Abstract
This essay is intended to engage some of the controversies that have emerged in legal philosophy concerning the theory of linguistic meaning we should adopt with reference to the law. In particular, I will focus on two theories of linguistic meaning that have opposing positions both on the nature of meaning, and the consequences this might have for law and legal objectivity. The first can be called plain meaning view. The plain meaning theory claims that the meaning of legal terms is a settled thing, and it is the duty of legal officials, especially judges, to simply apply that meaning to a given case in hand. In modern American jurisprudence, the plain meaning theory is often associated with various originalist figures, most notably the late Antonin Scalia who called his iteration of the plain meaning theory “textualism.” For this reason, I will largely be focusing on Justice Scalia’s account. The second theory of linguistic meaning I will be examining can be called the indeterminate theory. The indeterminate theory holds that there is no set or foundational meaning to any semantic term in the law which can be objectively applied by legal practitioners.
Highlights
As was pointed out by Peter Goodrich some time ago, legal philosophers rely on a fair amount of linguistic theory and the philosophy of language [1] (p. 63)
This essay is intended to engage some of the controversies that have emerged in legal philosophy concerning the theory of linguistic meaning we should adopt with reference to the law
In modern American jurisprudence, the plain meaning theory is often associated with various originalist figures, most notably the late Antonin Scalia who called his iteration of the plain meaning theory “textualism.”
Summary
As was pointed out by Peter Goodrich some time ago, legal philosophers rely on a fair amount of linguistic theory and the philosophy of language [1] (p. 63). Examples can include many cases where we apply reverse onus reasoning, such as giving speed tickets, or constitutional stipulations concerning the age one needs to be in order to assume the Presidency of the United States In these instances, there is no indeterminancy about the law’s meaning and application. This includes many examples in constitutional law, where there is far more ambiguity in how a legal term is to be deployed In these instances, I will argue there is no determinate way to interpret the law’s meaning and application. I will argue there is no determinate way to interpret the law’s meaning and application In these instances, judges engage in acts of “self-reflection” to develop a new meaning for a term within the established set of semantic associations that constitute precedents. They are novel enough to constitute innovations in our understanding and application of law
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