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The Pragmatics of Statutory Interpretation

Table of Contents

Part I: Introduction

1. Natural Law, Formalism, Positivism and Dworkin


2. Felix Cohen : Transcendental Nonsense and the Functional
Approach

Part II : Pragmatics and Statutory Interpretation

1. Modern Theoretical Linguistics


2. The Pragmatic Approach to Statutory Interpretation

Part III: Linguistic Comprehension

1. Reasoning and Interpretation


2. Code Theory of Communication
3. Schema Theory

Part IV : Reading

1. Reading and Memory


2. Reading and Meaning
3. Reading and Ambiguity
4. Comprehension and Prediction

Part V : Inference Theory of Communication

1. Herbert Paul Grice


2. On Truth
3. On Logic

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The Pragmatics of Statutory Interpretation

4. Grice’s Implicature
5. Maxims : Quantity, Quality, Relation, Manner
6. Implicature
7. Implicature and Intention
8. Intention and Meaning
9. Conventional Meaning
10.Grice Conclusion
11.Relevance Theory
12.Relevance and Meaning
13.Relevance and Truth
14.Further Relevance

Part VI: Speech Act Theory and Statutory Interpretation.

1. Statutory Interpretation in Canada


2. Approaches to Meaning
3. Approaches to Interpretation
4. Textualism
5. The Plain Meaning Rule
6. Problems with the Plain Meaning Rule
7. Intentionalism
8. Pragmatism

Part VII : Toward Acceptable Criteria

1. Meaning Revisited
2. Grice Revisited
3. Relevance Revisited
4. Conclusion

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The Pragmatics of Statutory Interpretation

The Pragmatics of Statutory Interpretation

Part I : Introduction

Jurisprudence – what is law? Law and philosophy share in a


search for the grand narrative. Some philosophers describe
themselves as participants in a large conversation spanning
over many centuries. One of the recent additions to that
conversation was a discussion about phenomenology. Edmund
Husserl (1859-1938) and Martin Heidegger (1889-1976) helped to
create new ideas on how to approach descriptions of the world.

Husserl described phenomenology as the intuitive study of


essences. The study of phenomenology rejected metaphysical and
scientific theories for approaching any kind of descriptive
analysis of subjective processes. Direct experience itself was
meant to form the basis of observation and description.
Heidegger made a significant contribution to hermeneutics as
well as phenomenolgy. Hermeneutics is the study of how we make
interpretations. These ideas were elucidated by Hans-Georg
Gadamer who gave us further insight into the dynamic process of
interpretation. In the context of interpretation, Gadamer said
that people approach texts from the perspective of their own
historical horizon. People tend to project “preunderstandings”
onto a text, viewed as whole.1

Phenomenology and hermeneutics have had a much larger life


beyond philosophy. Beginning as a search for essence, these
ideas have infiltrated many modern disciplines. To my mind the

1
Eskridge & Frickey, Statutory Interpretation as Practial Reasoning. (1990) 42 Stanford Law
Rev.321

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The Pragmatics of Statutory Interpretation

work serves as a reminder of what constitutes an appropriate


acid test. Any theory constructed by anyone must hold its own
against reality. The more a “theory” is seen to be in
accordance with the reality, the greater weight and reliance
should be placed on that theory. This paper has two themes. The
search for legal justification and the nature of statutory
interpretation.

Statutory Interpretation is an area of law in which


superior courts in Canada have an inherent jurisdiction to set
norms.2 A court faced with an interpretation dispute must use
skill an integrity to produce an appropriate outcome. A court
must justify that outcome in a coherent and acceptable manner
giving clear reasons how that outcome was reached. These
grounds must be within a coherent and acceptable theory of
statutory interpretation.

Some of the rules of statutory interpretation reflect the


reality of the way in which reading occurs in the world, while
others do not. This paper shall, inter alia, attempt to outline
psychological and linguistical insights into the brain
mechanisms that get put to use when people read and interpret
meaning. This paper will then compare these processes to the
theoretical approaches of statutory interpretation. I will echo
the arguments of others, that statutory interpretation involves
creative policy making, and not just looking “in” the statute;
interpretation is dynamic and historically situated. “Every age
has to understand a transmitted text in its own way.”3

2
See 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, at pp.995-6.

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The Pragmatics of Statutory Interpretation

1.1 : Natural Law, Formalism, Positivism and Dworkin

The search for legal justification usually includes a


conversation about the legitimacy of law and its origins.
Historically, there are roughly three main grand narratives in
legal theory: Natural justice, formalism, and positivism.

Natural justice was seen to come down from heaven. The


tenants of natural law were based on morality and faith. If it
was illegal then it was also immoral. Thomas Hobbes
characterized natural law as following the dictates of natural
justice in order to justify monarchy.

Formalism challenged the legitimacy of natural law.


Formalism was seen as a “rational” theory espoused by political
philosophers such as John Locke, who used the ideas to build a
new republic. Law was to be derived from abstract legal
reasoning. Abstract thought itself claimed to be the
legitimatizing force of law.

Positive law can be described as civil law. It is founded


on “man-made” legal principles. Positive law was to be clear
and precise, although some discretion would be appropriate in
unusual or difficult cases. The law would be the law because
the people choose to make it law. Positive law is a popular
view of the law. At its root lies Rousseau’s social contract.
Hans Kelson contributed much to positive law when he argued for
the legitimacy of “is” to “ought.” Kelson thought we could use
pure reason to help us make sense of the world, and that we
ought to do so. It appeared to Kelson that science held a

3
Eskridge & Frickey, Statutory Interpretation as Practial Reasoning. (1990) 42 Stanford Law
Rev.321

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purity and neutrality which he found attractive, which he


wanted to use to legitimize law.

Legal jurisprudential scholars such as H.L.A. Hart


advocated for positive law and the distinct seperation of law
and morality. Hart saw the law as solving uncertainty in the
affairs of the world. Hart describes two types of laws, primary
and secondary. The rules of statutory interpretation would be
the latter kind.

Ronald Dworkin could be described as espousing a hard


rights view of liberalism. His theories involve a rejection of
positive law in favour of a “hard rights” approach based on
moral values of dignity and equality.4 For example,
interpretation is governed by the idea that each party has a
fundamental right to equal concern and respect.

Dworkin warns people to not get caught up in the notion of


“truth” when comparing competing theories that claim objective
moral or legal truth. Rather, Dworkin argues, concentrate on
5
which theory best meets all the available arguments. In other
words, use the best we have, rather than search for the ‘true’
theory. Dworkin realizes that contemporary theorists hold that
the meaning of ’truth’ lies in a disappointing correlation
between sentences and unspecified conditions of truth. The
answer to the general question, “what does it mean to say
something is true,” is that a proposition in a given sentence
happens to correspond to a fact in the physical world. This is
very far from finding any theoretical legal ‘truth.’

4
Dworkin, R. Taking Rights Seriously. (1978).
5
Dworkin, R. Objectivity and Truth: You’d Better Believe It, (1996) 25 Philosophy and Public Affairs 9

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1.2 : Felix Cohen : Transcendental Nonsense and the Functional


Approach

“When the vivid fictions and metaphors of traditional jurisprudence are


thought of as reasons for decisions, rather than the poetical or mnemonic devices for
formulating decisions reached on other grounds, then the author, as well as the
reader, of the opinion or argument, is apt to forget the social forces which mold the
law and the social ideals by which the law is to be judged.”6

As early as 1935 jurisprudential scholars such as Felix


Cohen were arguing against utilizting a positivist view of law
as a philosophical foundation or justification for legal action
and results. He argued that jurisprudence was seen as a system
of legal concepts, rules and arguments independent of ethics,
economics and psychology. Traditionally legal decision-making
was held to be a process of logical deduction from fixed
principles, following in the rationalist tradition of John
Locke. The law itself was expressed in terms of logical
consequences, giving the appearance of logical reasoning. Cohen
believed that this deductive reasoning mistakenly ignored the
social context of the law and relevant temporal considerations.
In other words the traditional legal perspective abstracted
legal theory from its real-life context which permitted legal
fictions to operate with apparently undue legitimacy.

Cohen outlined 4 basic approaches that could be used to


handle facts and their relationship to legal decision-making.

1. Classification of Facts : The classification of attributes or


the collection of similarities and differences constituted
one form of research.

6
Cohen, Felix. Transcendental Nonsense and the Functional Approach. (1935) Vol.35
Columbia Law Review. P.812.

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2. Origin of Facts : The discovery of origins, or genesis of


facts, which uncovered historical antecedents (the
historicity of facts) constituted the second approach,

3. Nature of Facts : To inquire into the nature of the facts and


resolve them into simpler elements.

4. Function of Facts :The fourth approach and of particular


interest is the functional. The functional approach is to
gather information and facts and contemplate the significance
of the facts and understand the implications and consequences
which flow from the treatment of these facts.

Cohen argued that many legal arguments were purely circular.


Legal terms were legal fiction. By relying on these legal
fictions judges would justify outcomes which were purported to
flow from logical deductions inherit in legal terms -- a legal
term that they made up. In other words judge-made concepts
would be used to justify legal arguments and outcomes, while in
reality the content of the legal term was defined by its
consequences. Yet such fictions give the appearance of an
outcome based on principled legal logic, as if judges were
reacting rather than acting.

For example, trademarks and tradenames are said to be


protected by the courts because the holder has created a thing
of economic value, a property, which should be protected
against 3rd parties. Cohen claims it to be circular to justify
the protection of property on the value of this property which
would have no value without legal protection. The court’s claim
that the value of a tradename is the reason giving it legal

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protection, while actually it is the result of legal


protection. The judge claims to be recognizing property while
he is actually creating it.

Cohen felt that the law should purge itself of meaningless


concepts, and cease dealing with meaningless questions. He
advocated for a basic revision of legal concepts that would
rely on a functional approach with an emphasis on a functional
bias. Function was seen as the sum of consequences which would
constitute the entire meaning of a legal concept. All concepts
that could not be defined in elements of actual experience were
seen to be meaningless.

Cohen argued that law is what the courts will do in fact,


rather than a series of legal fictions created in a abstract
context. From his perspective, judicial decisions are a social
event. Therefore jurisprudence must look to the social forces
behind the decision (the past) and beyond the decision (the
future) to look at what activities are impacted by it.

Part II : Pragmatics and Statutory Interpretation

Like any word, pragmatism means many different things in


very different contexts. It has been applied to politics,
language, interpretation, and law. In politics, for example,
anarchism was originally espoused as form of pragmatism. They
claimed a rejection of theory and the creation of decentralized
federalism (not unlike the working solution that Canada has
adopted). In language, pragmatism is the study which focuses

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attention on the users and the use of context rather than on


reference, truth, or grammar.7 In communication theory, Georgia
Green tells us that pragmatic information is information about
mental models (speaker’s and addresse’s models of each other)8
In an interpretive context, pragmatics is a method of
approaching meaning through the application of context.

Dworkin said that interpretation goes down and down, up


and up, and the further you go the more abstract things get.
Pragmatics, in general, is the construction of meaning in a
subject’s total context. It is a rejection of rational
“abstract” meaning, which attempts to divorse an idea from its
inevitable and true context.

Interpreting the meaning of words is an intergral part of law. The


interpretation of law has implications well beyond the courtroom and the
effects reside within our communities. According to Ruth Sullivan author of
Driedger on the Construction of Statutes, “…the essential problem of
statutory interpretation is to apply a general, abstract statutory provision
to a concrete factual situation.” 9
The dynamics of legal interpretation are
such that an interpreter must go from a general view of the statute to
specific evidence and then back to the general view.

2.1: Modern Theoretical Linguistics

Theoretical Linguistics has been divided into the study of


syntax (grammar), semantics (word meaning), and pragmatics

7
Oxford Companion to Philosophy. Fotion 1995. p.709.
8
Green, Georgia. The Nature of Pragmatic Information. Univ. of Illinois, unpublished. 1999.
9
Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U. Ottawa
L. Rev.

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(context). Pragmatics is the least well known. It studies the


function of language use in a social context.

There are three essential elements in language use:10

1. The linguistic expression used (words, sounds, semantic


encoding)

2. What the expression refers to in the real world (objects,


properties, relations, events, etc)

3. The context.

The semantics/pragmatics distinction is primarily a


distinction between studying 1 and 2, or 1, 2, and 3. The
semantics/pragmatics distinction is also distinguished by the
two types of cognitive processes used in understanding
utterances: decoding (deduction) and inference (induction).

Semanticists study linguistic competence, as opposed to


actual linguistic performances. In this context it is valid to
talk of grammatical competence or pragmatic performance.
Grammatical competence entails knowledge of conditions for
appropriate word use or the ability to parse out grammar into a
logical form. Pragmatic inferences require interpretation, and
rely on inferential abilities which more closely resemble a
performance than anything else.

2.2: The Pragmatic Approach to Statutory Interpretation

10
DeSwart, Henriette. Introduction to Natural Language Semantics. (Standford: Centre for the Study of Language
and Information, 1998), p.8.

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The role of pragmatic interpretion is to provide a theory


which allows a court to consider each element involved in
creating an outcome in order to assign appropriate weight to
the different pieces and balance them against one another.
Pragmatic principles can be seen as a criteria that can
establish what it means for a legislature to act rationally,
reasonably, and purposefully. According to Sullivan,

“There is only one rule in modern interpretation, namely, courts are obliged
to determine the meaning of legislation in its total context, having regard to the
purpose of the legislation, the consequences of proposed interpretations, the
presumptions and special rules of interpretation, as well as admissible external
aids. In other words, the courts must consider and take into account all relevant and
admissible indicators of legislative meaning. After taking these into account, the
court must then adopt an interpretation that is appropriate. An appropriate
interpretation is one that can be justified in terms of (a) its plausibility, that
is, its compliance with the legislative text; (b) its efficacy, that is, its
promotion of the legislative purpose; and (c) its acceptability, that is, the outcome
it produces is not unjust or unfair.”11

Context in statutory interpretation includes among other


things, judicial knowledge of the subject matter, knowledge of
the situation in which text is produced, and conventions of
writing style. It also includes relevant conventions of statute
law, the likely purpose of a statute, and the scheme devised to
realize that purpose.

Under this theoretical and pragmatic approach, Sullivan


sees the role of courts as resolving disputes in accordance
with the law. Courts must act as mediators to ensure that
disputes are resolved in ways that respect all the values of
constitutional democracy. This is a different from the

11
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. (Toronto : Butterworths Ltd., 1994).

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positivist perspective that dictate the legislatures make the


law, and judges merely apply it to the particular facts.

A pragmatic theory of interpretation requires that courts


determine the meaning of legislative texts, determine the
intention of Parliament, but also resolve disputes in a manner
which respect the important values of society. The judicial
task is to not only ask “What does this text mean,” or “What
did Parliament intend,” but also, as Cohen would have it, “What
is the right outcome?”

In a pragmatic theory, the judicial task of interpretation


is properly characterized as solving the interpretive problem
facing the court in an appropriate and acceptable way. Sullivan
suggests that to do this a court is permited to consider any
relevant evidence. Interpretation is seen for what it “ought”
to be, which is the creation of acceptable outcomes from a
pragmatic prespective. For Sullivan,

“Resolving disputes is complex, creative work and judges have a responsibility


12
not only to carry out this work, but also to acknowledge it and justify it.”

These words echo Supreme Court Justice L’Heureux-Dube J. in


Regie des permis d’alcool,

“…given the growning recognition that there are many different perspectives –
the aboriginal perspective, for example – I believe that the era of concealed
underlying premises is now over. In my view, those premises must be brought to the
surface in order to promote consistency in our law and the integrity of our judicial
system.”13

12
Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U.
Ottawa L. Rev.
13
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, p.1001.

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Part III: Linguistic Comprehension

Some underlying premises that courts use in statutory


interpretation involve faulty assumptions about language and
reading. This next section will outline a series of linguistic
theories that describe how we make sense of language. Answers
to these questions will lead us into the nature of thought
itself and the consequences of thinking -- decision making.
This analysis requires somewhat heavy reliance on empirical
based psychological and linguistic theories.

In general, it would be helpful to point out that human


beings all have certain predispositions toward language
processes and reasoning. Reasoning and the functions of the
brain, can be viewed as a product of evolution; a propensity
toward beneficial behaviours that developed within the physical
reality of the world. Comprehension and cognition are examples
of such beneficial products.

3.1: Reasoning and Interpretation

There is a close association between practial reasoning


and interpretation. Psychologist’s tell us that there are two
basic types of cognition.14 The two types are deductive and
inductive reasoning. Inductive reasoning is described as
thinking by hypothesis testing. Deductive reasoning is
described as drawing logical conclusions. “Code theory” (about
to be explained) operates through deductive style reasoning,
while schema theory is rooted in the study of inductive
reasoning.
14
Mayer, Richard. Thinking, Problem Solving, Cognition 2nd Ed. Freeman and Company (New
York 1992).

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3.2: Schema Theory

In 1932 Bartlett defined schema theory.15 This theory


replaced Gestalt theory with a more precise description of
understanding. According to schema theory, understanding
involves the construction of a schema which serves to select
and organize incoming information into an integrated meaningful
framework. Schema theory recognizes that remembering and the
use of memory require an active “process of construction;”
during recall, a schema is used to generate or construct
details that are consistent with it.

The theory is based on the fact that people tend to


remember, (1) the gist of a passage rather than verbatim
content, (2) important information better than unimportant
information, (3) information that is consistent with their
perpective better than information that does not fit their
perspective.

Bartlett’s idea is that people abstract general meaning


from prose during reading and construct their answers during
recall. He also noted that people tend to make inferences about
information not stated when reading.

3.3: Code Theory of Communication

Historically, reading was widely perceived to be simply a


matter of “decoding,” of translating the basic elements of
written language. In classical code theory, the only way to

15
Mayer, Richard. Thinking, Problem Solving, Cognition 2nd Ed. Freeman and Company (New
York 1992).

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communicate thoughts is to encode them. Code theory held that


the communication of any thought could be achieved by uttering
a sentence identical to it in content.

Jerry Fodor’s The Language of Thought (1975), outlined an


updated “code” theory of verbal communication. He recognized
that that the basic coding-decoding process is supplemented by
contextually informed inference routines. Though full encoding
is possible, it is often unnecessary. By exploiting shared
contextual information and inferential abilities, communication
can succeed even when a thought is indirectly suggested rather
than directly encoded.

Part IV: Reading Processes

Before we precede with an analysis of reading, a reference


should be made that both verbal and text based communication
share similar cognitive processes when determining meaning.
Throughout the text, insights into spoken and written language
will be used interchangeably. The term reader, also refers to
hearer, the term speaker also refers to writer. The main
difference between verbal and text communication lies in the
absence of the ability to check a writer’s intention during
reading, as well as the fact that language stripped of
intonation provides less context for readers to reconstruct
meaning.

A leading Canadian authority on reading, Frank Smith


wrote:

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“Reading is never an abstract, purposeless activity, although it is frequently


studied in that way… Readers always read something, they read for a purpose, and
reading and its recollection always involve feelings as well as knowledge and
experience…. Reading is… a creative and constructive activity.”16

Rather than seeking a definition of reading we heed the


words of Felix Cohen, and attempt to consider what is involved
in reading. In Reading Without Nonsense, Frank Smith teaches us
the basics.

While reading we use our eyes and our minds. We use visual
information as well as nonvisual information. The more
nonvisual information a person has when reading, the less
visual information needed. The less nonvisual information a
person has when reading, the more visual information needed.
The skill of reading is to make maximum use of what you know
already and to depend on the information from the eyes as
little as possible.17

4.1: Reading and Memory

The mind makes use of memory and recall when reading. The
critical difference between short-term and long-term memory is
organization. Short-term memory holds unrelated items, but
long-term memory is a network, a structure of knowledge, it is
coherent. Long-term memory is everything we know about the
world and it is organized. It is only through organization that
information can become established in long-term memory, and it

16
Smith, Frank. Understanding Reading: A Pscholinguistic Analysis of Reading and Learning
to Read, 5th ed. (Hillsdale, New Jersey : Lawrence Erlbaum Ass., 1994) p.31.
17
Smith, Frank. Reading Without Nonsense. 2nd Ed. Cambridge University Press. (England,
1978).

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is only through organization that it can be retrieved again.


“Comprehension takes care of memorization.”18

4.2: Reading and Meaning

There is a difference between the “visual information” on


the page and meaning. Smith tells us that readers should expect
to bring meaning to print rather than expect to receiving
meaning from print.19 Smith is not the only one to believe that
there is far more to language and comprehension than what
resides in the visual information.

Noam Chompsky in his theory of syntax delinates two basic


structures of spoken and written language. They are surface
structure and deep structure.20 Surface structure is visual
information, the physical characteristics of langauge. Deep
structure is an alternative term for meaning. Much of the deep
structure of language is not in the surface structure at all.
No one-to-one correspondence exists.

The reality is that the physical aspects of language, the


print or the sound, contain insufficient information to convey
meaning unambiguously. One surface structure may have more than
one deep structure and one deep structure may have more than
one surface structure. Ambiguity is unavoidable in language
use. Meaning lies beyond mere words.

For example, often grammar cannot be determined until


meaning is allocated to a sentence. “Flies” is a verb in time

18
Ibid
19
Ibid
20
Chomsky, Noam. Aspects of the Theory of Syntax, Cambridge MA, MIT Press (1965).

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flies and a noun in fruit flies. Only after you know what the
sentence means can you determine the grammar.

Words themselves have too many meanings. Once a word gets


into common use it tends to be given as many meanings as
possible. The human brain works best by using a few elements
very productively rather than using many elements
restrictively. You cannot tell what grammatical functions of
many common words are when taken in isolation. (Consider, sock,
run, walk, house, fence, bottle.)

4.3: Reading and Ambiguity

Language itself is ambiguous. Comprehension allows for our


attention to select and emphasize the appropriate contextual
cues. Lexical ambiguity is resolved or at least managed by
comprehension. Most utterances only have one intended
interpretation. Usually there is little argument about that
interpretation based on knowledge of the intention.

Ambiguity poses no problem for the producer of language,


for the speaker or the writer. They already have a reasonable
idea of what they are saying, and provided they produce an
expression that is not incompatible with their intentions, they
rarely suspect that their words may have some alternative
interpretation.

Meaning seems self-evident when we are speaking and


writing. Speakers and writers are the last people to be aware
of the unintentional effects, such as puns. They get
embarrassed or annoyed when distortions of their meaning or
“misinterpretations” of what they say are pointed out to them.

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The Pragmatics of Statutory Interpretation

The reason why readers and listeners are usually no more aware
of possible ambiguity than the writer or speaker who produces
the language has to do with context.

Context limits the range of ambiguity. If the discussion


is about transportation we never consider that table might
refer to a piece of furniture. In the expectation of a
particular sense, we discard or are completely unaware of
potential nonsense. We may not be able to predict exactly what
a writer or speaker will say, but we know enough to not
consider unlikely alternatives. The generation and testing of
predictions is the way we comprehend just about everything in
life.

4.4: Comprehension and Prediction

We have a schema in our heads, a theory of what the world


is like, and this theory is the basis of all our perception and
understanding of the world. We need prediction to survive,
there is too much ambiguity in the world, too many
alternatives. In predicting the possible meaning that a word is
likely to have on a particular occasion we are not aware of
every potential ambiguity.

Prediction is the prior elimination of unlikely


alternatives. Prediction is asking questions and comprehension
is getting those questions answered. Comprehension is a state
of not having any unanswered questions. Comprehension is a
state of zero uncertainty. Comprehension is also relative, it
depends on the questions you ask. It is unlikely that any two
people would ever in fact ask exactly the same questions of the
same piece of text.

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George Yule and Gillian Brown explain relative


comprehension in Discourse Analysis,

“However objective the notion of “text” may appear as we have defined it, the
perception and interpretation of each text is essentially subjective. Different
individuals pay attention to different aspects of texts. The content of the text
appeals to them or fits into their experience differently.”21

Reading is extracting information from a text for a


purpose. The purpose is to answer specific questions that we
are asking. Frank Smith suggests that the moment we pay
attention to such irrelevant details as the paper or the print,
we risk losing concentration upon the sense of what we are
reading.

There is a skill in asking questions and knowing how to


find answers in a text. The questions we ask in reading are
almost invariably implicit. We are aware of the process of
selecting and evaluating answers, but we are not always aware
of the questions we ask, or even that we are asking them.

Part V: Inference Theory of Communication

Herbert Paul Grice (1913-1988) was a philosopher who is


best known for his analysis of speaker meaning, conversational
implicature, and intention-based semantics. Primarily due to
this work and his ideas, philosophical debate over the nature
of meaning shifted during the 1970’s and 1980’s from linguistic
representation to mental representation. The problem of
explicating the meaning of words changed to focus on the
problem of explicating the content of mental representations.
21
Yule & Brown.Discourse Analysis. (Cambridge: Cambridge University Press, 1983) p.11.

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Theorists now assume that the meaning of words is derived from


the content of mental representations.

5.1: Herbert Paul Grice22

Grice was a philosopher of language who was interested in


drawing a distinction between the meaning of words and the use
of words. He belonged to a long tradition in philosophy that
treated communication as a matter of a speaker’s using words to
enable hearers to recognize the content of their thoughts.
(intention-based communication)

He laid out the groundwork for a theory that eventually


challenged this traditional view. He began by demonstrating a
difference between when a sentence is inappropriate because it
fails to be true, i.e. it doesn’t correspond with the world,
and when a sentence is inappropriate for reasons of a different
kind.

5.2: On Truth

To begin the first task, Grice outlined situations where


the meaning of statements relied on external conditions for
their truth. So for example, if an external condition failed to
correspond to the world, ie. failed to be true, then the
proposition was deprived of its truth-value. If a condition was
false, the proposition might be false, i.e. lacking a truth-
value. If the external condition was true, then the statement
could be either true or false.
22
Grice H.P. Studies in the Way of Words. Harvard University Press (1989).

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Any given proposition will be inappropriate if it was


pointless. To Grice’s mind, it would be pointless unless there
were a real or supposed possibility that the proposition was
false. i.e. you can test for it.

The main point is that whether the proposition is true,


false or lacks a truth-value depends on the facts. This
signaled the end of the metaphysical search for ‘truth.’

The original formulation of “speech-act” behaviour was


responsible for the end of the big truth.23 This view considered
the many different uses of the word “truth,” and decided that
primarily “truth” was the property of an utterance. For
example, to say “Smith is happy,” is to say that, “it is true
that Smith is happy.” And not merely to assert it but also to
endorse, confirm, concede, or reassert it(etc.). To say “it is
true that Smith is happy,” is to make a concealed reference to
utterances. To say such a thing is to implicate that someone
might say so.

To assert that a proposition is true is only to assert


that proposition.24 Grice maintains that truth should really be
called “factually satisfactory.” The truth of the utterance is
dependent on the reality of whether or not Smith is happy
regardless of what someone may say about it.

Grice maintained that when discussing the meaning of a


particular word or phrase it was a mistake to look for ‘truth’
in the facts, if the condition for its applicability was

23
P.F.Strawson. “Truth,” Analysis 9, no.6 (1949).
24
Ramsey. Foundations of Mathematics, pp.142-143.

23
The Pragmatics of Statutory Interpretation

actually speaker-relative. Whether a statement in this context


was inappropriate or not was best explained by reference to
certain general principles of discourse or rational behaviour,
rather than in reference to a truth-value.

5.3: On Logic

Grice approached logic from a critical point of view. He


was trying to pursuade formalists that formal devices of logic
were unnecessary. He thought that natural language operated in
the same way as these logical constructs, thereby making these
constructs superfluous.

Formalists assume that the primary yardstick by which to


judge the adequacy of a language is its ability to serve the
needs of science. Formalists’ generally believed that an
expression cannot be guaranteed as useful unless an analysis of
its meaning had been provided, and that every analysis would
take the form of a precise definition based on logical
equivalence.

Formalists’ wanted to use logic to construct an ideal


language, incorporating formal devices, the sentences of which
would be clear, determinate in truth value, and certifiably
free from metaphysical implications. The fear was that we
cannot be certain that natural language expression were not
metaphyscially “loaded.” Grice claimed that natural language
and formal devices did not actually diverge in meaning if only
you understood the mechanism of implicatures.

24
The Pragmatics of Statutory Interpretation

5.4: Grice’s Implicature

Casual comments made by someone such as, “he likes his


job, he hasn’t been to prison yet,” suggest that a speaker is
implying more than is said. That we may or may not enquire
after the implicature depends on our ability to comprehend the
meaning in the given context.

“Implicature” is a blanket word to avoid having to make


choices between words like “imply,” “suggest,” “indicate,” and
“mean.”

‘Conversational implicature’ is the term Grice used to


explain what was not said but intended anyway. It relies on
what he dubbed the “cooperative principle.”

“The Cooperative Principle : Make your conversational contribution


such as is required, at the stage at which it occurs, by the accepted purpose or
direction of the talk exhange in which you are engaged.”25

The cooperative principle subsumes a number of submaxims,


such as “make your contribution as informative as is required,”
“Do not say that for which you lack adequate evidence,” “Be
relevant,” and “avoid obscurity.”

According to Grice, everyone recognizes in cooperative


efforts a common purpose or set of purposes, or at least a
mutually accepted direction in conversation. At each stage in
the coversation some possible conversational moves would be
excluded as conversationally unsuitable.

25
Grice H.P. Studies in the Way of Words. Harvard University Press (1989). P.26.

25
The Pragmatics of Statutory Interpretation

5.5: Maxims : Quantity, Quality, Relation, Manner

Conversational maxims are connected to the particular


purposes that conversations are adapted to serve. We are to
assume the overall purpose in conversation is to promote a
maximally effective exchange of information. The conversational
maxims fit in four categories, quantity, quality, relation, and
manner.

26
The maxims are set out below as recast by Georgia Green:

Quantity, Quality, Relation, and Manner

Quantity I. An agent will do as much as is required for the


achievement of the current goal
II. An agent will not do more than is required

Quality : Agents will not decieve co-agents. Consequently, an


agent will try to make any assertion one that is true.
I. Agents will not say what they believe to be false
II. Agents will not say that for which they lack adequate
evidence

Relation : An agent’s action will be be relevant to and


relative to an intention of the agent.

Manner : Agents will make their actions perspicuous to others


who share a joint intention.
I. Agents will not disguise actions from co-agents.
Consequently, agents will not speak obscurely in
attempting to communicate.
26
Green, Georgia. The Nature of Pragmatic Information. Univ. of Illinois, unpublished. 1999.

26
The Pragmatics of Statutory Interpretation

II. Agents will act so that intentions they intend to


communicate are unambiguously reconstructible.
III. Agents will spend no more energy on actions than is
necessary.
IV. Agents will execute sub-parts of a plan in an order
that will maximize the perceived likelihood of
achieving the goal.

Grice wants us to think of the cooperative principle as


not merely something that all of us or most of us do in fact
follow, but as something that it is reasonable for us to
follow, something that we should not abandon. Grice thinks of
the observance of cooperative principle as a quasi-contractual
matter.

Grice is not suggesting that the maxims of conversation


are rules. A persons may violate a maxim. For example, someone
may be unable to fulfil one maxim without violating another; or
someone might flout a maxim for a purpose. His point is that
when they do this it gives rise to a conversational
implicature. The maxims get exploited to bring about some
unstated purpose.

5.6: Implicature

The formal representation of an implicature:

‘A’ who by saying that p (proposition) has implicated that q


(entailment), provided:

(1)‘A’ is presumed to be observing the conversational maxims or


at least the CP.

27
The Pragmatics of Statutory Interpretation

(2)He is aware q is required to make p consistent with


observation of CP.

(3)‘A’ thinks hearer can work out that q is required to make p


consistent with observation of CP.

A conversational implicature must be capable of being worked


out. To work out a particular conversational implicature the
hearer will rely on :

(1)the conventional meaning of the words, together with the


identity of any references that may be involved.

(2)the CP and its maxims.

(3)the context, linguistic or otherwise, of the utterance.

(4)other items of background knowledge.

(5)that all relevant items falling under the previous headings


are available to both participants and both participants know
or assume this to be the case.

In other words, he has said ‘that p’, he is using CP, he


knows that I know that he knows ‘that q’ is required; he
intends me to think ‘that q,’ or at least he is willing to
allow me to think ‘that q;’ so he has implicated ‘that q.’

To calculate a conversational implicature is to calculate


what has to be supposed in order to preserve the supposition
that the CP is being observed.

28
The Pragmatics of Statutory Interpretation

An implicature usually creates a meaning that is other than a


conventional or literal meaning. Grice lays down a test to
determine if a proposition (the total significance of the
utterance) is conventional or conversational (nonconventional).
He suggests we check the language for nondetachability and
cancellability.

Nondetachability : is it possible to find another way of saying


the same thing which lacks the implicature.

For example the word “try” ‘A’ tried to do ‘x.’ This


implies that someone thought there was a chance of failure. The
implicature (of failure) is nondetachable insofar as it is not
possible to find another way of saying the same thing which
simply lacks the implicature. The implicature of ‘A’ tried to
do ‘x’ is also carried if one said ‘A’ attempted to do ‘x,’ ‘A’
endeavoured to do ‘x,’ ‘A’ set himself to do ‘x.’ It appears
that the implicature does not depend on the manner in which
what is said has been said, and it is also subject to the
limitation that there may be no alternative way of saying what
is said, other than introducting peculiarities of manner, or by
being artificially long-winded.

Cancellability : if I add “but not p,” or “I do not mean to


imply that p.”

If the implicature is not detachable and not cancellable


then it must be permanent and conventional.

The CP dictates that the senses of a word are not to be


multiplied beyond necessity. We are to consider that it is

29
The Pragmatics of Statutory Interpretation

better to strengthen our meaning by achieving a superimposed


implicature, than by making a relaxed use of an expression.

5.7: Implicature and Intention

An implicature is required to preserve the assumption that


a speaker is observing the cooperative principle, if not at the
level of what is said, at least at the level of what is
implicated. In other words, we assume the speaker is observing
the CP and imply whatever information is necessary to modify
what is said. This entail a theory of ‘intention.’

The basic formulation of intention by Grice involves a


desire on behalf of the speaker to intend to produce a certain
response in an audience. If there is no audience, people
pretend as if there is one.

It is intended that an audience should recognize the


intention of the speaker. The recognition should be in part the
audience’s reason for producing the response intended.

‘U’(utterer) utters ‘x’ intending ‘A’ (Audience) to


produce ‘r’ (response), to think U intends A to produce r; to
think U intends the fulfillment of r to be based on the
recognition by A that U intends that A produce r.

In Grice’s theories the speaker’s intention is to be


recognized by virtue of a knowledge of the conventional use of
the sentence. It requires that a speaker know the conventional
force of the words chosen.

5.8: Intention and Meaning

30
The Pragmatics of Statutory Interpretation

Grice argued that the use of language was one among a


range of forms of rational activity. He advocated that the use
of language involved a form of rational cooperation. Grice
believed that a rational creature was a creature that
evaluates. He defined rational behaviour in terms of making
evaluative decisions.

He was concerned with the elements of meaning that were


present by virtue of convention, and those that were present by
virture of something other than convention.

For Grice the word ‘meaning’ was used in two different


senses. It’s use had a natural sense and a nonnatural sense.

natural sense -- “These spots mean (meant) measles.” “Means”


“means something” “means that” It is meaningless to argue
against natural meaning. More formally, x means ‘that p’ entail
p.

Nonnatural sense – I can argue against it. For example, “those


three rings of the bell mean school is over.” Formally this can
be represented by, x means ‘that p’ do not entail p.

The causal theory of meaning which Grice amends said that


“For x to mean something, x must have (roughly) a tendency to
produce in an audience some attitude (cognitive or otherwise)
and a tendency, in the case of a speaker, to be produced by
that attitude.” These tendencies were seen as being dependent
on “an elaborate process of conditioning attending the use of
27
the sign in communication.”
27
Stevenson, C.L. Ethics and Language, (New Haven, 1944). Ch3.

31
The Pragmatics of Statutory Interpretation

What was absent from this causal meaning were situations


where meaning was adapted to the situation. Grice described two
different meanings of meaning. The first he called timeless
meaning, similar to causal meaning, and the second was
occasion-meaning, which was created to adapted to the
situation.

For Grice the correct and incorrect use of ‘x,’ was


nothing more than a usual or an unusual use of ‘x.’ U must
think, however, that the audience has this usual sense of ‘x.’
in their repertoires. A correct use of a sentence or a word
corresponds to the standard use, this entails that the words
have, “an ordinary (or accepted) use.”

5.9: Conventional Meaning

In his theory a proper understanding of what is said


involves knowing the standard use of the sentence in question.
What a particular speaker means by a particular utterance on a
particular occasion is to be identified with what he intends by
means of the utterance to get his audience to believe. What a
sentence means in general is to be identified with what would
standardly be meant by the sentence by particular speakers on
particular occasions; and what renders a particular way of
using a sentence standard may be different for different
sentences. If a speaker intends by means of an utterance to get
an audience to believe something – the speaker must think that
there is some chance that the audience will recognize from the
utterance what it is they are supposed to believe.

32
The Pragmatics of Statutory Interpretation

Explicit intentions are rare, so in their absence, we rely


on the same criteria that we would rely on in the case of non-
linguistic intentions; a sense of general usage. An utterer is
held to intend to convey what is normally conveyed (or normally
intended to be conveyed), and people require a good reason for
accepting that a particular use diverges from general use.

The implicature depends on what is to be expected, not on


what is universally true. One would assume that the meaning for
the word is common knowledge. But this is not accurate. The
truth is that it is noncontroversial, in the sense that it is
something we would expect the hearer to take from us.
Obviousness requires consent, on the part of the parties
concerned, in the obviousness of what is thought of as obvious.

Word meaning and speaker meaning can be different, it


depends on the context. To say a sentence means something is to
understand what the speaker means on a particular occasion. Or,
it means that it is conventional to use this sentence this way.
Convention is one way of fixing what a sentence means.

One cannot know speaker meaning completely so at some


point we merely deem that we know what they mean. The hearer
recognizes or deems that the speaker intends the hearer to
accept the proposition and the hearer thinks that the speaker
intends the hearer to think that the speaker intends that the
hearer recognize the meaning of a proposition. This
explaination affords a possible infinite regress that is best
stopped by a hearer by just deeming the intention of the
speaker.

5.10: Grice Conclusion

33
The Pragmatics of Statutory Interpretation

Grice’s intention-based semantic description of speaker


meaning rests ultimately on a conception of conventional
meaning, or ‘timeless’ meaning. Timeless meaning of a form of
words may be defined in terms of what speakers have in their
“repertoire” to do by means of that form of words. A speaker
may reasonably expect that an utterance of that form of words
will produce the intended effect.

Conversational implicature is a function of a theory of


human behaviour generally, not something specifically
linguistic. It is based on inferences of intentions for actions
in general. Conversational implicatures arise from the
assumption that it is reasonable (under the particular
circumstances of the speech event in question) to expect the
audience ‘A’ to infer that the speaker ‘S’ intended ‘A’ to
recognize ‘S’s’ intention from the fact that ‘S’ uttered
whatever ‘S’ uttered. Conversational implicature is inherently
indeterminate.

5.11: Relevance Theory

Recently (1986) Dan Sperber and Deirdre Wilson have used


Grice’s theories to push theoretical pragmatics further.28
Inferences are seen to be guided by relevance. Relevance is
viewed as an interpretation that fits with pre-existing
knowledge and has a low processing effort.

In general, relevance theory is the study of mental


representations. It assumes that what can be communicated goes

28
Sperber Dan, Wilson D, Relevance : Communication and Cognition. Harvard University
Press, Cambridge, MA. (1986).

34
The Pragmatics of Statutory Interpretation

well beyond what can be encoded. The idea is that language is


merely used as a “conduit” to communicate concepts.

Sperber and Wilson have formed two main principles of relevance


used in communciation,

The Cognitive Principle of Relevance – Human cognition tends to


be geared to the maximization of relevance.

Communicative Principle of Relevance – Every act of ostensive


communication communicates a presumption of its own relevance.

In this theory words are used as pointers to contextually


intended senses. Utterances are merely pieces of evidence of
the speaker’s intention. It is easy to show that a speaker
cannot always be expected to produce the most relevant possible
utterance. However, the ostensive stimulus is relevant enough
for it to be worth the readers effort to process. It is the
most relevant.

The cognitive process of inference integrates the


linguistic contribution of communciation with other readily
accessible information (ostensive behaviour) in order to reach
an interpretive hypothesis concerning the speaker’s intention.
Inference processes are constrained and guided by the
communicative principle of relevance, which licences a hearer
to look for an interpretation that makes sense and does not put
him to any unjustifiable processing effort. The greater the
effort the lower the relevance.

Relevance theory believes that classical code theory is


patently wrong. The classical theory treats coding-decoding as

35
The Pragmatics of Statutory Interpretation

the only explaination of communication, which entails as a core


theoretical claim that every communicable message is fully
encodable. This empirical claim has little empirical support.
In updated code theory inferences are seen as shortcuts to
coding-decoding, relevance theory sees them as something more.

5.12: Relevance and Meaning

There are fixed relationships between the mind and the


world. One of those relationships is represented in the
language that we speak. Mental representations have a structure
similar to a sentence and combine elements to form a mental
repertoire like a lexicon. Mental concepts are relatively
stable and distinct structures in the mind.

According to relevance theory, there are many more


concepts in our minds than words in the language we speak.
These concepts may be both stable and communicable without
being encoded in words. The concept communicated by use of a
word on a given occasion may go well beyond the concept
encoded.

Much research has cast doubt on the view that word


meanings can be analysed in terms of context-independent
prototypes, and suggests instead that ad hoc meanings are
constructed in context.29 These occasional meanings may
stabilise into concepts, for the speaker, the hearer, or both.

29
Sperber Dan, Wilson D, Relevance : Communication and Cognition. Harvard University
Press, Cambridge, MA. (1986).

36
The Pragmatics of Statutory Interpretation

New senses are constantly being constructed in context.


The stabilisation of a word in a language is a social and
historical affair. It is a slow and relatively rare process,
involving co-ordination among many individuals over time.

The ad hoc concept constructed by an audience is unlikely


to be exactly the same as the speaker. Sperber and Wilson
maintain that it is an illusion of the code theory that
communication aims at the duplication of meanings. Sometimes it
does, but normally it aims at something looser. The fact that a
public word exists and is successfully used in communciation
does not make it safe to assume that it encodes the same
concept for all successful users; and in any case, the concept
communicated will only occassionally be the same as the one
encoded. Communication succeeds because words point the hearer
in the intended direction.

Sperber and Wilson believe that there are three kinds of


mapping between mental concepts and public words. The mapping
between words and concepts may be one-to-one, one-to-many,
many-to-one or a mixture of these. However, the idea that there
is an exhaustive, one-to-one mapping between concepts and words
is quite implausible.

Some concepts have no corresponding word, and can only be


encoded by a phrase. For example, uncle or aunt. We have many
beliefs and expectations about uncles-or-aunts. It makes sense
to assume that these beliefs and expectations are mentally
stored in a mental concept. At the opposite pole, a person may
not know the word sibling but still have a concept that has
brother and sister as sub-categories. It is plausible that not
all words map onto concepts, nor concepts onto words.

37
The Pragmatics of Statutory Interpretation

Some words are more like placeholders, such as “it.” It


does not encode a concept at all. Many words encode not a full-
fledged concept but a pro-concept. My, have, near, long – they
have some conceptual content, but as with pronouns their
semantic contribution must be contextually specified for the
associated utterance to have a truth value. Whether or not a
word encodes a full concept, the concept it is used to convey
in a given utterance has to be contextually worked out.

5.13: Relevance and Truth

In relevance theory the bearer of truth is not the


sentence but the proposition or thought the speaker uses the
sentence to express on a given occasion. Reference assignment &
disambiguation can result in truth – (evaluable propositional
representation if and only if the context is true).

Formal logic has traditionally relied on truth-conditional


semantics. However, under this analysis truth requires
reference to a context, which makes truth pragmatic.

Pragmatic inferences create narrowings and loosenings of


encoded concepts. Pragmatic inferences may entail loss of
encoded information. The precise and clear language desired by
the positivists in the search for truth may not factually
correspond to the world or the processes invovled in truth
acquisition.

38
The Pragmatics of Statutory Interpretation

5.14: Further Relevance

In a world of “semantic underdeterminancy” it only further


complicates matters to discover that a shifting context may
mean that a single sentence could have different truth
conditions on different occasions of use.

Under relevance theory the hearer manages with this problem


by constructing meaning in the following manner:

1. Following a path of least effort,

2. the hearer or reader decodes the linguistic information and


then uses that information to form a template for the
meaning.

3. The reader enriches the meaning at the explicit level by


using formal deduction, and logic (explicature), and

4. The reader compliments the meaning at the implicit level


using inferences and the CP (implicature).

5. When the resulting interpretation meets with expectations of


relevance, the reader stops.

Part VI: Speech Act Theory and Statutory


Interpretation.

39
The Pragmatics of Statutory Interpretation

A number of different articles have already noted a


theoretical and logical bridge between speech act theory and
statutory interpretation.30

Speech act theory suggest that when people express


themselves they produce more than grammatical structures and
semantic meaning, they intend to perform ‘actions’ via the
utterance. We create utterances with the intention of having an
effect. We assume that the hearer will recognize the effect
that we intended.

When legislatures enact a statute they are initiating


communication with an audience. The speaker is the legislature,
which is the will of the people, and the hearer’s are the
people who are subject to crown jurisdiction. Speech-act theory
is grounded in the speaker-hearer context and the notable rules
which govern conversations. If we treat statutes as a
legislative utterance we can gain some insight into possible
restrictions and limitations that rational conversation impose
on speakers. The rules of statutory interpretation as related
to us by the Supreme Court also reflect many of these rational
implications inherit in communication, especially text-based.

Legislation is an attempt at communication, it shares a


similarity with the insights of modern linguistic theorists.
Statutory interpretation is a method of creating meaning.

6.1: Statutory Interpretation in Canada

30
Miller, Geoffrey. Pragmatics and the Maxims of Interpretation. (1990) Wisconsin Law
Review. pp.1179-1225. See also Sinclair, M.B.W. Law and Language : The Role of Pragmatics
in Statutory Interpretation. (1985) University of Pittsburgh Law Review, v46. pp.373-420.

40
The Pragmatics of Statutory Interpretation

The point of statutory interpretation is not to study how


communication occurs but to answer a question or resolve a
dispute. Currently, the Supreme Court assumes that the
statutory text is the most authoritatve interpretative source.
The text is considered the starting point for interpretation,
and textual arguments carry the greatest argumentative weight.
The Court supports an intentionalist approach to textual
analysis,

“The words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the object of
the Act, and the intention of Parliament.31

The Court’s first duty in resolving interpretation


disputes is to give effect to the intention of the enacting
legislature.Where there is evidence from which the intent of
the legislature can be inferred, and when the inference seems
compelling, the judge is bound to give it considerable weight.
The interpretive theory seems to be beyond code theory and
supports an inference based intentionalist approach. The Court
has yet to accept pragmatics as the governing rule in
interpretative disputes about meaning.

6.2: Approaches to Meaning

In a legal context the term meaning is used to describe many


different things. The word is used indiscriminately by judges
to refer to approximately 5 different distinct meanings.32

31
Driedger, Elmer. Construction of Statutes, 2nd ed. (Toronto : Butterworths Ltd., 1983), at p.87.
32
Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U. Ottawa
L. Rev.

41
The Pragmatics of Statutory Interpretation

1. Dictionary Meaning – abstract semantic definition stripped of


context. (The courts assumes that the meaning of words known
by every competent user of language is equivalent to their
dictionary meaning.)

2. Literal Meaning – an abstract dictionary-like meaning but


from a particular context.

3. Utterance Meaning, (speakers meaning or intended meaning).


Utterance meaning uses syntax, semantics, and context to
inform content.

4. Audience-based Meaning – sometimes called ordinary meaning or


first impression meaning. This is meaning as understood by
particular audience, ie public at large.

- (a) Technical Meaning, the meaning known by a specialized


sub-group.
- (b) Legal Meaning, if the specialized sub-group is lawyers
and judges.

5. Applied Meaning – the meaning of a text in relation to


particular facts.

6.3: Approaches to Interpretation

Sullivan categorizes the Supreme Court of Canada’s


approach to interpretation as consisting of three distinct
theories of statutory interpretation :” (1) textualism (also
called literalism), which underlies the plain meaning rule, (2)
intentionalism, which underlies Dreidger’s modern principle of

42
The Pragmatics of Statutory Interpretation

interpetation, and (3) pragmatism, which explains and justifies


the actual practice of modern courts.”

6.4: Textualism (Literalism)

The text provides the best, first, and usually only


necessary evidence as to the intention of the legislature and
the meaning of any statute. Interpretation of the text is
unnecessary because the meaning is clear. The plain meaning of
the words governs, this is in accordance with the rule of law.
No other evidence going toward meaning is necessary.

The literalist position is that other provisions of an


Act, legislative purpose, and real world consequences have no
role to play in the intial determination of meaning. Lamer C.J.
in Ontario v. C.P. Ltd. :

“…the first task of a court construing a statutory provision is to consider


the meaning of its words in the context of the statute as a whole. If the meaning of
the words when they are considered in this context is clear, there is no need for
further interpretation. The basis for this general rule is that when such a plain
meaning can be identified this meaning can ordinarily be said to reflect the
legislature’s intention…the best way for the courts to complete the task of giving
effect to legislative intention is usually to assume that the legislature means what
it says, when this can be clearly ascertained.”33

As a point on the mechanics of comprehension it would seem


obvious that it is always necessary in construing a statute,
and in dealing with the words you find in it, to consider the
object with which the statute was passed, because this context
aids the understanding of the meaing of the words in the Act.
No word is ‘plain’ without first having cognitive inferences
limit the context.

33
Ontario v. C.P. Ltd. [1995] 2 S.C.R. 1028, pp. 1049-50.

43
The Pragmatics of Statutory Interpretation

6.5: The Plain Meaning Rule

This rule assumes that it is possible to determine the


plain meaning of a text simply by reading it. Only when a text
is ambiguous is interpretation required. This rule assumes that
plain texts are capable of only one plausible meaning, a
meaning that resides in the expression of the words. Ambiguous
texts are capable of more than one plausible meaning. If a text
is ambiguous the interpreter may refer to other material
outside of the text.

6.6: Problems with the Plain Meaning Rule

1. The assumption that texts have a plain meaning. The


assumption that the plain meaning can be determined by
systematic analysis. There are many steps in determing plain
meaning. Plain meaning is actually a product of uncertainty,
arbitrary choice, inconsistency and confusion. Identifying
the text to be interpreted can sometimes be a personal
arbitrary choice. Defining the co-text or surrounding text to
inform the words to be interpreted is also a product of
arbitrary personal choice. The task of determining meaning
demonstrates that judges are unaware that the word meaning is
used to mean different things in different contexts.

2. The assumption that the plain meaning is the same for


everyone is also wrong. The plain meaning rule assumes that
what is plain to one person is plain to another. It assumes
that by using the right words arranged in the right order,
the meaning will be communicated to the reader automatically
simply through reading. This is just not reality.

44
The Pragmatics of Statutory Interpretation

In the plain meaning rule the distinction between “plain” and


“ambiguous” is very important. If the text is plain, there is
no need for interpretation; the plain meaning prevails over
other evidence of legislative intent. If text is ambiguous then
interpretation is required.and other evidence can be relied on.
A text is ambiguous it it is reasonably capable of bearing more
than one plausible meaning. As we have seen from communication
theory, context and predictions are used to define plausible
meanings, hardly the objective content of the words
themeselves.

We know from linguistic theory that the shorter a text and


the more limited its co-text and context, the greater the scope
for multiple readings. Judgements about plausibility are rooted
in the sensibilities of individual speakers, they are highly
subjective and naturally differ from one reader to the next.

Determining the plain meaning of a text depends on an


arbitrary identification of the text and co-text, shifting and
uncertain conceptions of meaning, and highly subjective
judgements about plausibility. These problems undermine the
credibility of the plain meaning rule.

6.7: Intentionalism

This is the theory that the intention of the legislature


governs interpretation. Meaning can be given to a text by
understanding the what the speaker intended. Intentionalists of
the court will use any extrinsic evidence that is relevant and
reliable. They do not require ambiguity before using extrinsic
aids during interpretation.

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The Pragmatics of Statutory Interpretation

McLachlin J. as she was then put down in the dissent in


R.v.McIntosh:

“The point of departure for interpretation is not the ‘plain meaning’ of the
words, but the intention of the legislature. The classic statement of the ‘plain
meaning’ rule , in the Sussex Peerage Case… makes this clear: “the only rule for the
construction of Acts of Parliament is, that they should be construed according to the
intent of the Parliament which passes the Act” …it is the intention, and not the
“plain meaning”, which is conclusive.34

According to Sullivan, the intentionist approach


recognizes that the text is important during interpretation. If
the text is clear and precise the court must give it
appropriate weight. However, the court is free to consider
other extra-textual evidence, which if persuasive, can be
evidence to reject a clear and precise text in favour of the
intention of Parliament. In McIntosh, McLachlin J. is not
against the Court correcting an error in the legislative text
in order to align it with the intention of the legislature.

Textualism would reject adding words in a statute because


the rule of law allows only the legislature to create law.
Additions are seen as amendments. Intentionalism however, sees
adding words as a legitimate form of interpretation, not
amendment, so long as the addition is based on cogent evidence
of true legislative intent.

McLachlin J. in Opetchesaht Indian Band v. Canada links


together the plain meaning rule and the intention of Parliament
:

“the process of statutory interpretation requires that the intention of


Parliament be ascertained first by considering the plain meaning of the words used in

34
R. v. McIntosh [1995] 1 S.C.R. 686, pp.712-3.

46
The Pragmatics of Statutory Interpretation

the statue…where “the words used in a statute are clear and unabmiguous, no further
step is needed to identify the intention of Parliament.”35

However there are limitations to the intention of


Parliament. The intention is inferred from reading the text in
total context. Inference drawing by judges is no different from
the process relied on by the readers of any text. Conclusions
about writer’s intentions are always speculations, a mix of
text and knowldege.

Often the intention of the legislature does not suffice to


resolve the problem before the court. Circumstances often arise
which the enacting legislation did not or could not have
contemplated. In reality the intentionalist denies
responsibility for her own choices and loses credibility with
her audience.

Legislation is drafted in the form of a general rule that


will apply to facts which the legislature has not even
attempted to imagine in some cases. Intention is really only
what the judge makes up as the intention. This deemed intention
is based on their personal inferential skills and is usually
justified by the plain meaning rule.

Driedger conceives of the “intention of Parliament” as composed


of four elements.36

1. expressed intention – intention expressed by the enacted


words.

35
Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119, at p.152.
36
Driedger, Elmer. Construction of Statutes, 2nd ed. (Toronto : Butterworths Ltd., 1983) P.87.

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The Pragmatics of Statutory Interpretation

2. implied intention – the intention that may legitimately be


implied from the the enacted words.

3. presumed intention – the intention that the courts will in


the absence of an indication to the contrary impute to
Parliament. (conformity with international law,
constitutional law, general statute book, common law.)

4. Declared intention – intention that Parliament itself has


said may be or must be or must not be imputed to it.

Textualism makes use only of express intention.


Intentionalism relies on implied intention. The pragmatic
approach advocated by Sullivan is presumed intention.

6.8: Pragmatism

The third approach to interpretation outlined and endorsed


by Sullivan is pragmatism, refered to in the U.S. as practical
reasoning. Intentionalism and Pragmatism share a context based
approach to interpretion permitting the Court to rely on the
entire range of interpretive aids such as purpose,
consequences, extra-textual context, traditional and newly
emerging legal vales, and relevant extrinsic materials. The
main difference between the two approaches is the acceptability
criteria. Intentionalism prefers the outcome that demonstrates
the intention of the legislature. Pragmatism prefers the
outcome that solves the dispute in an appropriate manner.

L’Heureux-Dube J. in the Regie des permis d’alcool


expresses a similar practical reasoning pragmatic modern

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The Pragmatics of Statutory Interpretation

approach. She uses the term “modern approach” to designate a


synthesis of the contextual approaches that reject the “plain
meaning” approach:

“According to this “modern approach”, considerations must be given at the


outset not only to the words themselves but also, inter alia, to the context, the
statute’s other provisions, provisions of other statutes in pari materia and the
legislative history in order to correctly identify the legislature’s objective.”37

The Sullivan pragmatics requires judges to acknowledge and


justify the other factors that influence their judgements. It
requires judges to address the crucial problem of weight.
Pragmatism is more persuasive because it asks judges to
attribute only as much weight to the text as it can bear having
regard to considerations like relative clarity, and only as
much weight to legislative intention as it can bear having
regard to the cogency of the inferences that can be drawn from
reading the text in total context and from relevant extrinsic
evidence.

The pragmatic account of statutory interpretation is often


resisted because it is thought to give too much discretion to
unelected judges, contrary to both democratic principle and the
rule of law. The pragmatism merely acknowledges the discretion
they have, and must have, to resolve interpretation disputes.
The only real question is whether we are content with formalism
or want to know the “real” reasons for a decision.

From the above survey it seems to me that statutory


interpretation cannot be founded on the wording of legislation
alone. Audience based meaning, or ordinary meaning, should be
used by courts to protect the reasonable expectations of the
37
2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, p.1001.

49
The Pragmatics of Statutory Interpretation

governed. However strict adherence to the plain meaning rule


should only occur if an expression and the words used have a
well-defined “plain meaning” within the specific community
addressed by the legislature.

Too often in practice the plain meaning rule acts as a


proxy for strict construction. The legislatures prefer strict
construction of fiscal and penal legislation. This policy is
grounded in respect for private property, human freedom and the
rule of law. The plain meaning rule is used to disguise what is
actually happening. The court purports to give primacy to the
text when in fact it is giving primacy to common law values.

The ordinary meaning of a text can be compellingly clear


and in such cases it carries significant weight. However it is
still important for judges to look at other sources of
legislative intent as well as to relevant constitutional and
supplementary law to produce an appropriate outcome.

Part VIII: Toward Acceptable Criteria

The underlying values of the liberal rule of law, namely


openness and accountability of public decision-making, can
function as the criteria by which to judge the actual
performance of statutory interpretation. To measure how far the
dominant claims, values or assumptions of a theory are realized
in the law. In Reference re sucession of Quebec:

“A system of governement cannot survive through adherence to the law alone. A


political system must also possess legitimacy, and in our political culture, that
requires an interaction between the rule of law and the democratic principle. The
system must be capable of reflecting the aspirations of the people. But there is

50
The Pragmatics of Statutory Interpretation

more. Our law’s claim to legitimacy also rests on an appeal to moral values, many of
which are imbedded in our constitutional structure.”38

Sullivan defines the criteria for an appropriate dispute


solution.

1. The solution must conform to text, the more precise and


clear, the more weight the text should carry.

2. The solution must fulfil the intention of the legislature.


The more evidence of intent, the greater the weight.

3. The solution must also produce an outcome that is just and


reasonable. This phrase incorporates public values. The
greater the argument to uphold these values the more weight
they should receive.

Personally I would consider adding a fourth acceptability


criteria. An appropriate solution must also carry with it the
appearance of justice. Part of the acceptability criteria of a
judicial decision should be designed to not bring the
administration of justice into disrepute. This is a comment on
procedure as well as function of interpretation.

7.1: Meaning Revisited

When determining the meaning of what is said, lexicon and


syntatic structures are not enough. Meaning is a product of,

1. semantic encoding of words plus the context of utterance, and

38
Reference re sucession of Quebec,[1998] SCJ 61 para 67.

51
The Pragmatics of Statutory Interpretation

2. propositions that the speaker’s words express (mental


concept).

It is quite possible that in reality words don’t have fixed


literal meanings. The idea that someone could divine core
literal meanings from interpretation in a “null” context is an
impossible task. There are no null contexts where speaker and
hearer make no assumptions about each other in which utterances
could be interpreted.

If words have normal meanings, it is only relative to an


assumed speech community. What is considered normal is a
reference to community standards. Value judgements are implicit
in plain meaning determinations.

7.2: Grice Revisited

There are facts about what speakers believe other speakers


believe about conventions for using words. And despite
indeterminacy, plausible candidates in a given context are
limited. Rational speakers consider how likely it is that their
intended audience will be able to understand them.

Overall, the expectation of speaker’s intention is key to


understanding. We all use language in accordance with the
cooperative principle. We will only use a referential term ‘x’
when we believe that our hearer will be able to identify our
intended referent from the reference to it by that term and
will believe that we intended him to do so.

Task of hearer is to deduce what sense the speaker most


likely intended, and he will use all available clues to do so,

52
The Pragmatics of Statutory Interpretation

without regard to whether they come from within or outside the


immediate sentence or bit of discourse at hand. Speaker should
take into account the hearers’ immediate accessible assumptions
and the inferences that can readily be drawn from hearer’s
perspective.

7.3: Relevance Revisited

Information processing involves effort, it will only be


undertaken in the expectation of some reward. Just as an
assertion comes with a tacit guarantee of truth, so ostension
comes with a tacit guarantee of relevance. Ostension is
intended to attract attention. The principle of relevance make
manifest the intention behind ostension.

Obviously ostensive communication such as statutes carry a


presumption of its own optimal relevance. Theory supports the
application of the plain meaning rule but on other grounds than
have traditional been put forward.

Intention is used to bridge the gap between encoded


information and the interpreter’s pragmatic inferential powers.
The inferential process is independent of encoded information.
For communication to succeed sometimes the inference must
displace the encoded information.

Perhaps judges are merely pawns of cognitive efficiency.


Courts have traditionally used common sense to approach
interpretation exercises. In the past, their questions have
been about the ordinary meaning of a word, and the plain
meaning of a word. The court should also be asking itself other
questions during interpretation, such as if the meaning of a

53
The Pragmatics of Statutory Interpretation

phrase is conventional or novel, or audience specific. The


court must address any plausible underlying mental concepts
that may not be fully encoded in the text. Fixing gaps becomes
a legitimate process.

If the word or phrase to be interpreted is ambiguous to a


reasonable individual when placed within its total conxtex, and
an appeal to conventional meaning is unable to provide a
certain and satisfactory answer, then a judge must use
deduction and inference to contruct the meaning.

From a relevance perspective, a court must search after the


mental representations fully or partially encoded and not the
abstract definition of a words. Meaning is not in the words, it
is in the idea behind the words. The law is not a bunch of
phrases, it is consists of ideas, however imperfectly
communicated by language. Based on relevance theory a court
must,

1. Decide whether or not a full or impartial coding of the


mental representation is present in the text.

2. If the coding is impartial they should supplement it with


deductive logic and context driven inferences.

3. When these two processes yeild an interpretation that matches


the overall purpose of the Act, they are done.

7.4: Conclusion

The thing about the phenemonological insight is that


theory should reflect reality in some manner. In other words,

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The Pragmatics of Statutory Interpretation

experience is the starting point of theory rather than


metaphysics. The closer a theory can be shown to approximate to
reality and the processes of experience the more reason there
is to believe it; the greater its claim to legitimacy.

It is interesting to note that formalism seems to be


comforting for some people. They rely on formalism to
understand the law and justify its application in the absence
of knowledge that creates doubt. Positivism and the like
provide certainty for people who sleep better at night secure
in this faith, but it does little to address reality.

In natural law, the law is moral. What is illegal is


immoral. For positive law, Hart argues that law and morality
should be separated. He says this will protect morality, while
allowing for plurality.

I argue that pragmatic law is a new social form of law


that will eventually challenge and replace positive law. The
separation of morality from law is impossible in reality. Life
itself is a moral experience. What ground does a law without
morality stand on if not immoral ground? Formalists reacted to
the moral natural law by claiming to create a system that was
neutral. But even neutrality is a value choice. Positive law,
like formalism desires to remove morality from public law, as
if it were possible. This choice does not protect morality, it
only diminishes its power for action. There are common core
values in society and they are represented in the law.

Language use and inference require evaluate judgements.


The creation of perspective itself and every human action is
imbuded with moral decision-making. Positivist theories attempt

55
The Pragmatics of Statutory Interpretation

to claim that they represent abstract truth, in the absence of


the knowledge that the philosophy of language suggests that
this goal of abstract truth or abstract logic is an illusion
and quite impossible. In fact, the actual use of the word
‘truth’ should replaced by ‘factually satisfactory.’

At the end of the day, value choices inform every


decision-making process. A pragmatic law will accept this
reality and attempt to create public law that reflects this
aspiration. To echo the ideas of Grice, a rational actor is one
that evaluates. This entails context driven, value-laden
individuals who resolve disputes using the tools and rules of
statutory interpretation.

56