Elias Neibart has posted Lawyer’s Meaning is Lawful Meaning on SSRN. Here is the abstract:
Many textualists think that, when we interpret texts, our goal is to uncover their “ordinary meaning.” We have to put ourselves in the shoes of a “reasonable person” at the time of a text’s enactment and understand the words on the page as they would have. To be sure, textualists say that we should care about the “legal meaning” of a text, too—but only sometimes: only when the statute uses legal terms and communicates to a legal audience. “Legal meaning,” then, has a limited role in this story of textualism. More often than not, statutes are communicating to ordinary people and need to be understood in their ordinary sense.
There’s a problem with this standard account. In theory, “one can read the language of a legal text according to any number of linguistic conventions: those of the authors, the readers, the lawyer class, the lay public, and so on.” Before we start getting our hands dirty interpreting statutes, we need to know which linguistic conventions we’re allowed to use. And, after we figure that out, we also need to know what other non-linguistic conventions we can lawfully enlist. The philosophy of language can’t answer these questions. But law can. Only by using these legally authorized conventions can we uncover a statute’s “lawful meaning.”
But where can we find these legally authorized conventions? And what are they? This Article answers both questions. First, the where: To figure out the legally authorized conventions of interpretation, we have to look at the practices of the legal community. That is, like all bodies of unwritten law, the “law of interpretation” rests on the accepted customs of lawyers. Second, the what—what are those practices? Looking at practices today, we’ll see that the legally authorized linguistic and non-linguistic conventions of interpretation are those of lawyers—not lay people. So, to figure out the “lawful meaning” of a statute, we have to use the conventions of the legal community. The “lawful meaning” of a statute, then, is its “lawyer’s meaning”: the meaning we get after using the conventions of lawyers.
Appreciating all of this grounds and makes sense of our current interpretive practices. Textualism’s “reasonable reader” has always looked a lot more like a lawyer than a layperson. The “common sense” we employ when we read law “in context” looks like the common sense of a trained attorney. And all those fancy canons and tools of construction we use are more sensibly understood as unwritten but widely accepted rules of the legal profession, not popular customs. It’s time to put ordinary meaning to bed. Indeed, pursuing ordinary meaning is pursuing a legally irrelevant meaning. The lawful meaning of a statute is its lawyer’s meaning.
Highly Recommended!
This is a marvelous paper, but I disagree with Neibart’s conclusion. To see why, it is important to begin with the interpretation-construction distinction. Interpretation, as I use the term, aims at the recovery of the communicative content of a legal text: the meaning that the text conveys to its intended readership, as determined by linguistic facts—facts about patterns of usage and the context of communication. Construction determines the legal content and legal effect that we give to the text. Communicative content and legal content are distinct: legal content usually tracks communicative content, but legal norms can supplement communicative content (as default rules do), and, in some cases, legal norms can override it.
My view is that different statutes have different audiences. Jurisdictional statutes are written for lawyers, but not all statutes are like this. Some statutes aim to communicate to the general public; regulatory statutes sometimes are addressed to the regulatory agency and the regulated industry. Neibart engages my view in footnote 149. He argues “a text’s meaning can only be determined by first figuring out whose meaning the law cares about.” The footnote does not discuss the distinction between communicative content and legal content. But that distinction is crucial. The claim that law determines legal content is uncontroversial. The claim that law determines communicative content is a different claim entirely—and it is the latter claim that Neibart’s thesis requires but does not defend.
Consider a hypothetical. A Regulatory Statute was drafted with the intention to communicate to the regulatory agency and the regulated industry, and both participated extensively in the drafting and enactment process. The communicative content of the Regulatory Statute is a function of that communicative situation: the words of the statute convey what they mean to the agency and the industry to which they were addressed. Neibart’s position is that this statute should be read counterfactually, as if it had been written for lawyers. In other words, he argues for a construction that is contrary to the actual meaning of the statute. Such a construction might be defended on normative grounds, but it cannot be defended as a recovery of the statute’s meaning. On this and much else, Neibart’s article—developed with rigor and care—deserves the attention of everyone who works on statutory interpretation. My own views are developed in Pragmatics and Textualism.
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Lawrence Solum