Legal Texts and Canons of Construction: A View from Current Pragmatic Theory

Abstract

This chapter demonstrates the similarities between interpretive heuristics used in legal interpretation (known as ‘canons of construction’) and some dominant principles in current neo-Gricean pragmatics. It highlights certain limitations that they share, including the propensity of any such system of maxims or heuristics to yield directly contradictory results. It considers the extent to which a pragmatic theory based more directly on principles of human cognition, that is, relevance theory, may shed some light on the processes of legal interpretation and, conversely, the extent to which the legal domain presents a special case that does not readily fall within the reach of any general pragmatic theory. The chapter is organized as follows. Section 2 briefly discusses the nature of pragmatics and lists (some of the) kinds of meaning phenomena that fall within its domain. Section 3 sets out two central maxims of communication posited in current neo-Gricean pragmatics, with examples of how they work and a discussion of the problems they face. Section 4 turns to the interpretation of legal language and the role of canons of construction, which is exemplified by a discussion of some famous cases of disputes over the correct interpretation of a word or phrase in a legal document. Section 5 looks at the textualist/intentionalist debate in legal interpretation and the way that alleged textualist uses of canons or maxims of interpretation appear to require a kind of intentionalism. Finally, Section 6 surveys the basic precepts of the relevance-theoretic account of pragmatic interpretation and considers its possible application to issues that arise in legal interpretation.