Professional Documents
Culture Documents
Role of Linguistics in
Statutory
Interpretation
Interpretation of Statutes: Project Submission
Yashaswi Kant
210043
Table of Contents
OVERTURE...............................................................................................................................1
QU'EST-CE QUE LE LANGAGE ET LA LINGUISTIQUE?..................................................1
WHAT IS INTERPRETATION?................................................................................................2
THE DARK KNIGHT IS A MUST WATCH STATUTE OR NOT??.................................3
INTERPRETATION- IS IT THE COURTS PREROGATIVE?...............................................4
FUNCTION OF LINGUISTICS IN STATUTORY INTERPRETATOIN- DOES IT EVEN
EXIST?.......................................................................................................................................5
"Judges are philologists of the highest order"........................................................................5
I dont need to be told by a linguist what the English language...........................................6
CONCLUSION..........................................................................................................................7
BIBLIOGRAPHY......................................................................................................................8
OVERTURE
This paper is an endeavour to introduce to the reader, the role of linguistics 1 in statutory
interpretation. As an essential precursor to an appreciation of the same, the paper shall
initially meander through the fundamental understanding of language and interpretation.
Furthermore, the paper shall explore as to what exactly transforms conventional language
into legislative language namely, statutes. Consequently, the modification in the
interpretation of statutes from interpretation of conventional language if any, shall be
discussed.
This discernment shall be the narthex to the essence of the paper, which is the impact and role
of the philosophy of language in interpretation of statutes.
understands that language in its bare essence, possesses negligible objectivity without the
traditions, customs, usages associated with that language practised in that society. Indeed,
language is visualised as an emblematic medium, whose interpretation changes with the
variation in human society, in concepts and more importantly, the linguistic convention at a
given point of time.5 Thus, language is that tool through which every human conceptually
catergorises and understands the world around him.6 Ludwig Wittgenstein once correctly
remarked To imagine a language is to imagine a form of life7
Having understood what language precisely is, it is apt to know what is meant by the term
linguistics8 What linguistics primarily offers is an empirically supportable and refined
way to assess how "ordinary people" understand certain uses of language. 9 So essentially,
what a linguist does is through introspection, scrutiny of the existent uses of language and the
members of the society, is to propose an informed judgement as to the possible interpretation
that majority of the society would associate with a given term or expression. 10 Through
linguistics, one can identify whether a term would be comprehended in an identical fashion
by the bulk of the society, or whether the term is ambiguous, resulting in myriad
interpretations.
WHAT IS INTERPRETATION?
5 Id. The author uses a pertinent example of the term Grade Point Average to explain that
GPA will dazzle a nave listener unless he is explained the dynamics and structure of the
academic world.
6 Id, See Authors observation of Ludwig Wittgensteins remarks on the concept of language
7LUDWIG WITTGENSTIEN, PHILOSOPHICAL INVESTIGATIONS, Wiley-Blackwell; 4
edition (March 16, 1998) (Wittgenstein 1998)
8 Or better still, the interpretation of linguistic as understood in present day linguistic
convention.
9 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)
10 Id.
11 Jason A. Beckett, The Violence of Wording: Robert Cover on Legal Interpretation, NoFo 8
[May 2011], available at https://docs.google.com/viewer?url=http%3A%2F
%2Fwww.helsinki.fi%2Fnofo%2FNoFo8Beckett.pdf, last visited on August 23, 2012.
12 See Timothy A.O. Endicott, Putting Interpretation in its Place, Law and Philosophy, Vol. 13,
No. 4 (Nov., 1994), pp. 451-479.
13 Id.
14 Endicott, Supra note 11, See Endicotts reference to the work of Andrei MarmorInterpretation and Legal Theory
15 Id. Marmor here draws support from Wittgensteins aspiration to resolve interpretive
problems by reminding people of the kind of statements they make.
26Tiersma, Supra note 18, See remark of English Judge Chief Baron Pollock
27Peter M. Tiersma, What is Language and Law? And Does Anyone Care?, Law and
Language: Theory and Society, Loyola-LA Legal Studies Paper No. 2009-11
28 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)
29 Robert K. Rasmussen is the Dean of the Gould School of Law, University of Southern
California
ordinary and prevalent understanding of the terms in issue, as opposed to any particularised
understanding which, the interpreter might bring to bear upon the statute in question. 30 The
difference between these two approaches is that while one gives primacy to the preference of
the drafters of the statute, the preference the interpreter ought to respect while the other is
based on the on the interpreters preference31
These two approaches it is asserted, is not tied to any current theory of interpretation such as
intentionalism32
purposivism33
textualism34
or
dynamic
interpretation35.
This is so because; all these theories of interpretation, at some stage or the other concern
themselves with the language of the statute, but may assess the language in a manner
different from its ordinary understanding. In other words, specific legal understanding may be
imported to the statute as against conventional understanding. Therefore, the selection of one
among the many proffered theories of interpretation shall neither authorise nor prevent the
use of linguistics.36 Besides, it is also felt that some sort of public understanding of the
relevant statute is germane to its legal interpretation, and who better to inform the judges
about the public understanding than linguists?37
30 Supra n. 27
31 Id.
32 Intentionalism- Where, the interpreter tries to discern the intent of those who created the
text.
33 Purposivism- Where, the interpreter assigns to an ambiguous language, the interpretation
that best furthers the purpose for which the statute was enacted.
34 Textualism- Where, the interpreter follows that interpretation which is closest in
agreement to the text of the statute.
35 Dynamic Interpretation - Where the interpreter shall pay attention to the intervening
events and give due weightage.
36 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995) (Rasmussen
1995)
37 Gary S. Lawson, Linguistics and Legal Epistemology: Why the Law Pays Less Attention
to Linguists Than It Should, 73 Wash. U. L. Q. 995 (1995)
On the other hand, it is argued that very few people will suggest that many, let alone most,
statutes are drafted to be read by a layman. Even though lawyers and judges use the same
language, it is the nature of such usage that differs from conventional usage. In particular, the
texts created and interpreted by lawyers have no counterpart in the larger society.39 A lawyer
brings along with him the understanding of how statutes operate in the legal system and apply
that very reasoning to their specific case.
Moreover, the ambiguity inherent in statutes forces people to hire lawyers. It is this nature of
law, and the manner in which it trickles down to the society , dictates that there be a high
degree of complexity and specialization in the statutory realm. Even if the statute is
conventional language, this would not mean it is accessible in a meaningful sense 40 In brief,
the immanent complexity in the subject matter that a statute deals with leads to statutes being
drafted in the legal understand and interpretation.
CONCLUSION
In an attempt to come to a fitting conclusion, the two claims made above with respect to the
role on linguistics in statutory interpretation have to be examined in light of the current
scenario in the legal world. It is true that the quintessential medium used by the legislature for
framing of statutes is language, and more so, the language the society shall understand and
respond to. But, what must not be forgotten is the sheer complexity and unpredictability
which pervades the human society, thereby permeating the laws that govern it. Presently,
statutes are drafted in ordinary language, and lawyers and judges also use the same language
but what differs between the comprehension of a layman and a lawyer with respect to a
38 Id. See Professor Fillmore remark during the Washington University Law and Linguistics
Conference
39 Rasmussen, Supra note 36
40 Id.
particular statute is experience. As every law professor knows, law students have to be taught
how to read and interpret statutes, as they know that the natural ability to read and
comprehend using ordinary language is simply not adequate to parse existing laws. 41 Also,
Courts can turn to linguists for clarification, not because the court wants to discern the
meaning of the makers, but in recognition of the fact that in interpreting statutes in
conventional terms also holds value.
In the end, whether the court takes into account the linguistic interpretation or does not, the
interpretation of a statute boils down to the judge and his reasoning as to the intention of the
legislature and to the various tools of interpretation at the judiciarys disposal. Linguists can
find some importance in interpretation only after the judgement where they can assert if the
judgement is in accordance with conventional understanding or not.
BIBLIOGRAPHY
Endicott, Timothy A.O. "Putting Interpretation in its Place." Law and Philosophy, Volume 13,
1994.
Fillmore, Professor. Washington University Law and Linguistics Conference. n.d.
Lawson, Gary S. "Linguistics and Legal Epistemology: Why the law pays less attention to
Linguists that it should." Washington University Law Review, 1995.
Rasmussen, Robert K. "Why Linguistics?" Washinton UNiversity Law Review, 1995.
Scordato, Martin Roger. "Legal Theory and Linguistic Reality: A Critical Examination of
MOdern Legal Scholarship." Journal of Contemporary Legal Issues, 1989.
Searle, John R. "What is Language? Some Preliminary Remarks." Ethics & Politics, 2009.
41 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)