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Realist Semantics and Legal Theory

Published online by Cambridge University Press:  09 June 2015

Dennis M. Patterson
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Extract

In “Legal Theory, Legal Interpretation, and Judicial Review”, David O. Brink advocates a central role in legal interpretation for considerations of human purpose. He states:

It is important to remember that the primary objects of legal interpretation – statutes, constitutional provisions, and precedents – like most objects of interpretation, are human artifacts, the products of purposeful activity. In interpreting the products of purposeful activity, we must appeal to the purposes which prompted and guided the activity whose product we are trying to understand.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 2 , Issue 2 , July 1989 , pp. 175 - 179
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1989

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References

1. Brink, David O. “Legal Theory, Legal Interpretation, and Judicial Review, (1988), 17 Philosophy and Public Affairs 105[hereinafter referred to by page number alone].Google Scholar

2. p. 125.

3. See Hans, Georg Gadamer, Truth and Method, translation ed. Garrett, Barden and John, cumming (New York: Crossroad,1975):Google Scholar Alasdair, Maclntyre “The Intelligibility of Action,”repr.inMargolis, J. Krausz, M. & Burian, R.M. eds.,Rationality, Relativism and The Human Science (Dordecht: Martinus Nijhoff, 1986): 63–80.Google Scholar

4. This theme is illustrated in the work of, for example, both Hart, H.L.A. and Ronald, Dworkin.SeeHart, H.L.A. The Concept of Law(New York: Oxford University Press,1961):121–32.Google Scholar Ronald, Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986)(hereinafter LE),54–55,64–65,71.Google Scholar

5. p. 114.

6. p. 112. H.L.A. Hart is identified as a proponent of this view. Id., 113.

7. p. 113.

8. Brink describes two versions of traditional semantic theory. He states the following: An individualistic theory makes the meaning of a word depend upon the criteria which the speaker associates with the word, while the conventionalism theory makes the meaning of the word depend upon the criteria with which the word is conventionally associated or with which it is associated by a majority, p. 113.

9. As he describes it, I think he is right. But the strength of Brink’s critique of the theory heidentifies as ‘traditional’ depends upon the degree to which it is shared by linguistic philosophers as a whole. I don’t believe the theory Brink denominates ‘traditional’ is the sort of theory advocated by, for example, Wittgenstein (Kripke’s claims to the contrary notwithstanding).

Therefore, I believe that the claims made against the theory Brink labels ‘traditional’ leave untouched positions that challenge the claims he makes for a realist semantics. Brink admits as much in his statement that his “discussion of these semantic issues will, of necessity, ride roughshod over many interesting details”, p. 113.

Given the focus of this critique of Brink’s argument, I will not here defend a traditional theory that avoids the criticisms Brink advances. 1 have done that elsewhere. See Dennis M. Patterson, “Interpretation in Law: Toward a Reconstruction of the Current Debate,” (1984), 29 Villanova Law Review 671; Dennis M. Patterson, “Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine of the Uniform Commercial Code”, (1988), 137 University of Pennsylvania Law Review 335. The cogency of my remarks on the semantic theory advanced by Brink do not depend on any alternative semantic theory I may hold.

10. pp. 117,118,121. Brink argues mat legal theorists give up the claim of traditional semantic theory that meaning determines reference and follow a realist semantics whereby reference determines a meaning. Ibid., 117.

11. p. 113.

12. See Saul, Kripke, Naming and Necessity(Cambridge: Harvard University Press,1980).Google Scholar

13. See Hilary, Putnam, “Meaning and Reference, repr. in Naming, Necessity, and Natural Kinds, ed. Schwartz, S. (Ithaca: Cornell University Press, 1977),Google Scholar and “The Meaning of ‘Meaning,’,”repr. in Hilary, Putnam, Mind, Language and Reality (New York: Cambridge University Press, 1975).Google ScholarIt is not entirely clear that Putnam can still be classified as a realist. See Ian, Hacking, Representing and Intervening: Introductory Topics in the Philosophy of Natural Science (New York: Cambridge University Press, 1983),95–96.Google Scholar

14. p. 118.

15. p. 120.

16. Brink’s metaethical program does not figure directly in hisarguments for the assimilation of generallegal terms into a natural kinds analysis. The arguments in support of a metaethics of moral realism are advanced in Brink, David O. Moral Realism and The Foundation of Ethics (New York: Cambridge University Press, 1989).CrossRefGoogle Scholar

17. p. 121.

18. These include appeals to legislative intent, common law principles, and the like. It would also rule out methodological proposals such as Dworkin’s model of “constructive interpretation” (LE, 52-53)

19. pp. 147–148.

20. p. 118. Brink also states that “Kripke and Putnam have defended these semantic claims for the semantics of general terms, such as natural kind terms.” Id., 120.

21. p. 123.

22. p. 120.

23. p. 123.

24. Saul Kripke, supra, note 12 at 136.

25. For a fuller demonstration of this claim, see Wilkerson, T.E. “Natural Kinds,” (1988), 63 Philosophy 29–42.CrossRefGoogle Scholar

26. The rules governing negotiable instruments are found in Articles Three and Four of the Uniform Commercial Code (hereafter U.C.C.).

27. p. 123.

28. p. 121.

29. p. 123.

30. p. 123. (“The meaning and reference of our terms is given by the way the world is....”); p. 117 (“Beliefs do not determine reference.”)

31. Brink explicitly rejects a ‘global’ distinction between constitutional and statutory interpretation. See p. 119, n. 20.

32. p. 123.

33. p. 122. An example would be the U.C.C.’s purpose to simplify, clarify, and modernize the law governing commercial transactions. See U.C.C. l–102(2)(a).

34. To continue with the U.C.C, an example of a specific intention is the drafters’ particular desire to repeal the common law that firm offers are not enforceable without consideration. See U.C.C. 2–205 (firm offers need not be supported by consideration).

35. p. 122. (“Proponents [of traditional semantic theory]& insist that the correct interpretation of any legal provision must be guided by, or at least violate, the framers’ (specific) intentions.”)

36. p. 122.

37. I must confess that the cogency of this claim escapes me, but I will not pursue the matter here. For a powerful argument to the effect that statutory meaning is a function of changing social conditions,see Eskridge, William N. Jr., “Dynamic Statutory Interpretation,” (1987) 136 University of Pennsylvania Law Review 1479.CrossRefGoogle Scholar

38. p. 123.