Category Archives: Interpretation
Jery Payne, ‘Lord Tenterden’s Rule: Why a List Might Backfire’
ABSTRACT The article reviews five cases in which the court was interpreting a list with a catchall entry. The outcome of the cases is surprising. The article argues that these outcomes and legal treatises show that a list and a catchall is unpredictable. When drafting legal language, predictability is highly desirable and is of primary […]
Abhinav Palsikar, ‘Critical Analysis of Literal Rule of Interpretation’
ABSTRACT The Literal Rule of Interpretation is the oldest rule and is followed to date by the Judges across the globe. The rationale behind the Literal Rule is that it prevents courts from making biased decisions when the issue is relating to political matters. This rule also restricts the Courts from creating new laws through […]
‘Legal Theory Lexicon: The Construction Zone’
“Law students quickly learn that many legal texts are vague or open-textured. Words like ‘reasonable’ and phrases like ‘freedom of speech’ may not provide bright-line rules for their application. This lack of precision creates a zone of underdeterminacy, where something other than the meaning of the text is required in order to formulate implementation rules […]
Kevin Tobia, ‘Testing Ordinary Meaning’
ABSTRACT Within legal scholarship and practice, among the most pervasive tasks is the interpretation of texts. And within legal interpretation, perhaps the most pervasive inquiry is the search for ‘ordinary meaning’. Jurists often treat ordinary meaning analysis as an empirical inquiry, aiming to discover a fact about how people understand language. When evaluating ordinary meaning, […]
‘Legal Theory Lexicon: Context and Meaning’
“One of the most important tasks performed by lawyers and judges is the ‘interpretation’ of legal texts, including constitutions, statutes, regulations, rules, contracts, and the list goes on. One aspect of communication involves the linguistic meaning the words and phrases that make up the text: this aspect of meaning is sometimes called ‘semantics’. The bare […]
Lee and Mouritsen, ‘The Corpus and the Critics’
ABSTRACT Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals […]
‘Legal Theory Lexicon: Corpus Linguistics’
“Law students quickly learn that the interpretation of legal texts is an important component of legal practice. Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision. How do we determine the meaning of legal texts? One possibility is that judges could consult their linguistic intuitions. Another possibility […]
‘Legal Theory Lexicon: Speaker’s Meaning and Sentence Meaning’
“Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do. In a previous Legal Theory Lexicon entry, a distinction was made between ‘interpretation’ and ‘construction’. Although we could use other words to express the distinction, it expresses an important conceptual difference between two […]
Frederick Schauer, ‘Constructing Interpretation’
ABSTRACT This paper, a substantially revised version of a paper previously entitled (and posted as) ‘A Critical Examination of the Distinction between Interpretation and Construction’, argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of […]
Jeffrey Goldsworthy, ‘Lord Burrows on Legislative Intention, Statutory Purpose, and the “Always Speaking” Principle’
ABSTRACT In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on […]