Why the Debate Between Originalists and Evolutionists Rests on a Semantic Mistake

Law and Philosophy 30 (6):645-684 (2011)
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Abstract
I argue that the dispute between two leading theories of interpretation of legal texts, textual originalism and textual evolutionism, depends on the false presupposition that changes in the way a word is used necessarily require a change in the word’s meaning. Semantic externalism goes a long way towards reconciling these views by showing how a word’s semantic properties can be stable over time, even through vicissitudes of usage. I argue that temporal externalism can account for even more semantic stability, however. Temporal externalism is the theory that the content of an utterance at time t may be determined by developments in linguistic usage subsequent to t. If this semantic theory is correct, then the originalist and evolutionist positions effectively collapse. Originalism is correct in that the original meaning of the text is the meaning that is binding on jurists, but evolutionism is vindicated, as it is the current practices and standards that determine the meaning the text now has, and has always had. Objections to temporal externalism, and to its application to the interpretation of legal texts, are considered and addressed.
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Archival date: 2012-10-09
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2011-06-20

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