Interpretation in the legal academy

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[This is a guest post by Neal Goldfarb.]

While the Linguistic Society of America was holding its annual meeting last weekend in Baltimore, the nation’s law professors assembled in New Orleans for the annual meeting of the Association of American Law Schools. We know that some of the linguists talked about law; did any of law professors talk about linguistics?

There were certainly issues at the AALS meetings about which linguists might have had interesting things to say. At the session on Law and Interpretation, the topic was “Interdisciplinary Interpretation.” According to the program, “The panel brings together experts from a range of disciplines—psychology, economics, and political science—to provide insight and discussion about what each of those fields specifically, and the interdisciplinary approach more broadly, can bring to legal interpretation.” Economics, but not linguistics?

Meanwhile, the session on Constitutional Law dealt with the distinction between interpretation and construction, an issue that is most strongly associated these days with Larry Solum. (Solum operates Legal Theory Blog, and is not to be confused with Larry Solan.)

Solum describes interpretation as “the activity of determining the linguistic meaning (or semantic content) of a legal text” and construction as “the activity of translating the semantic content of a legal text into legal rules.” He says, “We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.” (Link.) And this: “The correctness of an interpretation depends on linguistic facts (about patterns of usage) and contextual facts (about the circumstances of utterance)”

Judging by his use of expressions like “semantic content” and “patterns of usage,” Solum seems to be aware of—and open to—ideas from linguistics. And that impression is reinforced by this passage from his book-length paper, Semantic Originalism:

Making the semantic turn in the theory of constitutional meaning will require an excursus beyond the disciplinary boundaries of the academic study of law (as practiced in the law schools and departments of political science) and into territory within the domain of the philosophy of language and linguistics. The fundamental premise of the move beyond law is that constitutional semantics can only be sensibly understood as applied philosophy of language (or applied linguistic theory).

Solum’s work has gotten a lot of attention from legal academics, and I think that a big reason for that is his language-centric focus. For instance, here’s Tulane law professor Stephen Griffin at Balkinization:

Solum’s long article may prove to be a turning point, although I suspect he faces many hurdles in winning acceptance for his central contention that the foundations of originalism are firmly rooted in a semantic, factual, and non-normative account of the meaning of the Constitution.…

In the dance of arguments on originalism, Solum is right to point out that the debate has been almost entirely normative…. Solum’s theory, in my view only hinted at in work by other scholars (and thus quite original), changes the focus to how meaning is determined as a fact.

One aspect of Solum’s work that as far as I know hasn’t been discussed—but should be—is his assumption that there is a clear dividing line between semantics and pragmatics. Solum accepts the mainstream view that there is such a thing as a strictly linguistic meaning that is distinct from the message that the speaker intends to communicate. But that distinction has come under attack from several directions in recent years, and it would be interesting to work out how Solum’s arguments would have to be changed to accommodate a different approach to semantics.

[This is a guest post by Neal Goldfarb.]


  1. Coby Lubliner said,

    January 18, 2010 @ 4:52 pm

    Economics, but not linguistics? I am not surprised. It seems to me that, perhaps since the establishment of the award inaccurately called the Nobel Prize in Economics (recency illusion?), economists have set themselves up as experts on everything, and make far-reaching pronouncements with the help of some simple-minded math. Their recent failure to analyze their own area (the economy) doesn't seem to have stopped the trend.

    "…and then we construct legal rules…" I thought that the verb corresponding to construction in the legal sense was construe.

  2. Neal Goldfarb said,

    January 19, 2010 @ 8:24 am

    "I thought that the verb corresponding to construction in the legal sense was construe."

    That's what I've always assumed, too.

  3. Lawrence Solum said,

    January 19, 2010 @ 4:41 pm

    Thank you for the very helpful comment. I agree that the distinction assumes that "semantic content" and "legal content" can be distinguished & that the viability of this assumption is open to argument.

    "Construe" is the form used in English: perhaps my use of the alternative sense of "construction" is misleading here. I meant to highlight the "constructive" nature of legal "construction."

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