THE USE OF PHILOSPHY OF LANGUAGE IN PHILOSOPHY

OF LAW
Law and language

Language is important in every legal system, not just in the same way that it is in politics in
general, but also in specific ways. To produce legislation, legislators typically employ
language, and the law must allow for the authoritative settlement of disagreements about the
ramifications of that use of language. Political philosophers aren't usually interested in
concerns of language philosophy. Legal philosophers, on the other hand, are political
philosophers with a focus on language (and the philosophy of language)1.

A strong philosophical explanation of the meaning and use of language, as well as a good
philosophical account of the institutionalised settlement of language conflicts, might benefit
philosophy of law. The study of linguistic stress-testing in legal regulation and conflict
resolution can benefit philosophy of language. And philosophers of language can benefit
from the reminder that their job isn't just to account for what people have in common as a
result of their mastery of a language; they also have to account for the possibility of
disagreements over the meaning and use of language, as well as the possibility that there
might be good reasons for resolving those disagreements one way or another. Aside from
their interest in the use of language in law, legal philosophers have developed a second,
related interest in applying insights from language philosophy to concerns of the nature of
law.

Language and legal interpretation

What link exists between the language used to create legal norms and the law itself? What
impact does the usage of the words have if the law stipulates that the substance of a standard
(such as a contract term, a criminal offence, or a responsibility of the executor of a will) is
determined by a form of words? The topic appears to need broad theories of language
meaning and communicative act interpretation. There is no universal response to the issue if
there are no general theories to be found. A theory of legal language meaning and
interpretation would be no less general than a theory of language meaning and interpretation.

Based on specific elements of law, legal systems, and the use of language in producing law,
legal theorists have attempted to create theories of the meaning of legal language and theories
of legal interpretation. Theories of legal interpretation are discussed in the sections on
Interpretation and Coherence in Legal Reasoning, Constitutionalism [see section 7,
'Constitutional Interpretation,' The Nature of Law, and Naturalism in Legal Philosophy.
1
Rawls 1999
Language traits that pose problems for philosophy of law and philosophy of language:

Any adequate explanation of the meaning and interpretation of legal language must address
the ways in which its legal consequence is influenced by the context in which it is employed
(addressed in this section). The use of Gricean and post-Gricean pragmatics has recently
become a major field of debate among philosophers of language and philosophers of law.
'Pragmatic' effects of language use, such as context-dependence, have long been a subject of
jurisprudential debate, and the use of Gricean and post-Gricean pragmatics has recently
become a major field of debate among philosophers of language and philosophers of law.
Any attempt to offer an accurate explanation of legal interpretation that is well enough
organised to be considered a 'theory' faces insurmountable challenges because of these
pragmatic elements of communication. The concept that the impact of a law making use of
language is that the content of the linguistic communication in issue determines the content of
the law is often predicated in debates over the pragmatics of legal language. However,
theories who account for the law as being decided by moral grounds for findings as to what
rights, obligations, powers, and liabilities persons have, given the realities of legal practise
and history, have refuted this premise.

Consider the case of Garner v Burr [1951] 1 KB 31 as an example of a legal debate regarding
the impact of words. Using a ‘vehicle' on a road without pneumatic tyres was deemed illegal
by the law. Lawrence Burr outfitted his chicken house with iron wheels and towed it down
the road behind his tractor. Burr was charged with breaking the law. The magistrates found
him not guilty, presumably because a chicken coop is not a "vehicle." That ruling was
overturned by the appeals court. According to the Lord Chief Justice, the rules are in place
for a variety of reasons, including the protection of road surfaces; and because this truck was
equipped with standard iron tyres rather than pneumatic tyres, it was likely to cause harm to
the roadways. [The magistrates] have given the word ‘vehicle' a too restrictive construction
for the purposes of this Act, in my judgement. True, a ‘vehicle' is principally to be viewed as
a means of conveyance furnished with wheels or runners and utilised for the carriage of
persons or things, according to the dictionary definition. True, the [magistrates] find no
evidence that anything was transported in the vehicle at the time; but I believe the Act is
clearly directed at anything that runs on wheels and is pulled by a tractor or another motor
vehicle. As a result, a crime has been committed. As a result, [the magistrates] should have
determined that this chicken barn constituted a vehicle as defined under Section 1 of the Road
Traffic Act of 1930. (1 KB 31 at 33) ([1951] 1 KB 31 at 33) ([1951] 1 KB 31 at 33)
The magistrates and the appeal court appear to have disagreed about the impact of two
principles: one that states that statutes should only be read as imposing criminal liability if
they do so unequivocally, and another that states that the purposes for which Parliament
passed the statute should be pursued. Assume that those ideas are legal principles, in the
sense that any legal judgement must adhere to them. The apparent conflict between the
principles might be addressed in one of two ways. The magistrates' reasoning are unknown,
but we may assume that they resolved the tension in the first method; the appeal court did so
in the second:

1. by concluding that Parliament's purposes can be appropriately respected while still

construing the prohibition strictly (so that pulling a chicken coop down the road on iron
wheels is not an offence because the chicken coop is not undeniably a vehicle), or

2. by ruling that Parliament's intention is sufficiently obvious that it may be followed by

convicting Mr. Burr without jeopardising the concept that criminal liability should be clearly
stated, even if someone could plausibly argue that a chicken coop on wheels is not a ‘vehicle.'

This widespread type of debate may appear to reveal little about language, other than the fact
that language isn't really important in law. It may appear that the two courts disagreed not
over language (after all, everyone involved spoke English fluently), but rather over whether
they should give effect to Parliament's obvious objective of safeguarding roads by
condemning Mr. Burr, or if doing so would be unjust to him.

The result might be explained by the fact that the appellate court overlooked the phrase
"vehicle" and applied the pneumatic tyre rule to anything that travels on wheels (instead of
applying to vehicles, which is what the legislation said). The Lord Chief Justice, on the other
hand, did not explain his conclusion in this manner. He did not believe that Burr should be
punished regardless of the definition of the word "vehicle" because Parliament sought to
safeguard roadways from iron wheels. The magistrates should have determined that the
chicken coop constituted a vehicle "for the purposes" of the Road Traffic Act, he said.
Presumably, the magistrates, too, saw themselves as acting in accordance with the Act's
terms, rather than disregarding (for the sake of justice) what Parliament had passed.

Without a doubt, legal decisionmakers occasionally deviate from the text of legitimate
statutes (or wills, or contracts...). They may do so corruptly, in the exercise of an equitable
jurisdiction to stray from the law, or because they believe justice requires it, even though the
law gives them no authority to do so. In Garner v Burr, however, the magistrates and appeal
judges clearly regarded themselves as enforcing the text of the Road Traffic Act. And the
type of disagreement that arose in that case (disagreement over the legal effect of the use of a
word) is so common that it appears to be a paradox: competent English language speakers
share a common understanding of the meaning of the word ‘vehicle,' but they disagree—
apparently sincerely—over the effect of legislation that uses the word.

To reconcile the seeming paradox, we might remark that what English language people have
in common is the capacity to employ a term like ‘vehicle' in a context-dependent manner. If
another legislation or regulation levied a tax on ‘vehicles,' the question of whether a chicken
coop on wheels counts as a ‘vehicle' would be a separate matter (and may have a different
solution). If a legislation or rule required ‘vehicles' to drive on the left side of the road, the
applicable issues may be different again. Because the purpose of a dictionary definition is to
point the reader to features of the use of the word that can be more-or-less important in a
variety of more-or-less analogical ways in various contexts, the Lord Chief Justice was
correct that a dictionary definition of ‘vehicle' could not conclude the question of whether the
chicken coop was a vehicle in Garner v Burr. A definition of ‘vehicle' as a method of
transportation provides the reader with one primary strand in the usage of the term, but it
does not tell the reader if a more-or-less analogical extension of the word to a chicken coop
on wheels is warranted or unwarranted by the word's meaning. Another approach to express
this seeming contradiction resolution is to distinguish between the meaning of a term (which
the magistrates and appeal judges all knew) and how a communication act utilising the word
should be understood (over which they disagreed). The judges and magistrates in Garner v
Burr agreed on the definition of the word "vehicle," but they disagreed on the implications of
the legislature's usage of the term.

The pragmatics of legal language

The dependency of legal language's effect on context is an example of a general characteristic

of communication that some language philosophers have explored by differentiating
semantics from pragmatics. The contrast is basically between the meaning of a word, phrase,
or other linguistic expression and the impact ascribed to the expression's usage in a specific
way, by a specific user of the language, in a specific situation. Because the term 'pragmatics'
might be used as a heading for most of what modern legal academics and theorists have
defined as grounds for interpretation, the pragmatics of legal language is a wide area. The
name 'pragmatics' has a technical ring to it, as if it were a term for the theoretical study of its
subject; nonetheless, the area of study is what may be deduced from the fact that someone
said what they said in the circumstances in which they said it. There is no subject that lends
itself to theorising more than this one.