July 2, 2011

Law and Communications Theory

Mark Greenberg, UCLA School of Law and Department of Philosophy, has published Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication in Philosophical Foundations of Language in the Law (A. Marmor & S. Soames eds.; Oxford University Press, 2011).

According to a view – really a family of related views – that has considerable currency at the moment, philosophy of language and linguistics have a direct bearing on the content of the law. I call this view the communicative-content theory of law or, for short, the communication theory. According to the communication theorists, the study of language and communication reveals that the full linguistic meaning of an utterance is what the speaker or author communicates by the utterance – call it communicative content – which may go well beyond the literal meaning of the words. (On the standard understanding, communicative content is constituted by the content of certain specific communicative intentions of the speaker.) The communication theorists conclude that a statute's contribution to the content of the law is its communicative content. In this chapter, I grant many of the assumptions of the communication theorists and then argue that there are many candidates for a statute’s contribution to the content of the law, including different linguistic and mental contents. The study of language can be important in helping us to make and clarify such distinctions, but beyond this information-providing role, it has nothing to say about which, if any, of these candidates constitutes a statute’s contribution to the law. The communication theory therefore lacks the resources to say what any statute’s contribution is. Ultimately, I suggest that trying to understand legislation on the model of communication is misguided because legislation and legislative systems have purposes that have no parallel in the case of communication and that may be better served if a statute’s contribution to the content of the law is not constituted by what is communicated by the legislature.
Download the text from SSRN at the link.

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