One of the most basic ideas in legal theory is the distinction between "communicative content" and "legal content." That sounds fancy, but this fundamental idea is very simple. Legal texts of all kind communicate; they say things. Roughly, what they say is their linguistic meaning--the meaning of the words and phrases in context. Some legal texts, those that are valid, create legal norms. Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, no longer do so. The Confederate Constitute has communicative content. We can read it and discern its meaning, but that document no longer generates legal content. There are no currently valid propositions of law that are derived from the Confederate Constitution. The legal content of documents like the Confederate Constitution is not the same as their communicative content. This example illustrates the possibility of divergence between linguistic meaning and legal meaning.
This Legal Theory Lexicon post provides a basic introduction to the distinction between communicative content and legal content that is aimed at law students with an interest in legal theory.
What is Communicative Content?
Texts consists of symbols, letters and punctuation marks. The marks are organized into meaningful units, words and phrases, that are related by syntax (including what we call grammar and conventions of punctuation), and form meaningful expressions, sentences, that can be organized into larger units, such as the clauses or sections found in even larger units, like contracts, rules, regulations, statutes, and constitutions. Constitutions, statutes, and other legal texts have communicative content.
Roughly, "communicative content" is the linguistic meaning that is conveyed by a writing or utterance, but we can be a bit more precise. Words and phrases convey concepts, names, and relationships between these things. If you haven't taken a course in the philosophy of language, you may not be familiar with the distinction between words and concepts, but everyone is familiar with the idea. Take the concept of the element designated by the word "gold" in English. That same concept can be represented by other words in English. For example, the phrase, "the element with the atomic number 79" refers to the same concept as the phrase "the element gold." And this concept can be represented by other words in languages other than English. The Catalan word "or," the Dutch word "goud," and the Latin word "aurum" express the same concept as the English word "gold." The word "gold" is a linguistic form, but the concept gold can be expressed by different words.
As concepts are to words, propositions are to sentences. The English sentence "Snow is white" expresses the same proposition as the Dutch sentence "Sneeuw is wit" and the Catalan sentence "La neu és blanca." The communicative content of a sentence is the proposition that is communicated by the sentence.
What is legal content? You might assume that the communicative content of a legally valid text that is currently in force is identical to its legal content. Sometimes this is true, but not always. Law students quickly learn about cases in which the the legal content associated with a legally valid text that is currently in force is different from the communicative content of that text. Here are some examples:
- The communicative content of the First Amendment includes the phrase "Congress shall pass no law" but the legal content of the First Amendment extends to things other than laws passed by Congress, including actions by the executive and by the judiciary.
- The communicative content of the "freedom of speech" looks on its surface to be sparse and perhaps open textured, but the legal content of free speech doctrine is very rich, including a complex legal rules that limit the ability of government to regulate billboards and campaign-related expenditures. Clearly, the "freedom of speech" does not refer to billboards.
- The communicative content of Federal Rule of Civil Procedure 8(a)(2) requires pleadings to be "short and simple," but the Supreme Court's interpretation of that rule in cases like Twombly and Iqbal seem to require long and complex pleadings.
Mark Greenberg has written about the idea that communicative content and legal content diverge in his important article, The Standard Picture and its Discontents. I urge you to read Greenberg's article; even if you disagree with some of Greenberg's conclusions, you will learn from his discussion.
We might say that the legal content derived from a legal text is the set of legal propositions that the text and its legal promulgation has produced, and that the set of so-produced legal propositions is not necessarily identical to the set of proposition communicated by the text. In other words, legal content is not necessarily identical to communicative content. The communicative content of "Congress shall pass no law" in the First Amendment is not identical to the legal content produced by that phrase.
The Relationship of the Distinction Between Communicative and Legal Content to the Interpretation-Construction Distinction
Frequent readers of legal theory blog will recognize that the distinction between legal content and communicative content is closely related to the interpretation-construction distinction. Recall that the word "interpretation" can be used to represent the activity of discovering the communicative content of a text, whereas "construction" can be used to refer to the activity of determining the legal effect of the text. One of the most important ways in which courts give texts like constitutions and statutes legal effect is through the construction of legal doctrines--authoritative glosses on the text that articulate the legal content given to the text.
Some Implications for the Debates Between Formalists and Realists
One of the important ways to use the distinction between communicative content and legal content arises in connection with the debate between formalists and realists about the interpretation of constitutions, statutes, and other legal texts. Formalists maintain that the legal content associated with a text should be constrained by the communicative content conveyed by the text, whereas legal realists frequently argue that legal content should not be so constrained. For example, constitutional originalists maintain that when courts engage in the construction of legal doctrines, they should consider themselves bound by the original public meaning (communicative content) of the text, whereas nonoriginalist living constitutionalists argue that the legal content of constitutional doctrines can modify, override, or even nullify the original public meaning. Similarly, plain meaning textualists argue that courts engaged in statutory construction should consider themselves bound by the communicative content of the statutory text, whereas the more realist purposivists believe that courts may override the plain meaning of the text in order to serve the purpose or function that an ideally reasonable legislature would have had in enacting the text.
There is much more to be said about communicative content and legal content, but I hope that this Lexicon entry has given you an introduction that will permit you to use these ideas in your own thinking about legal texts.
Related Lexicon Entries
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 063: Interpretation and Construction
- Legal Theory Lexicon 071: The New Originalism
- Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
- Mark Greenberg, The Standard Picture and its Discontents, Oxford Studies in the Philosophy of Law, Vol. 1 (2010).
- Jeffrey C. King, Structured Propositions, The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/win2016/entries/propositions-structured/>.
- Eric Margolis & Stephen Laurence, Concepts, The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2014/entries/concepts/>.
- Matthew McGrath, Propositions, The Stanford Encyclopedia of Philosophy (Spring 2014 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2014/entries/propositions/>.
- Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame Law Review, 479 (2013).
(First version posted on May 28, 2017.)