Language, Meaning and the Law

Language, Meaning and the Law

CHRISTOPHER HUTTON
Copyright Date: 2009
Pages: 256
https://www.jstor.org/stable/10.3366/j.ctt1r206b
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  • Book Info
    Language, Meaning and the Law
    Book Description:

    Language, Meaning and the Law offers an accessible, critical guide to debates about linguistic meaning and interpretation in relation to legal language. Law is an ideal domain for considering fundamental questions relating to how we assign meanings to words, understand and comment on texts, and deal with socially and ideologically significant questions of interpretation. The book argues that theoretical issues of concern to linguists, philosophers, literary theorists and others are illuminated by the demands of the legal context, since law is driven by the need for practical solutions and for determinate outcomes based on explicit reasoning. Topics covered include: the relationship of linguistics to legal theory, indeterminacy and statutory interpretation, the theory and practice of using dictionaries in law, defamation and language in the public sphere, and the distinction between perjury and deception. This book does not assume specialist knowledge of the field, and is designed as a self-contained, advanced introduction to a fascinating area of study. The reader will gain an overall insight into issues and debates about meaning and interpretation, as well as an understanding of how these questions are shaped by the legal context. Features:*Concise introduction to the study of linguistic meaning and its role within legal theory*Exercises and materials for classroom discussion, workshops etc.*Guide to further reading.

    eISBN: 978-0-7486-3352-4
    Subjects: Linguistics

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Acknowledgements
    (pp. ix-x)
  4. Preface: The Scope of the Book
    (pp. xi-xii)
  5. Introduction: Parables of Language and Law
    (pp. 1-6)

    In Genesis (II: xix), this account is given of the origin of human language:

    And out of the ground the Lord God formed every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof.

    In William Blake’s (1757–1827) painting Adam Naming the Beasts (1810), the Adam figure gazes forwards, right arm raised in a gesture of benediction, his left hand caressing the serpent’s head, as the animals file pass behind him. This evokes a moment...

  6. Part I Theoretical Frameworks
    • 1 Legal Theory and Language
      (pp. 9-29)

      In the 1997 film Cube, directed by Vincenzo Natali, characters find themselves trapped in a maze of interlocking rooms, in which there is no consistent orientation of up and down, and a series of puzzles and deadly traps awaits. The characters come into conflict over their interpretation of what is going on and what, if anything, can be done about it. This parallels somewhat the experience of following legal theory through its debates about language and interpretation, a field which has been described as ‘awash in fancy theories’ (Alexander 1995: 1081). The central issue in legal theory has been the...

    • 2 Systems Theory, Normativity and the ‘Realist Dilemma’
      (pp. 30-47)

      This chapter looks at the concept of ‘system’ as applied to the study of language, and the methodological and theoretical dilemmas that this raises. Asystem is an abstract model, and a systems theoretical model involves a complex, interlocking set of representations. Systems theory approaches are fundamental to the natural sciences, as well as to economics, social science and linguistics, and draw on a wide range of theoretical sources, from biology and evolutionary theory to philosophy and semiotics, in order to represent categories such as mind, language, law or society itself. Asystems model strives for maximal explicitness and terminological and conceptual...

    • 3 Philosophy, Law and Language
      (pp. 48-61)

      Political philosophers concerned with the nature of law have seen language as one of the key elements in the formation of political collectivities ruled by law. But language as law’s medium has also been seen as a potential source of instability and uncertainty, and legal theorists and political philosophers have differed widely in their assessment of the importance and role of language in law. If law is a part of the social contract between citizens and the sovereign, and language is the medium for the recording of law and for its explication, then the terms of that contract, and language...

    • 4 Issues in Legal Interpretation
      (pp. 62-82)

      Questions of language and the law arise in a general anthropological context of social life regulated by authoritative linguistic formulae. Belief systems that centre on sacred or canonical texts, such as Judaism, Christianity and Islam, have complex traditions of textual interpretation, as do societies historically organised around a hierarchical bureaucracy, such as China. The secular law found in modern societies is part of much larger human reflection on ‘the rule of rules’ (Alexander and Sherwin 2001) and it would be a mistake to presume that societies organised around texts transmitted orally have radically different concerns. All societies have rules laid...

  7. Part II Selected Topics
    • 5 Literal Meaning, the Dictionary and the Law
      (pp. 85-101)

      In constitutional interpretation, ‘originalism’ makes the claim that ‘the interpretation of the constitution should seek to effectuate, or at least be faithful to, the understanding of the constitutional provisions which can be historically attributed to its framers’ (Marmor 2005: 155). This is not necessarily the same as claiming that the words should be given the meaning they had in their original context, as different sorts of historical materials become relevant in each case. In the first case, statements of intent surrounding the passing of the constitution would be relevant, for example as to what was meant by ‘cruel and unusual...

    • 6 Representation, Reproduction and Intention
      (pp. 102-117)

      On 1 November 2007, police officers from the Organized Crime and Triad Bureau in Hong Kong raided the lifestyle, furniture and design store known as G.O.D. This followed a story in the press (Sing Pao Daily, 30 October 2007) highlighting their ‘illicit’ products. At issue was primarily a T-shirt, though postcards were also seized. The T-shirt bore a logo which the police claimed was a reference to an illegal organised crime (or ‘triad’) group in Hong Kong, known as the 14K. Eighteen people were arrested under Hong Kong’s Societies Ordinance (1949, amended in 1964), including the co-founder of the store,...

    • 7 Idols of the Market
      (pp. 118-138)

      Modern theorists of language have tended to see language as constituting the primary social bond in modern nation states, so that a shared language expresses the common conceptual world and shared values of a community or nation. Political entities are seen as communicational spaces, de fi ned by a common linguistic order. For economically oriented theorists, states are primarily markets, with language and information just one of many parallel and interacting media of exchange. In legal terms, states are legal jurisdictions, and law, rather than economics or language, is the all-pervasive medium within which social spaces are defined and social...

  8. Part III Key Issues
    • A Insider Judges and Outsider Critics
      (pp. 141-148)

      In an essay entitled ‘How judges fool themselves’ (1988), Robert Bensen draws on the work of anthropologist Marvin Harris (1987) in examining judges’ selfunderstandings. Harris argued that Hindu farmers’ narrative of the legitimacy of the prohibition of slaughter of domestic cows was from the outsider’s viewpoint in conflict with their practice of underfeeding male calves. These calves had little value in the economic system in that region (Kerala, India), and in practice the underfeeding meant that most died. Applying this anthropologic-ally uncomfortable dichotomy to judges, Bensen points to the contradiction between an internal and an external view. From within, judges...

    • B Hard Cases and Ideal Interpreters
      (pp. 149-154)

      Debate over so-called ‘hard cases’ is fundamental to legal theory and its discussion of language. For H. L. A. Hart, most cases were decided within the core meaning of legal rules. Rules had a certain core, but the language of rules was surrounded by a ‘penumbra of uncertainty’. This was referred to by Hart, following Waismann (1965), as the ‘open-texture’ of language and legal rules, and in relying on an idea of a stable linguistic meaning Hart’s model parallels the linguist’s distinction between a stable ‘core’ meaning and marginal variations which are a feature of language in context (see Figure...

    • C The Judge as Tennis Umpire
      (pp. 155-157)

      In thinking about the relation of legal language to reality, and the question of lines between concepts, we can consider the case in property law of ‘lease’ versus ‘licence’ as a characterisation of a form of occupancy right. This might be understood as a question of definition, that is, if we define these two words clearly, then we can then use the definitions as criterial in determining whether a given factual situation involves a licence or a lease. On this view, definitions set limits between adjoining areas of conceptual space, like a map showing the border between countries. Neither the...

    • D The Golden Mean?
      (pp. 158-161)

      We can think of approaches to legal interpretation as lying on a spectrum from formalism/textualism at one end to a wide variety of indeterminacy theorists at the other. Between textualism and indeterminacy can be found many attempts to define a degree of relative legal-linguistic certainty or stability, for example by distinguishing between indeterminacy and ‘underdeterminacy’. Graff (1982: 406) accepts that there is no ‘semantic immanence’, that is, meanings do not inhere within texts, but denies that ‘our practical ability to make sense of texts and utterances is somehow endangered or impaired’. A case which is ‘underdetermined’ is one where the...

    • E Reflexivity and Garfinkel’s Dystopia of Reasons
      (pp. 162-168)

      It has been argued that modern societies are especially reflexive, in that selfinquiry, historical debate, the density of regulation and reform are also themselves the subject of inquiry, historical debate, regulation and reform. Modern public culture reflects the mobile, unsettled quality of this reflexive modernity, a process in which modernity is understood to be engaged in modernizing itself (Beck et al. 2003: 1):

      When modernization reaches a certain stage it radicalizes itself. It begins to transform, for a second time, not only the key institutions but also the very principles of society. But this time the principles and institutions being...

    • F The Single Meaning Rule and Defamation Law
      (pp. 169-174)

      In English laws against obscene libel and blasphemy, ‘the essence of obscene libel is a tendency on the part of a “published” article to deprave and corrupt, and blasphemous libel is committed by any scurrilous vilification of the Christian religion including its principal iconic figures’ (Kearns 2007: 667). The intention of the author is at best marginal to establishing the offence, and the law applies its own set of procedures to assign meaning to the published words. This amounts to strict liability (an exception to the general rule that criminal law requires proof of mens rea or ‘guilty mind’), even...

  9. PART IV Conclusion
    • The Semiotics of Law, Language and Money
      (pp. 177-184)

      A philosopher once wrote:

      There is no more striking symbol of the completely dynamic character of the world than that of language. The meaning of language lies in the fact that it will be addressed to someone. When language stands still, it is no longer language according to its specific value and significance. The effect that it occasionally exerts in a state of repose arises out of an anticipation of its further motion. Language is nothing but the vehicle for a movement in which everything else that is not in motion is completely extinguished.

      In actuality, the philosopher, Georg Simmel...

  10. Appendices: Discussion Materials and Exercises
    (pp. 185-202)
  11. Further Reading
    (pp. 203-204)
  12. References
    (pp. 205-220)
  13. Legal Cases Cited
    (pp. 221-223)
  14. Index
    (pp. 224-244)