Hart as Contextualist? Theories of Interpretation in Language and the Law

Abstract

One of the fundamental problems debated in linguistics and law is that of the ‘alleged priority’ of literal interpretation. In the law, there is a clear preference for what is called, vaguely, literal meaning. In general, although judges often see their role as giving effect to the intention of the legislator or of the parties, jurists tend to avoid reliance on the ‘slippery’ concept of legislative intention, and prefer to rely on the ordinary clear natural or even ‘grammatical’ meaning. In linguistics, the nature of literal meaning is the subject of an ongoing debate opposing the so-called ‘literalists’ and the ‘contextualists’. Although the literalists admit that no observable utterance occurs without a context and that literal acontextual meaning can be no more than an unobservable theoretical concept, they nevertheless assume the existence of an abstract literal meaning as a necessary starting point for interpretation in context. The contextualists, on the other hand, prefer to assume that words take their meaning directly from the context, and that ‘literal meaning’ therefore plays no genuine role in understanding. If this approach is on the right lines, the consequences would be important in legal interpretation. This chapter argues that despite the commonly stated preference for ‘true and correct’ meanings in the interpretation of statutory expressions, legal practice (as opposed to theory) tends, contrary to expectation, to corroborate the contextualist view. Even though the contextualist approach to semantic interpretation directly contradicts his theory of open texture on many points, H. L. A. Hart is unlikely to have rejected it out of hand.