Brian G. Slocum (University of the Pacific – McGeorge School of Law) has posted Introduction: The Nature of Legal Interpretation: What Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy (The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy (University of Chicago Press, 2017)). Here is the abstract:
Language shapes and reflects how we think about the world. It engages and intrigues us. Our everyday use of language is quite effortless — we are all experts on our native tongues. Despite this, issues of language and meaning have long flummoxed the judges on whom we depend for the interpretation of our most fundamental legal texts. Should a judge feel confident in defining common words in the texts without the aid of a linguist? How is the meaning communicated by the text determined? Should the communicative meaning of texts be decisive, or at least influential?
To fully engage and probe these questions of interpretation, this volume draws upon a variety of experts from several fields, who collectively examine the interpretation of legal texts. In The Nature of Legal Interpretation, the contributors argue that the meaning of language is crucial to the interpretation of legal texts, such as statutes, constitutions, and contracts. Accordingly, expert analysis of language from linguists, philosophers, and legal scholars should influence how courts interpret legal texts. Offering insightful new interdisciplinary perspectives on originalism and legal interpretation, these essays put forth a significant and provocative discussion of how best to characterize the nature of language in legal texts.
And also new on SSRN from Brian Slocum: Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning (The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (de Gruyter Mouton, Mouton Series of Pragmatics, 2017)). Here is the abstract:
It is often assumed or asserted by courts and scholars that the literal meaning of a legal text is co-terminous with its communicative meaning, but such an understanding is mistaken. There is often a gap between the two. Accounting for that gap, though, raises difficult issues. The linguistic phenomena responsible for the gap between literal and communicative meaning can be identified as involving pragmatic processes (Recanati 2004). In evaluating these pragmatic processes, theories that offer accounts of specific linguistic phenomena offer conceptual advantages compared to more reductive theories that seek to identify deep underlying principles of communication applicable across various linguistic phenomena. In all cases, for a linguistic theory to be useful it must, as a general matter, be explanatory and persuasive and, importantly, offer some insight into the interpretation of legal texts. This paper argues that the legal meaning of a legal text is generally constrained by its communicative meaning, demonstrates the gap between literal meaning and communicative meaning, and finally argues in favor of theories that explain pragmatic processes in terms of specific systematic effects in language.
(The latter via Larry Solum at Legal Theory Blog, who says "Highly recommended. Download it while it's hot!").
Posted at 6:22 AM