limited importance to legal interpretation’. That is self-evidently true. Since the legislative drafter is doomed to attempt to encapsulate legal concepts of some complexity in sufficiently clear and natural language to give the reader some inkling of what the legislation is about, and since the judge is required to do likewise, both of them will benefit from anything that deepens their understanding of how language is perceived in different contexts. That in itself should be sufficient to demonstrate that the expertise of linguists will be relevant to the interpretation, and therefore the production, of legal texts. Should people still doubt that proposition, however, Brian Slocum opens this book with a helpful overview of the contribution of linguistics to legal interpretation. This involves a brief glance at the inherent problems of intentionalism, which will immediately strike a chord with all those who grapple daily with the inherent tension between the Cardinal Rule of literal interpretation and the continuing search for the legislative intent. To a very considerable extent for practical purposes, to recognize that tension is to be able to avoid it for the most part: or at least to leave signals in the text, or in explanatory material, to enable readers to defuse those tensions for themselves. The chapter by Kent Greenwelt on the philosophy of language raises a number of issues that will be both partly familiar and pleasingly refreshing to those who write or apply the law. For example, the discussion of readership and textualism raises issues of contextual construction and implied modification that will be familiar to drafters, but it does so from a philosophical perspective that gives that discussion a helpfully fresh approach. Lawrence Solon’s discussion of linguistics also contains some food for thought for legislative drafters, judges, and other legal authors including those who draft contracts. For example, his discussion of different kinds of ambiguity, although familiar to many, is helpfully set out in a concise form. One or two of the chapters in this book may appear to descend slightly too deeply into abstract linguistic issues such as originality that may be difficult for practical lawyers to appreciate: but although it cannot be said that any of this book is required or essential reading for those involved in the production or communication of the law, there is no chapter that does not provide interesting and potentially useful material for reflection. Certainly, any lawyer who writes or explains the law and who is able to find a few moments for the consideration of matters outside the purely pragmatic considerations of the daily workload will find this a fascinatingly alternative perspective on how language is perceived and valued by those whose interests in the philosophy and structure of communication can help us to understand more about the internal structure of what we are, generally subliminally, doing every day. © The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Statute Law Review Oxford University Press

The Nature of Legal Interpretation – What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy, 2017

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Publisher
Oxford University Press
Copyright
© The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0144-3593
eISSN
1464-3863
D.O.I.
10.1093/slr/hmx018
Publisher site
See Article on Publisher Site

Abstract

It is the unique burden of legislation and judge-made law that it uses a single medium—language—both to create and to promulgate it. This dual use frequently creates considerable tensions: the clearest and simplest way to create the law may not be the most helpful or effective way to communicate it, and attempts to communicate it in a clearer or more reader-friendly way, are likely to overcomplicate it and create risks of unintended legal consequences. Not all readers of legislation or judicial decisions appreciate the difficulty of trying to satisfy the competing requirements of creation and promulgation. In particular, the more that the legislative drafter or judge tries to use words or phrases that have a natural language resonance, the greater the danger that the reader will fail to appreciate that, as Brian Slocum says in the introduction to this work, ‘Even in situations not involving ambiguity or vagueness (or some other indeterminacy), the linguistic meaning of a text may differ from its legal meaning’. The premise of this book is therefore that although aspects of legal interpretation will necessarily depart from normal rules of understanding other forms of literature, that ‘does not entail that descriptive insights about language are of limited importance to legal interpretation’. That is self-evidently true. Since the legislative drafter is doomed to attempt to encapsulate legal concepts of some complexity in sufficiently clear and natural language to give the reader some inkling of what the legislation is about, and since the judge is required to do likewise, both of them will benefit from anything that deepens their understanding of how language is perceived in different contexts. That in itself should be sufficient to demonstrate that the expertise of linguists will be relevant to the interpretation, and therefore the production, of legal texts. Should people still doubt that proposition, however, Brian Slocum opens this book with a helpful overview of the contribution of linguistics to legal interpretation. This involves a brief glance at the inherent problems of intentionalism, which will immediately strike a chord with all those who grapple daily with the inherent tension between the Cardinal Rule of literal interpretation and the continuing search for the legislative intent. To a very considerable extent for practical purposes, to recognize that tension is to be able to avoid it for the most part: or at least to leave signals in the text, or in explanatory material, to enable readers to defuse those tensions for themselves. The chapter by Kent Greenwelt on the philosophy of language raises a number of issues that will be both partly familiar and pleasingly refreshing to those who write or apply the law. For example, the discussion of readership and textualism raises issues of contextual construction and implied modification that will be familiar to drafters, but it does so from a philosophical perspective that gives that discussion a helpfully fresh approach. Lawrence Solon’s discussion of linguistics also contains some food for thought for legislative drafters, judges, and other legal authors including those who draft contracts. For example, his discussion of different kinds of ambiguity, although familiar to many, is helpfully set out in a concise form. One or two of the chapters in this book may appear to descend slightly too deeply into abstract linguistic issues such as originality that may be difficult for practical lawyers to appreciate: but although it cannot be said that any of this book is required or essential reading for those involved in the production or communication of the law, there is no chapter that does not provide interesting and potentially useful material for reflection. Certainly, any lawyer who writes or explains the law and who is able to find a few moments for the consideration of matters outside the purely pragmatic considerations of the daily workload will find this a fascinatingly alternative perspective on how language is perceived and valued by those whose interests in the philosophy and structure of communication can help us to understand more about the internal structure of what we are, generally subliminally, doing every day. © The Author(s) 2016, 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

Statute Law ReviewOxford University Press

Published: Feb 1, 2018

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