The existing literature on indeterminacy in the law focuses mostly on the use of vague terms in legislation – terms the use of which makes the content of the relevant utterance to some extent indeterminate. As I aim to show, however, not only is the content of a legislative utterance often indeterminate, it is often indeterminate what the content of such an utterance is. In the first two sections of the paper, I discuss in some detail the conditions for successful (...) non-literal speech and address the question whether these conditions are satisfied in the legal context. I argue that due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, interpreters are typically not warranted in taking the legislature to have intended to communicate something non-literal. In the third section, I consider what I take to be the strongest case against my argument: the wealth of actual cases in which the courts have taken the content of the law to be something other than its literal content, seemingly based on relatively straightforward inferences about the legislature’s communicative intentions. As I hope to show, however, very few of these cases are as straightforward as they appear to be. In the fourth, and final section, I argue that the argument from the first two sections has important consequences for the extent to which we should take the content of the law to be determinate. This has significant implications for the analysis of a number of important but controversial legal cases, which I discuss in some detail. (shrink)

Scott Soames has recently argued that the fact that lawmakers and other legal practitioners regard vagueness as having a valuable power-delegating function gives us good reason to favor one theory of vagueness over another. If Soames is right, then facts about legal practice can in an important sense adjudicate between rival theories of vagueness. I argue that due to what I call the “Gappiness Problem” – raised by recent critics of the “communicative-content theory of law” – we have to give (...) up the one premise of Soames’s argument that he seems to take to be uncontroversial: that the legal content of a statute or constitutional clause is identical with, or constituted by, its communicative content. I provide a sketch of my own account of legal content and show how it provides a response to the Gappiness Problem. This account, however, does not suffice to vindicate Soames’s argument. I conclude by arguing that my point about Soames’s argument is generalizable. (shrink)

Textualist and originalist legal reasoning usually involves something like the following thesis, whether implicitly or explicitly: the legal content of a statute or constitutional clause is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment. In this paper, I elucidate some important aspects of this thesis, emphasizing the important role that contextual enrichment plays in textualist and originalist legal reasoning. The aim is to show how the linguistic (...) framework underlying sophisticated versions of new textualism and public-meaning originalism can help to shed important light on the plausibility of what John Perry calls conception textualism. Contra Perry, I do not think that conception textualism—arguably best classified as a version of expected-applications originalism—is “confused, implausible, and unworkable.” I also briefly compare my linguistic case for conception textualism with Justice Scalia's nonlinguistic argument for it, the main premise of which concerns the constitutive function of constitutions. (shrink)