Revisiting the Contribution of Literal Meaning to Legal Meaning

Many theorists take the view that literal meaning can be one of a number of factors to be weighed in reaching a legal interpretation. Still others regard literal meaning as having the potential to legally justify a particular outcome. Building on the scholarly response to HLA Hart’s famous ‘vehicles in the park’ hypothetical, this article presents a formal argument that literal meaning cannot be decisive of what’s legally correct, one which, unusually, makes no appeal to controversial theories within philosophy of language or literary criticism. If the argument is sound, it follows that an enactment’s literal meaning neither weighs in the determination of correct legal outcomes nor permits the application of a sequencing model, ie a non-monotonic logic, to its interpretation. These implications are considerably more controversial within contemporary legal theory than the idea that a statute’s literal meaning is not necessarily its legal meaning. Yet we see that, given an intuitive notion of legal truth, they follow from it nonetheless. This article takes as its target the idea that literal meaning is legally decisive. It might therefore be charged with seeking to flog a dead horse. Certainly, few legal theorists now believe that a statute’s literal meaning is necessarily its legal meaning. Yet, the idea that an enactment’s literal meaning cannot be decisive of a correct legal outcome is too radical for most. Thus, many theorists take the view that literal meaning weighs as one of a number of determining factors, ie are open to believing that ‘the weight of plain meaning as a decisional factor increased noticeably in the Supreme Court during its [X] Term’. Still others regard literal meaning as having the potential to legally justify a particular * Ad Astra Doctoral Scholar, School of Law, UCD. Email: [email protected]. I would like to thank Maria Baghramian, Gerard Casey, John O’Dowd and Colin Scott for reading earlier versions. I am also grateful to my Philosophy of Law students at UCD and to those attending the Irish Jurisprudence Society’s workshop of 13 November 2008 for their comments. 1 John Manning is a prominent exception; ‘[R]espect for the legislative process requires judges to adhere to the precise terms of statutory texts’ and precludes them ‘from making ad hoc exceptions to generally worded laws’. ‘The Absurdity Doctrine’ 116 Harv L Rev 2387–486 (2003), 2390, 2391. 2 Fred Schauer, ‘The Practice and Problems of Plain Meaning’ 45 Vand L Rev 715–42 (1992), 716. The passage, concerning the US Supreme Court’s 1989–90 Term, continues, ‘This descriptive claim fits with Judge Wald’s conclusions . . ., and appears to be acknowledged as well by Professors Macey and Miller . . . and elsewhere by Professors Eskridge and Sunstein.’ (Citations omitted). See n 39, below. The Author 2009. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] at U nirsity C olege D ublin on Jne 3, 2010 http://ojlsordjournals.org D ow nladed fom outcome. If such assumptions are in fact mistaken, some rethinking is in order. On the other hand, the most prominent refutations of the decisiveness of literal meaning rest on contested views about language and intention. This article attempts to disrupt the apparent consensus on the place of literal meaning. Drawing on the scholarly response to HLA Hart’s famous ‘vehicles in the park’ hypothetical, it presents a formal argument that literal meaning cannot be decisive of what’s legally correct; one which makes no appeal to controversial theories within philosophy of language or literary criticism. The argument excludes the possibility—as many of Hart’s critics do not—that a provision’s literal meaning can be one of a number of factors to be weighed in determining its legal meaning or that it can legally justify a particular outcome. What is a statute’s literal meaning? Until recently, most discussions of literal or plain legal meaning concerned the meanings conventionally attributed to a statute’s words. This focus paralleled the dominance of descriptivist semantics in analytic philosophy, according to which a word’s meaning is entirely a matter of linguistic convention. Since the 1970s, the applicability of this theory to certain kinds of words, most notably proper names and natural kind terms, has been questioned. Alternative ‘externalist’ theories of meaning have been proposed, which claim that meaning and reference are not solely determined by the ideas we associate with words. One consequence of this development has been an attempt, by legal theorists, to apply the teachings of semantic externalism to problems in legal philosophy, specifically, to offer an explanation of the phenomenon of disagreement about legal meaning. According to such theorists, semantic meaning is not the meaning conventionally attributed to the words of statutes, but something more objective. On this approach, legal meaning is indeed a function of semantic or literal meaning, but where the latter is something ‘outside the head’. We will focus on meaning that is ‘inside the head’, that is, on the meanings conventionally attributed to a statute’s words. The focus is appropriate for two reasons. First, virtually all participants in debates about the legal decisiveness of literal or semantic meaning have 3 Robert Alexy and Neil MacCormick are among many who defend this view. See n 31, below. 4 Legal theorists have relied on the radical contextualism advanced by Searle, Travis and Recanati to refute the legal decisiveness of literal meaning, see F Poggi, ‘Semantics, Pragmatics and Interpretation’ in P Comanducci and others (eds), Analisi e diritto (Giapichelli, Torino 2008) 159, 162, 168; D Canale and G Tuzet, ‘On Legal Inferentialism: Toward a Pragmatics of Semantic Content in Legal Interpretation?’ 20 Ratio Juris 32–44 (2007), 35; R Charnock, ‘Lexical Inderrminacy: Contextualism and Rule-following in Common Law Adjudication’ in A Wagner and others (eds) Interpretation, Law and the Construction of Meaning (Springer, Dordrecht 2006) 21, 36–8; D Sosa, ‘The Unintentional Fallacy’ 86 Cal L Rev 919–38 (1998), 927, 930; J Goldsworthy, ‘Marmor on Meaning, Interpretation, and Legislative Intention’ 1 Legal Theory 439–54 (1995). 5 HLA Hart, ‘Positivism and the Separation of Law and Morals’ 71 Harv L Rev 593–629 (1958), 606–15. 6 See eg S Kripke, ‘Naming and Necessity’ in G Harman and others (eds), Semantics of Natural Language (Reidel, Dordrecht 1972) 253; K Donnellan, ‘Proper Names and Identifying Descriptions’ 21 Synthese 335–58 (1970); H Putnam, ‘The Meaning of ‘‘Meaning’’ ’ in K Gunderson (ed) Language, Mind and Knowledge. Minnesota Studies in the Philosophy of Science (U Minn Press, MN 1975) 131. 7 M Moore, ‘The Semantics of Judging’ 54 S Cal L Rev 151–294 (1981); D Brink, ‘Legal Theory, Legal Interpretation, and Judicial Review’ 17 Phil & Pub Affairs 105–48 (1988), N Stavropoulos, Objectivity in Law (OUP, Oxford 1996) and, arguably, R Dworkin, ‘Hart’s Postscript and the Character of Political Philosophy’ (2004) 24 OJLS 1–37, 11–13. But see R Dworkin, Justice in Robes (Harv U Press, MA 2006) 11–12, 227. 256 Oxford Journal of Legal Studies VOL. 30 at U nirsity C olege D ublin on Jne 3, 2010 http://ojlsordjournals.org D ow nladed fom taken themselves to be arguing over the decisiveness of the meanings conventionally attributed to a statute’s words. Second, while the general implications of the externalist advance are controversial within philosophy of language, its application to statutory interpretation is even more so. Accordingly, semantic externalism is not the strongest foundation on which to build a general critique of the legal decisiveness of literal meaning, as it is traditionally understood. In what follows, we will define an utterance’s ‘literal meaning’ as the proposition you would attribute to it if you referred to just the symbols in question and the appropriate community’s conventions on linguistic meaning, ie to the appropriate set of rules for the meanings of words and sentence construction. Already in this definition, the identification of an utterance’s literal meaning seems to involve recourse to non-literal factors. How are we to decide which set of linguistic conventions is appropriate for deciphering an utterance’s literal meaning? In justifying our selection of a particular set, are we not obliged to invoke an interest in the author’s communicative intent? If so, the literalist interpreter’s stated interest in an utterance’s literal meaning, rather than in its author’s intent, might seem a mere fiction. This is a potent argument. But it seems to lack general application. In circumstances where a legislature is established in a superior law such as a constitution, it is possible that the law specifies the set of linguistic conventions by which the legislature’s utterances are to be understood. While identifying that utterance’s literal meaning seems to require recourse to non-literal factors, we need not demand of the literalist that they rely on literal meaning all the way down. We might say that, whereas the intent of constitutional authors fixes the set of linguistic conventions with which a particular statute is to be understood, that of the authors of the statute itself is immaterial. Thus, it seems possible to concede that reliance on authorial intent is necessary to establish the appropriate linguistic conventions, but to deny that one must rely on the intent of the author of the utterance of interest. 8 The school of thought commonly referred to as two-dimensionalism offers an interpretation of Kripke and Putnam’s work that retains an essential role for description in semantic meaning. For an overview and synthesis, see D Chalmers, ‘The Foundations of Two-Dimensional Semantics’ in M Garca-Carpintero and J Macia (eds), Two-Dimensional Semantics (OUP, NY 2006) 55. Even philosophers who favour a broad reading of the implications of the externalist critique may be cautious about the prospect of deriving positive semantic theories from it, see eg M Devitt and K Sterelny, Language and Reality (MIT Press, MA 1999) 79–81, 92. 9 For example, S Munzer, ‘Realistic Limits on Realist Interpretation’ 58 S Cal L Rev 459–75 (1985); B Bix, ‘Michael Moore’s Realist Approach to Law’ 140 U Pa L Rev 1293 (1992); A De Moor, ‘Nothing Else to Think? On Meaning, Truth and Objectivity in Law’ (1998) 18 OJLS 345–62; M Green, ‘Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach Us about the Law’ 89 Va L Rev 1897–952 (2003); J Coleman and O Simchen, ‘Law’ 9 Legal Theory 1–41 (2003); D Patterson, ‘Dworkin on the Semantics of Legal and Political Concepts’ (2006) 26 OJLS 545–57; Brian Leiter, ‘Naturalism in Legal Philosophy’ (2007) accessed 15 October 2009. 10 Not all utterances will have propositional content, of course, but those of the legal variety will insofar as they purport to regulate conduct. 11 Intentionalist legal theorists have raised just this problem; eg WB Michaels and S Knapp, ‘Intention, Identity, and the Constitution’ in G Leyh (ed), Legal Hermeneutics (U Cal Press, Berkeley 1992) 187, 192. SUMMER 2010 Contribution of Literal to Legal Meaning 257 at U nirsity C olege D ublin on Jne 3, 2010 http://ojlsordjournals.org D ow nladed fom We will grant the literalist the plausibility of this move and accordingly focus our attention on statutes enacted by legislatures whose authority has been legally provided for. Consideration of the much discussed quality of legal ‘defeasibility’ will lead us to present a formal argument against the legal decisiveness of literal meaning. We proceed then to defend the argument’s premises. Having secured our conclusion, we consider its negative implication for the idea that literal meaning may be one of a number of factors to be weighed in determining an enactment’s legal meaning. Finally, we return to Hart’s famous park hypothetical to reassess the state of argument. Our project is primarily critical; we offer no argument with respect to what in fact determines an enactment’s legal meaning. This focus is not intended to imply that nothing general may be said about what sort of considerations count as determinants of legal meaning. On the contrary, our argument is premised on intuitions about legal meaning that may well be a response to some particular kind of interpretive object. Moreover, we offer no objection to the idea that enactments’ literal meaning is of great assistance in determining their legal meaning. Our argument seeks merely to refute the stronger thesis that an enactment’s literal meaning may be decisive of its legal meaning.