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Philosophical Foundations of Language in the Law$
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Andrei Marmor and Scott Soames

Print publication date: 2011

Print ISBN-13: 9780199572380

Published to Oxford Scholarship Online: September 2011

DOI: 10.1093/acprof:oso/9780199572380.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 26 January 2022

Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication

Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication

Chapter:
(p.217) 10 Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication
Source:
Philosophical Foundations of Language in the Law
Author(s):

Mark Greenberg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199572380.003.0010

According to one view — really a family of related views — that has considerable currency at the moment, the philosophy of language and linguistics have a direct bearing on the content of the law. This chapter calls this view the communicative-content theory of law or, for short, the communication theory. According to the communication theorists, the study of language and communication reveals that the full linguistic meaning of an utterance is what the speaker or author communicates by the utterance — or communicative content — which may go well beyond the literal meaning of the words. (On the standard understanding, communicative content is constituted by the content of certain specific communicative intentions of the speaker.) The communication theorists conclude that a statute's contribution to the content of the law is its communicative content. The chapter grants many of the assumptions of the communication theorists and then argues that there are many candidates for a statute's contribution to the content of the law, including different linguistic and mental contents. The study of language can be important in helping us to make and clarify such distinctions, but beyond this information-providing role, it has nothing to say about which, if any, of these candidates constitutes a statute's contribution to the law. The communication theory therefore lacks the resources to say what any statute's contribution is. Ultimately, trying to understand legislation on the model of communication is misguided because legislation and legislative systems have purposes that have no parallel in the case of communication, and that may be better served if a statute's contribution to the content of the law is not constituted by what is communicated by the legislature.

Keywords:   statute, communication, statutory interpretation, speaker's meaning, legislative intention, language, linguistic communication, constitutional interpretation, legal interpretation, implicature

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