Is the Law Language or Culture?

Almost all puzzles in the field of law hinge on a question something like this, “What does that word or phrase mean?” Difficult legal questions frequently turn on whether a modifier is applied to only the first term in a list, or each term in a list. Other questions are whether a specific object in a case is included (or excluded) by a [vague] category named in a statute. (Is a butter knife a “dangerous object”? A sewing needle? A jagged piece of plastic?)

In keeping with a previous post on this subject, I posit that legal analysis is fundamentally the analysis of language and the culture of that language. The primary worry about this can be phrased as this question: Can there be objectively correct and incorrect answers in a composite analysis of culture and language? Let me illustrate this difficulty with the concepts of semantics and syntax.

As I put on my coat, I tell my roommate, “I’m going out to the store for a few things. Do you need anything?” My roommate says, “There’s no soda in the fridge.”

Did my roommate ask me to get soda? The actual words he said contain no request, command, order, or anything of the sort; he only stated a fact about the contents of our refrigerator. This is the semantic analysis: the construction of the words and their specific meaning. However, most people familiar with our language and culture easily recognize this as a casual, polite request. Obviously, his statement that we are out of soda is in reply to an inquiry aimed at finding out what we lack that I could purchase at the store. It is largely uncontroversial that he means for me to buy more soda, precise language notwithstanding. This is syntactic analysis: the implicit, understood meaning in the context of the situation.

Here’s the takeaway: neither analysis seems entirely “wrong,” and that’s deeply troubling for those who want the law to be clear and black-and-white. The semantics cannot deny that my roommate may well have meant that I am to buy soda, and yet the syntactics cannot reject the fact that my roommate’s language contains no sort of request-in-fact for more soda. This leads to a problem in law: if a statute can be understood in two very different ways, and neither can be said to be wrong, how can we know that the law actually is? We are unwilling to accept that there is no “right” answer for the meaning of the law, because this leads us to the possibility of having two, inconsistent sets of laws depending on the interpretation of the statutes.

The Need for Linguistics in Law

A Supreme Court justice wrote an essay on the subject of constitutional interpretation. In response, a noted philosophy professor wrote with some surprise that he managed to write an entire essay about the interpretation of text without any mention of any philosopher of language, linguist, linguistic theory, or theory of interpretation. While I was disappointed, I was not surprised: despite the fact that language and culture underpin the law in the United States, most law schools (none of which I am aware, which isn’t saying much) deal with these subjects head-on (or hardly at all).

Interpretation of language is at the heart of the study and practice of law. The subject of debate in law is over the meaning and application of the language in a statute, contract, court order, or some other legally binding document or sworn testimony. Huge sums of money or even incarceration can hang in the balance of how some phrase is understood in (or out) of the context of surrounding phrases or circumstances. Considering the importance of language in law, I am shocked that law schools do not offer instruction in philosophy of language or linguistics.

Two examples of how words and grammar matter:

“The budget has $500,000 for each of the next two years of this program,” vs. “The budget has $500,000 for the next two years of this program.” Will next year have $250,000 or $500,000?

“Mr. Adams will sue Tim, Tom, Tammy, and Edward,” vs. “Mr. Adams will sue Tim, Tom, Tammy and Edward.” Are there 4 defendant parties or 3 (“Tammy and Edward” could be sued as one party under US law)?

If my friend tells me something that I don’t understand, how can I come to understand it? One theory of how we communicate through confusion holds that the two parties iterate  against each other until they are satisfied that they understand one another. This theory accepts that we clarify our statements with other statements that either try to say the same thing or try to say what the first statement did not mean (understanding by process of elimination).

People frequently accuse lawyers of twisting words- and all too often, that’s a fair an accurate accusation. However, the task of lawyers and judges is often to look at language and untwist the words of sloppy, daily language. I have no idea why they think this task can be reasonably undertaken without any training in linguistics, philosophy of language, logic, cultural or linguistic anthropology, or any other serious approach to communication, meaning, and language.

Clarity in Communication

http://xkcd.com/1028/ The alt-text (discovered when you hover your cursor over the comic) is particularly relevant.

Clarity is in the final comprehension, as the proof of pudding is in the eating. Clarity is not about being able to be understood, or even about being so clear as to not be misunderstood: it is about actually being understood.

Legal writing is meant to be clear, but it is famous for being confusingly unclear. By being overly specific, general meaning is lost. Legal writing is difficult because it tries to address two audiences: the earnest, non-technical crowd who only wants the general meaning and idea, and the conniving, dastardly, sneaky crowd who looks for any slight ambiguity to exploit for gain.

Our common language utilizes non-specificicty and ambiguity as a sort of social lubricant, allowing conversations to flow along and meaning to be conveyed lightly. When lawyers write even simple things, they do so expecting every possible contest of even the most basic statement.

People ask the fair question: “Why can’t lawyers just write simply so we can understand?” One reason is that understanding is not entirely dependent on the words; a lot of understanding is gleaned from context, situation, and background understanding. The awful writing of lawyers shows what communication would be like if we were robots and not humans. Cultural shorthand allows us to communicate ideas without pinpoint specificity- but we experience confusion when unspoken background assumptions do not overlap quite right. When communication is a product of working together with a common background and a common goal, the language can be imprecise and simple. When communication occurs in anticipation for a battle, with different aims and understandings, the language must be as excruciating and as tortured as the human relations it symbolizes or indicates.

Lewis Carroll’s conversation between Humpty Dumpty and Alice questioned whether it was the same thing to “mean what you say” as to “say what you mean.” I think that common language is when we mean what we say. When we attempt to “say what we mean,” we find we wax verbose, place many qualifiers, modifiers, and all sorts of limitations on every clause and term. It is a very difficult thing to say precisely what we mean—no more and no less. It may be an impossible task to communicate on both the cooperative and competitive levels.

Writing can only have value if it is read and understood.