Revisiting the contribution of literal meaning to legal meaning

Oxford Journal of Legal Studies

Volumn 30, Issue 2, 2009, Pages 255-271

  Flanagan, Brian ^a  

^a UNIVERSITY COLLEGE DUBLIN   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77954163716     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqp030     Document Type: Article

References (130)

1. John Manning is a prominent exception; '[R]espect for the legislative process requires judges to adhere to the precise terms of statutory texts' and precludes them 'from making ad hoc exceptions to generally worded laws'. 'The Absurdity Doctrine' 116 Harv L Rev 2387-486 (2003), 2390, 2391.
2. Fred Schauer, 'The Practice and Problems of Plain Meaning' 45 Vand L Rev 715-42 (1992), 716. The passage, concerning the US Supreme Court's 1989-90 Term, continues, 'This descriptive claim fits with Judge Wald's conclusions ..., and appears to be acknowledged as well by Professors Macey and Miller ...and elsewhere by Professors Eskridge and Sunstein.' (Citations omitted).
3. Robert Alexy and Neil MacCormick are among many who defend this view.
4. See n 31, below.
5. Legal theorists have relied on the radical contextualism advanced by Searle, Travis and Recanati to refute the legal decisiveness of literal meaning, see
6. D Canale and G Tuzet, 'On Legal Inferentialism: Toward a Pragmatics of Semantic Content in Legal Interpretation?' 20 Ratio Juris 32-44 (2007), 35
7. R Charnock, 'Lexical Inderrminacy: Contextualism and Rule-following in Common Law Adjudication' in A Wagner and others (eds) Interpretation, Law and the Construction of Meaning (Springer, Dordrecht 2006) 21, 36-8
8. D Sosa, 'The Unintentional Fallacy' 86 Cal L Rev 919-38 (1998), 927, 930
9. J Goldsworthy, 'Marmor on Meaning, Interpretation, and Legislative Intention' 1 Legal Theory 439-54 (1995)
10. HLA Hart, 'Positivism and the Separation of Law and Morals' 71 Harv L Rev 593-629 (1958), 606-15
11. See eg S Kripke, 'Naming and Necessity' in G Harman and others (eds), Semantics of Natural Language (Reidel, Dordrecht 1972) 253
12. K Donnellan, 'Proper Names and Identifying Descriptions' 21 Synthese 335-58 (1970)
13. H Putnam, 'The Meaning of "Meaning"' in K Gunderson (ed) Language, Mind and Knowledge. Minnesota Studies in the Philosophy of Science (U Minn Press, MN 1975) 131.
14. M Moore, 'The Semantics of Judging' 54 S Cal L Rev 151-294 (1981)
15. D Brink, 'Legal Theory, Legal Interpretation, and Judicial Review' 17 Phil & Pub Affairs 105-48 (1988)
16. N Stavropoulos, Objectivity in Law (OUP, Oxford 1996)
17. R Dworkin, 'Hart's Postscript and the Character of Political Philosophy' (2004) 24 OJLS 1-37, 11-13
18. But see R Dworkin, Justice in Robes (Harv U Press, MA 2006) 11-12, 227
19. The school of thought commonly referred to as two-dimensionalism offers an interpretation of Kripke and Putnam's work that retains an essential role for description in semantic meaning
20. For an overview and synthesis, see D Chalmers, 'The Foundations of Two-Dimensional Semantics' in M Garca-Carpintero and J Macia (eds), Two-Dimensional Semantics (OUP, NY 2006) 55
21. Even philosophers who favour a broad reading of the implications of the externalist critique may be cautious about the prospect of deriving positive semantic theories from it, see eg M Devitt and K Sterelny, Language and Reality (MIT Press, MA 1999) 79-81, 92
22. For example, S Munzer, 'Realistic Limits on Realist Interpretation' 58 S Cal L Rev 459-75 (1985)
23. B Bix, 'Michael Moore's Realist Approach to Law' 140 U Pa L Rev 1293 (1992)
24. A De Moor, 'Nothing Else to Think? On Meaning, Truth and Objectivity in Law' (1998) 18 OJLS 345-62
25. M Green, 'Dworkin's Fallacy, or What the Philosophy of Language Can't Teach Us about the Law' 89 Va L Rev 1897-952 (2003)
26. J Coleman and O Simchen, 'Law' 9 Legal Theory 1-41 (2003)
27. D Patterson, 'Dworkin on the Semantics of Legal and Political Concepts' (2006) 26 OJLS 545-57
28. Brian Leiter, 'Naturalism in Legal Philosophy' (2007) accessed 15 October 2009.
29. Not all utterances will have propositional content, of course, but those of the legal variety will insofar as they purport to regulate conduct
30. Intentionalist legal theorists have raised just this problem; eg WB Michaels and S Knapp, 'Intention, Identity, and the Constitution' in G Leyh (ed), Legal Hermeneutics (U Cal Press, Berkeley 1992) 187, 192
31. 'Defeasibility in Law and Logic' in Z Bankowski and others (eds), Informatics and the Foundations of Legal Reasoning (Kluwer, MA 1995) 99
32. We may contrast this with the broader notion of interest-as what we desire for ourselves, or as that which would be good for us to have
33. Riggs v Palmer (1889) 115 NY 506
34. The traditional understanding remains well defended, see eg WJ Waluchow, 'Defeasibility and Legal Positivism' in J Ferrer and others (eds), Essays on Legal Defeasibility (OUP forthcoming)
35. A Barak, Purposive Interpretation (Princeton University Press, NJ 2006) 80
36. R Tur, 'Defeasibilism' (2001) 21 OJLS 355-68, 368
37. K Greenawalt, 'The Nature of Rules and the Meaning of Meaning' 72 Notre Dame L Rev 1449-77 (1998), 1472-3
38. It can be traced to Aristotle's Nicomachean Ethics 5, 10, 'For when the thing is indefinite the rule also is indefinite, like the leaden rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid and so too the decree is adapted to the facts.' accessed 15 October 2009.
39. For example, WB Michaels, 'Against Formalism' in S Levinson and others (eds), Interpreting Law and Literature (Northwestern U Press, IL 1988) 215, 220-5
40. M van Hoecke, Law as Communication (Hart, Oxford 2002) 132
41. T Booher, 'Putting Meaning in Its Place: Originalism and Philosophy of Language' 25 Law & Phil 387-416 (2006), 394-400
42. J Waldron, 'Legislators' Intentions and Unintentional Legislation' in A Marmor (ed) Law and Interpretation (OUP, Oxford 1995) 329, 353
43. Similarly see M Moore, 'A Natural Law Theory of Interpretation' 58 S Cal L Rev 277-398 (1985), 355-6 'the job of a legislature is to pass statutes, not to form intentions; accordingly, the choice of a legislature that ought to be respected is limited to the statute itself, exclusive of the hopes, fears and intentions that gave rise to its passage'
44. M Klatt, Making the Law Explicit (Hart, Oxford 2008) (using Robert Brandom's work on meaning to assert the possibility of 'semantically-clear cases'; esp ch 2)
45. D Lyons, Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (CUP, Cambridge 1993) 147-9 (arguing that literal meaning is as democratically plausible a basis for constitutional interpretation as reference to authors' intent)
46. Searle himself allows that 'sentences have a conventional meaning independent of whatever authorial intentions they may have been uttered with.'
47. 'Literary Theory and Its Discontents' 25 NLH 637-67 (1994), 656
48. If so, then absent some argument to the contrary, the literalist can claim that a statute's legal meaning is just its literal meaning alone
49. It's worth noting that our conclusion entails very little about how we identify an enactment's legal meaning; it just implies that doing so requires more than a theory of its literal meaning. Thus the argument allows-as surely it must-that the literal meaning of an enactment is an essential resource for its legal interpretation.
50. As Lysander Spooner observed, 'if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written'
51. The Unconstitutionality of Slavery (Dela Marsh, Boston 1847) 222
52. See similarly, W Sinnott-Armstrong, 'Word Meaning in Legal Interpretation' 42 San Diego L Rev 465-92 (2005), 484
53. For example, Frederick Schauer, 'that several centuries of Anglo-American legal cultures have been comfortable with empowering judges to search for and to correct statutory absurdity' is 'empirically contingent rather than inevitable'
54. Schauer (n 2) 732
55. Similarly, Schauer, 'A Critical Guide to Vehicles in the Park' 83 NYU L Rev 1109-34 (2008), 1128, 1134
56. Attention is sometimes drawn to the Victorian judge John Jervis, who once held that 'If the precise words used are plain and unambiguous ... we are bound to them in their ordinary sense, even though it do lead, in our view of the case, to an absurdity or manifest injustice': Abley v Dale (1851) 11 CB 378, 391.
57. Contrast Shepherd v Conquest (1856) 17 CB 427, 441-5 (Jervis J)
58. Definitive confirmation of this appears impossible, but see N MacCormick and R Summers, Interpreting Statutes: A Comparative Study (Dartmouth, MA 1991) 461, 485 (observing that all nine legal systems in the study recognized an absurdity doctrine)
59. Note that every legal system is vulnerable to accidents such as, 'this statute repeals all previous laws' instead of 'all relevant previous laws'
60. Interpretation and Legal Theory (Hart, Oxford 2005), 112-18, 115, 'the meaning of [legal] rules, like those of all symbols, must be determined by the actions themselves, that is, by the way the rules are used'
61. Similarly, MJ Detmold, 'Law as Practical Reason' (1989) 48 CLJ 436-71, 438-40
62. S Landers, 'Wittgenstein, Realism, and CLS' 9 Law & Phil 177-203 (1990) (holding that to think of basic social rules as accounting for social regularities 'would be akin to mistakenly conceiving of the Universal Law of Gravitation as accounting for - in the sense of producing - a basic regular feature of the universe, viz., the mutual attraction of masses', n 46, below).
63. Contrast with Wittgenstein's focus on the use of individual words
64. GEM Anscombe (tr), Philosophical Investigations (Macmillan, NY 1953) ss 3, 66-9 (concerning the range of what counts as a 'game')
65. Marmor might object that the relevant patterns of usage are not just the applications of the enactment in question but the role that the making of that sort of utterance plays in social life. (This possibility was suggested by an anonymous referee.) In principle, this might be a persuasive response. In practice though, the only role played by the utterance of such sentences in social life is the purported application of some enactment or other. Thus, absent an enactment that, 'no vehicles are permitted in the park', who is going to be using that sentence? Practices of using a sentence to describe some distribution of rights or obligations seem unlikely to emerge in the absence of an act to which the sentence might refer. People will of course be using the words the sentence comprises, but reference to the meanings of individual words is what Marmor's strategy seeks to avoid. People will, after all, be using 'vehicle' to refer to police cars and the like.
66. S Winter, A Clearing in the Forest (U Chicago Press, IL 2001) 204-6
67. See also, NE Simmonds, 'Between Positivism and Idealism' (1991) 50 CLJ 308-29
68. Citing F Hayek, Law, Legislation and Liberty (Routledge & Kegan Paul Ltd, London 1973) 134-5.
69. BB Levenbook, 'How a Statute Applies' 12 Legal Theory 71 (2006) (both characterizing enactments as formal instantiations of convergent practices)
70. Similarly, Cass Sunstein has written of legal perspicuity as owing to the presence of 'background norms ...so widely shared, they appear invisible and are not the object of controversy'.
71. 'Norms in Surprising Places' 100 Ethics 803-20 (1990), 807
72. Ronald Dworkin, Taking Rights Seriously (Harv U Press, MA 1977) 25
73. Dworkin would add that, to determine the meaning of the law on a particular occasion, one must take into consideration the content of the legal system as a whole, not simply a given enactment. There thus results in no disagreement with Dworkin on the conclusion that literal meaning is not legally decisive, but rather with someone who adopts Dworkin's analysis of rules minus his theory of holistic interpretation.
74. In contrast to Giovanni Sartor's critique of Dworkin; 'Defeasibility in Legal Reasoning' in Bankowski (n 12) 119, 142-4
75. Some have argued that interpreters ought to be constrained to follow literal meaning if that is more likely, on the whole, to lead to a greater number of correct legal outcomes. See Fred Schauer's work on instrumentalist formalism, according to which, given error prone interpreters, treating literal meaning as decisive may result in a greater number of accurate legal judgments overall.
76. Schauer, Playing By the Rules (OUP, Oxford 1991) 137-53
77. Similarly, Adrian Vermeule has suggested that, given their interpretive limitations, judges should follow literal meaning
78. Judging Under Uncertainty (Harv U Press, MA 2006) 183-230
79. Consideration of instrumental formalism is outside the scope of this article
80. B Chapman, 'Law Games: Defeasible Rules and Revisable Rationality' 17 Law & Phil 443-80 (1998), 451
81. See Bankowski (n 12), 13 (holding that the implications of a rule-not merely a judge's beliefs about them-are determined by what he knows.)
82. Stavropoulos (n 7) 62 (that there can be no unrevisable legal formula is not to say 'that there can be no defensible, theoretical formula that explains and justifies novel cases' resemblances with the paradigms')
83. 'Sequencing' is thus the application to statutory interpretation of non-monotonic logic, ie a logic in which the set of conclusions warranted on the basis of a given knowledge base does not increase with the size of the knowledge base itself. Under classical logic, in contrast, one's inferences, being deductively valid, can never be 'undone' by new information.
84. See further, GA Antonelli, 'Non-montonic Logic' (2006) Stanford Encyclopedia of Philosophy accessed 15 October 2009.
85. Quietist philosophical theories disputing this distinction run into a minefield of contrary intuitions and practices
86. See generally J Cohen, 'Truth and Public Reason' 37 Phil & Pub Affairs 2-42 (2009)
87. Cohen aptly compares the minimalist about truth to someone who knows 'the rules of a game without knowing that the point of games is to win', 25. The comparison seems readily extendible to someone dealing in justified beliefs without recourse to a (distinct) concept of truth.
88. What Bernard Williams describes as our subjection of our beliefs to 'the disciplines of the virtues of truth'
89. Truth and Truthfulness (Princeton U Press, NJ 2002) 83
90. Our discussion of legal truth may be contrasted with Brian Bix's recent article in this journal, 'Global Error and Legal Truth' (2009) 29 OJLS 535-47
91. Professor Bix is concerned with the truth of beliefs about the law and the possibility that they may be in error. We are concerned with the possibility of justified beliefs about correct legal outcomes being in error; we may assume that interpreters had an accurate understanding of the legal proposition itself.
92. MacCormick (n 12) 104
93. As any conclusion will depend equally on the relevance of the uncovered facts, the presence of this assumption doesn't presuppose the truth of any legal outcome
94. Pace J Hage, Studies in Legal Logic (Springer, Dordrecht 2005) 26-8 (rejecting a classical logic for legal conclusions on the basis that a deduction enabling premise would beg the question of the correct conclusion)
95. R Adler, N MacCormick (trs) and R Alexy, A Theory of Legal Argumentation (OUP, NY 1989), 2
96. On even pragmatist accounts of legal reasoning we find this understanding implicit
97. Eg E Patterson, 'Logic in the Law' 90 U Pa L Rev 875-909 (1942), 908
98. Thus in response to Fuller, Hart notes that 'For a legal system often has other resources besides the words used in the formulations of its rules which serve to determine their content or meaning in particular cases. Thus ...the obvious or agreed purpose of a rule may ...serve to show that words in the context of a legal rule may have a meaning different from that which they have in other contexts.
99. 'Hart, Essays in Jurisprudence and Philosophy (OUP, Oxford 1983) 8.
100. Stephen Munzer and James Nickel foreshadowed this development in Hart's thinking; 'Does the Constitution Mean What It Always Meant?' 77 Colum L Rev 1029-62 (1977), 1055, 1059 (holding that a constitutional bar exists in part because of its being found in the text, where that characteristic is also consistent with a constitutional permission).
101. For recent articulations of the idea of literal meaning as a decisional factor, see T Spaak, 'Legal Positivism, Anti-Realism, and the Interpretation of Statutes' in K Segerberg and R Sliwinski (eds), Logic, Law, Morality (Uppsala U Press, Uppsala 2003) 127, 141.
102. S Rickless, 'A Synthetic Approach to Legal Interpretation' 42 San Diego L Rev 519-32 (2005).
103. Klatt (n 17) (semantic arguments may be decisive even though 'it is not possible to conclude legal clarity from semantic clarity,' 219). Many more contemporary scholars might be cited. For further examples, see n 15, above.
104. Art 2 of the Constitution (the supreme enactment) states; 'No Person except a natural born Citizen ...shall be eligible to the Office of President'. A property that's 'natural' isn't man made, eg made by legislation. Hence we can't make someone natural born by legislative means-we may only legislate consequences for being natural born. It seems that the mere property of being born could only help qualify one for a privileged legal relationship with a state where birth occurs. Since Senator McCain wasn't born in the United States, the provision's literal meaning entails his ineligibility for the office.
105. There has been an article disputing this conclusion (though it does note an interpretive path to eligibility)
106. See G Chin, 'Why Senator John McCain Cannot Be President' 107 Mich L Rev First Impressions 1-21 (2008)
107. To my knowledge, no other legal scholar has written in support of Professor Chin's position nor does Chin base his reading of McCain's eligibility on the Constitution's literal meaning. Note the 2008 Senate Resolution unanimously affirming his eligibility; 110th Cong S Res 511.
108. Professor Schauer uses the example of United States v Locke (1985) 471 US 84 to this effect
109. Schauer (n 2) 728-42
110. Schauer, 'Is Defeasibility and Essential Property of Law?' in J Ferrer and others (eds), Essays on Legal Defeasibility (OUP forthcoming)
111. Compare, S Burton, Judging in Good Faith (CUP, NY 1992), 178 (countenancing literal decisiveness 'when the purpose of the law is only to coordinate an activity fairly, or when the law seeks to encourage reliance and someone has reasonably relied on its determinacy.').
112. We think this, even though we may sometimes place value on an explicit handling of such points, eg Buckoke v GLC [1971] 1 Ch 655. A remark of the Victorian jurist James Fitzjames Stephen suggests an explanation; 'people continually try to misunderstand ...therefore it is not enough to attain to a degree of precision which a person reading in good faith can understand; but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand', Re Castioni [1891] 1 QB 149, 167.
113. Note that for deictic words, eg 'now', literal meaning prescribes the relevance of a particular element of the context of any utterance thereof (in this case the time of utterance)
114. 'The Missing Step of Textualism' 74 Fordham L Rev 1913-36 (2006)
115. Consider Manning (n 1) 2463, 'If "drew blood" does not apply to an emergency medical procedure, it is because of a settled social connotation that associates that phrase, in predictable contexts, with acts of aggression.'
116. The hypothetical, now a commonplace, is owed, of course, to Lon Fuller's original truck-as-memorial example
117. 'Positivism and Fidelity to Law - A Reply to Professor Hart' 71 Harv L Rev 630-72 (1958), 663
118. See Manning, 'Textualism and the Equity of the Statute' 101 Colum L Rev 1-127 (2001), 115, 118-19
119. John Nagle advocates barring legal interpretations sensitive to 'scrivener's error' and 'absurd results' in light of the rarity of the cases in which such allowances are needed to avert an incorrect result
120. 'Textualism's Exceptions' in D Farber (ed) Dynamic Statutory Interpretation (2002) accessed 15 October 2009.
121. Similarly, Marmor has recognized cases where an act's prescriptive content differs from its semantic content as possible but 'very rare'
122. 'The Pragmatics of Legal Language' 21 Ratio Juris 423-53 (2008), 429
123. To the theorist, the point is not that such cases must frequently be confronted, but that our reaction to them follows from the nature of our legal reasoning
124. Hart, The Concept of Law (2nd edn OUP, Oxford 1994) 129
125. P Schlag, 'Rules and Standards' 33 UCLA L Rev 379-430 (1985), 381
126. The distinction has played a role in framing arguments about the nature of legal reasoning since Roscoe Pound's Philosophy of Law (Yale U Press, New Haven 1922), 141-2
127. '[R]ules, where we proceed mechanically, are more adapted to property and business transactions, ... [w]here the call is for individuality in the product of the legal mill, we resort to standards.'.
128. See eg D Kennedy, 'Form and Substance in Private Law Adjudication' 89 Harv L Rev 1685-778 (1976)
129. K Sullivan, 'The Justices of Rules and Standards' 106 Harv L Rev 22-123 (1992)
130. D Nance, 'Rules, Standards, and the Internal Point of View' 75 Fordham L Rev 1287-316 (2006), 1295 (taking 'as primitive the idea that "rules," as UJYUYnormative directives about conduct, are framed in terms of concepts that can be applied ...by specifying operative facts that trigger the rule.').