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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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The Strange Fate of Holmes’s Normal Speaker of English

The Strange Fate of Holmes’s Normal Speaker of English

(p.105) Chapter Five The Strange Fate of Holmes’s Normal Speaker of English
The Nature of Legal Interpretation

Karen Petroski

University of Chicago Press

The puzzle this chapter addresses concerns a passage from Oliver Wendell Holmes’s well-known essay “The Theory of Legal Interpretation.” Judges following Holmes have used this essay as a kind of multi-purpose tool. Their opinions have cited the essay to support different interpretive conclusions and apparently contrasting theoretical commitments. And yet one of the most frequently cited passages in the essay refers repeatedly to a figure about which neither judges nor scholars have had much to say: the figure Holmes calls the “normal speaker of English.” Although judges sometimes mention this figure, they invoke it only about a third as often as they quote other passages from the essay or simply cite the entire essay. This neglect is odd because Holmes explicitly likens the “normal speaker of English” to another legal figure that has received a great deal of scrutiny: the reasonable person (or as Holmes calls it, the “prudent man”). Thus the puzzle: Why have judges and commentators paid so little direct attention to the figure of the normal speaker of English, given the evident attractions of Holmes’s essay as a resource for justification and analysis, and given the analogy Holmes drew between the normal speaker and the reasonable person?

Keywords:   legal Interpretation, Oliver Wendell Holmes, normal speaker of English

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