Draft 2012-03-05 Communicative Content and Legal Content 

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D R A F T 2012-03-05

Communicative Content and Legal Content

Lawrence B. Solum**

  1. Introduction

This essay investigates a familiar set of problems about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). These problems arise in a variety of contexts familiar to both practitioners (judges, lawyers, and officials) and theorists (academic lawyers, legal philosophers, and others). Here are some examples. In constitutional theory and practice, there is the debate between originalists and living constitutionalists.1 In the domain of statutory interpretation, there is the debate between plain meaning and purposivists.2 In discussions of the doctrine of stare decisis (or precedent), there is a debate between the traditional theory of the ratio decidendi and the predictive theory (associated with legal realism) that sanctions legislative holdings.3 In addition to these familiar contexts, similar issues arise in more particular contexts—the interpretation and construction of contacts, wills, trusts, patents, judgments, injunctions, rules of procedure, administrative regulations, and so forth. These familiar problems are usually described in the context of writings (authoritative legal texts that are inscribed and published), but very similar problems arise in the context of unwritten or oral communications that possess legal authority—including oral contracts, rulings from the bench, and so forth.

The strategy of this paper will be to argue that these debates involve two distinct problems (or families of problems). The first problem concerns the determination of communicative content: how do we determine the meaning communicated by a legal utterance? The second problem concerns the role that communicative content plays in the construction of legal content: how does the linguistic meaning of a legal utterance contribute to the legal rules (understood broadly to include rules, standards, principles, and mandates) that in turn determine legal effect. The paper will start by tackling the problem of communicative content and then move to questions about the relationship between communicative content and legal content.

The overall thesis of the essay is the claim that the correct approach to both of these problems is context sensitive. That is, I will argue that the determination of communicative content proceeds differently in different legal contexts—although we can identify some very general features of legal communication that explain these differences. More concretely, drafting a constitution is different than entering into an oral contract and writing an opinion is different still. And I will argue that the contribution of communicative content to legal content is context sensitive as well. The considerations that bear on the contribution of the constitutional text to constitutional doctrine are different than the considerations that bear on the contribution that the text of statutes, wills, and judicial orders to legal doctrines (or rules in the broad sense) and hence to ultimate legal effect. And I will make another claim about the relationship between communicative content and legal content—I will claim that it is possible for this relationship to be contested on normative grounds and that in a particular legal culture (that of the United States), the relationship is, in fact, contested.

I should warn the reader that this paper does not present a full account of my own views about the relationship between communicative content and legal content. Elsewhere, I have developed an account of constitutional interpretation and construction that argues for a particular theory of communicative content that roughly corresponds to what is sometimes called “original public meaning originalism.”4 And I have suggested that originalists characteristically endorse what I call the constraint principle—which requires that the communicative content of the constitution (i.e., the original meaning) should constrain the content of constitutional doctrine, unless a defeasibility condition obtains. My prior work does not address the analogous questions that arise in the interpretation and construction of statutes, contracts, oral judicial rulings, and so forth. The arguments made in this Essay will make it clear that my views about constitutional theory are bounded by context; I will not present anything approaching a set of fully developed theories of interpretation and construction in nonconstitutional contexts, but I will gesture towards some of the considerations that might shape such theories for judicial opinions, statutes, and other legal texts.

Another preliminary point concerns terminology. Because this essay is focused on the distinction between communicative content and legal content, it is important to distinguish between two related activities. The first activity is the discovery of the communicative content of a legal utterance: I will use the term interpretation to name this activity. The second activity is the determination of the legal content and legal effect produced by a legal text: I will use the term construction to name this second and distinct activity. The interpretation-construction is an old one in American legal theory, and it has been much discussed recently in constitutional theory, but the words “interpretation” and “construction” are also used in a broader sense to refer to both activities (discovering meaning and determining legal effect). Nothing hangs on the terminology, since we could describe the interpretation-construction distinction using other words.5

Finally, I want to say something about issues that are bracketed here. There are strong connections between debates about the nature of law (between positivists, natural lawyers, and interpretivists) and the questions addressed here. This essay will mostly skirt these connections. If the positions that I take here are correct, then any theory of the nature of law must take them into account. I suspect that any sophisticated theory of the nature of law can accommodate the conclusions that I reach in this paper, but I will not attempt to show that this is so—the contending philosophical theories of the nature of law (Hart,6 Raz,7 Shapiro,8 Finnis,9 Murphy,10 Dworkin,11 Greenberg,12 etc.) are each complex and distinct. Laying them out and then investigating the connections between them and my views is a task that cannot be accomplished in a short paper.

I will proceed as follows. In Part II, “Communicative Content,” I will provide an account of communicative content in general and then apply that account in more particular contexts (contract formation, constitutional interpretation, and the interpretation of judicial opinions). My aim to show that the differences between these contexts lead to systematic differences in the ways we discern the communicative content of different types of legal texts. In Part III, “Legal Content,” I will investigate the role that communicative content plays in the determination of legal content. Again, I will investigate different types of legal communication, with the aim of showing that there are systematic differences between different types. Finally in Part IV, “Conclusion,” I will say something about the payoff this investigation for legal theory and practice.

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