At Legal-Phi, an interesting interview with Martin David Kelly (Edinburgh): Speaking Through Time. An excerpt:
[Q] In your doctoral thesis The Loquacious Legislature: are statutes ‘always speaking’? you address what you call the “temporal issue” in the meaning of laws. What is the issue?
Martin: The temporal issue is about whether the meaning of an utterance can change over time. (By ‘utterance’, I mean any use of language — including written uses.) There are two broad types of approach to the temporal issue. One is historical: meaning is determined when the utterance was originally made (this is known, especially in constitutional theory, as ‘originalism’). The second treats an utterance as if it had been made recently, and thus gives that utterance its current meaning. I call this second type of approach ‘currentism’ (in constitutional theory, it tends to be known as ‘living constitutionalism’). The temporal issue is most keenly debated for written constitutions (and it is especially contentious in the US). However, it arises not only for almost all legal provisions (including those in private law instruments, such as contracts, wills, and trusts) but also for all utterances — including non-legal ones — that are ‘always speaking’.
What is an ‘always speaking’ utterance?
Martin: A ‘No exit’ sign doesn’t just speak to those who happened to be present when it was installed: it speaks to everyone who considers leaving that way (even if many years later). It is always speaking the words ‘No exit’, and so they can come to apply to people anew (on an ongoing basis). Of course, this is a metaphor: the sign is not literally always speaking. But imagine a building frequented by the visually impaired where, as well as a written ‘No exit’ sign at the relevant door, there is a sound system that plays an audio recording of someone saying ‘No exit’. To be effective, in instructing people (on an ongoing basis) not to leave that way, that recording would have to be played on a continuous loop. The sound system would need to be always speaking the words ‘No exit’.
[Q] What is the main connection between ‘always speaking’ utterances and the temporal issue?
Martin: The temporal issue only really arises for ‘always speaking’ utterances. Most of our utterances ‘speak’ only once: at the time when they are made. And so they are inevitably to be understood historically: to be given their original meaning. Scalia and Garner gave a vivid example of this: Queen Anne saying of the newly-built St Paul’s Cathedral, in 1711, that it is “awful, artificial, and amusing”. To understand what she meant by this, we must take ourselves back to 1711 — when those words meant awe-inspiring, artistic, and thought-provoking. If we gave Queen Anne’s words their current (2022) meaning, we would misunderstand her: we would take her to be criticising the Cathedral, when she was actually praising it.
Scalia and Garner use this example as part of their argument for originalism in statutory interpretation. But there are two problems with doing so. The first is that this is not an ‘always speaking’ utterance: Queen Anne did not intend that it should apply on an ongoing basis (unlike, say, a standing permission or instruction). So the temporal issue doesn’t really arise for it: utterances that ‘speak’ only once are inevitably intended to be understood historically. So this example (and many others like it) doesn’t really tell us how to resolve the temporal issue.
Posted at 6:19 AM