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The Nature of Legal InterpretationWhat Jurists Can Learn about Legal Interpretation from Linguistics and Philosophy$
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Brian G. Slocum

Print publication date: 2017

Print ISBN-13: 9780226445021

Published to Chicago Scholarship Online: January 2018

DOI: 10.7208/chicago/9780226445168.001.0001

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Philosophy of Language, Linguistics, and Possible Lessons about Originalism

Philosophy of Language, Linguistics, and Possible Lessons about Originalism

(p.46) Chapter Two Philosophy of Language, Linguistics, and Possible Lessons about Originalism
The Nature of Legal Interpretation

Kent Greenawalt

University of Chicago Press

This chapter first summarizes the author’s general sense of the degree to which the philosophy of language and linguistics can enlighten our understanding of how legal interpretation does and should proceed. It then turns to the issue of originalism in statutory and constitutional interpretation, asking how far these disciplines can inform us about whether some form of originalism is warranted, and about what kind or kinds of original understanding should count. Since everyone agrees that in virtually all contexts the original sense of what a statutory or constitutional provision conveyed carries some weight, this latter question is important even for non-originalists. A central concern about what assistance philosophy of language can provide is the extent to which its limitations in resolving practical questions about the reading of authoritative directions curtail its help in resolving the debates between originalists and non-originalists, and the disagreements within both camps over the crucial elements of original content. The author believes that the philosophy of language and linguistics can provide insights about how we understand language, including that in legal provisions, but cannot tell us exactly how legal interpretation by judges, other officials, and citizens should proceed.

Keywords:   constitutional interpretation, philosophy of language, legal interpretation, statutory interpretation

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