Book Description

There is a long-standing judicial commitment to interpreting language in legal texts according to its 'ordinary meaning'. That is, courts have uniformly agreed that words in legal texts should be interpreted in light of accepted standards of communication. The constituent question of what makes some meaning the ordinary one and the evidential question of how the determinants of ordinary meaning are identified and conceptualized are thus of crucial importance to the interpretation of legal texts. Yet, beyond very general characterizations or assumptions that the answers are self-evident, neither the constituent nor the evidential question has been comprehensively examined by courts or commentators. The process used by courts for determining the ordinary meaning of texts, such as significant reliance on dictionaries, often does not result in interpretations that reflect the ordinary meaning of the textual language, or only coincidentally does so. One main flaw in the judiciary's approach is a failure to properly consider context. Certainly, there is a tension between the inherent requirement of ordinary meaning that it be generalizable across contexts and the reality that meaning is inherently contextual. A significant aspect of framing the ordinary meaning inquiry, and considering arguments about it, therefore involves considering the contribution that context makes to meaning. One way to capture generalizable meanings is to conceive of ordinary meaning as being primarily based on semantic meaning. Further, a distinction between 'narrow context' and 'wide context' can be made, with ordinary meaning being determined on the basis of consideration of facts from the 'narrow context'. In addition, one marked feature of interpretive principles is that they consistently serve to restrict the domains of legal texts, thereby creating a gap between literal meaning and ordinary meaning. Yet framing ordinary meaning as being primarily based on semantic meaning, determined from consideration of 'narrow context', does not eliminate interpretive discretion. When context is considered, the assignment of meaning invariably has an ineliminable element of interpreter discretion. This is true with respect to indexicals and quantifiers, as well as other linguistic phenomena. Nevertheless, focusing on the systematicities of language can narrow the range of interpretive discretion and improve the judiciary's determination of ordinary meaning.