Legal Theory Lexicon

  • Legal Theory Lexicon 107: The Hermeneutic Circle

    Every lawyer who has interpreted a statute or a constitutional provision has encountered the hermeneutic circle, even if they have never heard the name. The problem is this: to understand a legal text, you must understand its parts; but to understand its parts, you must already have some grasp of the whole. A single statutory provision cannot be read in isolation — its meaning depends on the structure, purpose, and context of the statute of which it is a part. But the statute’s structure and purpose are themselves assembled from the meanings of its provisions. This is the hermeneutic circle: the interdependence between part and whole in any act of interpretation.

    One might think that the hermeneutic circle is a problem for legal interpretation — that it involves circular reasoning and therefore cannot yield determinate results. But that thought misunderstands what the hermeneutic circle is actually doing. The hermeneutic circle is not a logical fallacy or an interpretive defect. It is a structural feature of understanding itself. Recognizing it has important consequences for legal theory — consequences that bear directly on debates about textualism, originalism, and the nature of legal interpretation more generally. This entry introduces the concept, traces its philosophical origins, and examines its implications for the interpretation of legal texts.

    The Structure of the Circle

    The circle can be stated simply. Understanding any part of a text requires a prior, provisional grasp of the whole; but one’s grasp of the whole is built up from understanding of the parts. The movement of interpretation is thus circular — or, more precisely, spiral. Each pass through the text refines one’s understanding of both part and whole. The circle is entered with a provisional hypothesis about what the text as a whole means; as individual parts are read, that hypothesis is confirmed, revised, or overturned; the revised hypothesis then informs how further parts are read; and so on until a stable, coherent interpretation is reached.

    This recursive process is not vicious. A vicious circle is one in which a conclusion is simply presupposed in its own premise, with no independent evidence capable of breaking the loop. The hermeneutic circle is different: it is a virtuous spiral of progressively refined understanding. The provisional hypothesis about the whole is answerable to the evidence of the parts, and one’s reading of the parts is answerable to the coherence of the whole. The process converges — not on a uniquely determined meaning, but on an interpretation that achieves the best overall fit between part and whole.

    Philosophical Background

    The concept of the hermeneutic circle has a long history in the philosophy of interpretation. The term hermeneutics — from the Greek hermēneuein, to interpret — originally designated the theory of biblical and classical textual interpretation. Friedrich Schleiermacher (1768–1834) systematized hermeneutics as a general theory of textual understanding, articulating the circle’s basic structure: the interpreter moves back and forth between the grammatical meaning of individual passages and her understanding of the work as a whole, each informing and correcting the other.

    The most consequential development for legal theory came in the twentieth century with the philosophical hermeneutics of Hans-Georg Gadamer (1900–2002), set out in his landmark work Truth and Method (1960). Gadamer built on Martin Heidegger’s insight — developed in Being and Time (1927) — that the circle is not merely a feature of conscious interpretive method but an ontological structure: human beings always already understand their world through a fore-structure of prior commitments, concepts, and expectations that cannot be fully bracketed or set aside. Gadamer transformed this insight into a rich theory of understanding. The interpreter does not come to a text as a blank slate. She brings what Gadamer calls a horizon — a background of preconceptions, cultural inheritances, and prior understandings — that shapes what she can even notice, let alone understand, in the text before her. Gadamer rehabilitates the concept of prejudice (Vorurteil, literally pre-judgment) against the Enlightenment’s aspiration to eliminate all presupposition: the interpreter’s prejudices are not merely obstacles to understanding but its enabling conditions. Understanding, on this account, is not the erasure of one’s horizon but a fusion of horizons (Horizontverschmelzung) — an event in which the interpreter’s horizon and the text’s horizon merge, each being transformed in the process. You might find the Heideggerian terminology intimidating. So do I! But understanding the hermeneutic circle does not require mastery of Heidegger. The basic ideas are accessible and can be understood by any law student.

    A further Gadamerian claim deserves attention, though it should be approached with some care. Gadamer argued that understanding and application are not separable stages of interpretation — that to understand what a legal provision means is already to understand something about how it applies, and that applying it to new cases is itself a process of discovering what it means. Gadamer is certainly right that understanding and application stand in important relationships to each other: interpretation is always situated, always oriented toward a present problem, and the interpreter’s practical concerns inevitably shape what she notices in the text. That much seems correct. Whether understanding and application are genuinely inseparable, however, or whether they can be distinguished at the conceptual level even if they are intertwined in practice, is a harder question — and one on which Gadamer’s strong thesis may well be mistaken. One way to see this is to consider the distinction between interpretation and construction, and the related distinction between communicative content and legal content. On those accounts, recovering what a legal text means (interpretation) is a conceptually distinct activity from determining its legal effect in a particular case (construction), even if the two activities influence each other in practice. Those distinctions are discussed in separate Lexicon entries and are cross-referenced below. For extended discussion of the relationship between hermeneutics and the fixation of constitutional meaning, see Lawrence B. Solum, Originalism, Hermeneutics, and the Fixation Thesis, in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy 130 (Brian G. Slocum ed., Univ. of Chicago Press 2017).

    The Circle in Statutory and Constitutional Interpretation

    The hermeneutic circle has direct implications for statutory and constitutional interpretation. No provision of a statute can be understood in isolation. The meaning of an individual section depends on the purpose and structure of the statute as a whole; the purpose and structure of the statute emerge from the meanings of its sections. When a term in one provision is ambiguous, interpreters routinely — and correctly — look to how the same term is used elsewhere, to the overall design of the statutory scheme, and to the evident purpose the statute was enacted to serve. This is hermeneutic reasoning in practice: the whole disambiguates the part.

    Constitutional interpretation operates at a larger scale, but the same structure applies. The meaning of a clause depends on its relationship to the constitutional document as a whole; the meaning of the whole emerges from the meanings of its clauses. Structural inference — reasoning from the overall design of the Constitution to the meaning of particular provisions — is a canonical form of constitutional argument. McCulloch v. Maryland is an early and celebrated example: Marshall’s reading of the Necessary and Proper Clause drew on inferences from constitutional structure and purpose that no isolated reading of the clause’s words alone could yield. The hermeneutic circle explains why such reasoning is not merely permissible but necessary: the constitutional text cannot be understood clause by clause in isolation from the whole.

    Pragmatic Enrichment and the Hermeneutic Circle

    One specific application of the hermeneutic circle deserves separate attention: its relationship to pragmatic enrichment. As the Legal Theory Lexicon entry on Semantics and Pragmatics explains, the literal or semantic content of a sentence frequently underdetermines its communicative meaning. Sentences must be enriched — by context, background assumptions, and purpose — before they yield a determinate proposition. Sophisticated textualists already rely on something like pragmatic enrichment, even when they do not invoke the concept by name.

    The hermeneutic circle illuminates how pragmatic enrichment works in legal texts. The context required to enrich an individual provision is supplied, in significant part, by the statute or constitution as a whole. The whole text provides the interpretive horizon within which the meaning of any particular provision is recovered. A provision that appears semantically thin or ambiguous in isolation may be substantially clarified when read against the backdrop of the statutory scheme, the evident purpose of the enactment, and the linguistic conventions operative in that domain of law. The circle between part and whole is what makes this enrichment possible — and it explains why enrichment by the whole text is not an unprincipled departure from the text but a disciplined engagement with it.

    Originalism, Textualism, and the Hermeneutic Circle

    The hermeneutic circle is not an adversary of originalism or textualism. It is a methodological resource that careful versions of both theories already implicitly employ — and that all versions of both theories should explicitly embrace. The versions of originalism and textualism that treat the semantic meaning of individual sentences as interpretively self-sufficient are not just philosophically naive. They are bad originalism and bad textualism.

    Consider original public meaning originalism. Recovering the public meaning of a constitutional provision at the time of its enactment is not a matter of inspecting each clause independently. The public meaning of a clause was partly constituted by readers’ understanding of the constitutional document as a whole, by the background of common law and statutory practice into which the provision was inserted, and by the purposes the provision was understood to serve within the constitutional design. Original-public-meaning interpretation that ignores these contextual determinants is not more faithful to the original meaning; it is less faithful. The hermeneutic circle is part of the correct methodology of originalism, not an objection to it.

    The same point applies to textualism. The most sophisticated textualist accounts already invoke whole-statute canons, structural arguments, and presumptions of consistent usage across provisions. These moves are hermeneutic: they treat the whole text as the context within which individual provisions are to be understood. What the hermeneutic circle adds is a theoretical account of why these moves are not merely permitted departures from semantic literalism but are required by the nature of textual interpretation itself. William Eskridge made a version of this argument for statutory interpretation in his influential article “Gadamer/Statutory Interpretation,” and the point applies with equal or greater force to constitutional interpretation.

    Dworkin and Law as Integrity

    Ronald Dworkin’s jurisprudence is deeply hermeneutic in character, and Dworkin himself drew on Gadamerian hermeneutics. In Law’s Empire (1986), Dworkin introduces law as an interpretive concept — one whose application always requires placing the practice of law in its best constructive light — and in making this argument he relies on Gadamerian insights about the inseparability of understanding and application. The most vivid illustration is Dworkin’s chain novel metaphor: a judge deciding a hard case is like an author contributing a new chapter to a collaborative novel written by many hands. To write well, the author must grasp what came before — must understand the work as a whole — while adding to it in a way that advances the narrative coherently. Understanding the whole requires understanding the parts, and understanding the parts requires understanding the whole: the hermeneutic circle is built into the structure of adjudication as Dworkin conceives it. His principle of fit — that a legal interpretation must cohere with the settled body of legal materials — is a hermeneutic constraint, requiring that the meaning attributed to any particular doctrine be answerable to the shape of the legal practice as a whole.

    Objections

    Two objections are commonly raised against the hermeneutic circle. The first is that it is a vicious rather than virtuous circle: if understanding the parts depends on prior grasp of the whole, and grasp of the whole depends on understanding the parts, the interpreter can never get started without simply presupposing what she is trying to determine. The response is that the circle is entered with a provisional hypothesis, not a pre-determined conclusion. That hypothesis is genuinely answerable to the evidence of the parts and is revised as interpretation proceeds. The process is iterative and self-correcting, not arbitrary.

    The second objection is that the hermeneutic circle entails relativism. If every interpreter brings a distinctive horizon to the text, and the fusion of horizons produces the interpretive result, then different interpreters will inevitably reach different results — and no result will be more correct than any other. This objection has force against versions of Gadamerian hermeneutics that so emphasize the interpreter’s situatedness that textual constraint disappears. But it does not undermine a more modest deployment of the concept. The claim that part and whole must be understood in relation to each other imposes genuine discipline on interpretation: not every reading of the parts will cohere with a plausible reading of the whole, and not every reading of the whole will be supported by the parts. The circle constrains even as it enables. Critics in the Hirsch-Betti tradition — who insist on a sharp distinction between the meaning of a text (fixed by authorial intent) and its significance (variable with context) — press the relativism objection with particular force; engaging that debate fully is beyond the scope of this entry.

    Related Lexicon Entries

    Legal Theory Lexicon 019: Originalism

    Legal Theory Lexicon 030: Textualism

    Legal Theory Lexicon 032: Fit and Justification

    Legal Theory Lexicon 033: Holism

    Legal Theory Lexicon 059: The Law Is A Seamless Web

    Legal Theory Lexicon 063: Interpretation and Construction

    Legal Theory Lexicon 079: Communicative Content and Legal Content

    Legal Theory Lexicon 099: Semantics and Pragmatics

    Bibliography

    Dworkin, Ronald. Law’s Empire. Harvard University Press, 1986.

    Eskridge, William N., Jr. Gadamer/Statutory Interpretation. Columbia Law Review, vol. 90, 1990, pp. 609–681.

    Gadamer, Hans-Georg. Truth and Method. 2nd rev. ed., translated by Joel Weinsheimer and Donald G. Marshall. Continuum, 1989.

    Grondin, Jean. Introduction to Philosophical Hermeneutics. Yale University Press, 1994.

    Hirsch, E.D. Validity in Interpretation. Yale University Press, 1967.

    Malpas, Jeff. Hans-Georg Gadamer, Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., Winter 2022).

    Mootz, Francis J., III, editor. Gadamer and Law. Routledge, 2007.

    Schleiermacher, Friedrich. Hermeneutics and Criticism and Other Writings. Translated by Andrew Bowie. Cambridge University Press, 1998.

    Solum, Lawrence B. Originalism, Hermeneutics, and the Fixation Thesis, in The Nature of Legal Interpretation: What Jurists Can Learn About Legal Interpretation from Linguistics and Philosophy 130 (Brian G. Slocum ed., Univ. of Chicago Press 2017).

    Warnke, Georgia. Gadamer: Hermeneutics, Tradition and Reason. Stanford University Press, 1987.

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    Legal Theory Lexicon 107: The Hermeneutic Circle

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  • Legal Theory Lexicon 106: The Ideal Speech Situation

    Introduction

    Legal theorists routinely invoke the idea that legitimate law must emerge from something like a fair deliberative process — one in which reasons are exchanged, positions are tested, and outcomes reflect genuine agreement rather than mere coercion or strategic manipulation. That intuition needs a theoretical foundation. The German philosopher Jürgen Habermas has developed a thought experiment that helps us think about the normative structure of reasoned argument about the law. More precisely, it is a regulative ideal — a counterfactual standard presupposed by the very practice of argumentation, against which actual deliberative processes can be measured and found wanting. This entry explicates the concept, situates it within Habermas’s broader theory of communicative rationality, surveys the principal criticisms, and discusses its applications in legal theory. First-year law students will encounter the ideal speech situation most directly in discussions of legislative legitimacy, deliberative democracy, and the discourse-theoretic account of legal argumentation developed by Robert Alexy.

    Habermas and Communicative Action

    To understand the ideal speech situation, one must first grasp the distinction that Habermas draws between two fundamental orientations of human action. Strategic action is oriented toward success: the agent aims to bring about a desired outcome, treating other persons as objects to be influenced, manipulated, or otherwise used as means. Communicative action, by contrast, is oriented toward mutual understanding: participants coordinate their actions by exchanging reasons, raising claims, and seeking rationally motivated agreement. This distinction is the cornerstone of Habermas’s Theory of Communicative Action, his two-volume magnum opus published in 1981. For Habermas, modernity’s pathologies — bureaucratic domination, the erosion of solidarity, the colonization of the lifeworld by market and administrative rationality — can be traced to the systematic displacement of communicative action by strategic action. The ideal speech situation is the standard internal to communicative action itself: it articulates the conditions under which rational agreement, rather than strategic manipulation, would be achieved.

    The Ideal Speech Situation Explicated

    When a speaker sincerely asserts a proposition, Habermas argues, she implicitly raises four validity claims: that what she says is true (the propositional content corresponds to facts); that it is right (the speech act conforms to a legitimate normative framework); that she is truthful (she means what she says, without deception); and that it is comprehensible (the utterance is intelligible to her interlocutors). These validity claims are not mere conventions — they are internal to the structure of language use as such. To speak sincerely is to invite scrutiny along each of these dimensions, and to implicitly commit oneself to defending one’s claims with reasons if challenged. The ideal speech situation specifies the conditions under which such scrutiny and defense could proceed without distortion. Four formal conditions define it. First, equal access: every competent speaker may participate in discourse, raise questions, make assertions, and challenge the assertions of others. Second, freedom from coercion: no participant is prevented from exercising these communicative rights by internal compulsion (ideology, trauma, false consciousness) or external force (threat, exclusion, institutional pressure). Third, symmetry of roles: all participants have equivalent opportunities to initiate, continue, and redirect discourse; no speaker’s contribution is privileged by mere social position. Fourth, unlimited revisability: no topic, norm, or presupposition is placed beyond scrutiny in advance. The ideal speech situation is explicitly counterfactual. It does not describe how people actually argue — in law offices, legislatures, or courtrooms. It articulates what genuine argumentation presupposes: that participants are committed, in principle, to the authority of the better argument alone.

    Discourse Ethics

    The ideal speech situation does not remain a purely formal construct. Habermas deploys it as the foundation of discourse ethics, developed in collaboration with Karl-Otto Apel and set out most fully in Habermas’s Moral Consciousness and Communicative Action. The central principle — the “D principle” — holds that a norm is valid if and only if all affected persons could agree to it under conditions of ideal discourse. This formulation is proceduralist in a strong sense: the validity of a norm is not derived from its content, from natural law, or from the deliverances of individual practical reason, but from the quality of the procedure through which it is assessed. The connection to Kant is genuine but qualified. Like Kant’s categorical imperative, discourse ethics is universalist and impartialist. But where Kant’s procedure is a monological thought experiment — what I could will as a universal law — Habermas’s procedure is dialogical: what we could agree to, given the opportunity for genuine deliberation. The shift from monologue to dialogue is not cosmetic. It encodes the insight that the perspectives of all affected parties cannot be adequately represented by any single reflecting subject; they must be heard in their own voices.

    Criticisms

    The idealization problem. Postmodern and poststructuralist critics — Jean-François Lyotard most prominently — argue that the ideal speech situation posits a false unity. Lyotard’s notion of the différend designates conflicts in which the parties lack a common idiom: the wrong suffered by one party cannot be expressed in the discourse available to adjudicate it. On this view, the ideal speech situation does not transcend difference; it suppresses it by imposing the norms of a particular — broadly Western, broadly rationalist — communicative form as if they were universal.

    The indeterminacy problem. Even granting ideal conditions, there is no guarantee that discourse would converge on a unique outcome. Participants may rationally disagree about substantive moral and political questions even after exhausting the available reasons. This objection cuts at the D principle’s ambition to ground validity: if ideal discourse is consistent with persistent reasonable disagreement, it cannot do the normative work Habermas assigns it.

    The circularity problem. The conditions of ideal discourse — equal access, non-coercion, symmetry — are themselves normative. To justify norms by reference to ideal discourse seems to presuppose the very norms (of equality, freedom, and respect) that the procedure is meant to generate. Critics argue that discourse ethics is thus viciously circular, or that it tacitly relies on a substantive moral framework it declines to acknowledge.

    The exclusion problem — Fraser’s critique. The most consequential criticism for legal audiences comes from Nancy Fraser, whose 1990 essay “Rethinking the Public Sphere” targets the Habermasian framework at its foundations. Fraser’s argument proceeds in three steps. First, she contends that the bracketing of social inequality does not neutralize it. The ideal speech situation asks participants to set aside differences of class, race, and gender and engage as purely rational interlocutors. But this bracketing, Fraser argues, is empirically false and normatively suspect: when unequal participants are instructed to treat one another as formal equals, the instruction tends to favor dominant groups, who are already at ease in formal deliberative settings. The ideal does not transcend power asymmetries; it renders them invisible, and invisibility is not neutrality. Second, Fraser argues that the model of a single, unified public sphere suppresses what she calls subaltern counterpublics — the parallel discursive spaces in which historically marginalized groups develop oppositional identities, distinctive idioms, and alternative agendas before engaging the dominant public. Far from being a defect in democratic life, this plurality of publics is a democratic resource: it is the condition under which subordinated groups can articulate interests that the dominant public is structured to ignore. A single ideal speech situation models this plurality out of existence. Third, Fraser argues that the line between “public” matters subject to deliberation and “private” matters placed beyond scrutiny is itself a contested political question, not a given that discourse theory can safely presuppose. That line has historically been drawn in ways that excluded domestic labor, reproductive life, and family violence from legitimate deliberative concern — exclusions that were not accidental but systematic. Fraser is valuable for legal audiences precisely because she does not simply reject deliberative theory. Her critique is internal and reconstructive: she accepts the deliberative commitment to justification through reasons while pressing it toward greater realism about the social conditions that make genuine deliberation possible or impossible. Her work has directly influenced legal scholars writing about procedural fairness, the legitimacy of administrative processes, and the structural prerequisites of meaningful participation in law.

    The applicability problem. Finally, even theorists sympathetic to Habermas’s project have questioned how much normative work an idealized construct can perform in legal and political institutions that operate under conditions of scarcity, urgency, and persistent disagreement. Courts must decide cases on schedule; legislatures operate under strategic pressure; administrative agencies work within hierarchical command structures. The gap between actual institutions and the ideal speech situation may be so wide that the ideal functions more as an indictment of all actual institutions than as a usable standard for comparative assessment.

    Applications to Legal Theory

    The ideal speech situation has generated a substantial body of legal scholarship, both in its Habermasian form and in modified versions that relax or reconstruct its conditions.

    Legitimacy of law. Habermas’s most direct legal application appears in Between Facts and Norms (1992), his theory of law and democracy. There Habermas argues that law serves as the medium through which communicative power — the capacity to form collective will through genuine deliberation — is translated into administrative power, the capacity to implement collective decisions. Legislative legitimacy is grounded not in majority preference as such, but in deliberative procedures that approximate ideal discourse: procedures that are open, reason-giving, and responsive to challenge. This account generates critical leverage against purely aggregative theories of democratic legitimacy, which treat law as the output of preference summation rather than reasoned agreement.

    Deliberative democracy. The ideal speech situation has been a foundational reference point for the deliberative democracy literature that flourished from the 1990s onward. Joshua Cohen’s influential account of deliberative democracy draws explicitly on Habermasian premises, specifying ideal deliberation as free, reasoned, equal, and aimed at rationally motivated consensus. Cass Sunstein’s work on legal deliberation, though less explicitly Habermasian, shares the commitment to reason-exchange as the distinctive mark of legitimate legal and political decision-making. Rawls’s overlapping consensus and public reason doctrine represent a parallel and partly competing proceduralist project, and the debate between Rawlsian and Habermasian approaches has been productive for legal theory on questions of constitutional legitimacy and the appropriate grounds of judicial decision.

    Alexy’s discourse theory of legal argumentation. The most technically developed application of ideal speech theory to law is Robert Alexy’s A Theory of Legal Argumentation, first published in German in 1978. Alexy argues that legal argumentation is a special case of general practical discourse: it takes place within institutional constraints — binding precedent, statutory text, procedural rules — that constitute standing departures from ideal discourse conditions. These constraints are not arbitrary limitations; they are justified by the practical requirements of a legal system that must produce determinate outcomes under time pressure and in the face of persistent disagreement. But the constraints presuppose the standards of general practical discourse as their background justification. A legal argument is valid, on Alexy’s account, if it could be accepted in a discourse that approached ideal conditions, given the institutional constraints that govern legal reasoning. This framework yields a sophisticated account of how the rational acceptability of legal arguments relates to, while remaining distinct from, their formal validity under positive law. Alexy’s work has been enormously influential in German and European legal theory and is increasingly engaged in American legal scholarship.

    Critical and emancipatory applications. The ideal speech situation has also served as a critical standard for exposing distorted communication in legal contexts — procedural structures that formally satisfy requirements of participation while systematically excluding or marginalizing the voices of subordinated groups. Critical legal scholars and critical race theorists have deployed Habermasian and post-Habermasian frameworks to analyze how adversarial procedure, evidentiary rules, and doctrinal categories can function as mechanisms of communicative distortion, filtering out the perspectives and experiences that would be heard under genuinely ideal conditions.

    Conclusion

    The ideal speech situation is not a description of how legal deliberation works. Nor does it accurately describe all legal scholarship. It is a standard against which legal and theoretical deliberation can be assessed — a reconstruction of what participants in argumentation implicitly commit themselves to when they exchange reasons rather than merely deploy power. For law students interested in legal theory, its value lies less in any particular substantive conclusion it generates than in the analytical clarity it brings to questions about legitimacy, procedure, and the relationship between the quality of decision-making processes and the authority of their outputs. Used with appropriate awareness of its idealizing character — and of the Fraser-style critiques that press it toward realism — the ideal speech situation remains one of the most productive conceptual tools in the legal theorist’s repertoire.

    Related Lexicon Entries

    Bibliography

    Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, translated by Ruth Adler and Neil MacCormick (Oxford University Press, 1989).

    Joshua Cohen, “Deliberation and Democratic Legitimacy,” in The Good Polity, edited by Alan Hamlin and Philip Pettit (Blackwell, 1989).

    Nancy Fraser, “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,” Social Text, nos. 25/26 (1990): 56–80.

    Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (MIT Press, 1996).

    Jürgen Habermas, Moral Consciousness and Communicative Action, translated by Christian Lenhardt and Shierry Weber Nicholsen (MIT Press, 1990).

    Jürgen Habermas, The Theory of Communicative Action, 2 vols., translated by Thomas McCarthy (Beacon Press, 1984–1987).

    Jean-François Lyotard, The Differend: Phrases in Dispute, translated by Georges Van Den Abbeele (University of Minnesota Press, 1988).

    John Rawls, Political Liberalism (Columbia University Press, 1993).

    Lawrence B. Solum, Freedom of Communicative Action: A Theory of the First Amendment Freedom of Speech, 83 Nw. U. L. Rev. 54 (1989).

    Cass R. Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1996).

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    Legal Theory Lexicon 106: The Ideal Speech Situation

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  • Legal Theory Lexicon 105: The Rule of Recognition

    Introduction

    H.L.A. Hart’s The Concept of Law, first published in 1961, is widely regarded as the most important work of legal philosophy in the twentieth century. Among its many contributions, none is more central than the idea of the rule of recognition — a master rule that specifies the criteria by which a society identifies what counts as law. This entry in the Legal Theory Lexicon provides a short introduction to that idea, aimed as always at law students, especially first-year law students, with an interest in legal theory.

    The Problem Hart Was Solving

    To understand the rule of recognition, it helps to understand the problem it was designed to solve. Hart’s great predecessor in the positivist tradition, John Austin, had argued that law is the command of the sovereign — some person or body that is habitually obeyed within a territory but that does not itself habitually obey anyone else. On this view, a rule is a law if and only if it was issued as a command by the sovereign, backed by the threat of punishment.

    Austin’s theory has a certain intuitive appeal, but it runs into serious difficulties. Consider the rules of constitutional law. In the United States, no single person or body is the sovereign in Austin’s sense — Congress, the President, and the courts each have authority, and all of them are constrained by the Constitution. The Constitution itself was not commanded by any prior sovereign; it was the product of a founding moment, ratified through a process it helped to define. Austin’s theory struggles to account for how all of this adds up to a legal system.

    More fundamentally, Austin’s theory cannot explain how law could be rule-governed all the way down. On Austin’s picture, at the base of every legal system is sheer power — someone whom others obey, but who is not herself constrained by law. Hart found this picture deeply unsatisfying. He wanted to show that law could be normative — that legal officials are genuinely bound by standards, not merely powerful enough to impose their will.

    Primary and Secondary Rules

    Hart’s solution begins with the distinction between primary rules and secondary rules (discussed in Legal Theory Lexicon 039: Primary and Secondary Rules). Primary rules are rules of conduct — they impose duties and prohibit or require certain behaviors. Criminal prohibitions are paradigmatic examples. Secondary rules are rules about rules — they specify how primary rules are created, changed, adjudicated, and identified. They are power-conferring rather than duty-imposing.

    Hart argues that a full-blown legal system, as opposed to a simple regime of customary social rules, requires both. A society governed only by primary rules would have no mechanism for resolving uncertainty about what the rules are, no process for changing them, and no institution for authoritatively adjudicating disputes about their application. Hart identifies three secondary rules that remedy these deficiencies: (1) the rule of recognition, which identifies what counts as law; (2) the rule of change, which enables the creation, amendment, and repeal of primary rules; and (3) the rule of adjudication, which confers authority on particular institutions to determine whether a primary rule has been violated.

    Of these three, the rule of recognition is the most fundamental.

    What the Rule of Recognition Does

    The rule of recognition is the ultimate criterion of legal validity in a legal system. It specifies the features that a rule must possess in order to be recognized as a valid law — as something that is law and not merely a social norm, a moral principle, or the personal preference of a powerful individual. Hart described it as specifying “some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group.”

    In a simple legal system, the rule of recognition might be nothing more than “whatever the king commands is law.” In a more complex system like that of the United States, the rule of recognition is multi-layered. It recognizes as valid law: statutes enacted by Congress through the procedures specified in Article I of the Constitution; regulations promulgated by executive agencies pursuant to valid statutory authorization; judicial decisions rendered by courts with jurisdiction over the matter; and the provisions of the Constitution itself, which serve as the supreme criteria against which the validity of everything else is measured. When a lawyer asks whether some putative rule is the law, she is implicitly consulting the rule of recognition to find out.

    One important clarification: the rule of recognition is not itself a piece of written law. You will not find it printed in the United States Code or the Constitution. It is a social rule — a pattern of official practice, and specifically a practice of identifying and applying certain criteria as the ultimate tests for legal validity. Its existence consists in the fact that judges, legislators, and other officials actually use it.

    The Rule of Recognition as a Social Rule

    This brings us to one of Hart’s most important and distinctive claims: the rule of recognition is a social rule that exists in virtue of official practice. It is not valid because some higher rule authorizes it — that path leads to an infinite regress. It is not binding because of a moral argument — that would collapse positivism into natural law theory. It exists, and is binding, because it is practiced: because legal officials actually converge on the same criteria of validity and use those criteria as the standard by which they assess what counts as law.

    Crucially, officials must not merely behave in accordance with the rule of recognition — they must adopt what Hart calls the internal point of view toward it (discussed further in Legal Theory Lexicon 038: The Internal Point of View). They must treat it as a binding standard, invoke it in justifying their decisions, and criticize departures from it. A legal official who applies constitutional criteria of validity simply as a matter of habit or self-interest, without any sense of being bound by them, has not adopted the internal point of view, and a system in which all officials behaved this way would not, for Hart, be a genuine legal system.

    The upshot is that the rule of recognition has a dual nature. Externally, it is a social fact — a practice that can be observed and described. Internally, it is a normative standard — something that officials regard as genuinely binding on them. Hart’s genius was to see that these two aspects of the rule of recognition are not in tension: a social practice can be both an observable regularity and a genuine norm.

    What the Rule of Recognition Requires of Citizens

    The internal point of view is required of officials, but what about ordinary citizens? Hart’s answer is notably modest. Citizens need not understand the criteria of legal validity or share any general conception of what makes something law. All that is required of them is general compliance with the primary rules that the rule of recognition validates. A legal system exists when two conditions are jointly satisfied: the primary rules validated by the rule of recognition are generally obeyed by the population, and the rule of recognition itself is accepted as a binding standard by officials. The legal system does not depend on citizens having the sophisticated reflexive attitude toward the criteria of validity that it requires of judges and other legal officials.

    The Rule of Recognition and Legal Validity

    Perhaps the most practical consequence of Hart’s theory for the practicing lawyer is the concept of legal validity. A rule is legally valid if it satisfies the criteria specified by the rule of recognition. A rule that fails to satisfy those criteria is legally invalid — even if it is morally admirable, even if it is widely obeyed, even if powerful people endorse it. Conversely, a rule that does satisfy the criteria of the rule of recognition is legally valid — even if it is morally objectionable, even if it is widely resisted, even if few people think it is just. This is the core of legal positivism’s separation thesis: whether something is law is a different question from whether it is a good law or a just law.

    This insight has immediate practical importance for first-year law students. When a court asks whether a statute is unconstitutional, it is asking whether the statute satisfies the constitutional criteria of legal validity — that is, whether it passes the test set by the supreme criteria embedded in the rule of recognition. The question is not whether the statute is wise or fair, but whether it comports with the master rule that the legal system itself uses to identify what counts as valid law.

    Criticisms and Controversies

    The rule of recognition has generated an enormous amount of subsequent debate, and no entry in the Lexicon would be complete without at least acknowledging the major lines of criticism.

    Ronald Dworkin mounted the most influential early challenge. He argued that Hart’s theory cannot account for the role that legal principles — as opposed to rules — play in legal reasoning. Principles like “no man should profit from his own wrong” operate in legal argument, Dworkin claimed, but they are not validated by any identifiable rule of recognition; they derive their legal force from their moral weight, not from any social source. Hart and his successors responded in a variety of ways, and the debate gave rise to the distinction between inclusive and exclusive legal positivism — roughly, the debate about whether a rule of recognition can itself incorporate moral criteria, or whether doing so would undermine the positivist project (discussed in Legal Theory Lexicon 065: The Nature of Law).

    Conclusion

    The rule of recognition is one of the most powerful ideas in twentieth-century legal philosophy. It gives us a way of thinking about what makes something law, how legal systems are structured, and why legal validity is a distinct question from moral validity. For the first-year law student, the rule of recognition provides a theoretical foundation for much that happens in legal practice: every time a court asks whether a statute is constitutionally valid, or whether a regulation exceeds the agency’s statutory authority, it is implicitly applying the criteria of legal validity that Hart’s rule of recognition makes explicit. Understanding that structure is a significant step toward thinking like a lawyer — and like a legal theorist.

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  • Legal Theory Lexicon 104: Monism, Pluralism, and Particularism in Legal Theory

    By Lawrence B. Solum

    Introduction

    Legal theories differ not just in their substantive claims but also in their conceptual structure—in the way they organize and deploy theoretical concepts. One interesting way to think about conceptual structure focuses on the number of foundational concepts a theory uses to explain its subject matter. Monist legal theories seek to explain some theoretical domain by reference to a single master concept. Pluralist legal theories employ multiple concepts, none of which is reducible to the others. Particularist legal theories resist this kind of conceptual scaffolding altogether, focusing instead on the particular features of individual cases, practices, or phenomena.

    This entry in the Legal Theory Lexicon introduces the monism-pluralism-particularism triad and illustrates how it applies in various contexts. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Conceptual Structure in Legal Theory

    Why does conceptual structure matter? Legal theories are not just collections of claims; they are organized bodies of thought. Theories have conceptual architectures that organize specific claims and their relationships. Understanding the structure of a theory helps us to identify its commitments, evaluate its internal coherence, and compare it with rival theories. One important way in which conceptual architectures differ is captured by the monism-pluralism-particularism triad. Here are the three basic ideas: Monist theories are based on a single unifying concept that grounds the theory. For example, welfarism is a general normative theory of law that argues that laws should be evaluated on the basis of a social welfare function. Pluralist theories are based on more than one concept. For example, constitutional pluralism is a normative and descriptive theory of constitutional law that argues that there are multiple modalities of constitutional argument. Particularist theories eschew reliance on grounding concepts. For example, a theory of equity that argued that equitable decisions should be based on practical judgments informed by the virtue of phronesis (practical wisdom) might argue for the priority of the particular: equity aims for decisions that respond to the particular facts of the case and not for satisfaction of one or more normative principles.

    Monism in Legal Theory

    A monist legal theory is one that explains some domain of legal phenomena by reference to a single master concept. The monist aspires to theoretical unity and parsimony: one concept does the explanatory or normative work across the entire domain.

    Some of the most influential theories in jurisprudence can be viewed as monist in this sense. H.L.A. Hart’s account of law, presented in The Concept of Law, centers on the concept of the rule of recognition—a social rule that identifies the criteria of legal validity in a given legal system. For Hart, the rule of recognition is the master concept that unifies a legal system and distinguishes it from mere power or morality. Hans Kelsen’s pure theory of law exhibits a different but comparably monist structure: the entire legal order is organized by reference to the Grundnorm, a basic norm that confers validity on all other norms in the hierarchy. Of course, Hart and Kelsen use other concepts as well, but with respect to the central object of their theories (the nature or concept of law), a single central concept does the important work.

    Ronald Dworkin’s theory of law as integrity has monist aspirations as well. For Dworkin, the single master principle—that adjudication must cohere with the moral principles that best fit and justify prior legal practice—explains what law is and how judges should reason.

    In normative legal theory, economic analysts of law have often embraced a version of monism. On the strong form of this view, a single concept—efficiency, utility or wealth maximization—is the correct standard for evaluating legal rules across all domains, from tort to contract to property. Richard Posner’s influential early work exemplified this kind of economic monism, arguing that the common law had evolved toward efficient outcomes and ought to be shaped by efficiency considerations going forward.

    In private law theory, Ernest Weinrib’s formalism represents a distinctive variety of monism. Weinrib argued in The Idea of Private Law that the inner morality of private law is entirely explained by corrective justice—understood as the Aristotelian notion of rectifying a wrongful gain or loss within a bipolar relationship between plaintiff and defendant. Weinrib was explicitly hostile to pluralistic accounts that mix corrective justice with deterrence or distributional considerations.

    Monist theories have obvious attractions: they are elegant, systematic, and offer the prospect of clear, unified answers to questions across an entire domain. Their characteristic vulnerability, however, is overextension—the single master concept may not be adequate to explain or evaluate the full range of phenomena the theory purports to cover.

    Pluralism in Legal Theory

    A pluralist legal theory is one that employs multiple foundational concepts, none of which is reducible to the others. Pluralism acknowledges the complexity of its subject matter and declines to force everything into a single mold.

    Lon Fuller’s account of the inner morality of law in The Morality of Law is an influential example of pluralism in jurisprudence. Rather than identifying a single criterion of legality, Fuller articulated eight principles of legality—requirements that law must satisfy to count as genuine law rather than failed law: generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, stability, and congruence between official action and declared rule. These eight principles are not derivable from a single master concept; they are genuinely plural.

    Philip Bobbitt’s theory of constitutional modalities offers another important illustration. In Constitutional Fate and Constitutional Interpretation, Bobbitt identified six modalities of constitutional argument—textual, historical, structural, prudential, doctrinal, and ethical—each representing an independent form of legitimate constitutional reasoning. Crucially, for Bobbitt, these modalities cannot be ranked or unified by any master meta-modality; they are genuinely irreducible to one another.

    In private law, many theorists have resisted both economic monism and corrective-justice monism, arguing that tort law, for example, is best understood as serving several distinct values: corrective justice, deterrence, compensation, and sometimes distributional goals. Jules Coleman’s later work moved in a pluralist direction, as did theories of civil recourse developed by John Goldberg and Benjamin Zipursky, which combine a civil-recourse rationale with other normative considerations that cannot be reduced to a single master concept.

    Pluralism’s characteristic virtue is adequacy: by allowing multiple concepts to do theoretical work, pluralist theories can accommodate a wider range of phenomena without the distortions produced by forcing them into a single master concept. The characteristic vulnerability of pluralism is the threat of ad hocness—and the possibility that a more disciplined theory might show that the multiple concepts are in fact derivable from a unified source.

    Cass Sunstein’s Legal Reasoning and Political Conflict develops a related pluralist theme. His account of “incompletely theorized agreements” argues that judges and citizens can converge on legal outcomes while disagreeing about the underlying principles that justify them—suggesting that pluralism at the level of justification may be compatible with agreement at the level of results.

    Particularism in Legal Theory

    A particularist legal theory is one that resists conceptual generalization altogether. Rather than explaining phenomena by reference to general concepts—whether one or many—the particularist maintains that the relevant features of individual cases or practices cannot be captured by any general theory.

    Particularism in legal theory draws on a tradition in moral philosophy associated with scholars such as Jonathan Dancy. In ethics, moral particularism holds that a feature of a situation that counts as a reason in one context may count as no reason, or even as a reason in the opposite direction, in another. There are no universal principles; only the particular situation, considered in all its complexity, determines what ought to be done. The parallel in legal theory is the view that general concepts—whether monist or pluralist—necessarily distort the phenomena they purport to explain.

    Richard Posner’s version of legal pragmatism has particularist elements. Posner was skeptical of grand theorizing in law and argued that judges should reason from the particular features of the case before them, taking into account consequences and practical wisdom rather than applying abstract principles derived from moral philosophy or economic theory. Similarly, Karl Llewellyn’s concept of situation sense—the practiced ability of a skilled lawyer or judge to perceive what a type of situation calls for—has particularist overtones. Legal realism more broadly was suspicious of the idea that legal reasoning could be reduced to the application of general conceptual schemes.

    The particularist’s characteristic strength is sensitivity: by declining to impose a conceptual grid on the phenomena, the particularist can remain attentive to features of particular cases that a more schematic theory might overlook. The characteristic vulnerability of particularism is incapacity for generalization: legal practice inevitably involves applying general norms to particular cases, and a theory that cannot support any generalizations may be unable to explain or guide that practice.

    Hybrid Structures

    The monism-pluralism-particularism triad identifies three pure types of legal theories, but many legal theories combine more than one type. For example, a normative theory might have a monist core with a pluralistic account of defeasibility conditions. This structure is exemplified by some forms of originalism, which identify a core principle (the original meaning is binding) accompanied by a plural set of defeasibility conditions —for example: (1) longstanding precedent, (2) reliance interests generated by historical practice, and (3) an escape clause for truly horrendous consequences—. Likewise, an explanatory legal theory might contend that a single factor (efficiency) explains almost all of the common law, but that exceptional cases require particularistic explanation—where a rare causal mechanism explains a deviation from the general rule.

    Monism, Pluralism, Particularism, and Method

    The monism-pluralism-particularism triad connects with broader questions about the role of conceptual analysis in legal theory. Monist and pluralist theories share a commitment to the idea that legal phenomena can be systematically explained by reference to general concepts. What they dispute is whether one concept or many are needed.

    The particularist challenges this shared commitment. On the particularist view, the drive toward conceptual systematization misrepresents the nature of legal reasoning and practice. Concepts, no matter how carefully deployed, will always be too blunt an instrument to capture the texture of individual cases. This disagreement has methodological implications. Monists and pluralists tend to favor conceptual analysis and theory-construction as the primary methods of legal theory. Particularists favor close attention to particular cases, practices, and institutions—a more phenomenological or case-based methodology. Students will encounter both orientations in their legal education, and it is worth noting that the case method of legal instruction has a particularist dimension that sits in some tension with the general doctrinal principles that professors and students jointly construct from that same material.

    Conclusion

    The distinction between monist, pluralist, and particularist legal theories illuminates a dimension of legal theory that is often left implicit. Every legal theory has some conceptual structure, and that structure shapes the theory’s characteristic strengths and vulnerabilities. Recognizing whether a theory is monist, pluralist, or particularist helps you to understand what it is trying to do, why it succeeds or fails in particular domains, and how it compares to rival theories.

    As always in legal theory, there are no simple answers. Monism’s elegance comes at the cost of potential distortion; pluralism’s adequacy comes at the cost of potential ad hocness; particularism’s sensitivity comes at the cost of generality. Navigating these trade-offs is one of the central tasks of legal theory, and an awareness of the triad introduced in this entry is a useful tool for doing so. I hope that this entry has provided a helpful first orientation to these ideas.

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  • Legal Theory Lexicon 103: Democracy

    By Lawrence B. Solum

    Introduction

    The concept of democracy is clearly one of the most important ideas in normative legal theory in general and normative constitutional theory in particular. Alexander Bickel’s discussion of a “counter-majoritarian difficulty” is just one of many places where legal arguments rely on the concept of democracy.

    This Lexicon entry explores the concept of democracy from a variety of perspectives. An important starting point for the discussion is the observation that there are fundamental disagreements about what democracy is and how a democratic government ought to operate. One way to think about those disagreements is to invoke the concept-conception distinction (explored in Legal Theory Lexicon 028: Concepts and Conceptions). We use the word “democracy” to refer to a concept, but disagree about how that concept should be understood. To avoid confusion, we can discuss different and competing conceptions of democracy.

    As always, this Lexicon entry is aimed at law students (especially first year law students) with an interest in legal theory.

    Democratic Legitimacy

    What role do conceptions of democracy play in legal theory? One important role is captured by the idea of “democratic legitimacy.” One can argue that a legal norm (e.g., a legal rule created by a statute) is more legitimate if it is created via process with democratic input and less legitimate if it comes into being via a process that excludes citizens from having a say. This way of thinking about democratic legitimacy assumes that it is a scalar (matter of degree) and not a binary (either present or absent). Thus, statutes enacted by Congress have a greater degree of democratic legitimacy than decisions of the United States Supreme Court. Members of Congress are elected, whereas Supreme Court Justices are appointed for life terms. But even the Supreme Court has a degree of democratic legitimacy–because the Justices are nominated by an elected President and confirmed by an elected Senate.

    Thick and Thin Conceptions of Democracy

    Conceptions of democracy differ with respect to what we can call “thickness.” This idea can be illustrated by contrasting the conception of “majoritarian democracy” with that of “substantive democratic equality.”

    Majoritarian Democracy

    The majoritarian conception of democracy is familiar. A decision is democratic to the extent that it conforms to the preferences of a majority of citizens. So, a statute enacted by Congress would possess a high degree of democratic legitimacy if a majority of citizens approve of the statute, and would lack democratic legitimacy if it is opposed by the majority.

    Substantive Democratic Equality

    Although the majoritarian conception of democracy is widely discussed and frequently deployed in political discourse, it can be criticized on the ground that it does not reflect a substantive ideal of democratic equality. Suppose that some group, e.g., women, have the right to vote, but their exercise of that right is frequently impeded by a variety of structural barriers: perhaps, pervasive sexism and patriarchy prevent some women from voting at all and many women unjustly lack the resources to inform themselves about the issues at stake in elections when they do vote. It might be argued that democratic legitimacy requires the substantive equality of women, and hence that democracy requires policies that provide women with resources and rights that would enable them to participate in democratic politics on an equal basis with men.

    Thick and Thin

    We can use the terms thick and thin to describe an important difference between the majoritarian conception of democracy and the substantive equality conceptions. On the majoritarian conception, majority voting can confer democratic legitimacy: if democratic procedures are followed, then the outcome is legitimate. This account relies on a thin conception of democracy. On the substantive equality conception, more is required. Substantive equality involves a thick conception of democracy.

    Deliberative Democracy

    Another approach to democratic theory deploys the idea of deliberation. The basic idea behind the deliberative conception of democracy is that voting alone is insufficient for a well-functioning democratic society. Instead, full realization of the democratic ideal requires that citizens participate in deliberation that enables them to make decisions on the basis of adequate information and after consideration of opposing views. In other words, democratic legitimacy requires that the preferences of citizens be formed by reasoned deliberation.

    Theories of deliberative democracy are complex and there are several different versions of the deliberative conception. Some of the features that are frequently mentioned include: (1) an obligation to provide reasons, (2) a requirement that reasons be based on values that can be shared by reasonable citizens given the pluralism that characterizes modern democratic societies, (3) open-mindedness, a willingness to change one’s mind on the basis of reasons advanced by others, (4) inclusiveness of the process of deliberation such that all reasonable citizens can engage in the deliberative process.

    The deliberative conception of democracy is frequently challenged, often on the grounds that it relies on unrealistic assumptions about the way politics actually works. Alternatively, critics might argue that the deliberative conception asks too much of citizens, who would be required to spend much or all of their free time to become well informed and then deliberate about even a few of the most important issues facing a democratic society.

    Democracy and Normative Constitutional Theory

    Conceptions of democracy play an important role in normative constitutional theory. For example, the institution of judicial review of democratically enacted legislation can be challenged on the ground that it is undemocratic and therefore illegitimate. This argument is at the heart of contemporary arguments for the abolition of judicial review and also forms a basis of arguments for term limits for Supreme Court Justices.

    The implications of different conceptions of democracy are especially important for John Hart Ely’s representation-reinforcement theory, articulated in his famous monograph, Democracy and Distrust. Ely argued that judicial review should only be employed to protect democratic processes. Ely’s version of this theory was based on a majoritarian conception of democracy: Ely famously criticized Roe v. Wade on the ground that the Supreme Court acted illegitimately by going beyond the protection of majoritarian democracy. Some critics of Ely have agreed with Ely that judicial review should be limited to the protection of democracy but argued that the substantive democratic equality conception provides the basis for an argument that Roe v. Wade is justified on democratic grounds: reproductive autonomy, the argument contends, is essential for equal participation by women in democratic politics.

    Conclusion

    Democracy is a big topic, and this Lexicon entry has only scratched the surface!

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  • Legal Theory Lexicon 102: Motives and Functions

    By Lawrence B. Solum

    Introduction

    The law frequently deploys the idea that actions, events, and communications have motives, purposes, or functions. Consider the following list of questions:

    • What is the goal of that statute?
    • What function did the clause of the contract perform?
    • What was the purpose of the military intervention in Venezuela?
    • What motivated her sale of shares in the company?

    This Lexicon entry explores an important distinction between subjective motivations, on the one hand, and objective functions, on the other. These concepts are deployed in a wide variety of legal contexts, playing an important role in theories of statutory interpretation, the context of judicial review, and elsewhere. The basic idea of the distinction is simple. When we think about purposes or goals, we can distinguish between motives (psychological states) and functions (objective properties). The motive for enacting a statute might be “to get campaign donations from a special interest group,” but the function of the statute might be quite different, “to enable the production of greater quantities of petroleum.”

    As always, this Lexicon entry is written for law students, especially first-year law students, with an interest in legal theory.

    An Example of the Distinction in Action: Statutory Interpretation and Construction

    Simplifying, let us assume that there are three basic approaches to statutory interpretation and construction:

    Textualismholds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the meaning (communicative content) of the statutory text.

    Subjective Intentionalism holds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the motives (subjective intentions) of the legislators who enacted the statute

    Objective Purposivism holds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the function (objective purpose) of the enactment.

    Let’s put textualism to the side and focus on the difference between subjective intentionalism and objective purposivism. One might think that intentions and purposes are more or less the same thing, and hence that intentionalism and purposivism are just different names for the same theory. But that would be a mistake. Subjective intentions are motives or psychological states. Objective purposes are functions that statutes are designed to achieve.

    The subjective intention of a legislator might have the same content as the objective purpose or function that the statute was designed to achieve. For example, a legislator might vote for a gun control statute that prohibits the ownership of assault rifles in order to reduce the incidence of casualties from mass shootings, and that might also be the function that the statute was designed to achieve. But motive and function may be quite different. The assault rifle statute might have been motivated by the legislators’ desire to compromise between two important constituencies, hunters and gun control advocates.

    Consider a hypothetical involving the application of the assault rifle statute to a new weapon, a rifle that looks like a traditional hunting rifle but has the same capacities as a military assault rifle. A judge applying an objective purposivist approach to statutory interpretation might conclude that the new weapon is an assault rifle because it has the same level of casualties as military-style assault weapons. But the application of subjective intentionalism might lead to the opposite result. The new weapon looks like a hunting rifle and the political motivations of the legislators (their subjective intentions) did not extend to prohibition of rifles marketed to and primarily used by hunters.

    What are Functions?

    The basic idea of subjective intentions or motivations is relatively easy to grasp. Humans act from motives all the time! But the notion of a function or objective purpose is a bit trickier. One might be tempted to say that functions are just motivations in disguise. Or one might have the thought that objective purposes are really just hypothetical or counterfactual intentions.

    One way to get at the notion of function or objective purpose is by thinking about artifacts–things that are designed to accomplish some purpose or to serve some function. A classic example is a clock. Clocks are designed to serve a function, to tell time. But it need not be the case that any particular clock does tell time: if there is a power outage, the clock built into my stove no longer tells time (until it is reset and restarted), even though that is its objective. Moreover, a clock can have the function of telling time, even if the clock maker did not have the subjective intention that it should do so. We can imagine someone building a clock from a set of instructions in order to produce a beautiful object and without any intention to build a clock that actually works–even if the clock does in fact tell time. And we can even imagine that the set of instructions was produced by an artificial intelligence (such as a large language model) that lacks subjective intentions (motivations) altogether!

    So, a legislature might enact a statute that was drafted using a model statute from another jurisdiction. The legislative staffer who did the drafting could simply have copied language from the model without giving any thought to functions that the statute would serve, and members of the legislature could vote for the statute on the basis of political motivations–again without thinking about the functional construction of the statute.

    Conclusion

    The distinction between motive and function is a basic one deployed by the law in many contexts, although this Lexicon entry has explored the distinction in the context of statutory interpretation and construction. The key to grasping the distinction is the idea of function, and that idea is best approached via the notion of an artifact designed to perform a function.

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  • Legal Theory Lexicon 101: General Law

    By Lawrence B. Solum

    Introduction

    The idea of “general law” or “general common law” is usually introduced to law students in the course on Civil Procedure in connection with Erie Railroad v. Tompkins, 304 U.S. 64 (1938). In that course, students might learn about the distinction between two kinds of common law, local and general. Local common law was particular to a given state or region: for example, local customs or practices might form the basis of common law norms governing property law. General common law was shared by all common law jurisdictions: for example, contract law was general and was, in theory, the same in every state, England, and other common-law jurisdictions. The idea of “general law” extended beyond the common law and encompassed international law, maritime law, and admiralty law–bodies of law that were thought to be uniform across national boundaries and to extend to both civil law and common law jurisdictions.

    This Lexicon post introduces the idea of “general law.” As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    The Erie Doctrine

    Because the general common law was not the law of any particular jurisdiction, federal courts were free to depart from state-law precedents when deciding diversity-of-citizenship cases involving general common law. This understanding of the role of federal courts in general common law cases was reflected in the Supreme Court’s decision in Swift v. Tyson, 41 U.S. 1 (1842), but the general common law was well-established long before Swift was decided. The workability of the general common law depended on voluntary agreement between cooperating jurisdictions to converge on a uniform set of legal rules and standards governing general common law topics, but the system of convergence was never perfect and began to break down in a series of cases including Black and White Taxicab and Transfer Company v. Brown and Yellow Taxicab and Transfer Company, 276 U.S. 518 (1928), in which the federal courts adopted general common law rules that were clearly different than the common law rules adopted by some states.

    Erie Railroad v. Tompkins announced that there is “no general federal common law” and purported to overrule Swift v. Tyson. The reasoning of Erie was influenced by Justice Holmes’s long campaign against Swift, expressed most famously in his dissent in Southern Pacific Company v. Jensen, 244 U.S. 205 (1917): “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.” Holmes’s view was clearly influenced by legal positivism as articulated by John Austin. Austin’s version of positivism, “sovereign command theory,” held that law is the command of the sovereign backed by the threat of punishment. If law is always the command of a particular sovereign, then common law must be law made by the judges of some particular nation or state. If the common law of some state (e.g., Ohio) is made by Ohio judges, then all common law is really local common law and the category of general law is an empty set.

    The legal basis for the Court’s decision in Erie is notoriously unclear. But Erie seems to have initiated a process that led to the demise of the distinction between general and local common law. After Erie, federal courts were bound to follow the common law rules of particular states irrespective of whether the question was classified as one of general or local common law.

    The General Law Revival

    Until recently, the concept of general law was considered moribund. American law students learned about the distinction as a historical curiosity in connection with the Erie case. For this reason, the notion that contract law was general law was not likely to play a significant role in a course on contract law. I think it is fair to say that many American lawyers, judges, and scholars may not have heard of the concept of general law or had forgotten about a concept that was mentioned briefly in their contracts course. Moreover, Erie is not always taught in the course of civil procedure, and one can learn the Erie rule without discussing the general law at all.

    But the notion of general law is now undergoing a revival as a result of the scholarship and theorizing of Professor Stephen Sachs, along with others such as William Baude and Jud Campbell. This revival is connected to what is usually called “Original Law Originalism,” a theory that holds that the “original law” remains in effect until it is lawfully changed. Because the original law in the United States included the general law, that law remains in effect unless Erie lawfully did away with it. If Erie was wrongly decided, then courts might still be obliged to follow the general law–even if judges today are unaware of that obligation.

    General Law and the Constitution

    The general law revival has played an especially prominent role in the context of constitutional law–particularly in connection with unenumerated constitutional rights. For example, it might be argued that the rights retained by the people, referenced in the Ninth Amendment and the privileges or immunities of citizens of the United States recognized by the Fourteenth Amendment were understood as general law rights. If this theory is correct, then the Supreme Court’s unenumerated rights jurisprudence would need to be adjusted to take the general law into account.

    General Law, Natural Law, and Legal Positivism

    Recall that Justice Holmes’s critique of the general law was grounded in legal positivism–a theory of the nature of law. Although Holmes seems to have relied on Austin’s sovereign command theory, contemporary legal positivism has gone in a different direction. The most influential strands of legal positivism in the Anglophone world have been heavily influenced by the ideas of H.L.A. Hart and Joseph Raz. In particular, Hart’s theory dispenses with the notion that law must be the command of a sovereign and instead relies on the notion of a “rule of recognition,” a social rule or norm shared by officials. The rule of recognition provides the criteria for identifying the content of the law. Hart’s view might be used to provide a positivist account of the general law as system of voluntary cooperation among common law jurisdictions in which judges adopt the general common law rules recognized by a majority of cooperating jurisdictions. The relevant rules of recognition of the cooperating jurisdictions accept this practice and hence the general common law is the positive law of those jurisdictions.

    What about Holmes’s contention that the common law is not a “brooding omnipresence in the sky.” Here Holmes seems to be referring to natural law theory, perhaps assuming that natural law theory is based on divine commands by God (the brooding omnipresence). Whatever misconceptions Holmes might have had about natural law theory, there is substantial evidence that the historical concept of the general law was based in part on the natural law idea that right reason could discover moral principles that should guide judges and lawmakers irrespective of their national or subnational affiliations. This would provide an account of the idea that the general law (derived from the natural law) is the same throughout the world.

    The natural law account of the content of the general law might work for those who subscribe to natural law theory generally, but it will create problems for legal positivists, especially for those who subscribe to what is called “exclusive legal positivism.” One way of articulating the exclusive version of legal positivism is via the respective role of moral facts and social facts in determining legal content. Legal positivism would be the view that legal content is determined by social facts, and the exclusive version of legal positivism would be the view that only social facts can determine legal content. Joseph Raz was one of the most prominent proponents of exclusive legal positivism–although space does not permit a reconstruction of his argument for that view in this Lexicon entry.

    If exclusive legal positivism is correct and if the historical concept of the general law is bound up with a natural law theory, then the general law revival might be in trouble. If the historical view that general law was universal is based on a mistaken view of the nature of law, then that conception of the general law cannot be revived–as it would rest on a philosophical mistake. Perhaps, the general law could be saved by substituting the positivist system-of-voluntary-cooperation account, but then the general law that would be revived would be a very different version of the historical version that might have been part of the original law.

    Conclusion

    The revival of the general law is certainly one of the most interesting and controversial developments in contemporary legal theory. The issues raised by the revival are deep and complex. So, this Lexicon entry has only begun to explore the idea of the general law.

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    Bibliography

    • William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185 (2024).
    • William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467 (2024).
    • Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655 (2013).
    • Danielle D’Onfro & Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910 (2023).
    • William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984).
    • Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006).
    • Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156 (2017).
    • Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019).
    • Stephen E. Sachs, Life After Erie (Scalia Lecture, Harvard Law School, Nov. 1, 2023).

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  • Legal Theory Lexicon 100: Constitutional Pluralism

    By Lawrence B. Solum

    Introduction

    The world of contemporary constitutional theory is complicated. Although originalism is the focus of attention in many recent discussions, there are a plethora of nonoriginalist positions. One of these is usually called “constitutional pluralism,” an approach to constitutional interpretation and construction which holds that constitutional practice should be guided by multiple “modalities” of constitutional justification, including text, historical practice, precedent, and others. This Lexicon post provides an introduction to constitutional pluralism for law students (especially first year law students) with an interest in constitutional law and theory.

    Constitutional Law as a Complex Argumentative Practice

    Constitutional pluralism can be theorized in several ways, but for the present purposes, let us stipulate that constitutional law ought to be viewed as a complex argumentative practice. When a judge decides a case, the judge ought to justify their decision by employing the legitimate forms of constitutional justification, and should exclude other considerations.

    So, a judge may properly consider the meaning of the constitutional text and precedent and write an opinion that justifies their decision on the basis of those two modalities but it would be improper to consider the impact of the decision on the electoral success of a political party or the benefits of the decision for a special interest group.

    Importantly, constitutional pluralism is grounded on the idea that constitutional law is a practice–a way of doing things with an internal logic and structure. Frequently, constitutional pluralists claim that this account of constitutional law is descriptively accurate. Constitutional pluralism is the way lawyers and judges actually do constitutional law. This strategy avoids or brackets another set of issues about the normative justification for pluralism. In other words, some constitutional pluralists believe that constitutional pluralism is just the way we already do constitutional law and avoid the question whether the status quo is normatively justified.

    What are the modalities of constitutional justification?

    There is no “official” list of the legitimate forms of constitutional argument. Different pluralists have different lists.  For illustrative purposes, I will employ five modalities, which I will call (1) text, (2) historical practice, (3) precedent, (4) constitutional values, and (5) institutional capacities. But additional modalities could be added to the list, including “structure,” “policy consequences,” “morality,” “constitutional narratives,” and “constitutional identity.”  I will briefly discuss these possible additions to the list.

    Text: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of meaning of the constitutional text. Thus, it would be legitimate to argue for a constitutional rule that extends birthright citizenship to the American born children of undocumented parents on the ground that the text of the first clause of Section One of the Fourteenth Amendment requires that result. Arguments from original public meaning would be textualist arguments, but a constitutional pluralist might also make arguments from the contemporary meaning of the text.

    Historical Practice: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of historical practice, including statutes enacted by Congress, actions of the executive branch, and actions by state governments. Thus, if Congress has enacted many statutes delegated legislative power to independent regulatory agencies over a long period of time, that would constitute a strong argument for the constitutionality of that practice and against a strong version of the nondelegation doctrine.

    Precedent: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of precedent including (but not limited to) the decisions of the Supreme Court. Thus, if the Supreme Court has adopted a set of constitutional doctrines in the Noel Canning case, there is an argument from precedent that those doctrines are justified. Arguments from precedent are strongest if there are many precedents extended over a long period of time in favor of a constitutional rule or standard. Such arguments are weakest if there is only one precedent, it is very old, and has been undermined (but not overruled) by subsequent cases.

    Constitutional Values: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of values that are immanent in constitutional practice, paradigmatically values that express the goals, functions, and justifications for the provisions of the constitutional text. Thus, equality is a constitutional value because it represents the goal of the Equal Protection Clause, and liberty is a constitutional value because it represents the goal of the Due Process Clause.

    Institutional Capacities: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of the functional capacities of constitutional institutions. For example, it could be argued that Congress is the constitutional institution that is best situated to determine whether a given policy question should be resolved by Congress itself, by a regulatory agency, or by the Courts. If this is the case, this argument supports the conclusion that a delegation of regulatory authority to an agency is constitutional.

    Possible Additions to the List: Different pluralists may have different lists of modalities. For example, “structure” is sometimes listed as a modality. I have excluded it, because I believe that constitutional structure arguments can be reduced to textual arguments (implications from the structure of the text) or constitutional values arguments (values that are implicit in the structure of the constitution rather than a particular provision). Other modalities might include: (1) policy consequences or pragmatism, (2) morality or natural law, (3)  constitutional narratives or historical stories about constitutional development, and  (4) constitutional identity or arguments from how the American people understand their identities as constituted by the constitution. And there could be other modalities as well.

    The Relationships between the Modalities

    Conceptually, we can imagine several versions of constitutional pluralism, each with its own account of the relationship between the modalities.  Here are some of the possibilities:

    The Standard Account, No Hierarchy: The standard account is that all of the modalities are equal, independent, and sufficient.  They are equal in the sense that there is no hierarchy among the modalities.  They are independent in the sense that an argument from one modality (e.g., text) is not required to take into account the other modalities (e.g., precedent). They are sufficient in the sense that a constitutional doctrine can be justified on the basis of any one modality, even if all of the other modalities point the other way. On the standard, account, if a doctrine or decision can be justified by precedent, then the judge can legitimately reach that decision, even if the constitutional text, historical practice, constitutional values, and institutional capacities all point the other way. Indeed, the judge is not required to even consider all the modalities: if precedent supports an outcome, then the judge can stop there. In other words, if the modalities conflict, judges must simply choose an outcome, because pluralism does not tell them what to do on the standard account.

    The Balancing Theory, the Modalities Must Be Balanced: A second possible version of constitutional pluralism would be based on the idea of balancing (in a loose sense). On the balancing theory, a judge ought to consider all of the modalities. If they all support one outcome or doctrine, then the judge must reach that outcome. But if the modalities point in different directions, then they must be balanced. For example, if both precedent and historical practice strongly support one outcome, but the text points in a different direction, then the judge is required to determine the strength of each modality. The judge might conclude that since there are many precedents and a longstanding historical practice in favor of one doctrine (say a very weak nondelegation doctrine), the judge may decide that this outweighs the contrary argument from constitutional text.

    The Hierarchical Alternative, Lexical Ordering of the Modalities: A third possible version of constitutional pluralism would be based on the idea that there is a lexical ordering of the modalities. For example, the text modality might come first, if the text is clear, then text governs. But if the text is unclear, but there is a controlling precedent (or set of precedents), then precedent governs. If neither text nor precedent is clear, then a longstanding and consistent historical practice will govern. But if historical practice neither longstanding nor consistent, then constitutional values will be considered. If none of the other modalities resolves the case, then institutional capacity will be decisive. Of course, the hierarchical ordering could be different or more complex.

    Constitutional Pluralism and Underdeterminacy

    One objection to the standard account of Constitutional Pluralism flows from the fact that it implies that most constitutional questions have many right answers. In other words Constitutional Pluralism leads to the underdeterminacy of constitutional decisionmaking.  Indeed, it could be argued that almost all of the most important constitutional questions (federalism, separation of powers, the content of unenumerated constitutional rights, and so forth) can be answered in radically different ways–each of which can be justified using constitutional pluralism.

    As a descriptive matter, this underdeterminacy might be counted as a plus factor. If pluralism is a descriptive theory of constitutional law, then it could be argued that pluralism explains why constitutional law is underdeterminate as a matter of fact.  But as a normative view, the underdeterminacy of constitutional pluralism might be seen as a negative. It might be argued that constitutional pluralism makes constitutional decisionmaking depend on the political ideologies and moral values of judges (especially Supreme Court Justices).

    The underdeterminacy of Constitutional Pluralism entails that it is difficult to evaluate for those who believe that we should evaluate normative constitutional theories on the basis of the outcomes they will produce. Constitutional Pluralism can justify both Roe v. Wade and Dobbs, both Wickard v. Filburn and United States v. Lopez, both Humphrey’s Executor and a decision to overrule that case. Constitutional pluralism opens the door to constitutional outcomes that are conservative, progressive, liberal, and libertarian.

    Conclusion

    Constitutional Pluralism is one of the most important and influential constitutional theories. One reason for its importance is that captures significant aspects of actual constitutional practice.

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    Legal Theory Lexicon 100: Constitutional Pluralism

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  • Legal Theory Lexicon 099: Semantics and Pragmatics

    By Lawrence B. Solum

    Introduction

    This Lexicon entry provides an introduction to the distinction between semantics and pragmatics–ideas that play a fundamental role in theoretical linguistics and the philosophy of language. Although the terminology is unfamiliar to many lawyers, the basic idea behind the distinction is fundamentally important to theories about the interpretation and construction of legal texts. “Semantics” deals with the meaning of words and phrases as well as the role that syntax (grammar) and punctuation play in communication.  “Pragmatics” deals with the role of intention and context. Lawyers sometimes express this distinction using other words. The lawyer’s idea of literal meaning is related to semantics, whereas the notion of contextual meaning is connected to pragmatics.

    Before going further, it is important to note that the word “pragmatism” may have associations in legal theory that are only remotely connected to the notion of “pragmatics” in theoretical linguistics. “Pragmatism” is associated with the consequentialist approach to normative legal theory developed by the great judge and scholar, Richard Posner. But a pragmatic approach to the interpretation and construction of legal texts is not the same thing as the “pragmatics,” which focuses on the role of intention and context in the production of legal meaning.

    The Foundations of the Semantics-Pragmatics Distinction

    The distinction between semantics and pragmatics is rooted in ideas about how communication works. When someone uses words to communicate, we might be tempted to assume that the meaning of what they say can be recovered by carefully parsing each word or phrase and then reconstructing the relationship between these terms by attending to the grammar and punctuation that connects them. In other words, we might think that semantics can do all the work of interpretation. But that would be a mistake, because it would ignore the roles of intention and context in the production of meaning.

    One important role of context stems from the fact that words and phrases in a natural language such as English are pervasively ambiguous: they have more than one meaning or sense. So, the word “bank” in a statute might represent a financial institution or the land abutting a river. If we tried to interpret the statute without taking context into account, we might not be able to discover which sense of “bank” was intended.  Fortunately, readers of statutes do consider context. So, if the statute is the Clean Water Act, it would be likely that “bank” meant the land abutting a river, but if the statute was the Banking Act of 1933, it would be almost certain that “bank” meant a financial institution.

    Another important role of context and intention stems from the fact that written texts (and oral utterances) are rarely (if ever) fully explicit. Putting it another way, much of the content of what we say and write is implicit. Consider the following simple example:

    Jack and Jill are married.

    Literally, this sentence means something like: “It is the case that Jack is married, and it is the case that Jill is married.” But in context it is likely that this sentence conveyed an important additional information, which we can put in brackets.

    Jack and Jill are married [to each other].

    If we provide some additional context, this becomes especially easy to see:

    Have you heard the good news? Jack and Jill are married. Finally!

    The implicit [to each other] is conveyed implicitly.  And this enables us to see that semantics is not doing all the work! Pragmatics is playing a key role.

    A Typology of Pragmatics

    Another way to appreciate the role of pragmatics and how it is different from semantics is via a simple typology that enables us to differentiate the different ways that pragmatics operates

    Contextual Disambiguation–Although words in English and other natural languages are frequently ambiguous (have more than one sense), readers and listeners are able to disambiguate (pick out the intended sense) by attending to context. The “bank” example discussed above illustrates this role of pragmatics.

    Implicature–“Implicature” (a word coined by Paul Grice) refers to the phenomena whereby a speaker or author says one thing, but means something quite different. The classic example is a letter of recommendation that says, “Joseph was punctual and regularly attended class.” In context, if this is the best that can be said of Joseph, the real message of the letter is something like, “Don’t hire Joseph.”

    Impliciture–The word “implicture” (coined by Kent Bach) is a technical term that refers to unstated content. The example of “Jack and Jill are married [to each other]” illustrates the idea of implicit but unstated content to which the word “implicit-ure” refers.

    Presupposition–Sometimes, we say something that presupposes something else. For example, if I say, “Cass is no longer the director of OIRA,” my statement presupposes that Cass was at one time the director of OIRA, even though I did not say that explicitly.

    Modulation–We can use words in new ways that are nonetheless conveyed to listeners or readers via their understanding of the context. For example, the phrase “recess of the Senate” in the Recess Appointments Clause may have conveyed a new idea, the intersession recess of the newly created Senate. Indeed, the word “modulation” itself was used in a new way when it was first used to refer to the linguistic phenomenon of modulation.

    This typology is not intended to be exhaustive. There may well be other recurring pragmatic mechanisms.

    Semantics

    If pragmatics is about context, then we might say that semantics is about features of language use that recur across contexts. One important aspect of pragmatics involves the meaning of individual words and of phrases. Legal interpretation frequently focuses on this aspect of semantics with lawyers and judges arguing about the proper “definition” of a key word or phrase in a statute. But there are other semantic mechanisms that contribute to meaning, including syntax (or grammar). Understanding a sentence requires us to understand the relationship between its parts and hence to understand how nouns, verbs, prepositions, adjectives, and adverbs operate. Written communication involves punctuation marks: lawyers know all too well that the placement of a comma can change the meaning of a sentence.

    Compositionality

    Sometimes meaning is compositional–the meaning of a whole sentence can be gleaned from the meaning of each individual word and the syntactic relationships between words. When lawyers talk about the literal meaning of a sentence in a statute or other legal text, they are frequently referring to the compositional meaning.

    But not all meaning is compositional. This is clear in the case of idioms. If I say, “Congress kicked the can down the road,” I am not saying anything about a can that was kicked further along some highway or byway.  The meaning of my utterance was not compositional! Likewise, the meaning of any sentence that includes implicit content is not compositional–because the implicit content cannot be gleaned from the words alone.

    Conclusion

    There is much more to be said about the semantics-pragmatics distinction, but the aim of this Lexicon entry has been very modest. The overwhelming majority of law students enter law school with no exposure to either linguistics or the philosophy of language. But lawyers have to deal with meaning, and the semantics-pragmatics distinction is an essential tool for tackling the interpretation of legal texts in a rigorous way. This is especially important for textualists, who aim to recover the communicative content of constitutions, rules, regulations, and statutes.

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  • Legal Theory Lexicon 098: Speaker’s Meaning and Sentence Meaning

    By Lawrence B. Solum

    Introduction

    Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do.  In a previous Legal Theory Lexicon entry, a distinction was made between “interpretation” and “construction.”  Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities: (1) discovering the “meaning” of a legal text, and (2) determining the legal effect given to the text.  Thus, statutory interpretation aims to recover the meaning of the words and phrases of a statute in context, whereas statutory construction provides the legal norms that courts will use to apply the text to the facts of a particular case.

    With this distinction in mind, we can ask the question, “How do we figure out the meaning of a legal text?” In some cases, we can tell what the statute unambiguously means without asking the “how” question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for a theory of communication.

    One such theory was developed by the philosopher Paul Grice.  A key component of Grice’s theory is the distinction between “speaker’s meaning” and “sentence meaning.”  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the Lexicon provides a basic introduction to Grice’s ideas.  As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    Speaker’s Meaning

    The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls “speaker’s meaning.”  And Grice developed a very precise and illuminating theory.  Grice uses the word “utterance” to refer to oral communications, and I will use that word as well.  For Grice the speaker’s meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener’s grasp of the speaker’s communicative intentions.

    Wow!  That sounds complicated!  Let’s unpack Grice’s formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

    Ben says to Alice: “Pizza day!”

    Alice says, “Great!  See you there.”

    Suppose that in context, when Ben says “Pizza day!” he means to say: “Today is the day that we usually have Pizza at Lampo’s at noon, and I don’t have a conflict.”  But he doesn’t have to spell it out, because Alice knows that Ben and Alice have Pizza at Lampo’s every Tuesday at noon unless Ben has a meeting.  When Ben says “Pizza day,” Alice relies on her background knowledge and grasps that by saying “Pizza day!” Ben is conveying that he plans to meet her for Pizza.  By replying “Great!  See you there”, Alice conveys that she is pleased and that she will be at Lampo’s at noon today.

    Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of “sentence meaning.”

    Sentence Meaning

    Grice contrasted the speaker’s meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of “Pizza day” is very sparse.  Pizza is a food consisting of a crust and toppings such as tomato sauce and cheese.  Day is a unit of time.  The phrase “pizza day” could mean any number of things.  It might be a day upon which there are pizzas–pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression “pizza day” is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

    Of course, “pizza day” isn’t even a grammatically complete sentence, but we can imagine Ben saying, “Today is pizza day,” which is grammatically complete.  Notice, however, that the literal meaning of “Today is pizza day.” is still ambiguous.  It could express that idea that today is the day Ben and Alice have pizza for lunch or the day when the truck delivers frozen pizzas to the market.  This grammatically complete sentence does not express a complete thought if it is considered without any context.

    The account of sentence meaning that I have just offered is simplified.  Grice’s own explication of this idea changed over time and was expressed in technical language.  But I hope that I have conveyed the gist of his idea.  The speaker’s meaning of an utterance is the meaning of the utterance on a particular occasion–the meaning that the speaker intended to convey.  The sentence meaning of an utterance is the meaning that the words have generally and is a function of the conventional semantic meanings of words and phrases as combined by the conventions and regularities of syntax (and in the case of written communication, punctuation as well).

    The Relevance of Speaker’s Meaning and Sentence Meaning to Legal Interpretation

    There are many different theories of legal interpretation and their vocabulary differs with context.  Let’s use statutory interpretation and construction as an example.  There are three basic views of statutory interpretation:

    • Textualism: the legal norms that implement a statute should be determined by plain meaning of the statutory text.
    • Purposivism: the legal norms that implement a statute should be determined by the objective purpose of the statute, where objective purpose is understood as the purpose that an ideal legislature would have had in enacting the statutory text.
    • Intentionalism: the legal norms that implement a statute should be determined by the subjective policy preferences of the actual legislators that enacted the statute.

    The distinction between speaker’s meaning and sentence meaning allows us to clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker’s meaning than it is like sentence meaning.  Purposivism, on the other hand, is only indirectly concerned with the meaning of the statute: because purposivists are after an idealized purpose they may sometimes prefer to focus on literal meanings (sentence meaning) to contextualized meanings (speaker’s meaning)–because the very sparseness of sentence meaning creates an empty vessel into which a judge’s version of objective purpose may be poured.

    Likewise, the idea of speaker’s meaning helps us to understand intentionalism.  Intentionalism is concerned with intentions, but the kind of intention is not the communicative intentions that Grice’s idea of speaker’s meaning uses.  Instead, intentionalists are concerned with policy preferences.  This distinction is important.  If intentionalism aimed to recover the communicative intentions of the legislature, it would actually be a form of textualism.  In my experience, it is common for discussions of statutory interpretation to equivocate on this issue.  When that happens, conceptual confusion results.

    Conclusion

    There is much more to be said about the speaker’s meaning, sentence meaning, and legal communication, but I hope that this entry in the Lexicon has given readers a basic understanding of Grice’s distinction and the ways in which it can shed light on questions of legal theory.

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