The Ordinary Meaning of Rules

Problems of Normativity, Rules and Rule-Following (Springer 2014)

Pacific McGeorge School of Law Research Paper

24 Pages Posted: 12 May 2014 Last revised: 31 Jul 2014

Brian G. Slocum

University of the Pacific - McGeorge School of Law

Date Written: May 10, 2014

Abstract

Judges typically claim that rules contained in legal texts are interpreted in accordance with their ordinary meaning. It follows that the constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are of crucial importance to the interpretation of legal texts. While a comprehensive analysis of these questions is beyond the scope of this chapter, it is possible as well as important to outline how such questions must necessarily be approached. Certainly, there are a variety of ways in which courts habitually go beyond or reject the linguistic meaning of the relevant text. Normatively based desires to, for example, ensure fair notice or avoid constitutional questions may cause a court to give a text a legal meaning that does not correspond with its linguistic meaning. The ordinary meaning principle, though, is necessarily concerned with the linguistic meaning of the text and not normative matters. As such, certain views about meaning and interpretation can be rejected as being incorrect. In particular, certain claims made by actual intentionalists are fundamentally inconsistent with how the ordinary meaning doctrine must be conceptualized. In short, the intentionalist position that a text means what its author intended it to mean, as well as the associated claims about the nature of natural language that often accompany this assertion, must be rejected. Instead, the ordinary meaning doctrine must be explicated on the basis of systematicities and conventions of language.

Keywords: textualism, intentionalism, ordinary meaning, statutory interpretation, legal interpretation, linguistics

JEL Classification: K19, K29, K39, K49

Suggested Citation

Slocum, Brian G., The Ordinary Meaning of Rules (May 10, 2014). Problems of Normativity, Rules and Rule-Following (Springer 2014) ; Pacific McGeorge School of Law Research Paper. Available at SSRN: https://ssrn.com/abstract=2435462

Brian G. Slocum (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

3200 Fifth Avenue
Sacramento, CA 95817
United States
(916) 739-7013 (Phone)

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