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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 3
THE PHILOSOPHY OF LANGUAGE AND LEGAL INTERPRETATION
Introduction
One of the central concerns of philosophy throughout the 20th Century has been the nature of
language and in particular the problem of meaning.
Language has many remarkable properties. It can be viewed as a system of rules capable of
endless iteration. The average competent speaker of English with only basic grammatical
rules can construct (at least theoretically) an infinite number of sentences in the language.
Language also points out to the world. It is often said of words or sentences that they refer. A
description I give of Sydney is in some relevant way, about Sydney. This ability to describe,
to be about things, and to be true or false, is associated with the meaning of sentences. It is the
theory of meaning that has been the principal concern of philosophy.
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April 2004
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Theories of Meaning
Contemporary philosophy of language was given its impetus by the work of Gottlob Frege
(1848-1925) who lectured at the University at Jena from 1874 to 1918. Frege argued that the
meaning of words are objective things capable of being shared by all competent users and not
to be identified with the psychological states of speakers. Frege’s anti-psychologism
nevertheless leaves the nature of meaning somewhat mysterious.
In the 1970’s Davidson sought to develop a theory of meaning in which meanings were
objective but without the mystery of Frege’s anti-psychologism. His theory is referred to as
truth conditional semantics.
On this theory the meaning of a sentence (sentences being the primary bearers of meaning) is
represented by a specification of the conditions which would render the sentence true.
There will clearly be difficulties in applying this theory to sentences that do not obviously
have truth value (such as imperative sentences “get up and shut the door”).
Meaning and Intentionality
Truth conditional semantics captures some of the public aspects of meaning and part of the
way language may describe or represent the world. But language is also intentional.
Philosophers use this term in a technical sense.
Intentionality is that quality of being directed towards or referring to something apart from the
speaker. If I utter the sentence, “Paris is a beautiful city”, we understand that the sentence
uttered by me refers to and is about the capital of France. This, we also recognise, is in some
way associated with actual beliefs and intentions on my part.
So if a computer produced the sentence, “Paris is a beautiful city”, through the operation of a
random sentence generator, we would not understand that sentence to be about the capital of
France. At least on one philosophical view the signs produced by the computer would lack
intentionality and meaning (see Searle’s famous Chinese room thought experiment)(unless we
could find that the programmer had intended the computer to possibly say such a thing).
An important alternative theory to truth conditional semantics seeks to explain the nature of
meaning by reference to a speaker’s intention.
In 1957 in the article “Meaning” in the Philosophical Review, volume 66, Grice sought to
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show that the meaning of a sentence is associated with the intentions of a speaker, and the
intentions of speakers will be to induce a belief in the mind of hearers in consequence of the
speech. Grice provides the following formulation as an analysis of meaning.
“John means that P to Jane by doing X if:
a.
John does X
b.
With the intention that Jane believe that P
c.
John further intends that Jane recognises John’s intention in b. above
d.
John further intends that Jane’s belief comes about through her recognition of
John’s intention in b.”
We often distinguish between utterer’s meaning, what the speaker actually intended his or her
words to mean, and so called literary or dictionary meaning, namely what those words would
mean if uttered by a normal competent speaker of the language on a typical occasion for their
use. Grice sought to explain dictionary meaning in terms of speaker’s meaning.
Theories of Meaning and Legal Interpretation
Does a constitution mean what was intended by the original drafters, or must it be
reinterpreted in each age? Does it have one meaning, or does its meaning shift, or does it have
multiple meanings?
In constitutional law the “will” theory of the nature of law and legal validity, that laws are
commands of the sovereign political body, appears to fit with the utterer’s intention theory of
meaning.
The utterer’s intention theory of constitutional and legal interpretation
This theory still has some adherents (such as Larry Alexander). We might read some
documents primarily to ascertain the speaker’s intention. However, if we read a constitutional
text as if it is merely a record of the intentions of the drafters and we treat those intentions as
binding legal rules, numerous practical problems arise.
1.
Interpretations can never be settled by precedent as new historical evidence may
reveal that we had previously misunderstood the drafters’ intentions and we therefore
have to read the constitution differently.
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April 2004
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2.
Whose intentions are to count in any event? Most constitutions (or statutes) have not
one but many authors and their drafting was a complex process.
3.
Legal documents are often expressed in general language but the drafters could never
have had in mind all the possible instances to which the words might apply. Do the
words only mean those things the drafters actually had in mind? In which case the
meaning of the document will be severely limited.
4.
If we treat the document has having meaning in regard to instances that were never in
the minds of the drafters, how do we determine what meaning it had? Do we ask what
intentions or thoughts they would have had if they had turned their mind to the issue?
5.
If we adopt the last strategy, what other matters must we attribute to the founding
fathers to ascertain their counterfactual beliefs? What would Sir Samuel Griffith have
thought if asked in 1895 whether the Commonwealth government should be allowed
to regulate television broadcasting?
6.
Is there even a fact of the matter as to what counterfactual intentions the drafters could
be said to have?
Scalia and Textualism
Difficulties with the speaker’s intention theory of meaning has led to a return to literal or
dictionary meaning by some jurists as the explanation of the meaning of a legal text. This
approach is most frequently referred to as textualism. Most current high court judges in
Australia would describe themselves as textualists. The leading English language proponent
of textualism is Antonin Scalia, a current judge of United States Supreme Court (see his A
Matter of Interpretation: Federal Courts and the Law, 1997).
Scalia says that the meaning of the constitution is the meaning given to the words by the
normal canons of language use that governed the language at the time the constitution was
drafted. One is thus not concerned with the actual subjective states of any of the drafters.
Scalia believes that this theory provides a single invariant meaning of the constitution, its
correct and only meaning.
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April 2004
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Difficulties for Scalia’s Theory
There will still be problems of counterfactual scope. How do we know whether normal users
of English in the United States in the 1780’s or Australia in the 1890’s intended their words to
mean the same as those words when used today?
It is not customary in constitutional cases to call linguistic historians to give evidence of
change of the meaning of words.
The constitution also remains frozen in time and unable to adopt to new social and political
circumstances unforeseen by the drafters.
Dworkin’s Theory of Expectation Originalism
Dworkin contrasts his view with what he calls the semantic originalism of Scalia. Dworkin
argues that the drafters of the constitution must have known that unforeseen circumstances
would arise and must have intended that later generations would need to interpret the
constitution afresh to meet those unforeseen circumstances.
Dworkin in effect argues that the constitution was written with the intention or expectation of
being adapted.
Dworkin argues that the process of adaptation is not unconstrained. Dworkin relies upon his
other general theories of “best fit” and “best theory” of the constitution to explain how judges
will arrive at a correct answer. Theories like Dworkin’s have sometimes been described as
“living constitution” theories.
Stanley Fish
Fish argued in a long series of articles and books that there is in effect no such thing as literal
meaning, or meaning in the text, if by that is meant something read off the face of the
document without any prior process of interpretation. (see his books “Doing What Comes
Naturally” and “There is No Such Thing as Free Speech”).
In interpreting any document I firstly have to make judgments about the nature and type of
document it is. In a sense this is recognised by the law through the legal rule permitting
extraneous evidence in determining whether a document is intended to be contractual or not,
(see Ayre Great Lakes Pty Ltd v KS Easter [1985] 2 NSWLR 309).
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April 2004
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Fish generalises this proposition, arguing that in any reading of any legal text the
establishment of the meaning is the result of an interpretative process which relies upon the
interpreter’s knowledge about the nature and purpose of the document, and also depends upon
the interpreter’s values and beliefs.
Fish argues that the establishment of consensus about the meaning of a document is the result
of shared interpretative practices amongst what Fish calls “interpretative communities”.
Christopher Birch
April 2004