Over at Volokh Conspiracy, Will Baude has commented on my post about the language of the law. Will and his co-author Steve Sachs recently had a paper titled “The Law of Interpretation” published as a lead article in the Harvard Law Review. They have a view of the rules of legal interpretation that differs from McGinnis and Rappaport’s and is fairly similar to mine:
In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.
However, Baude sees his (and Sachs’s) conception of legal rules as differing somewhat from my description of legal interpretation as process of explicit reasoning:
I take [Goldfarb’s] point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utterance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.
I’ll deal with these points in reverse order.
Although Baude takes issue with my statement that legal interpretive rules are “promulgated explicitly by actors vested with institutional authority,” all we really disagree about is what I meant by my use of the word promulgated. In retrospect, that may not have been the best word to use, because I intended what I said to apply to common-law rules as well as to rules propounded by a legislature or similar body. All common-law rules ultimately trace back to actions by judges formulating or otherwise adopting the rules, and every time a court rules on whether such a rule applies in a given case, it at least implicitly affirms the continuing validity of the rule. And of course, courts have institutional authority. So just like statutes, common-law rules are cultural artifacts as opposed to purely cognitive processes.
As to Baude’s other point, although there may be some actual disagreement, I think that there is less distance between our views than what Baude seems to perceive. In describing legal interpretation as being consciously deliberative, I was thinking about the process of interpretation as it is practiced by judges in deciding cases and (derivatively) by lawyers litigating those cases. And in that context, whatever interpretive issue is in dispute is going to be the subject of explicit argument and analysis. I don’t doubt that lawyers have internalized many legal rules and take them for granted, but I also don’t see those two propositions as being inconsistent.
The issue of lawyers taking interpretive rules for granted is relevant to McGinnis & Rappaport’s “narrow conception” of language, on which they base an alternative version of their thesis, and which I didn’t discuss in my post. Their argument on this point is that even if legal interpretive rules aren’t part of The Language of the Law, they are part of the context in which laws are enacted and they are therefore contribute to the meaning of those laws as a matter of pragmatics:
There are two ways to understand these legal interpretive rules as part of the context that contributes to the meaning of statements made in the language of the law. One way is to understand them as deriving from Grice’s conversational maxim of quantity, which requires the speaker to make his contribution as informative as required for the current purposes of the exchange. Under this view, people who use the language of the law—both the authors and the audience—know that the legal interpretive rules are applied to statements made in that language. Consequently, if the authors say nothing to indicate that those legal interpretive rules do not apply, this language is properly interpreted in accord with those rules. If the authors had intended to depart from the rules, then it would be reasonable to assume that they would have indicated that.
The second way to understand the legal interpretive rules is simply as part of the context of the statement. Under this view, one need not link following the legal interpretive rules to a specific maxim of conversation within Grice’s theory. There are, after all, various theories that discuss conversational and other implicatures. The basic point is that when people use the language of the law, the context of that language is the legal interpretive rules. Thus, any theory that takes context into account should apply the legal interpretive rules to utterances made in the language of the law.
While I’m not prepared to say that I disagree with this argument, neither am I prepared to say that I agree. I’m not at all sure that their appeal to pragmatics is appropriate, and to the extent that it is appropriate, I don’t think it succeeds.
As I suggested in my earlier post, pragmatic processes come into play as part of the initial comprehension process. If that’s what McGinnis and Rappaport are talking about, then it’s appropriate to take pragmatics into account. However, I don’t think that they have established a link between that premise and the conclusion that they draw.
On the other hand, if they are suggesting that pragmatic processes are at work during the consciously deliberative stage in the interpretation process, I suspect that their premise is flawed. Note that I’m not saying that pragmatics shouldn’t be considered as part of the conscious deliberations. Rather, to the extent pragmatics is part of the analysis, the goal of the analysis should be to determine the impact of pragmatic factors (implicatures, explicatures, etc.) on the output of the comprehension process. And as I’ve just said, I think that more work is needed before that goal can be reached.