No CrossRef data available.
Article contents
Beyond Legislative Intent
Published online by Cambridge University Press: 08 October 2024
Abstract
There is a widely held view that legislative intention determines the meaning of a statute. The focus of this article is meaning in the sense of full linguistic content, which may not be the same as legal content. Linguistic intentionalism appears to have its greatest appeal when a statute has a partly implied linguistic meaning. It seems natural to suppose that the part of the meaning that is implied by the explicit wording in the statute is determined by an intention of the legislature—roughly, what the legislature intended to imply. The purpose of this article is to present some new reasons to doubt linguistic intentionalism and to offer an alternative for a particular kind of implied statutory meaning that some philosophers of language call implicitures. Rather than legislative intention, the meaning of implicitures is metaphysically determined by intention-free pragmatic linguistic norms, the grasp of which is part of the language competence of ordinary law subjects. The use of these norms, in combination with certain facts about background social practices and other conventions, generates implicitures that may be inconsistent with actual communicative intentions. These intention-free pragmatic norms, and the implicitures they generate, are explanatorily prior to the fact—if there is such a fact—of what impliciture it is reasonable to infer that the enacting legislature (or the legislators collectively) intended. Reference to legislative linguistic intention (actual or reasonably imputed) is thus explanatorily inert.
- Type
- Research Article
- Information
- Copyright
- Copyright © The Author(s), 2024. Published by Cambridge University Press
Footnotes
*
I am indebted to Hrafn Asgeirsson, Michael Pendlebury, Robert Mabrito, David Auerbach, David Austin, Kevin Richardson, Stefan Sciaraffa, Luis Duarte D'Almeida, and Liam Murphy; to the participants of the October 19, 2023 NYU Colloquium in Legal, Political and Social Philosophy, the 2015 IVR World Congress Working Group 4, the March 12, 2015 seminar on legal argumentation at the Edinburgh Centre for Law and Society, and the 2012 Monash University Workshop on Law and Language. I have greatly benefitted from their comments on earlier drafts.
References
1 Alexander, Larry, All or Nothing at All? The Intentions of Authorities and the Authority of Intentions in Law And Interpretation: Essays In Legal Philosophy 381 (Andrei Marmor ed., 1995)Google Scholar.
2 I have discussed other views that I have called intentionalism in previous publications.
3 See Asgeirsson, Hrafn, Expected Applications, Contextual Enrichment, and Objective Communicative Content: The Linguistic Case for Conception Textualism, 21 Legal Theory 115, 119 (2015)CrossRefGoogle Scholar.
4 I first approached the idea of statutory application in Levenbook, Barbara Baum, How a Statute Applies, 12 Legal Theory 71 (2006)CrossRefGoogle Scholar. There, I referred to full linguistic meaning as “plain meaning.” See the brief discussion of statutory legal contribution, infra Section IV and of application to act-tokens, infra section IX and n. 52.
5 Bach, Kent, Conversational Impliciture, 9 Mind & Language 124 (1994)CrossRefGoogle Scholar.
6 Kent Bach, Impliciture vs. Explicature: What's the Difference? in Explicit Communication 126 (Belén Soria and Esther Romero eds. 2010). Bach thinks implicitures are expansions or completions of the semantic content, which he understands rather strictly. In this article, I will sidestep controversies about the limits of semantic content and, for that matter, the use of the elastic notion of what is said.
7 Some would put “Hard to say” in the second category, claiming it expresses a complete proposition but with unarticulated constituents. (I am indebted to Kevin Richardson for this point.)
8 Bach, supra note 5 126.
9 Example from Grice, H. P., Logic and Conversation in Syntax and Semantics 52 (Peter Cole and Jerry L. Morgan eds., 1975)Google Scholar.
10 Bach, Kent, Replies to My Critics 13 Croatian Journal of Philosophy 217, 222 (2013)Google Scholar.
12 Bach, supra note 6.
13 Barbara Baum Levenbook, Soames, Legislative Intent, and the Meaning of a Statute, in Pragmatism, Law, and Language (Graham Hubbs and Douglas Lind eds., 2014), pp. 40–55.
14 Title 18 U.S.C. §924(c)(1).
15 Smith v. United States 508 U.S. 223 (1993).
16 Scott Soames, Interpreting Legal Texts: What is, and What is Not, Special About the Law, 1 Philosophical Essays 414 (2009).
17 Levenbook, supra note 4.
18 R. v. Liggetts-Finlay Drug Stores Ltd [1919] 3 WLR 1025. This case has drawn much attention from philosophers and legal theorists. See, e.g., Rupert Cross, Statutory Interpretation 67 (2nd ed., 1987); Jeffrey Goldsworthy, Parliamentary Sovereignty 234–235 (2010); Hrafn Asgeirsson, On the Possibility of Non-Literal Legislative Speech in Pragmatics and Law: Theoretical and Practical Perspectives 90–91 (Alessandro Capone and Francesca Poggi eds., 2017).
19 Smith v. Hiatt, 329 Mass. 488 (1952).
20 115 N.Y. 506 (1889).
21 Levenbook, supra note 4.
22 United States v. Kirby 74 U.S. [7 Wall] 482, 487 [1868].
23 For the view that the relevant intention is the intention of the legislature as a super-agent, see Richard Ekins, The Nature of Legislative Intent (2012).
24 Exceptions include Andrei Marmor, The Language of Law 18 (2014); Mark Van Hoeke, Law as Communication (2002). There is an implied argument from the purpose of law in Paolo Sandro, The Making of Constitutional Democracy: From Creation to Application of Law 194 (2022). See also Deborah Cao, Legal Speech Acts as Intersubjective Communicative Action in Interpretation, Law and The Construction of Meaning 65 (Anne Wagner, Wouter Werner, & Deborah Cao eds., 2007) for an argument (more like an analysis) from the assumption, which is declined here, that legislation is a speech act and, in particular, from Habermas's account of speech acts. For noncommunicative models of statutory texts, see Hurd, Heidi M., Sovereignty in Silence 99 YALE L.J. 945 (1990)CrossRefGoogle Scholar and Michael Moore, Interpreting Interpretation in Law and Interpretation 1 (Andrei Marmor ed., 1995).
25 The reader will no doubt note that subjective intentionalism as a broad theory of language is at odds with the mainstream reply about linguistic content given in Part II.
26 Think also of slips of the tongue. This one is attributed to former New York Congresswoman Bella Abzug: “We need laws that can protect everyone. Men, women, straights, gay, regardless of sexual perversion …” (https://www.thoughtco.com/slip-of-the-tongue-sot-1692106). A four-year-old of my acquaintance recently said, “If you don't have juice for breakfast, you can eat oranges or mangroves.” One sees this phenomenon in the extreme in semantic paraphasia in post-stroke patients, who think they have said something else. See also Marmor, supra note 24 at 21 and Jeffrey Goldsworthy, Moderate versus Strong Intentionalism: Knapp and Michaels Revisited 42 SAN DIEGO L.R. 677 (2005).
28 Or, often, would be warranted “in taking as the communication-intention of the speaker (or writer).” See, e.g., Goldsworthy, supra note 26 at 680: “the meaning of an utterance is the meaning which evidence readily available to its intended audience suggests it was intended to mean.” See also Asgeirsson, supra note 18, at 74. (He maintains that it will rarely be the case that statutes communicate implicitures.) A variation of objective intentionalism for statutes holds that the full linguistic meaning of a statutory provision is the content of the meaning-intention it would be reasonable for the enacting legislature (or legislators collectively) to have held. David Tan discusses a similar view in terms of the correct “interpretation”: Tan, David, Objective Intentionalism and Disagreement, 27 Legal Theory 327 (2021)CrossRefGoogle Scholar, calling it lawmaker-objectivist. This position is strikingly at odds with standard objective intentionalism, as the inference is not to what meaning-intention it is reasonable to believe the legislature actually held but to what it ought to have held. Many of the arguments for intentionalism—indeed, the informal reasoning in the introduction to this article—are inapplicable to this position. However, I cannot develop this point here and will largely ignore this version in what follows.
29 As Neale warns us, we should not conflate the epistemic question of how meaning is known with the question of what determines linguistic meaning. Stephen Neale, Convergentism & the Nature of Law, sections 3.1–3.3 (March 14, 2013) (unpublished manuscript).
30 Goldsworthy remarks, “In leading cases and treatises in England, Australia, Canada, and the United States, it is almost universally asserted that the most fundamental principle of interpretation is that statutes should be interpreted according to the intentions which they convey, either expressly or by implication given the context in which they were enacted.” [note omitted] Goldsworthy, Jeffrey, Marmor on Meaning, Interpretation, and Legislative Intention 1 Legal Theory 450 (1995)CrossRefGoogle Scholar. Also see Scalia, Antonin, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws in A Matter of Interpretation: Federal Courts and the Law 16 (1997/2018)Google Scholar: “You will find it frequently said in judicial opinions of my court and others, that the judge's objective in interpreting a statute is to give effect to ‘the intent of the legislature.’ This principle, in some form or another, goes back at least as far as Blackstone.” [note omitted]
31 See Mark Greenberg, The Standard Picture and Its Discontents in Oxford Studies in Philosophy of Law vol. 1 especially 75–80 (Leslie Green and Brian Leiter eds., 2011); Dale Smith, The Practice-Based Objection to the `Standard Picture’ of How Law Works, 10 Jurisprudence 502 (2019); Baude, William and Sachs, Stephen E., The Law of Interpretation 130 Harvard Law Review 1079 (2017)Google Scholar; and Levenbook, Barbara Baum, A Puzzle About Legal Systems and Democratic Theory, 11 Jurisprudence 157 (2020)CrossRefGoogle Scholar. See also Barbara Baum Levenbook, The Law of the Street, in new essays on the nature of legal reasoning (Mark McBride and James Penner eds., 2022).
32 Someone might want to argue from a communicative content theory of law to the claim that the practice of searching for legislative intent in appellate decisions is a practice of discovering the full linguistic meaning of the statute. It is true that appellate courts use language that appears to be a declaration of ex ante law, rather than an unambiguously performative speech act (making it the case that, for example, section such-and-such of a particular statute does not apply to private actors). However, we are entitled to ask for the reason to think that the language is not merely conventional and used indiscriminately whether or not the court is discovering ex ante law. Proponents will find no support from the claim that appellate judges think they are thereby always uncovering ex ante law. Their private writings reveal that they do not agree on this point.
33 I cannot hope to outline all the arguments for intentionalism in its various forms—linguistic and otherwise. A good beginning is Stoljar, Natalie, Survey Article: Interpretation, Indeterminacy and Authority: Some Recent Controversies in the Philosophy of Law, 11 The Journal of Political Philosophy 470, 475–476 (2003)CrossRefGoogle Scholar.
34 Various forms of intentionalism have been subject to criticism, some of it applicable to linguistic intentionalism. Most of it is either metaphysical (calling into question the coherence of the idea of a corporate communicative- or meaning-intention) or epistemic (calling into question the sufficiency of access to information about legislative meaning-intent). See Stoljar, id., at 476–480 for some of these criticisms. See also Levenbook, supra note 31. See also Levenbook, supra note 4 at 79, n. 10 and the criticism, id., 81 of an analogous view about statutory applications.
35 Also, from what context and given what information reasonableness is to be assessed. The point will be briefly revisited in Part IX.
36 When statutory texts use technical terms, or technical legal terms, or ordinary terms with special legal meanings (“possession,” “offer for sale,” etc.), those who are competent in the language in question may be only a portion of those subject to the application of the statute. So there may be limited access to one ground of full linguistic meaning—certain semantic norms. The theory I espouse may be adjusted to fit, but in order to illuminate the general character of my proposal, the adjustments will remain unexplored. I will largely describe the situation in which technical terms are not a factor in full linguistic meaning—including, of course, statutory implicitures.
37 Sandro, following Horner, prefers to speak of “text acts” of the legislature, as opposed to speech acts. Sandro, supra note 24.
38 A point made to me in private conversation by Michael Pendlebury.
39 Bach remarks that many examples of generalized conversational implicatures are cases of generalized conversational implicitures. Bach, supra note 6, at 127. Stephen C. Levinson agrees in his Presumptive Meanings (2000) 197.
40 Doubtless there is also a naughty delight that Marx flaunts social convention—and moral rules—to exploit the second of these implicitures.
41 Unintentional contextual implicitures in signs and advertisements were a staple for decades, along with written examples of garden-variety ambiguity, of the late Johnny Carson's comedy on the American late-night television show, The Tonight Show.
42 Photo of sign to be found at www.boredpanda.com/funniest-signs-around-the-world.
43 Goldsworthy, supra note 26 at 676. Goldsworthy is discussing an example from Jonathan Culler that was intended to show, according to Goldsworthy, “the meaning of an utterance can differ from the meaning intended by the speaker.”
44 Mark Greenberg, Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication in LANGUAGE IN THE LAW 240 (Andrei Marmor and Scott Soames eds., 2011).
45 Supra note 15 at 241–247.
46 It makes sense to talk about a single legislator doing these things in a single-legislator legal system. I am not at all certain it is coherent to talk about these kinds of activities as those in which corporate legislatures can engage, when we do not employ an aggregative account of such activities. The view I favor is that corporate legislative actions are determined by, and limited to, those actions legislatures have procedures for doing, and the causing of consequences of doing so. So, for instance, legislatures can enact statutes because they have procedures for doing so. I am not aware of any legislative procedures for anticipating addressees’ linguistic expectations or applying intention-free pragmatic norms.
47 An anonymous reviewer drew my attention to the fact that many of these norms might be seen as special instances of “inference rules” proposed by Levinson. However, Levinson's rules are proposed for an empirical purpose, to “elucidate” the “heuristics that are actually employed” by recipients of messages and “help to resolve the logical problem of intention-recovery.” Levinson supra note 39 at 34–35. I think of the norms as constitutive, creating statutory implicitures. For further discussion on this point, see remarks in Parts VIII and IX.
48 Statutes, of course, are not the only written instruments containing normative language, exhortations, or instructions aimed at audiences remote in space and time and unknowable to their authors, nor is law the only place we find such instruments. Neale reminds us that there are instruction manuals for electrical appliances. Neale, supra note 29, section 1.3. Think also of cookbooks, gardening books, and first aid books.
49 See United States v. Falvey, 676 F.2d 871 [1982].
50 The impliciture might also be defeated by norms of private international law. I owe this point to Izabela Skoczén, Implicatures Within Legal Language 115 (2019).
51 Protection of Animals Act 1934 (c. 21) §1. Available at https://www.legislation.gov.uk/ukpga/Geo5/24-25/21/section/1/enacted
52 United States v. Falvey, supra note 49, at 877.
53 I am indebted to an anonymous reviewer for the suggestions.
54 This argument is made about all “implicit language” by Marina Sbisà, Implicitness in Normative Texts, in Pragmatics in Law: Practical and Theoretical Perspectives 23 (Francesca Poggi and Alessandro Capone eds., 2017). For present purposes, I do not make a distinction between rules, norms, and conventions.
55 H. L. A. Hart, The Concept of Law (1961), especially Ch. IV.
56 Perhaps the best-known source is Ronald Dworkin, Law's Empire 317–321 (1986), although Dworkin is talking about intentions regarding statutory application.
57 This repeats a point I made in Levenbook, supra note 13.
58 See, e.g., Levenbook, supra note 4 for what might be considered a pro tanto legal application account. Since law tends to be systematic, even more needs to be said if the goal is to guide law subjects to actions required or permitted by the local law, all-legal-things-considered. Recall the comments on statutory legal content in Part IV and see Levenbook, supra note 31.
59 This original version of this argument (with respect to statutory application) can be found in Levenbook, supra note 4 at 80–81.