Literality and communicative intention in a case of legal ambiguity: The notion of citizenship in Hispanic-American constitutions

Abstract

This paper analyzes a longstanding legal controversy over two competing interpretations of Hispanic-American constitutional statements on citizenship: one marked (which excluded women under the assumption that they were by nature unfit for citizenship) and another unmarked (which included women as well as men). The unmarked or inclusive reading stemmed from the use of a generic gender form in the legal text, which had been intended by the framers to exclude women. The unmarked meaning acquired a sudden prominence in the last quarter of the nineteenth century when some judges allowed women to register as voters, arguing that their decision was in conformity with the letter of the law. That claim marked the start of a negotiation process over the inclusion of women in the constitutional notion of citizenship in at least ten Hispanic American countries that lasted for nearly a century. My analysis of that process proposes three basic conclusions that challenge dominant premises in both the legal and linguistic literature. First, literality is not indeterminate, nor is it subordinate to the speaker's intentions, as often claimed, but rather fixed and autonomous. Second, literalists are not, by definition, defenders of the status quo, as often argued. The literalists under evaluation challenged the stability of the legal order with their claim of literal inclusiveness. Third, literalist and teleological or political approaches to legal interpretation are not antagonistic but rather complementary.