Introduction
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 semantic meaning of a legal text is sometimes called the "literal meaning." But the whole meaning of a text almost always is richer than the literal meaning. We might ask, "Where does the 'extra' meaning come from?" The answer to that question is context. The role of context in the production of meanings is called "pragmatics" by philosophers of language and linguistic theorists.
This Lexicon entry explores the relationship between context and meaning. As always, the Lexicon is aimed at law students, especially first-years, with an interest in legal theory.
Contextual Disambiguation
One of the most important roles played by context occurs when a legal text is ambiguous--in the sense that it has more than one possible meaning. For example, the word "bank" might appear in a statute. "Bank" has more than one meaning. The land adjoining a river is a "bank," and so is a financial institution that accepts deposits from customers. If a statute or regulation includes the word "bank," we can almost always disambiguate on the basis of context. If the statute concerns the regulation of financial institutions, then the word "bank" is almost certain to refer to the kind of "bank" that accepts deposits. But if the statute involves water pollution or navigation, then the "bank" is all but sure to be the land adjoining a river.
Because most words have more than one meaning, semantic ambiguity is pervasive. But we often do not even notice the fact of ambiguity because we naturally read legal texts contextually and resolve the ambiguity without even consciously realizing that we are doing so.
There are other forms of ambiguity, including syntactic ambiguity, which arises from the fact that sentence structure and punctuation are frequently consistent with more than one set of relationships between words. Here is a simple example: "The professor said on Monday he would give an exam." This might mean that it was Monday, when the professor said that he would given an exam on a subsequent day. Or it might mean that the professor said that he could given an exam and that the exam would be administered on Monday. Syntactic ambiguities are very common, but they are usually resolved by context.
Pragmatic Enrichment
Context plays another important role in the production of meaning. A legal text can communicate an idea without stating the idea explicitly. Context can "enrich" or add to the literal meaning of a text. This is a deep topic, but one way to approach it is by cataloging some of the forms of what is called "pragmatic enrichment."
Implicature
Implicature conveys communicative content that is different from the semantic content of an utterance or text. Consider the classic example of a letter of recommendation, written by a law professor, for a student applying for a prestigious judicial clerkship. The entire body of the letter reads as follows: “I recommend Ben. He was always on time to class and his attendance record was perfect.” The semantic content of the letter consists of a speech act, recommendation, and two supporting statements regarding punctuality and regularity of attendance. But in the context in which the letter was written, much more than the literal meaning is communicated. If the best that can be said about Ben is that he was on time and did not miss class, the implicature is that Ben is not suitable for the position of judicial clerk.
Impliciture
Impliciture involves situations in which what is said implicitly includes something else that is closely related. Kent Bach gives the following examples, in which the impliciture (unstated) has been added in brackets:
• Jack and Jill are married [to each other].
• Bill insulted his boss and [as a result] got fired.
• Nina has had enough [pasta to eat].
Thus, if someone says, “Jack and Jill are married,” the [to each other] is unstated but implicit, and so forth for the other examples. Constitutional impliciture is common: Article I, Section 9, of the Constitution explicitly states, “No Bill of Attainder or ex post facto Law shall be passed,” with [by Congress] as an impliciture.
Presupposition
Presupposition is communicative content provided by an unstated assumption or background belief that is conveyed by what is said. Again, examples are helpful:
• Utterance: “Cass is no longer the head of OIRA.” Presupposition: “Cass was once the head of OIRA.”
• Utterance: “Adrian should not eat meat.” Presupposition: “Adrian does eat meat.”
• Utterance: “Lisa’s wife is pregnant.” Presupposition: “Lisa has a wife.”
Philosophers of language distinguish between “conversational presuppositions” (also called “speaker presuppositions” or “pragmatic presuppositions”) and “conventional presuppositions” (or “semantic presuppositions”) that are triggered by particular words or phrases (“no longer” in the first example above). For our purposes, we can put these technicalities to the side.
Presuppositions are common. For example, the Ninth Amendment may presuppose the existence of “rights retained by the people” even though the explicitly semantic content of the text does not state that such rights exist.
Modulation
Finally, consider what is sometimes called modulation. The intuitive idea is that, in context, a conventional semantic meaning can be adjusted or modulated to fit the context—essentially a new meaning is created (sometimes on the spot) so that an old word is used in a new way. In ordinary speech, modulations may be “one-offs,” used on a single occasion. But in the law, modulation can create a new technical meaning for a word that also has an ordinary sense.
Again, we can find examples of modulation in the text of the United States Constitution. One example is (or hypothetically may be) the Recess Appointments Clause, which uses the word “recess.” Read acontextually, a recess might be any break in the business of the Senate—even a lunch break. But in context, “recess” is best read as a modulation, the meaning of which plays off the complementary term “session.” The relevant sense of “recess” is a modulation of the conventional semantic meaning; it is limited to the break between sessions of the Senate. This difference between conventional semantic meaning and modulation was actually the source of disagreement among the Justices in the Noel Canning case.
Another Role of Context: Purposes and Values
The discussion so far has concerned the role of context in the production of "meaning" in the sense of communicative content. But there is another, quite distinct, role that context can play. Context can provide the "purpose" of a statute or the "constitutional values" that animate a clause in the constitutional text. We can get at this role of context by recalling the distinction between "purposivism" and "textualism" as theories of statutory interpretation. Textualists are concerned with the meaning of the statutory text: they look to context in order to determine the content communicated by the text of the statute. Purposivists have a very different approach to statutory interpretation: they believe that courts should determine the "objective purpose" or "function" of a statute. The legal rules that implement a statute should be designed to achieve that purpose--even if achieving the purpose requires legal norms that differ from those that are expressed in the statutory text. A purposivist can look to the context in which a statute was enacted in order to determine its purpose, but that is quite different than looking to context to determine the meaning of the text.
The Interpretation-Construction Distinction
The two roles of context that we have identified can be clarified by invoking the interpretation-construction distinction, which is the subject of a Lexicon entry. Here is the distinction:
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Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
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Construction: The activity of determining the legal effect (or legal content) of a legal text.
Contextual disambiguation and pragmatic enrichment are used in interpretation. The determination of purposes, policy goals, and values is used in construction.
Conclusion
As is usually the case, this Lexicon entry provides a very brief introduction to a very big topic, but I hope it illuminates the role of context in the interpretation and construction of legal texts.
Related Lexicon Entries
- Legal Theory Lexicon 043: Formalism and Instrumentalism
- Legal Theory Lexicon 063: Interpretation and Construction
- Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
- Legal Theory Lexicon 079: Communicative Content and Legal Content
(Last modified on July 14, 2024.)
