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Published online by Cambridge University Press: 01 January 2025
There is a theory of statutory interpretation that is simple, elegant and well-subscribed. The theory is known as the meaning thesis, and it holds that the law of a statute consists in the ordinary linguistic meaning that is communicated by the statute's language. In a recent article Dale Smith has sought to discredit the meaning thesis. Here I will seek to discredit the thesis further, this time by drawing on the accomplishments of linguistics and the philosophy of language. In order for the meaning thesis to succeed, it must be demonstrated that the thesis is consistent with the established common law rules of interpretation. However, some of these rules appear to require that judges defy the plain linguistic meanings of statutes in limited circumstances. The meaning theorist's challenge, then, is to find some way to show that the established rules of interpretation do not truly cause judges to defy the language of statutes, despite appearances to the contrary. In this article, I will explain why the meaning theorist only has bad options in this regard. Of the available options, meaning theorists have settled for an argument that is premised on a flawed theory of how language communicates meaning. The theory of communication in question was proposed by H P Grice in the 1950s, but discredited by his contemporaries.
The paper has benefited greatly from the insight of Tiffany Gibbons, Julian Lynch, Elise Thomas, Duncan Wallace, the Editors and the anonymous referees. All errors are my own.
1 See Karl Popper, Conjectures and Refutations (Routledge, 1963).
2 Smith, Dale, ‘Is the High Court Mistaken about the Aim of Statutory Interpretation?’ (2016) 44 Federal Law Review 227CrossRefGoogle Scholar.
3 Ibid 227–9.
4 For my own understanding of the High Court's theory of interpretation, see Blaker, Jamie, ‘Is Intentionalist Theory Indispensible to Statutory Interpretation?’ (2017) 43 Monash University Law Review 238 pt IIIGoogle Scholar.
5 See Ekins, Richard and Goldsworthy, Jeffrey, ‘The Reality and Indispensability of Legislative Intention’ (2014) 35 Sydney Law Review 39Google Scholar; Easterbrook, Frank H, ‘Text, History and Structure in Statutory Interpretation’ (1994) 17 Harvard Journal of Law and Public Policy 61Google Scholar; Manning, John, ‘What Divides Textualists from Purposivists?’ (2006) 106 Columbia Law Review 70Google Scholar.
6 He Kaw Teh v The Queen (1985) 157 CLR 523; Smith above n 2, 235.
7 Smith, above n 2, 235–6.
8 Ibid 238–9.
9 See Pt II G below.
10 Goldsworthy, Jeffrey, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010) 240CrossRefGoogle Scholar.
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12 Ibid 241.
13 Ibid 242.
14 Although the connection between what a judiciary's practices are and should be is complex. The nature of interpretive theories is explored further in Pt II B below; for a more complete account, see Ronald Dworkin, Law's Empire (Hart, 1998) ch 3.
15 See Lycan, William, Philosophy of Language: A Contemporary Introduction (Routledge, 3rd ed, 2012)Google Scholar.
16 I have borrowed the ‘meaning facts’ label from Lycan, although I attach the label to somewhat different aspects of language use. See Lycan, above n 15, ch 1.
17 See Fodor, Jerry, Concepts: Where Cognitive Science Went Wrong (Clarendon, 1998) ch 3CrossRefGoogle Scholar; Pinker, Steven, Language, Cognition and Human Nature (Oxford, 2013) 147–57CrossRefGoogle Scholar. The picture becomes more complicated once one considers how the content of these concepts is dependent upon and tracks the external physical world, but that can be left aside. See Putnam, Hilary, ‘The Meaning of Meaning’ (1975) 7 Minnesota Studies in the Philosophy of Science 131Google Scholar.
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20 Ibid 181–2. I am intentionally eliding a persistent controversy regarding the structure of ‘prototype concepts’. An important party to that controversy—the ‘theory theory’ school—eschews the language of ‘prototypes’ and prefers to understand such concepts as working theories in the mind: see Gopnik, Alison and Meltzoff, Andrew N, Words, Thoughts and Theories (1997, MIT Press)CrossRefGoogle Scholar.
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22 Rosch and Mervis, above n 21.
23 Clark, Herbert, Using Language (Cambridge, 1996) ch 4.CrossRefGoogle Scholar
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25 Dennett, Daniel C, Intuition Pumps and Other Tools for Thinking (Norton and Company, 2013) 112 (emphasis in original)Google Scholar.
26 Ibid.
27 See, eg, the theory propounded in Vermeule, Adrian, Judging Under Uncertainty (Harvard University Press, 2006)Google Scholar.
28 On the nature of justificatory theories in general, see Ronald Dworkin, Law's Empire (Hart, 1998) ch 3.
29 Smith, above n 2, 229.
30 Ibid 235.
31 Ibid; however, meaning theorists do accept that the law may be something other than what the text says when statutes are in need of judicial rectification because, for example, there is a drafting error. See Ekins and Goldsworthy, above n 5, 53.
32 Scalia, Antonin, A Matter of Interpretation (Princeton University Press, 1997)Google Scholar.
33 H. Easterbrook, Frank, ‘The Role of Original Intent in Statutory Construction’ (1988) 11 Harvard Journal of Law and Public Policy 59, 65Google Scholar.
34 Manning, above n 5, 79–85.
35 N.A.A.C.P. v American Family Mutual Insurance Co., 978 F.2d 287, 294 (7th Cir, 1992) (Easterbrook J).
36 Manning, above n 5.
37 Ibid 83.
38 Goldsworthy, above n 10, 264.
39 Ibid 248.
40 See, eg, Ekins and Goldsworthy, above n 5.
41 Ibid 43.
42 Ibid 51–8. See also Goldsworthy, above n 10, 241, 283–5.
43 Smith, above n 2, Pt IV.
44 The principle of legality is apparently language defying: Lim, Brendan, ‘The Normativity of the Principle of Legality’ (2013) 37 Melbourne University Law Review 372, 398–402Google Scholar. Many of the grounds of judicial review are also potentially language defying. It is this fact which has fuelled the so-called ultra vires debate over the foundations of judicial review in the UK. See Craig, Paul, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63.CrossRefGoogle Scholar
45 See Grice, HP, ‘Meaning’ (1957) 66 The Philosophical Review 377CrossRefGoogle Scholar; Austin, JL, How to Do Things with Words (Clarendon Press, 1962) 98–103Google Scholar.
46 See Lycan, above n 15, Pts II and III.
47 Grice, ‘Meaning’, above n 45.
48 Grice, ‘Logic and Conversation’, above n 24.
49 Grice, ‘Meaning’, above n 45, 383. I have borrowed my notation from Strawson's description of Grice's theory in Strawson, PF, ‘Intention and Convention in Speech Acts’ (1964) 73 Philosophical Review 439, 446CrossRefGoogle Scholar.
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51 Ibid.
52 Austin, JL, How to Do Things with Words (Clarendon Press, 1962) 98–103.Google Scholar
53 Ibid 108–19.
54 Ibid.
55 Strawson, above n 49; Searle, above n 50, 44; Bach, Kent and Harnish, Robert M, Linguistic Communication and Speech Acts (MIT Press, 1979)Google Scholar.
56 Recanati, François, ‘On Defining Communicative Intentions’ (1986) 1 Mind & Language 213, 216CrossRefGoogle Scholar.
57 Bach, Kent, ‘Introduction to Part I’ in Harnish, Robert M (ed) Basic Topics in the Philosophy of Language (Harvester Wheatsheaf, 1994)Google Scholar.
58 Searle, above n 50, 47.
59 This is known as the ‘theory-theory of mind’, and is advocated for in, eg, Gopnik, Alison and Meltzoff, Andrew N, Words, Thoughts and Theories (MIT Press, 1997)CrossRefGoogle Scholar; Fodor, Jerry A, Psychosemantics (MIT Press, 1987)CrossRefGoogle Scholar.
60 This is known as the ‘modularity’ or ‘nativist’ theory of mind, and is advocated for in, eg, Scholl, Brian J and Leslie, Alan M, ‘Modularity, Development and “Theory of Mind”’ (1999) 14 Mind and Language 13CrossRefGoogle Scholar1.
61 Dennett, Daniel C, The Intentional Stance (MIT Press, 1987) 17Google Scholar.
62 In fairness to Grice, he eventually recognised this flaw in his theory, and adapted his theory accordingly. See Lycan, above n 15, ch 7.
63 Smith, above n 2, 235–40.
64 Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).
65 Kioa v West (1985) 159 CLR 550, 609 (Brennan J); See also Groves, Matthew, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 Monash University Law Review 285Google Scholar.
66 Kioa v West (1985) 159 CLR 550, 605.
67 This is what occurred in Kioa v West (1985) 159 CLR 550.
68 See Aronson, Mark, Groves, Matthew and Weeks, Greg, Judicial Review of Administrative Action (Thomson Reuters, 6th ed, 2017) ch 7Google Scholar.
69 Goldsworthy, above n 10, 232. A similar statement is made at 247.
70 Indeed, judges are likely to systematically overestimate the legislators’ knowledge of the common law, owing to a well-established psychological bias known as the ‘curse of knowledge’. See, eg, Nickerson, Raymond et al, ‘Are People's Estimates of What Other People Know Influenced by What They Themselves Know?’ (1987) 64 Acta Psychologica 245CrossRefGoogle Scholar.
71 No study has been performed on the extent to which Australian legislators read bills before the bills are enacted as law. For an American study, however, see Nourse, Victoria F and Schacter, Jane S, ‘The Politics of Legislative Drafting: A Congressional Case Study’ (2002) 77 New York University Law Review 575, 608Google Scholar.
72 Annetts v McCann (1990) 170 CLR 596, 598 (Mason CJ, Deane and McHugh JJ).
73 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [11]–[15].
74 For recent examples, see, eg, Summersford v Commissioner for Police (2018) NSWCA 115, [51]–[54]; BDY15 v Minister for Immigration and Anor [2018] FCCA 1327, [41]–[42]; CRW16 v Minister for Immigration [2018] FCA 710, [24], [26], [35].
75 Goldsworthy, above n 10, 239, 242–3.
76 Ibid 240.
77 Ibid 241.
78 Ibid.
79 Ibid 242.
80 Ibid 243.
81 Ekins, Richard, ‘Interpretive Choice in Statutory Interpretation’ (2014) 59 American Journal of Jurisprudence 1, 20CrossRefGoogle Scholar.
82 Ibid.
83 Ibid.
84 Ibid 22; Francis Bennion, a less sophisticated theorist, makes a similar claim in: Bennion, F.A.R., Statutory Interpretation (Butterworths, 2nd ed, 1992) 727–8Google Scholar.
85 Manning, above n 5, 83.
86 Goldsworthy, above n 10, 232.