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Communicative Content and Legal Content

42 Pages Posted: 12 Feb 2014  

Lawrence B. Solum

Georgetown University Law Center

Date Written: February 11, 2014

Abstract

This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules.

Keywords: philosophy of law, jurisprudence, interpretation, communicative content, semantics, pragmatics, originalism, plain meaning

Suggested Citation

Solum, Lawrence B., Communicative Content and Legal Content (February 11, 2014). Notre Dame Law Review, Vol. 89, No. 479, 2013. Available at SSRN: https://ssrn.com/abstract=2394122

Lawrence Solum (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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