Private Law Theory

ABSTRACT
Many textualists think that, when we interpret texts, our goal is to uncover their ‘ordinary meaning’. We have to put ourselves in the shoes of a ‘reasonable person’ at the time of a text’s enactment and understand the words on the page as they would have. To be sure, textualists say that we should care about the ‘legal meaning’ of a text, too – but only sometimes: only when the statute uses legal terms and communicates to a legal audience. ‘Legal meaning’, then, has a limited role in this story of textualism. More often than not, statutes are communicating to ordinary people and need to be understood in their ordinary sense.

There’s a problem with this standard account. In theory, ‘one can read the language of a legal text according to any number of linguistic conventions: those of the authors, the readers, the lawyer class, the lay public, and so on’. Before we start getting our hands dirty interpreting statutes, we need to know which linguistic conventions we’re allowed to use. And, after we figure that out, we also need to know what other non-linguistic conventions we can lawfully enlist. The philosophy of language can’t answer these questions. But law can. Only by using these legally authorized conventions can we uncover a statute’s ‘lawful meaning’.

But where can we find these legally authorized conventions? And what are they? This Article answers both questions. First, the where: To figure out the legally authorized conventions of interpretation, we have to look at the practices of the legal community. That is, like all bodies of unwritten law, the ‘law of interpretation’ rests on the accepted customs of lawyers. Second, the what – what are those practices? Looking at practices today, we’ll see that the legally authorized linguistic and non-linguistic conventions of interpretation are those of lawyers – not lay people. So, to figure out the ‘lawful meaning’ of a statute, we have to use the conventions of the legal community. The ‘lawful meaning’ of a statute, then, is its ‘lawyer’s meaning’: the meaning we get after using the conventions of lawyers.

Appreciating all of this grounds and makes sense of our current interpretive practices. Textualism’s ‘reasonable reader’ has always looked a lot more like a lawyer than a layperson. The ‘common sense’ we employ when we read law ‘in context’ looks like the common sense of a trained attorney. And all those fancy canons and tools of construction we use are more sensibly understood as unwritten but widely accepted rules of the legal profession, not popular customs. It’s time to put ordinary meaning to bed. Indeed, pursuing ordinary meaning is pursuing a legally irrelevant meaning. The lawful meaning of a statute is its lawyer’s meaning.

Neibart, Elias, Lawyer’s Meaning is Lawful Meaning (June 30, 2026).