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Published online by Cambridge University Press: 13 February 2009
In his recent book Interpretation and Legal Theory, Andrei Marmor makes a number of claims about meaning and interpretation, both in general and in law, which I will argue are mistaken. Actually, there is some confusion in his book between what I take to be his “official” view of the nature of meaning and interpretation, and a very different view which keeps surfacing despite his official rejection of it. I will argue that this alternative, rejected view, when properly developed, is more plausible than his official view, and that the difference between them is of considerable practical consequence for legal interpretation. What is at stake is the role of legislative intention. The alternative view denies Marmor's claim that the meaning of a statute is conceptually independent of the intention or purpose which the legislature had in enacting it. It should be said at the outset that I will focus on just three of the eight chapters in Marmor's book, which contains many virtues that are untouched by my critique.
1. Marmor, A., Interpretation and Legal Theory (Oxford, 1992).Google Scholar
2. Id., chapters 2,7, and 8.
3. Id. at 16.
4. Id., at 16–9.
5. Id. at 21.
7. Id. at 22.
8. Id. Marmor also cites Wittgenstein in support of this assumption.
9. Id.
11. Id. at 25.
12. Id.
13. See text following note 4.
14. Marmor, at 131Google Scholar; see also id. at 147.
15. Marmor uses the term “utterance meaning” to mean sentence meaning (id. at 20). The term has no single, established meaning in the philosophical literature, and my definition can be regarded as stipulative. But for much the same approach, see Tolhurst, W., On What a Text Is and How It Means (1979) 19 British Journal of Aesthetics 3CrossRefGoogle Scholar, discussed by Levinson, J., Intention and Interpretation: A Last Look, in Iscminger, G., ed., Intention And Interpretation (Philadelphia. 1992), 221.Google Scholar
16. The stronger version of intentionalism, which seems to deny these possibilities, has been defended by S. Knapp and W.B. Michaels in a series of articles beginning with those collected in Mitchell, W. J. T., ed., Against Theory; Literary Studies and the New Pragmatism (Chicago, 1985).Google Scholar
17. Marmor, at 16Google Scholar; emphasis added.
18. Id. at 24.
20. In discussing interpretation, Marmor says “the meaning of an act or expression is understandable in terms of counter-factual intentions, that is, in terms of the intentions one could attribute to a fictitious author characterized in terms of counter-factual intentions.” Id. at 31.
21. Marmor, at 170–71.Google Scholar
22. Id. at 170. note 19, referring to ch. 2, sect 2.
23. Id. at 24–5.
24. Id. at 26.
25. See notes 5–9 supra.
26. Marmor, at 28Google Scholar. See also id. at 24 (“Thus it seems that theories of pragmatics are concerned with … the question of an interpreter's ability to understand an expression (or an aspect of it) which is under-determined by semantic rules”), 30 (“The pragmatic notion of ‘meaning,’ understood in terms of communication intentions, would seem more suitable … for the purpose of explicating the concept of interpretation”), 31 (“[A]n interpretative statement is either a statement on the communication intentions of the actual speaker, or else it must be a counter-factual statement, characterizing the communication intentions of a fictitious speaker…”; “interpretation is essentially a matter of attributing intentions, that is, in the pragmatics sense of ‘meaning,’ namely, meaning that such-and-such by an act or expression”), and 34 (“Interpretation, I have argued, consists in the imposition of meaning on an object, whereas the appropriate notion of meaning is given in terms of communication intentions”).
27. From “the perspective of interpretation,” he says, “the idea of successful communication is only one possible relevant consideration,” a sufficient but not necessary one. Id. at 29–30.
28. Marmor, at 124–25.Google Scholar
30. Marmor, at 151.Google Scholar
31. Id. at 149.
32. Id. at 153; emphasis in original omitted.
33. Id. at 22.
34. Id. at 16.
35. Id. at 124.
36. Id. at 126.
37. Id. at 158.
38. But if in “hard cases,” which are not settled by existing legal standards, courts are free to exercise discretion and determine what the law ought to be. why should they be restricted to what Marmor calls “interpretation”? Why not settle hard cases in some other way?
39. Marmor thinks that it is crucial to the positivist distinction between what the law is and what it ought to be that understanding what it is should not require interpretation, id. at 136–37 and 146. But this is only so given his official view of “interpretation” as a creative process that necessarily rests on value judgments. According to the alternative view, interpreting an expression involves revealing its utterance meaning, which depends on evidence of its speaker's meaning, and doing this does not require making value judgments.
40. Marmor, at 33.Google Scholar
41. Id. at 13.
42. Id.
43. Id. at 21. There may be some tension between Marmor's discussion here of interpretative paradigms, which he says are “examples of what count as good or acceptable interpretations” but are not binding as are rules of language, and his subsequent claim that there is an internal, grammatical connection between understanding a concept and being able to identify its standard applications (id., 148ff). If the latter claim is true of the concept of “interpretation,” why do paradigmatic examples of acceptable interpretations not exemplify the meaning of that concept? But if they do, they are entailed by a rule of language and are as binding as that rule.
44. Marmor, at 31Google Scholar; see also 34.
45. Id. at 31.
46. Id.
47. See note 27.
48. Marmor, at 32–3.Google Scholar
49. “[T]he considerations capable of supporting intentionalism… are bound to be based on evaluative judgments of various kinds, moral and political ones possibly included,” id. at 158.
50. See e.g., Knapp, S. and Michaels, W. B., Against Theory 2; Hermeneutics and Deconstruction Critical Inquiry 14 (1987) 49, 53ffCrossRefGoogle Scholar. See also note 16 supra.
51. See Knapp, S. and Michaels, W. B., Intention, Identity, and the Constitution: A Response to David Hoy, in Leyh, G.. Legal Hermeneutics: History, Theory and Practice (Berkeley, 1992) 187, 191.Google Scholar
52. To be consistent with his official view, this should read “for interpreting an expression”
53. Marmor, at 29–30.Google Scholar
54. Id. at 13.
55. Id. at 133.
56. Id.
57. See note 53 supra.
58. SirMaxwell, P. P., On the Interpretation of Statutes (London, 1875), 1Google Scholar; Halsburys Laws of England (4th ed.), v.44 para. 522; Bennion, F., The Interpretation of Statutes (2nd ed., London. 1992), 345–47Google Scholar; Lagnan, P.. Maxwell on the Interpretation of Statutes (12th ed., London, 1969), 28Google Scholar; Black, H., Handbook on the Construction and Interpretation of the Laws (Su Paul, Minn., 1896), 35ffGoogle Scholar; Singer, Norman J.. Sutherland Statutory Construction (5th ed., CBC, 1992) v. 2A, 22–3Google Scholar; Driedcer, E., Construction of Statutes (2nd ed., Toronto, 1983), 105–6Google Scholar; Cote, P.-A.. The Interpretation of Legislation in Canada (2nd ed., Quebec, 1991), 4–5.Google Scholar
59. Chrimes, S. B., English Constitutional Ideas in the Fifteenth Century (New York, 1966 reprint), 294.Google Scholar
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61. The classical Statement of this view is Llewellyn, K.. Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Art to be Construed (1950) 3 Vanderbilt Law Review 395Google Scholar. In his list of the canons of interpretation, Llewellyn does not include the principle that statutes should be interpreted according to the intentions of the legislature This is surprising, given that in the very next article. Charles Curtis says. “[w]e have, almost all of us I think, been brought up in the belief that the interpretation of legal documents consists essentially in a search for the intention of die author.” and that this “familiar doctrine is current as well as orthodox.” Curtis, C.. A Better Theory of Legal Interpretation (1950) 3 Vander. Bilt Law Review 407 and 408.Google Scholar
62. Brookes, Cooper (Wollongong) Pty Ltd v F.C.T. (1981) 35 Australian Law Reports 151, 169–70Google Scholar. per Mason and Wilson JJ.
63. See Michaels, W. B., Against Formalism: Chickens and Rocks, reprinted in Levinson, S. and Mailloux, S., eds., Interpreting Law and Literature, A Hermeneutic Reader (Northwestern, 1988) 215.Google Scholar
64. Dickerson, Reed, The Interpretation and Application of Statutes (Boston, 1975), 13ffGoogle Scholar; for other references, see Cote, P.-A., op. cit., 17–8.Google Scholar
65. See Dickerson, , op. cit., 14–5.Google Scholar
66. Bear in mind that the alternative view is that the meaning of a statute is its utterance meaning, not its speaker's meaning. It is a moderate, not a strong, version of intentionalism (see note 16 supra). A strong version of intentionalism. holding that the meaning of a statute is its speaker's meaning, would be worse than Marmor's official view in terms of the utility of statutes as authoritative guides for conduct, because it would permit what a statute appears to say to be discounted by esoteric evidence that the legislature had some intention that it did not adequately express. The alternative view does not permit this; it requires that evidence of what the legislature intended be readily available to its intended audience.
67. That is, known to have intended given all the evidence of its intentions that is readily available to its intended audience.
68. Marmor, at 26–7.Google Scholar
69. Starle, J.. Literal Meaning, in his Expression and Meaning (Cambridge, 1979), 117, 127.Google Scholar
70. Lieber, F., Legal And Political Hermeneutics (Boston, 1839), 28–30.Google Scholar
71. Simmonds, N. E., Between positivism and Idealism, Cambridge Law Journal 50 (1991) 308, 311–12.CrossRefGoogle Scholar
72. Searle, J., Itentionality An Essayin the Philosophy of Mind (Cambridge, 1983) 142CrossRefGoogle Scholar On this point. see also Dickerson, , op. cit., 121 n.46.Google Scholar
73. Starle, J.. Literal Meaning, 126.Google ScholarIntentionality. 148.Google Scholar and The Background of Meaning, in Searle, J., Kiefer, F., and Bierwisch, M., eds., Speech Act Theory and Pragmatics (Holland, 1980), 228.CrossRefGoogle Scholar The same point is made by Lieber, , op. cit., 29–30.Google Scholar
74. Martinichi, A. P., Communication and Reference (Berlin. 1984), 78.CrossRefGoogle Scholar
75. Simmonds, , op. cit., 312–13.Google Scholar
76. In this case, we have no direct evidence of the actual intentions of the author of the sign. We have only indirect evidence, consisting of our understanding of the beliefs and values, and therefore purposes, which members of our culture normally have in situations of that kind. But that understanding is nevertheless evidence—extrinsic evidence—of what the actual author intended, and it is decisive in the absence of counter evidence of the relevant kind (available to the author's intended audience) that the author in fact had some other, unusual intention (consider again the example of the eccentric miser). The role of that understanding would be quite different if our task was to creatively add whatever meaning to the literal words we would prefer them to have, by imagining them to have been written by someone of our choosing; it would not be decisive if we preferred some other meaning.
77. See Dascal, , Pragmatics and the Philosophy of Mind Vol. 1 (Amsterdam, 1983), 159 and especially note 117.CrossRefGoogle Scholar
78. See Martinich, , op. cit., 45Google Scholar, Dascal, , op. cit., 86Google Scholar, and Bennion, , op. cit., 427Google Scholar.
79. Bennion, , op. cit., 3Google Scholar; see also id., 361–2 and 364. See also Bell, J., Studying Statutes, Oxford Journal of Legal Studies 13 (1993) 130, 133.CrossRefGoogle Scholar
80. Frankfurter, F., Some Reflections on the Reading of Statutes (1947) 47 Columbia Law Review 527, 533.CrossRefGoogle Scholar
81. Id. at 135.
82. Id. at 136–37.
83. Bell, J. and Engle, G., Cross on Statutory Iinterpretation, 67.Google ScholarSearle, John goes even further “Sentence meaning radically underdetermines the content of what is said.”Google Scholar If meaning is detached from background assumptions, then “anything goes”—“you cannot fix any definite interpretation.” The Rediscovery of the Mind, 181 and 184.Google Scholar There have been, of course, many actual cases in which litigants have appealed to the literal, sentence meanings of statutes to defend outlandish misinterpretations.
84. Blackstone, W., Commentaries on the Laws of England. Vol. 1 (Oxford, 1765), 91.Google Scholar
85. See note 16 supra.
86. Dworkln, R.. Bark's Jurisprudence (1990) 57 University of Chicago Law Review 657, 661–62.CrossRefGoogle Scholar “Legal intentions” are what Marmor calls “application intentions.” Marmor, . 168–69.Google Scholar
87. Searle, J., Collective Intentions and Actions, in Cohen, P. R., Morgan, J. and Pollack, M., eds., Intentions in Communication (MIT. 1990). 401.Google Scholar
88. Marmor, at 159–65.Google ScholarSee also R. Dickerson. op. cit., ch. 7, and Basham, G., Original Intent and The Constitution, A Philosophical Study (Maryland. 1992). 83–90.Google Scholar
89. Marmor, at 164–65.Google Scholar
90. Dworkin, R., Laws Empire (1986)Google Scholar, ch. 9. Dworkin cannot make too much of these alleged difficulties. He believes that “the public's opinion” can be ‘revealed and expressed in legislative statements’ (id. at 342), and surely if the public can have a collective opinion, then the legislature can too. Moreover, he describes declarations of legislative purpose, such as statements made in the legislature by the sponsors of a bill and in reports of special legislative committees, as “formal declarations of general institutional purpose and convictions made on behalf of the state itself,” which are important evidence of the principled political commitments of the community (id. at 346). But if such statements can be regarded as evidence of the purposes of “the state” or “the community,” surely they can be regarded as evidence of the purposes of “the legislature.” If anything, the latter notion is much less mysterious than the former.
91. In exercising this creative function, one possibility is the adoption of speaker's meaning. In the case of statutes, this would involve judges taking into account evidence of legislative intention which is not readily available to the legislature's intended audience, in other words, evidence which is not relevant to the ascertainment of utterance meaning. In this respect, Marmor's discussion, in the final section of his book, of the relevance of evidence of legislative intention, is of considerable value.
92. See note 69 supra.
93. Searle, , Literal Meaning. 128.Google Scholar
94. Searle, , The Rediscovery of the Mind, 181.Google Scholar
95. Id.
96. Id.
97. There may have been a change in this respect between the position Searle adopted in Literal Meaning and the position he adopts in The Rediscovery of the Mind. In the former, he sometimes seems to suggest that sentence meanings themselves depend partly on background assumptions; at least, he was taken to be suggesting as much by Katz, . Literal Meaning and Logical Theory (1981) 78Google ScholarJournal of Philosophy 203Google Scholarpassim. According to Katz, Searle's arguments supported the much less radical thesis that utterance meanings depend on background assumptions, as some of Searle's own phraseology (described as “a dead give-away” by Katz) confirmed, id. at 223–23. Searle now seems to be making only that leu radical claim, in The Rediscovery of the Mind, 179–81.
98. Marmor, at 26.Google Scholar
99. Searle, J.. The Rediscovery of the Mind, 194.Google Scholar
100. Searl, , Literal Meaning, 127.Google Scholar For other examples that show that background assumptions which are almost universal are nevertheless contextual and therefore variable, see Searle, J., The Background of Meaning in Searle, J., Kiefer, F. and Bierwisch, M., eds., Speech Act Theory and Pragmatics (Dordrecht, 1980) 221, 224–25.Google Scholar
101. Marmor, at 153.Google Scholar
102. “Knowing the meaning of an expression is… an ability (or an array of abilities) to use the expression in accordance with the rules of the language,” Marmor, , at 147.Google Scholar “Something is a signpost only in so far as there exists a regular use of that sign for particular purposes, and it is this regularity of use which provides the meaning of the sign,” id. at 150, See also text to notes 5 and 6 supra.
103. Marmor, at 153.Google Scholar
104. Id. at 126.
105. Wittgenstein, L.. Philosophical Investigations, para. 70.Google Scholar
106. Marmor, at 26.Google Scholar
107. Id. at 133–35.
108. Id. at 134.
