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NATIONAL UNIVERSITY OF JURIDICAL SCIENCES

Role of Linguistics in
Statutory
Interpretation
Interpretation of Statutes: Project Submission
Yashaswi Kant
210043

Table of Contents
OVERTURE...............................................................................................................................1
QU'EST-CE QUE LE LANGAGE ET LA LINGUISTIQUE?..................................................1
WHAT IS INTERPRETATION?................................................................................................2
THE DARK KNIGHT IS A MUST WATCH STATUTE OR NOT??.................................3
INTERPRETATION- IS IT THE COURTS PREROGATIVE?...............................................4
FUNCTION OF LINGUISTICS IN STATUTORY INTERPRETATOIN- DOES IT EVEN
EXIST?.......................................................................................................................................5
"Judges are philologists of the highest order"........................................................................5
I dont need to be told by a linguist what the English language...........................................6
CONCLUSION..........................................................................................................................7
BIBLIOGRAPHY......................................................................................................................8

OVERTURE
This paper is an endeavour to introduce to the reader, the role of linguistics 1 in statutory
interpretation. As an essential precursor to an appreciation of the same, the paper shall
initially meander through the fundamental understanding of language and interpretation.
Furthermore, the paper shall explore as to what exactly transforms conventional language
into legislative language namely, statutes. Consequently, the modification in the
interpretation of statutes from interpretation of conventional language if any, shall be
discussed.
This discernment shall be the narthex to the essence of the paper, which is the impact and role
of the philosophy of language in interpretation of statutes.

QU'EST-CE QUE LE LANGAGE ET LA LINGUISTIQUE?2


A fundamental understanding of language separated from the phonology, syntax and
semantics intrinsic to different languages, requires one to understand that language is a basic
extension of humans.3 Our comprehension and communication is all language. It is an
instrument used constantly to describe human societys intention, feelings, desires, policy and
law. In other words, language contains within itself the full ontology; a categorised
systematised version of the world.4 This statement can be truly appreciated if one
1 The author here will distinguish the scientific approach to the concept of linguistic
philosophy and the branch of linguistics dealing with philosophy of language. The paper shall
concentrate on the latter.
2 French for What is language and Linguistics? An attempt to show how comprehension
and interpretation of a simple heading depends a lot on the position of the words and the
language used.
3 John R. Searle, What is Language? Some Preliminary Remarks, Etica & Politica / Ethics &
Politics, XI, 2009, 1, pp. 173-202
4 Marin Roger Scordato, Legal Theory and Linguistic Reality: A Critical Examination of Modern
LegalScholarship, 2 J. Contemp. Legal Issues 257 (1988-1989)

understands that language in its bare essence, possesses negligible objectivity without the
traditions, customs, usages associated with that language practised in that society. Indeed,
language is visualised as an emblematic medium, whose interpretation changes with the
variation in human society, in concepts and more importantly, the linguistic convention at a
given point of time.5 Thus, language is that tool through which every human conceptually
catergorises and understands the world around him.6 Ludwig Wittgenstein once correctly
remarked To imagine a language is to imagine a form of life7
Having understood what language precisely is, it is apt to know what is meant by the term
linguistics8 What linguistics primarily offers is an empirically supportable and refined
way to assess how "ordinary people" understand certain uses of language. 9 So essentially,
what a linguist does is through introspection, scrutiny of the existent uses of language and the
members of the society, is to propose an informed judgement as to the possible interpretation
that majority of the society would associate with a given term or expression. 10 Through
linguistics, one can identify whether a term would be comprehended in an identical fashion
by the bulk of the society, or whether the term is ambiguous, resulting in myriad
interpretations.

WHAT IS INTERPRETATION?

5 Id. The author uses a pertinent example of the term Grade Point Average to explain that
GPA will dazzle a nave listener unless he is explained the dynamics and structure of the
academic world.
6 Id, See Authors observation of Ludwig Wittgensteins remarks on the concept of language
7LUDWIG WITTGENSTIEN, PHILOSOPHICAL INVESTIGATIONS, Wiley-Blackwell; 4
edition (March 16, 1998) (Wittgenstein 1998)
8 Or better still, the interpretation of linguistic as understood in present day linguistic
convention.
9 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)
10 Id.

The act of interpretation is a violent act: in affirming one interpretation it destroys


all others.11
An interpretation is the answer to the question what do you make of this? It is the process
where creativity and constraint complement one another.12 This is because; interpretation
must then only deal with this but also cannot go beyond this. Timothy Endicott proceeds to
state that this fluctuation between creativity and constraint results in critical differences and
critical similarities between interpretation and understanding, and between interpretation and
invention.13 Consequentially, the effect and impact of each notion basically depends on the
flexibility provided by the context in which the question is asked.
However, there are some who believe that roughly, every interpretation is an attribution of
actual or counterfactual intention of the real or fictitious author.14 Marmor stresses that
interpretation is necessarily a statement as to what; a particular sort of author would have
been trying to communicate by stating this text in certain particular circumstances.15

11 Jason A. Beckett, The Violence of Wording: Robert Cover on Legal Interpretation, NoFo 8
[May 2011], available at https://docs.google.com/viewer?url=http%3A%2F
%2Fwww.helsinki.fi%2Fnofo%2FNoFo8Beckett.pdf, last visited on August 23, 2012.
12 See Timothy A.O. Endicott, Putting Interpretation in its Place, Law and Philosophy, Vol. 13,
No. 4 (Nov., 1994), pp. 451-479.

13 Id.
14 Endicott, Supra note 11, See Endicotts reference to the work of Andrei MarmorInterpretation and Legal Theory
15 Id. Marmor here draws support from Wittgensteins aspiration to resolve interpretive
problems by reminding people of the kind of statements they make.

THE DARK KNIGHT16 IS A MUST WATCH STATUTE OR NOT??


It immediately strikes the mind that the aforementioned expression is not a statute. This
passage shall elicit why the instant response was negative to the question posed above. 17
What makes conventional language, the language society engages in on a day to day basis,
turn itself into legislative language?
Legislatures, when they enact statutes, start a communication with the society over which
they have been granted jurisdiction. This enactment of a statute is a communicative
behaviour; the statute being legislative speech and each provision of a statute enacted similar
to a legislative utterance.18
Firstly, what is common is, both of them are in some language. Perhaps its not necessary that
legal norms be articulated in language, but at the very least they ought to be describable in
language.19 Moreover, language is essential to law in at least two ways. First, laws or legal
norms cannot exist without the ability to enunciate or identify them in language. Secondly,
language is an essential tool in carrying out the business of law.20
On the other hand, legislative language (statute) is derived from authority. Here, the
understanding that language is incomplete without its context can be truly appreciated. The
context in which a statute is enacted gives it the precise nature of law. The society respects
and adheres to it as the statute, in effect legislative speech, been passed by a body competent
to pass laws. Legislatures are also more restricted because they have at their disposal, only
the written form of the language.21 The other patent difference is that legislative speech is
one-sided. Thus, unlike in a regular conversation, there is nobody to there to question the
16 Referring to the movie trilogy on Batman directed by Christopher Nolan
17 Though in much a lighter vein, Nolan and Batman loyalists can argue that the above
statement is in fact a law for them.
18 M.B.W Sinclair, Law and Language: Role of Pragmatism in Statutory Interpretation, 46
U. Pitt. L. Rev. 373 (1985-1985)
19 Peter M. Tiersma, What is Language and Law? And Does Anyone Care?, Law and
Language: Theory and Society, Loyola-LA Legal Studies Paper No. 2009-11
20 Id.

legislature at the time of enactment What do you exactly mean by this?

INTERPRETATION- IS IT THE COURTS PREROGATIVE?


When a dispute comes up regarding interpretation of a statute, a judge has various tools of
interpretation at his disposal. Besides, these tools are not set rules, the judiciary is at complete
liberty to choose one and reject the other. Judges are given immense freedom, they are not
limited to the materials, arguments, or even the interpretations put forward by the parties. 22
Various factors guide the judge while arriving at the correct interpretation of the statute in
dispute. As explained earlier, the concept of interpretation is abstract and malleable, and the
extent of the creativity of interpretation depends on what the situation allows. That is a matter
of the nature of the object, the questions that an interpretation must answer, the interpreter's
purposes, the expectations of people to whom an interpretation is offered, and so on.23 It is
further sensed that the felt necessities of the times, the prevailing moral, ethical and political
theories, intuitions of what constitutes public policy, avowed or unconscious, even the
prejudices which the judges share with their fellow-men in the society, have had a good deal
more to do than the deductive reasoning applied by judges in determining the rules by which
men should be governed.24 In addition to the discretionary powers given to the court, a judge
may utilise an obscure or equivocal rule in a manner to make its application more
determinate, or can come up with a new rule by drawing an analogy with an existing rule, or
decide to resolve the conflict between rules or can even create an absolutely new rule for
interpretation.25

21 Sinclair, Supra note 17


22 Gary S. Lawson, Linguistics and Legal Epistemology: Why the Law Pays Less Attention
to Linguists Than It Should, 73 Wash. U. L. Q. 995 (1995)
23Endicott, Supra note 11
24See Sinclair, Supra note 17, The Author here rightly quotes Justice Oliver Wendell Holmes,
the remark being made at a time when concerns about viewing law as a branch of moral or
ethical philosophy were growing.

FUNCTION OF LINGUISTICS IN STATUTORY INTERPRETATOINDOES IT EVEN EXIST?


The paper shall now examine the assertion that in the interpretation of statutes, linguistics
plays an important role, before moving on to the averments stating that the use of linguistics
in statutory interpretation is almost negligible. From there, the passage shall try to mitigate
the two sides and arrive at a conclusion.
"Judges are philologists of the highest order"26
It is put forth that, the reasonable expectation from a judge, regardless of the rule of
interpretation used, is to carry out the intention of the legislature. This intention, ascertained
through internal aids, external aids and other tools, will inevitably be expressed through
language. Thus, the linguistic approach to meaning which is not founded on the abstract
theory, but the observation on the actual usage and understanding of the word by people will
be an indispensable asset to the judges. 27 Linguists are valuable at the statute formation stage
as well, informing institutions such as the legislature or those involved in communicating to
the populace, such that their communications accurately reflect their intended message.28
Rasmussen29 further contends that there are two reasons why a legal interpreter will turn to a
linguist for guidance. He states that the first was that the framers of the statute, while drafting
the text wrote in plain language, and they wished that the statute be interpreted and
understood by such means. The second reason being that, as a matter of legal policy and
custom, the interpreter has a preference for choice of interpretation that comport with the
25 Timothy A.O. Endicott, Putting Interpretation in its Place, Law and Philosophy, Vol. 13, No.
4 (Nov. 1994), pp. 451-479

26Tiersma, Supra note 18, See remark of English Judge Chief Baron Pollock
27Peter M. Tiersma, What is Language and Law? And Does Anyone Care?, Law and
Language: Theory and Society, Loyola-LA Legal Studies Paper No. 2009-11
28 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)
29 Robert K. Rasmussen is the Dean of the Gould School of Law, University of Southern
California

ordinary and prevalent understanding of the terms in issue, as opposed to any particularised
understanding which, the interpreter might bring to bear upon the statute in question. 30 The
difference between these two approaches is that while one gives primacy to the preference of
the drafters of the statute, the preference the interpreter ought to respect while the other is
based on the on the interpreters preference31
These two approaches it is asserted, is not tied to any current theory of interpretation such as
intentionalism32

purposivism33

textualism34

or

dynamic

interpretation35.

This is so because; all these theories of interpretation, at some stage or the other concern
themselves with the language of the statute, but may assess the language in a manner
different from its ordinary understanding. In other words, specific legal understanding may be
imported to the statute as against conventional understanding. Therefore, the selection of one
among the many proffered theories of interpretation shall neither authorise nor prevent the
use of linguistics.36 Besides, it is also felt that some sort of public understanding of the
relevant statute is germane to its legal interpretation, and who better to inform the judges
about the public understanding than linguists?37
30 Supra n. 27
31 Id.
32 Intentionalism- Where, the interpreter tries to discern the intent of those who created the
text.
33 Purposivism- Where, the interpreter assigns to an ambiguous language, the interpretation
that best furthers the purpose for which the statute was enacted.
34 Textualism- Where, the interpreter follows that interpretation which is closest in
agreement to the text of the statute.
35 Dynamic Interpretation - Where the interpreter shall pay attention to the intervening
events and give due weightage.
36 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995) (Rasmussen
1995)
37 Gary S. Lawson, Linguistics and Legal Epistemology: Why the Law Pays Less Attention
to Linguists Than It Should, 73 Wash. U. L. Q. 995 (1995)

I dont need to be told by a linguist what the English language means38

On the other hand, it is argued that very few people will suggest that many, let alone most,
statutes are drafted to be read by a layman. Even though lawyers and judges use the same
language, it is the nature of such usage that differs from conventional usage. In particular, the
texts created and interpreted by lawyers have no counterpart in the larger society.39 A lawyer
brings along with him the understanding of how statutes operate in the legal system and apply
that very reasoning to their specific case.
Moreover, the ambiguity inherent in statutes forces people to hire lawyers. It is this nature of
law, and the manner in which it trickles down to the society , dictates that there be a high
degree of complexity and specialization in the statutory realm. Even if the statute is
conventional language, this would not mean it is accessible in a meaningful sense 40 In brief,
the immanent complexity in the subject matter that a statute deals with leads to statutes being
drafted in the legal understand and interpretation.

CONCLUSION
In an attempt to come to a fitting conclusion, the two claims made above with respect to the
role on linguistics in statutory interpretation have to be examined in light of the current
scenario in the legal world. It is true that the quintessential medium used by the legislature for
framing of statutes is language, and more so, the language the society shall understand and
respond to. But, what must not be forgotten is the sheer complexity and unpredictability
which pervades the human society, thereby permeating the laws that govern it. Presently,
statutes are drafted in ordinary language, and lawyers and judges also use the same language
but what differs between the comprehension of a layman and a lawyer with respect to a
38 Id. See Professor Fillmore remark during the Washington University Law and Linguistics
Conference
39 Rasmussen, Supra note 36
40 Id.

particular statute is experience. As every law professor knows, law students have to be taught
how to read and interpret statutes, as they know that the natural ability to read and
comprehend using ordinary language is simply not adequate to parse existing laws. 41 Also,
Courts can turn to linguists for clarification, not because the court wants to discern the
meaning of the makers, but in recognition of the fact that in interpreting statutes in
conventional terms also holds value.
In the end, whether the court takes into account the linguistic interpretation or does not, the
interpretation of a statute boils down to the judge and his reasoning as to the intention of the
legislature and to the various tools of interpretation at the judiciarys disposal. Linguists can
find some importance in interpretation only after the judgement where they can assert if the
judgement is in accordance with conventional understanding or not.

BIBLIOGRAPHY

Endicott, Timothy A.O. "Putting Interpretation in its Place." Law and Philosophy, Volume 13,
1994.
Fillmore, Professor. Washington University Law and Linguistics Conference. n.d.
Lawson, Gary S. "Linguistics and Legal Epistemology: Why the law pays less attention to
Linguists that it should." Washington University Law Review, 1995.
Rasmussen, Robert K. "Why Linguistics?" Washinton UNiversity Law Review, 1995.
Scordato, Martin Roger. "Legal Theory and Linguistic Reality: A Critical Examination of
MOdern Legal Scholarship." Journal of Contemporary Legal Issues, 1989.
Searle, John R. "What is Language? Some Preliminary Remarks." Ethics & Politics, 2009.
41 Robert K. Rasmussen, Why Linguistics? 73 Wash. U. L. Q. 1047 (1995)

Sinclair, M.B.W. "Law and Language: Role of Pragmatism in Statutory Interpretation."


University of Pittsburgh Law Review, 1985.
Tiersma, Peter M. "What is language and Law? And Does Anyone Care?" Loyola-LA Legal
Studies Paper, 2009-2011.
Wittgenstein, Ludwig. Philosophical Investigations. Wiley-Blackwell, 1998.