Ordinary Meaning and Empiricism

Statute Law Review, Forthcoming

20 Pages Posted: 18 Dec 2018

See all articles by Brian G. Slocum

Brian G. Slocum

University of the Pacific - McGeorge School of Law

Date Written: November 27, 2018

Abstract

Statutory interpretation involves an interpreter determining the meaning of the text on the basis of various interpretive tools, all of which relate to the meaning of the words and their composition in light of the relevant context. Recently, with the increasing availability of scientific research tools such as corpus linguistics, advocates of such methods have stressed that statutory interpretation is an “empirical” inquiry. These claims fail to appreciate the contribution that context makes to meaning, both within and outside of law. Determinants of legal meaning must all relate in some way to the context of the relevant statute, whether the connection is to its language or the circumstances surrounding its enactment. Courts give (sometimes conclusive) weight to the statutory text, which implicates the systematicities of language and constrains the interpretations available to judges. Nevertheless, the ineliminably contextual nature of language, along with such legal features as the necessity of framing the interpretive inquiry in terms of an idealized interpreter, reveal legal interpretation to be a discretionary process, which should negate any claim that the determination of the meaning of a statute is primarily, or even largely, an empirical issue.

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

JEL Classification: K10, K19, K20, K30, K39, K40, K49

Suggested Citation

Slocum, Brian G., Ordinary Meaning and Empiricism (November 27, 2018). Statute Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3291029

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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