Language and Interpretation

So what is the relationship between the language that is used to make legal standards, and the law itself? If the law provides that a form of words determines the content of a standard (such as a term of a contract, or a criminal offence, or a duty of the executor of a will), what is the effect of the words? The question seems to demand a general theory of the meaning and interpretation of legal language -a general explanatory account of what makes the words of a statute (or contract, or will, or constitution) apply to the facts of a case. If there is no general theory, then there is no general answer to the question. A theory of meaning and interpretation of legal language would not be very much less general than a theory of meaning and interpretation of language. And such a theory would have to vie with arguments of, e.g., Ludwig Wittgenstein that the search for such a theory would be a philosophical mistake.

The entry on Interpretation and Coherence in Legal Reasoning addresses theories of interpretation [see also the entries On The Nature of Law and Naturalism in Legal Philosophy]. Here I will only mention two features of legal language that raise challenges for philosophy of law and for philosophy of language: any good account of the meaning and interpretation of legal language needs to deal with the way in which its application depends on (1) the context of its use, and (2) evaluative considerations.

Consider the case of Garner v Burr [1951] 1 KB 31. The legislature had made it an offence to use a ‘vehicle’ on a road without pneumatic tires. Lawrence Burr fitted iron wheels to his chicken coop, and pulled it down the road behind his tractor. Burr was prosecuted under the statute. The magistrates acquitted him, apparently on the ground that a chicken coop is not a ‘vehicle’. The appeal court reversed that decision. The Lord Chief Justice wrote,

The regulations are designed for a variety of reasons, among them the protection of road surfaces; and, as this vehicle had ordinary iron tyres, not pneumatic tyres, it was liable to damage the roads. [The magistrates] have put what is in my opinion too narrow an interpretation on the word ‘vehicle’ for the purposes of this Act. It is true that, according to the dictionary definition, a ‘vehicle’ is primarily to be regarded as a means of conveyance provided with wheels or runners and used for the carriage of persons or goods. It is true that the [magistrates] do not find that anything was carried in the vehicle at the time; but I think that the Act is clearly aimed at anything which will run on wheels which is being drawn by a tractor or another motor vehicle. Accordingly, an offence was committed here. It follows that [the magistrates] ought to have found that this poultry shed was a vehicle within the meaning of s. 1 of the Road Traffic Act of 1930. ([1951] 1 KB 31 at 33)

The magistrates and the appeal court seem to have disagreed over the effect of principles: a principle that the purposes for which Parliament passed the statute ought to be pursued, and a principle that statutes ought only to be read as imposing criminal liability if they do so unequivocally. Assume that those principles are legal principles, in the sense that a decision in accordance with the law must respect them. The apparent tension between the principles might be resolved in two ways. We do not have the magistrates' reasons, but let's presume that they resolved the tension in the first way; the appeal court resolved it in the second way:

1. by concluding that Parliament's purposes can be respected appropriately while still construing the prohibition strictly, so that it is no offence to use something on the road that is not unequivocally within the meaning of the term 'vehicle', or

2. by concluding that Parliament's purpose is sufficiently clear that it can be pursued without jeopardising the principle that criminal liabilities ought to be clearly spelled out, even if someone might reasonably claim that a chicken coop on wheels is not a ‘vehicle’.

It may seem that this common sort of disagreement in law tells us nothing about language, except perhaps that language is of no particular importance in law. It may seem that the two courts did not disagree over any question of language, but only over whether they ought to give effect to Parliament's evident purpose (of protecting roads) by convicting, or whether it would be unfair to Lawrence Burr.

One explanation of the decision would be that the appeal court ignored the word ‘vehicle’, and treated anything that moves on wheels as subject to the pneumatic tires rule. But the Lord Chief Justice did not explain his decision that way. He did not hold that, because Parliament aimed to protect roads from iron wheels, Burr should be convicted regardless of the meaning of the word ‘vehicle’. He held that the magistrates ought to have found that the chicken coop was a vehicle within the meaning of the Road Traffic Act. Presumably the magistrates, too, considered themselves to be giving effect to the language of the Act, rather than acquitting on grounds of fairness in spite of what Parliament had enacted.

No doubt, legal decisionmakers sometimes depart from the language of valid enactments (or wills, or contracts). They may do so corruptly, or in the exercise of an equitable jurisdiction to depart from legal requirements, or even because they consider that justice demands it even if the law accords them no power to depart from the language. But there is no reason to think that the magistrates or the appeal judges decided not to give effect to the language in Garner v Burr. And the sort of disagreement that arose in that case (disagreement over the legal effect of the use of a word) is so common that we seem to find a paradox: competent speakers of the English language presumably share a knowledge of the meaning of the word ‘vehicle’, yet they disagree — apparently sincerely — over how to use the word.

To resolve the apparent paradox, we can say that what speakers of the English language share is an ability to use a word like ‘vehicle’ in a way that depends on the context. The question of whether a chicken coop on wheels counts as a ‘vehicle’ would be a different question (and might have a different answer) if, say, another statute or regulation imposed a tax on ‘vehicles’. The Lord Chief Justice was right that a dictionary definition of ‘vehicle’ could not conclude the question of whether the chicken coop was a vehicle in Garner v Burr, because the purpose of a dictionary definition is to point the reader to features of the use of the word that can be important in a variety of more-or-less analogical ways in various contexts. A definition of ‘vehicle’ as a mode of conveyance offers the reader one central strand in the use of that word, but does not tell the reader whether a more-or-less analogical extension of the word to a chicken coop on wheels is warranted or unwarranted by the meaning of the word. Another way of stating this resolution of the apparent paradox is to distinguish between the meaning of a word (which the magistrates and the appeal judges all knew) and a decision about how to interpret a communicative act using the word (over which they disagreed). What the courts in Garner v Burr shared was a knowledge of the meaning of the word ‘vehicle’, and what they disagreed over was the effect of the statute.

Note that it is the importance of the context of the word's use that requires anyone addressing the problem in Garner v Burr to make evaluative judgments, just to apply the putatively descriptive term ‘vehicle’. The context of use is a criminal prohibition imposed for a presumably good public purpose of protecting road surfaces. To determine in that context whether the word ‘vehicle’ extends to a chicken coop on wheels, you need to address (and to resolve any tension between) the two principles mentioned above: the importance of giving effect to the statutory purpose, and the importance of protecting people from a criminal liability that has not been unequivocally imposed. Because of the importance of that context, the question of the meaning and application of the language of the statute cannot be answered without making judgments on normative questions of how those principles are to be respected.

The dependence of the effect of legal language on context is an instance of a general problem about communication, which philosophers of language have approached by distinguishing semantics from pragmatics. They have attempted to distinguish the meaning of a linguistic expression, from the effect that is to be ascribed to the use of the expression in a particular way, by a particular user of the language, in a particular context. Pragmatics is an underdeveloped study in legal theory, and yet it is an underdeveloped study of a vast field, for the term 'pragmatics' could be used as a heading for all the work of legal scholars and theorists in defending particular interpretations of legal language (when the participants in the dispute understand the meaning of the expressions in question, as they did in Garner v Burr), and in theorizing as to the nature of interpretation. In recent work in this field, it is even controversial whether legal pragmatics is simply a part of the pragmatics of language use in general (see Dascal and Wroblewski 1988), or whether there is something special about law, in respect of the dependence of meaning on context (see Marmor 2008, arguing that ‘the contextual background is typically not rich enough’ in law, for the content asserted to differ from what has been said, in the way that it often does in conversation). But all agree that law has one special feature that distinguishes it from ordinary conversation: legal systems need institutions and processes for adjudication of the disputes about the application of language that arise (partly) as a result of its context-dependence.

The problem faced in cases like Garner v Burr is an especially vivid reminder of a problem that philosophers of language have long been more or less aware of (see Aristotle's discussion of the notion of ‘friendship’ in Eudemian Ethics VII, 2, 1236a 33). The context-dependence of the meaning of words requires an account of linguistic competence that relates it to other human capacities — capacities to judge the importance of context and to draw analogies. It would be a mistake in the philosophy of language to account for language in a way that divorces its mastery from other aspects of human rationality. Context-dependence also poses challenges for any theory of meaning to distinguish between (and to explain relations between) knowledge of the meaning of a word, and ability to apply it truly. Finally, the role of evaluative considerations in the application of ordinary descriptive terms like ‘vehicle’ raises a challenge for any thorough-going scepticism about value: the challenge of deciding whether to adopt a thorough-going scepticism about the meaning and application of descriptive language, which seems to follow from general scepticism concerning values.

For philosophy of law, the dependence of such language on evaluative considerations raises special problems.