In this article I defend what Mark Greenberg has labeled the standard picture of law against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the standard picture’s conception of it has moral virtues that Greenberg's own moral impact theory and Hershovitz’s similar theory lack. Moreover, it avoids a vicious circularity that bedevils Greenberg’s theory.

The debate over the merits of originalism has advanced considerably in recent years, both in terms of its intellectual sophistication and its practical significance. In the process, some prominent originalists—Lawrence Solum and Jeffrey Goldsworthy being the two discussed here—have been at pains to separate out the linguistic and normative components of the theory. For these authors, while it is true that judges and other legal decision-makers ought to be originalists, it is also true that the communicated content of the constitution (...) is its original meaning. That is to say: the meaning is what it is, not what it should be. Accordingly, there is no sense in which the communicated content of the constitution is determined by reference to moral desiderata; linguistic desiderata do all the work. In this article, I beg to differ. In advancing their arguments for linguistic originalism, both authors rely upon the notion of successful communications conditions. In doing so they implicitly open up the door for moral desiderata to play a role in determining the original communicated content. This undercuts their claim and changes considerably the dialectical role of linguistic originalism in the debate over constitutional interpretation. (shrink)

Debates over the proper theory of, or approach to, constitutional interpretation rage through many Western constitutional democracies. Although the number of distinct theories, if finely individuated, might match the number of theorists who have entered the fray, it has become customary to group the competing accounts into two broad camps, commonly labeled ‘originalism’ and ‘non‐originalism’. This article presents an overview of non‐originalist approaches to constitutional interpretation. However, because non‐originalism is defined as the negation of originalism – that is, diverse theories (...) are grouped together as ‘non‐originalist,’ not so much by what they commonly affirm, as by what they commonly deny – the project naturally focuses as well on originalist theories of interpretation. After specifying what originalism maintains, and what objections it encounters, the essay sketches some of the more prominent non‐originalist approaches to constitutional interpretation and identifies some of the criticisms they face and worries they provoke. Preliminarily, it explains why ‘theories of constitutional interpretation’ constitute only a subset of ‘theories of judicial review.’. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

Courts purport to abandon ordinary meaning only when words in a statute accommodate more than one meaning; to look to surrounding words, legislative history, and then public policy considerations, only if those previous efforts fail. The canon of statutory construction, “a word is known by its associates,” generally means nearest associates, or near as possible. An analogous language philosophy principle counsels increasing search radius only as needed. Dimensional extension advances the sequence to broader domains of information. Such incrementalist restrictions should (...) require consistent justification of each broadening step by the inadequacy of preceding steps. But courts don’t do this, and shouldn’t. This essay references the legal debate between “textualists” and non-textualists and its philosophical parallel between minimalists and pragmatists. It illustrates court departures from the incrementalist model, and concludes that when judges choose broad evidentiary contexts in seeking statutory meaning, they need no more justification than when they choose narrower ones. (shrink)

Mark Greenberg has suggested that there is a ‘standard picture’ of how law works, according to which the contribution that a legal text makes to the content of the law is constituted by the meaning...

This paper analyzes the implications that the linguistic formulation of the marriage provision of the Spanish Constitution of 1978 had for securing the passage in 2005 of Law 13/2005, which legalized same-sex marriage. By claiming that a semantic omission in the original legal text was a marker of distributiveness, SSM supporters aimed to avoid a constitutional amendment, and succeeded in doing so. This linguistic argument, based on implicitness, was instrumental as a subsidiary argument of political moral argumentation. Linguistic meaning therefore (...) contributed decisively to both the legal meaning of the marriage provision and the content of the law. I argue, against some assumptions in the literature stating otherwise, that linguistic meaning should not be dismissed in constitutional interpretation and adjudication. (shrink)

We discuss the 1818 case in which the jury sided with inspector J. Maurice, who had demanded payment for inspecting casks of whale oil. The verdict is arguably incorrect: as several experts argued,...

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology” does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter's analogy to Quine's 'naturalization of epistemology' does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter's replies to my arguments fail. Most significantly, if — contrary to the genuinely naturalistic reading of Quine that I advanced — Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter's parallel. Given Leiter's way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists' indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)