In my first language-of-the-law post the other day, I talked about the fact that the words interpret and interpretation are polysemous—they can be used in multiple different ways that are related to one another: they can be used to refer both to the conscious process of deliberation that underlies legal interpretation and to the automatic and effortless cognitive processes that underlie the comprehension of utterances and texts. And I said that although it’s not unusual to use those word in both ways, in the context of discussing legal interpretation the can be to obscure the fact that the processes differ. As a result, I prefer to use interpret and its derivatives only with respect to legal interpretation, and to use the words comprehend and comprehension to refer to the cognitive processes by which utterances and texts are understood.
It occurred to me that this would provide a good lead for me to discuss some of the assumptions that underlie my efforts to apply linguistics to legal interpretation. I’m going to do that now, and I’m going to do it by drawing on (and adapting) something that I wrote as part of a book proposal.
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In order to explain my assumptions about legal interpretation, it is necessary to begin by distinguishing interpretation from comprehension. The latter refers to the effortless and automatic process by which listeners and readers arrive at an understanding of an utterance or a text, for all intents and purposes simultaneously with hearing or reading it. In contrast, I will take interpretation to mean the deliberative process by which a decisionmaker consciously decides what meaning should be imputed to the utterance or text. This approach differs from the more typical approach, which uses interpretation to refer to both processes. For example, that’s what Scalia & Garner do in Reading Law (p. 53):
Interpretation or construction is “the ascertainment of the thought or meaning of the author of, or the parties to, a legal document, as expressed therein, according to the rules of language and subject to the rules of law.” [quoting an encyclopedia article from 1900]
I should add that even if the words interpret and interpretation are used only to refer to the consciously deliberative part of legal interpretation, they are still polysemous, and therefore potentially ambiguous. They can be used narrowly, to refer only to determining the “ordinary meaning” of the text, or more broadly, to include the entire process of determining the text’s legal meaning—or, as some academics would put it, the text’s contribution to the law. Under the broader view, the two processes would be referred to by a single label. Under the narrower view, on the other hand, considering factors such as the substantive canons would not be considered part of interpretation, but would come under some separate rubric. This idea is similar to Larry Solum’s distinction between interpretation and construction (although in saying that, I’m not taking any position about what should or should not be considered in determining legal meaning). Because I’d rather not have dissimilar processes lumped together, and because my interest is in the linguistic aspects of legal interpretation, I prefer the narrower view. I’ll therefore use interpret and interpretation consistently with that view.
Disputes over the meaning of a legal text typically involve conflicting positions about how the text should be understood as a matter of ordinary English. Resolving such disputes will require interpretation rather than simply comprehension. But the process of comprehension is nevertheless important to my conception of interpretation. I view the function of interpretation in the legal context as being to identify the understanding of the text that one would expect to as the output of the comprehension process of a reader fluent in English. And it is that understanding that I regard as constituting the provision’s ordinary meaning.
This approach is, I believe, consistent with the often-repeated statement by Holmes (1899) that the goal of legal interpretation is to determine “what [the] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used[.]” And I think it provides a good way to flesh out the concept of ordinary meaning in a way consistent with how language actually works. Among other things, this approach accommodates linguistic issues other than word meaning (e.g., syntactic ambiguity), which tend to be slighted in discussions of ordinary meaning. For example, the discussion of ordinary meaning in Reading Law (pp. 69–73) deals solely with word meaning.
Under the conception of legal interpretation that I’ve described, it is easy to see why linguistics is relevant: it provides an empirically-based account of a significant portion of the unconscious knowledge on which our linguistic competence is based, as well as insight into the workings of the comprehension process. Much the same point was made in an article coauthored by the late Charles Fillmore, who was one of the most important linguists of the past 50 years: “the methods of linguistics [can] serve to bring to conscious awareness the ‘common sense’ that judges share with all native speakers about everyday language” and thereby “enable judges to articulate what they already ‘know’ about possible interpretations” of a disputed text. So linguistics can in appropriate cases make it possible for interpretive judgments to be based on the most accurate available information about how language and language-understanding works.
Note that under this conception of interpretation, meaning is viewed from the reader’s perspective, not the author’s. So the goal is not to determine the legislative equivalent of speaker’s meaning. In fact, I don’t think that there exists such a thing as speaker’s meaning with respect to statutes, rules, and so forth—at least not the kind of speaker’s meaning that is one of the primary subjects of the field of pragmatics.
I say this because those kinds of legal texts aren’t utterances in any ordinary sense of the word. A legislature is not a speaker or author, except in a figurative sense. Neither are the legislators, either individually as a group. What legislators do in enacting a statute is to approve a text that has been drafted by someone else. That is a kind of linguistic act that is different from authoring a written text, and very different from literally uttering a statement. In the case of ordinary utterances and texts, the author or speaker’s communicative intent precedes or is concurrent with the composition and production of the utterance or text. The opposite is true in the case of legal texts such as statutes and rules: the text is drafted first (typically by legislative staff members), and whatever intention is associated with the statute’s enactment arises afterward. This is sufficiently far-removed from the ordinary situation of language use that one shouldn’t take it for granted that there exists a speaker’s meaning (as that term is generally understood) with respect to statutes and similar legal texts.
Thus, the goal of interpretation as I see it is not to determine the legislature’s intent, but to determine how the statute was likely to have been understood by the legislature. Or perhaps how it was likely to have been understood by the legislators, or how members of the public would most likely understand it; the choice between these possibilities is a legal issue, not a matter of linguistics. In any event, my view here has obvious similarities to the concept of original public meaning, which plays a big role in many current theories originalism.
But there’s a big “but.” Although I don’t accept the idea of “legislative speaker’s meaning,” I don’t think that concepts such as legislative purpose or legislative intent are irrelevant. I doubt that it is possible to comprehend an utterance or a text without drawing inferences or making assumptions about the (assumed) speaker or author’s intentions, even if there doesn’t exist an actual speaker or author in the ordinary sense. Language Log’s Mark Liberman has pointed out that even Justice Scalia made such assumptions. So if the object of interpretation is to come up with the best account possible of legislators’ understanding, we at least in theory leave open the possibility of considering whatever contextual factors are thought to be relevant and of any inferences and assumptions that legislators might be thought to have had.
This means that my assumptions are intermediate between those of the textualists and the intentionalists. Like the textualists, I don’t consider interpretation to be a quest for legislative intent. But at the same time, my assumptions are as a practical matter at least partially consistent with intentionalism, and they could help to justify considering at least some types of legislative history (on the theory that it could have influenced how legislators understood the proposed statute). It seems to me that such a justification wouldn’t be subject to the many of the usual textualist objections to considering legislative history, although objections based on notions of lenity and fair notice would still be germane.
Because I see a role for notions of imputed intent and imputed purpose, I don’t think that my framework has any inherent orientation to textualism. That’s a point that I discussed back in this blog’s the early days (Is intensive textual analysis inherently textualist?). In response to some critical comments by Michael Dorf and Garrett Epps about the emphasis on word meaning in FCC v. AT&T, Inc., I raised the question “whether an intensive focus on the text (and especially an approach that draws on linguistics) is consistent with interpretive theories other than textualism.” My answer was yes:
Even if you think that the goal of statutory interpretation is to identify the legislature’s intention or the statute’s purpose, the range of possible interpretations is generally limited by the statute’s language. (I say “generally limited” because of cases like Green v. Bock Laundry Machine Co., where even Justice Scalia endorsed a result that did violence to the text, in order to avoid an interpretation that “produces an absurd, and perhaps unconstitutional, result.”) Thus, Justice Breyer—one of the Supreme Court’s leading non-textualists—writes in his book Active Liberty that courts should look for the statute’s purpose “in difficult cases of interpretation in which language is not clear.” And it was Breyer who wrote the opnion in Muscarello v. United States, with its extensive examination of dictionary definitions, etymologies, and usage in news stories.
So since the statute’s language is always at issue, it’s always important to get the language issues right.