Chapter Three develops a theory of ordinary meaning and focuses on the tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. One motivation for conceiving of ordinary meaning as generalizable across contexts is to maintain a gap between ordinary meaning and communicative meaning. The chapter outlines the justifications for the ordinary meaning doctrine in order to explain why both communicative meaning and ordinary meaning should be aspects of legal interpretation. These justifications range from notice to the justificatory nature of legal interpretation. The chapter also discusses the constitutive question of what makes some meaning the ordinary meaning of a text, as well as how the objective ordinary meaning interpreter might be defined. In evaluating ordinary meaning it is useful to consider Scalia & Garner’s (Scalia & Garner, 2012: 69) view that “most interpretive questions have a right answer”, and “[v]ariability in interpretation is a distemper”. Scalia & Garner’s argument is true only if the determinants of ordinary meaning are determinate in a way that does not allow for interpretive discretion. Any coherent and accurate way of framing ordinary meaning cannot, however, eliminate interpretive discretion.
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