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  • Sandeep Prasanna 3:38 pm on March 9, 2012 Permalink | Reply
    Tags: , context, , , law school, may, , parsing, shall, , united states   

    Parsing the Constitution 

    Some of the most delightful moments for an ex-linguistics student in law school are when legal analysis clearly intersects with linguistic analysis. That connection was part of what drove me to come to law school. This semester, for me, that close relationship has appeared most often in Contracts and Constitutional Law, two fields which depend heavily on the parsing of text to divine original and apparent meaning.

    Seth Barrett Tillman, currently a lecturer in the Department of Law at the National University of Ireland, Maynooth (Ollscoil na hÉireann, Má Nuad) and previously an attorney and law professor in the United States, has written extensively on the interpretation of clauses in the U.S. Constitution.

    In a piece that appeared in the American Journal of Legal History in 2010, Nora and Seth Tillman put forth the argument that our modern understanding of the words shall, may, and will in the Constitution are not consistent with their usage in the late 18th century, when it was written.

    [W]here a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.

    As we understand it, prevailing eighteenth century American usage, distinguished shall (indicating futurity) from will (indicating the emphatic tense), as it is still spoken in Anglo-English. Whereas today, we Americans conjugate will as “I will, you will, he will,” and shall as “I shall, you shall, he shall,” in the eighteenth century, the dominant American usage (following southern English standards) was will (I will, you shall, he shall) and shall (I shall, you will, he will).

    [W]e suggest that standards … may have been of import to [the drafters], and, for that reason, knowledge of those (long moribund) standards may be a useful tool with regard to determining original public meaning …

    It’s a short, fascinating piece. Read it here: Nora Tillman & Seth Barrett Tillman, A Fragment on Shall and May, 50 AM. J. LEGAL HIST. 453 (2010). (Opens PDF.)

    Tillman also debated Northwestern Law Professor Steven G. Calabresi in 2008 in the University of Pennsylvania Law Review PENNumbra. Tillman argues that the Constitution did not require Barack Obama to relinquish his Senate seat upon inauguration as President.

    He bases this argument over the precise definition of the word “officer” and whether the President falls into that category, drawing upon Article II, § 4 (the Impeachment Clause), Article II, § 3 (the Commissions Clause) and Article I, § 9, clause 8 (the Foreign Emoluments Clause) to make his point.

    Calabresi rebuts, noting that the rub for Tillman’s argument rests in Article I, § 6, clause 2.

    A fun read. Find it here: Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. PA. L. REV. PENNumbra 134 (2008). (Opens PDF.)

  • The Diacritics 11:59 am on December 5, 2011 Permalink | Reply
    Tags: , context, , statutory interpretation, wordplay   

    Why context matters 

    (posted by John)

    I was thinking I’d write about why context matters in the interpretation of law, but I decided I’ve been doing enough law-related things of late. Nonetheless, perhaps as a sign that I’ll never escape, it was my torts professor Guido Calabresi who made this observation in class recently. He put it this way:

    Why does context matter? Because “You should’ve passed, dummy” means something different between bridge hands and at halftime of the Superbowl. [Not to mention when visiting a potential benefactor at the hospital…]

    -Guido Calabresi

    He was indeed talking about using context to interpret laws and apply them to fact patterns. But today I’d just like to point out ten common phrases that are important to take in context:

    1. “I really need to go.” Pretty self-explanatory.
    2. “When are you getting off today?” Pardon the innuendo–let’s hope you’re talking about when they’re leaving work.
    3. “Let’s take a shot.” … on an investment? To the endzone before halftime? Or is it time to head to the bar?
    4. “He’s stupid.” This is an interesting newish bit of slang. A person can be “stupid” at something, meaning they are extraordinarily good at it. I’ve often heard it in the context of sports–someone being stupid good at basketball. I’ve even heard “He is stupid smart.”
    5. “He’s nasty” or “He’s dirty.” Correspondents of the previous example, these again are often used in the context of sports to describe someone’s extraordinary ability. They also have some obvious other meanings.
    6. “I’m late.” …
    7. “I’m sitting on something big.” If someone doesn’t know your part of the press corps…
    8. “He’s no longer with us.” A nice way of saying that someone was fired?
    9. If you’re an American in England: “She seldom wears pants to work.” Pants are the British word for underwear.
    10. “I beat her.” I hope you were playing tennis or something.

    There is much more to be said on this subject. But not by me, at least not right now. Maybe others have good phrases to add to the mix?

    • John Cowan 12:22 pm on December 5, 2011 Permalink | Reply

      You can’t really understand North American English unless you know exactly what Johnny went to the bathroom in his pants means.

  • The Diacritics 1:07 pm on August 23, 2011 Permalink | Reply
    Tags: alice in wonderland, context, , , , humpty dumpty, just a theory, , , legal analysis, , speech community, ,   

    Humpty Dumpty and the meaning of words 

    posted by Sandeep

    “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”

    “The question is,” said Alice, “whether you can make words mean so many different things.”

    Through the Looking Glass, Lewis Carroll

    A lot of legal analysis hinges on the technical meanings of words. These definitions can be identified by statute (for example, if a government explicitly defines a criminal law term in its penal code) and by common law (what have previous courts decided that same term means?).

    If neither statutory law nor common law have defined a legal concept, lawyers and courts can also look to a dictionary definition, although this is rare. Nearly three centuries of accumulated law in the United States, building on even more centuries of law in Great Britain, have meant that almost all broad legal concepts have been defined and analyzed. The legal profession even has its own dictionaries — I, myself, just bought a fresh new copy of Black’s Law Dictionary.

    Today in my Criminal Law class, we discussed the meanings of words. Much of the discussion focused on the dichotomy between voluntary and involuntary acts. In common parlance, “voluntary” and “involuntary” have broad meanings: “voluntary” indicates some sort of will or want to achieve an end result. “Involuntary” indicates the absence of that will.

    But in the context of the law, the definitions are much narrower. Understanding these narrow senses is critical to forming an adequate defense to a criminal act. Let’s say John accidentally hit a pedestrian with his car. In normal conversation, we might describe John’s act as “involuntary” because he certainly didn’t mean to hit the pedestrian.

    But in the eyes of the law, a criminal act can’t be considered “involuntary” just because it is unintentional or the actor didn’t foresee potential consequences. Understanding what “involuntary” means is important because the law cannot punish “involuntary” acts.

    “No act is punishable if it is done involuntarily … The term “involuntary act” is, however, capable of wider connotations; and to prevent confusion … in the criminal law an act is not … an involuntary act simply because the doer does not remember it … nor … simply because the doer could not control his impulse to do it.”

    Bratty v. Attorney-General, 1963 A.C. 386, 409-410 (H.L. 1961)

    So wait. John could face years in prison for something we understand as “involuntary”? [Fear not, John–you would probably just get off with involuntary manslaughter, not murder!] Because the law is concerned with what our conscious mind causes us to do, an “involuntary” act cannot encompass things done with a conscious mind, even by accident or under duress, so its definition is narrowed to acts conducted while unconscious, asleep, hypnotized, or seizing. This definition is confusing enough, but to add to the confusion, sometimes the criminal law switches between the colloquial use of “involuntary” and the strict legal definition!

    Ugh! So how does a simple word like “involuntary” have so many conflicting meanings?

    Technical jargon sometimes conflicts with popular understandings of what a word means. When a specialized technical register exists (say, in law or in science), it often develops independently of colloquial usage, mainly because the technical and colloquial register would never interact with each other. So we might imagine a legal scholar ages and ages ago, grappling with the idea of unconscious criminal acts, coming up with two types of acts: involuntary and voluntary, based on the popular understanding of those terms. Over time, other legal scholars might have found limitations in the popular definitions and sought to narrow down their meanings. When the two worlds collide (in John’s criminal trial proceedings, for example), we get confused at the strange, specific usage of apparently familiar terms.

    Another popular example of this discrepancy between popular and technical jargon is the term “theory.” In scientific research, a “theory” is a model used to explain a natural phenomenon. A theory must stand up to rigorous testing and extensive peer-reviewed research before it can be called as such.

    In contrast, our popular understanding of the word “theory” is closer to the meaning of “hypothesis”–an unproved hunch about how a natural phenomenon might work. Disparaging the theory of evolution by natural selection, for example, as “just a theory” subscribes to this colloquial sense, even though evolution by natural selection, like other scientific theories (e.g., the theory of gravitation, germ theory), is a nearly-universally-accepted model of how a natural phenomenon works.

    But why the discrepancy? Why can’t we just all agree that a word means what it means?

    Complex social and individual forces determine the particular meaning ascribed to a word. As I have described above, the same word might mean different things in different contexts. The same word might also carry different social valence in various groups (such as the N-word among some African-Americans versus other racial groups, or vulgar profanity among some social classes versus others).

    Whether a word can have an inherent, inalienable meaning is hotly debated among linguists. I am skeptical that a word can ever have an inherent meaning. Some language prescriptivists (see John’s great post about Americanisms below), especially dictionary authors, believe otherwise.

    Dictionaries record definitions that are meant to document common usages, to be used in a particular speech community at a particular time. An English dictionary from the year 800 (if it existed) would be useless to us today [whether that language could be considered English at all is another topic altogether]. Several entries in a British dictionary would be useless in America today, and vice versa. Do you know what “pukka” means? It’s a word in Indian English: ostensibly a variety of the same language we know, but loaded with terms whose meanings we will never be able to deduce without context or explication.

    Indeed, context is crucial for deducing what particular meaning you are referring to– not only technical contexts (such as law) but also the speech community, register, geographic location, social class, ethnicity, etc. When I say “table,” am I referring to the thing with a flat surface and four (or three? or six?) supporting legs? Or am I telling you to “table” a discussion for our next meeting? Or am I studying the water “table”? Going to “table” for my local non-profit? Maybe “table” is New Jersey slang for the shape of The Situation’s hair.

    Language changes. Languages changes across contemporaneous speech communities (so my New Jersey terminology might be slightly different from John’s Virginia vocab) but it also changes over time. For example, many of the words we use today are derived from French terms (whose origins themselves are in Latin, and so on and so on) with narrower, broader, or completely different senses than their present English definitions.

    Words cannot have inherent meanings when their very existence is so tenuous and malleable.

    Lewis Carroll, in creating the character of Humpty Dumpty (see above), suggested the doctrine of “stipulative definition,” meaning that we can make words mean whatever we want, as long as we explain ourselves beforehand. Scholar Michael Hancher (in the linked article) disagrees, saying that a word’s meaning must be constructed by the commons — we all must agree on what a word means, and by doing so, we give it meaning. This becomes a complex, thorny issue when we consider how many different “commons”–that is, speech communites–exist in our world.

    So, Humpty Dumpty, a word can’t be just what you make it to mean. Sorry. We all have to come to a consensus in each of the languages we speak, whether in a colloquial context (John hit the pedestrian involuntarily) or in a technical context (John did not commit an involuntary act) or in some other context.

    Navigating this wonderful, awful complexity, I think, is one of the privileges, and prices, of participating in many different speech communities at once. The alternative, of course, is living in isolation, like Humpty Dumpty (and we know how that turned out…).

    • The Diacritics 5:34 pm on August 23, 2011 Permalink | Reply

      “It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” [In simpler terms: the usefulness of dictionaries in a courtroom is limited, because statutes may have specific, unique meanings in mind. –s.p.] — Judge Learned Hand, Cabell v. Markham, 148 F. 2d 737

    • johnwcowan 10:58 pm on September 10, 2011 Permalink | Reply

      Note that table a discussion (or motion) means something different in North America than elsewhere: to take something off the table, rather than to put it on the table.

    • stuartnz 5:18 am on September 11, 2011 Permalink | Reply

      Did Lewis Carroll suggest the doctrine of stipulative definition, or was he mocking it, in a sort of reductio ad absurdum style? At least one Carroll biographer I’ve read suggests the latter, which would fit with his mathematician’s prescriptivist pedantry.

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