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The Nature of Legal Interpretation
What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy
By Brian G. Slocum The University of Chicago Press
Copyright © 2017 The University of Chicago
All rights reserved.
ISBN: 978-0-226-44516-8
CHAPTER 1
The Contribution of Linguistics to Legal Interpretation
Brian G. Slocum
1. Introduction
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. In 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 on neither language nor authorial intent. In 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 communication, 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 8 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 about 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 nonlegal 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, linguists 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.
2. The Linguistic Nature of Legal Interpretation
Based on judicial practice, one should conclude that linguistics can contribute to theories of legal interpretation and that judges should be interested in these insights. Courts often frame interpretive disputes in terms of linguistic meaning, even when nonlinguistic concerns are also relevant. Consider the issue of scienter in criminal cases, which was discussed by some of the participants in the 1995 Washington University conference (discussed in the introduction). The case that was of interest to the participants was the Supreme Court's then-recent decision in United States v. X-Citement Video, Inc. In XCitement Video, the Supreme Court held that a federal child pornography statute, 18 U.S.C. § 2252, includes a scienter requirement regarding the age of the performer in a visual depiction. Section 2252 provides, in relevant part:
(a) Any person who —
(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if —
(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
[. ...]
shall be punished as provided in subsection (b) of this section.
The court found that the "most natural grammatical reading" is that the term "knowingly" modifies only the surrounding verbs: transports, ships, receives, distributes, or reproduces. Under this construction, the word "knowingly" would not modify the elements of the minority of the performers, or the sexually explicit nature of the material, because they are set forth in independent clauses separated by interruptive punctuation. The court declined, however, to adopt the "most grammatical reading," for reasons involving legal concerns, including the possibility that it would require invalidation of the statute.
From a linguistic perspective at least, the court's decision in X-Citement Video was controversial. Two linguists, Kaplan and Green (1995), have argued that the court adopted an interpretation that contradicted syntactic rules. Interpreting § 2252 from a purely linguistic standpoint is, on the surface, fairly straightforward. A modifier, such as "knowingly," within a verb phrase combines with other expressions within the verb phrase to form a larger expression of that same type. Expressions outside of the verb phrase, though, would not be modified by the adverb. Section 2252 contains an if-clause, which is not part of the verb phrase that contains "knowingly" or the noun phrase, "Any person who knowingly distributes a depiction." Semantically, the if-clause can be said to function as a parenthetical, and the meaning of "knowingly" "cannot apply to the meaning of the if-clause, because of the way modification works in English" (1235). Thus, linguistically at least, the Supreme Court's interpretation of § 2252 was erroneous.
Despite the linguistic focus of some of the court's analysis in X-Citement Video, various scholars have questioned whether linguistic knowledge should be influential in the resolution of such a case. Poirier (1995, 1033–34), for instance, questions the relevance and permissibility of the expertise of linguists and argues that
knowingly in a statute does not operate as standard English does. As a lawyer, I knew that the appearance of knowingly in a context I was unfamiliar with should send me scurrying to cases and treatises. I needed to know how it had been treated in that particular area. Issues of intent and responsibility, implicated semantically in various statutes and situations, are too central and too convoluted for there to be a consistent syntactic usage in heterogenous situations over any period of time. Ordinary language and adverbial syntax are the wrong places to start.
Because language in a statute does not operate as does standard English, Poirier (1034) argues that "[w]hen judges say plain meaning, they may not mean plain meaning in a sense that linguists would recognize as ordinary language."
It is true that "plain meaning" and "ordinary meaning" are separate concepts (as briefly described above). One of the problems, though, with arguments such as Poirier's is that judges consistently indicate that language in statutes operates as does standard English. "Plain meaning" might encompass facts other than linguistic meaning, such as judicial precedents, but certainly one fundamental determinant is linguistic meaning. In fact, the scope of "knowingly" (and other terms relating to scienter) in various contexts is still being decided by courts, and these courts often rely heavily (if not exclusively) on linguistic analysis.
The Supreme Court's recent decision in Flores-Figueroa v. United States is one salient example of a court focusing on linguistic analysis. In Flores-Figueroa, the Supreme Court decided that a federal criminal statute forbidding "[a]ggravated identity theft" requires the government to show that the defendant knew that the "means of identification" he or she unlawfully transferred, possessed, or used in fact belonged to "another person." The relevant part of the statute applies to one who "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." Contrary to the court's statement in X-Citement Video, the court in Flores-Figueroa noted that "[a]s a matter of ordinary English grammar, it seems natural to read the statute's word 'knowingly' as applying to all the subsequently listed elements of the crime." The court reasoned as follows:
In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence. Thus, if a bank official says, "Smith knowingly transferred the funds to his brother's account," we would normally understand the bank official's statement as telling us that Smith knew the account was his brother's. Nor would it matter if the bank official said "Smith knowingly transferred the funds to the account of his brother." In either instance, if the bank official later told us that Smith did not know the account belonged to Smith's brother, we should be surprised.
The court continued its analysis by focusing on linguistic meaning, claiming that
the Government has not provided us with a single example of a sentence that, when used in typical fashion, would lead the hearer to believe that the word "knowingly" modifies only a transitive verb without the full object, i.e., that it leaves the hearer gravely uncertain about the subject's state of mind in respect to the full object of the transitive verb in the sentence.
The court even rejected efforts to refocus its attention on nonlinguistic matters, stating that "[t]he Government correctly points out that in these cases more was at issue than proper use of the English language. But if more is at issue here, what is it?"
The court's analysis in Flores-Figueroa was consistent with the views expressed in a brief filed by four professors of linguistics, which argued that "linguistics can offer insights and analytical tools that may be helpful in resolving [...] the interpretive dispute this case presents." Unfortunately, though, it is not clear that the court's focus on linguistic meaning in Flores-Figueroa, and its somewhat perfunctory analysis of linguistic meaning in X-Citement Video, combined to provide a framework for handling issues of scienter (and other adverbial scope issues). The court's interpretation in X-Citement Video would not be problematic, at least from a linguistic perspective, it if had acknowledged the correct linguistic meaning of § 2252 and explained the circumstances in which that meaning could be overcome by legal concerns. Instead, the court's linguistic analysis was perfunctory, stating simply that it was "reluctan[t] to simply follow the most grammatical reading of the statute." This lack of exposition necessitated the Flores-Figueroa case, which dealt with the same issue in a different context. While the Flores-Figueroa case focused heavily on linguistic analysis, this sort of analysis is not, of course, sufficient to overcome established interpretive practices. For instance, some state courts have disagreed with Flores-Figueroa, indicating that it is inconsistent with their interpretive practices.
(Continues...)
Excerpted from The Nature of Legal Interpretation by Brian G. Slocum. Copyright © 2017 The University of Chicago. Excerpted by permission of The University of Chicago Press.
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