Ordinary MeaningA Theory of the Most Fundamental Principle of Legal Interpretation

Ordinary MeaningA Theory of the Most Fundamental Principle of Legal Interpretation

Brian G. Slocum

Print publication date: 2016

ISBN: 9780226304854

Publisher: University of Chicago Press

Abstract

There is a long-standing judicial commitment to interpreting language in legal texts according to its ‘ordinary meaning’. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. This book provides a theory that answers the constituent question and a general framework for how the determinants of ordinary meaning (i.e., the evidential question) should be identified and developed. One main flaw in the judiciary’s approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. Even when framing ordinary meaning as being primarily based on semantic meaning and limited consideration of context, the determination of ordinary meaning invariably has an ineliminable element of interpreter discretion. This discretion is typically underappreciated by the adherents of the methodology of interpretation known as textualism. Nevertheless, focusing on the systematicities of language can often narrow the range of interpretive discretion and improve the judiciary’s determination of ordinary meaning.