Category Archives: “A technical language”

Replying to McGinnis and Rappaport

As I’ve noted, John McGinnis and Mike Rappaport have responded to my post “The language of the law” is not actually a language. They disagree with what I said, and in this post I will return the favor.

McGinnis and Rappaport make two basic points. First, they say that I did not address their argument that The Language of the Law is a technical language and that as a result there is a gap in my analysis. Second, they dispute my argument that the rules of legal interpretation are not analogous to the cognitive processes that underlie comprehension.

The Language of the Law as a technical language

McGinnis and Rappaport accept the point in my earlier post that legal language—or The Language of the Law, to use their preferred term—is not a full-blown language comparable to Hindi or Pirahã. Their paper recognizes that The Language of the Law is “not wholly independent of ordinary language”, and they describe it as “an overlay on ordinary language.” And they don’t take issue with the statement by Peter Tiersma that I quoted: “If we isolate what is distinctive in legal English, leaving out features of ordinary speech, what remains is far too incomplete to function as a language.”

This is important because McGinnis and Rappaport also don’t disagree with my statement that the strong version of their analysis (meaning the version that assumes a “wide conception” of language) relies on their analogy between The Language of the Law and ordinary language. So in order to defend that portion of their argument, it’s essential for McGinnis and Rappaport to show that their analogy is valid. I don’t think they’ve done so.

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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.

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