The language of the law, part 3: McGinnis and Rappaport respond

John McGinnis and Mike Rappaport have posted a jointly-written response to my post “The language of the law” is not actually a language. If this is an area that you’re interested in, you should read what they have to say.

I intend to prepare and post a response, but in the meantime, here is what they believe was the most significant gap in my argument:

Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language.  There is little doubt that there are technical languages: many authors have recognized them and many authors have maintained that the language of the law is one such technical language.  Goldfarb, however, never explains how he would account for such languages.  To be persuasive, he must provide such an account and then explain why our arguments about the language of the law do not follow under his account.

With regard to my argument that legal interpretive rules aren’t analogous to the cognitive processes underlying comprehension, they have this to say:

Goldfarb is mistaking a characteristic that sometimes accompanies ordinary interpretive rules (effortless cognitive processing) with an essential characteristic.  Sometimes ordinary language documents require interpretation and the application of the interpretive rules are discussed and disputed.  In law, this occurs much more often, because so much turns in the law on the precise meaning of texts.  Moreover, because law is a more a written than a spoken language, there is more time for deliberation in applying rules just as there is in giving a precise meaning to its technical terms.

But even if ordinary interpretive rules were effortless while legal interpretive rules were not, that would not prevent legal interpretive rules from being part of the language or its context.  In both cases, they have the similar function of telling the reader how to interpret the language.  The effortlessness is largely besides the point.

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