[This is Part 4 of my look at Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner. (Part 1; Part 2; Part 3.)]
Included in Reading Law’s list of 57 canons of interpretation are seven that are described as “syntactic canons.” Of these, three are the most important:
Last-Antecedent Canon. A pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent.
Series-Qualifier Canon. When there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.
Nearest-Reasonable-Referent Canon. When the syntax involves something other than a parallel series of nouns or verbs, a prepositive or postpositive modifier normally applies only to the nearest reasonable referent.
In this post I’m first going to look at these canons fit in with the existing law and then at whether they hang together as a coherent set of principles. And since the post is a long one, here’s the executive summary: First, the canons as formulated in Reading Law differ from the existing law in some important ways. Second, they don’t hang together as a coherent set of principles.
Posted in Ambiguity, Bryan Garner, Canons of interpretation, Language mavens, Law, Law and linguistics, Liparota v. United States, Rule of the last antecedent, Scalia, Statutory interpretation, Syntactic
[Updated. Part 1; Part 2]
One of the recurring problems in interpreting statutes and other texts is that of syntactic (i.e., grammatical) ambiguity. Reading Law sets out three canons of interpretation that are intended to deal with this problem: the Last-Antecedent Canon, the Series-Qualifier Canon, and the Nearest-Reasonable Referent Canon. I’m going to take a look at these canons, but I think that it would be helpful if I first say a few words about syntactic ambiguity and how to analyze it.
[Part 1 here.]
For most people who consult Scalia and Garner’s new book on statutory interpretation (I say “consult” because few people are going to read it straight through), Bryan Garner’s name on the cover will lend additional credibility to the book’s discussion of grammar and linguistic meaning. After all, he’s the Guru of Writing and Language. But to what extent is his background and expertise actually relevant to the process of interpreting a text whose meaning is disputed? My answer to that question is, less than you might think.
Let me start by focusing here on the relevance of Garner’s grammar-related work to the kinds of grammatical issues that come up in interpreting statutes; I’ll save for a later post my examination of his work as a lexicographer and how that relates to resolving disputes over word meaning.
Most of Garner’s work is devoted to giving advice about how to write, and most of it deals with topics such as these, which are irrelevant to statutory interpretation:
A new book on statutory interpretation has just been published; it’s titled Reading Law: The Interpretation of Legal Texts and it’s by Supreme Court justice Antonin Scalia and usage guru Bryan Garner, who previously co-authored Making Your Case: The Art of Persuading Judges.
Scalia’s involvement in this new project isn’t surprising; he’s the leading proponent of “textualism” as a philosophy and method of statutory and constitutional interpretation, and he’s published a book on the subject. Garner’s participation, on the other hand, is something of a surprise. His writings had not previously given any indication that he had any special interest in statutory interpretation. Garner is most widely known as the author a usage manual (he’s actually written two: one on general usage and one legal usage). He has also written books of advice about legal writing and frequently lectures on the subject. And he is editor in chief of Black’s Law Dictionary.
It is Garner’s involvement that especially piques my interest. Like me, he is interested in language, and a significant part of the book deals with purely linguistic issues such as syntax and word meaning. But Garner comes at these issues from very different point of view than I do, the main difference being that he is generally hostile to the field of linguistics.