LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
JURISPRUDENCE LECTURE 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.
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.
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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.
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
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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 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
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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.
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.
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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.
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Scalia believes that this theory provides a single invariant meaning of the constitution,
its correct and only meaning.
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
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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).
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”.
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