Brian G. Slocum, McGeorge School of Law, is publishing Pragmatics and Legal Texts: How Best to Account for the Gaps between Literal Meaning and Communicative Meaning in The Pragmatic Turn in Law: Inference and Interpretation in Legal Discourse (de Gruyter Mouton, 2017) (Mouton Series of Pragmatics). Here is the abstract.
It is often assumed or asserted by courts and scholars that the literal meaning of a legal text is co-terminous with its communicative meaning, but such an understanding is mistaken. There is often a gap between the two. Accounting for that gap, though, raises difficult issues. The linguistic phenomena responsible for the gap between literal and communicative meaning can be identified as involving pragmatic processes (Recanati 2004). In evaluating these pragmatic processes, theories that offer accounts of specific linguistic phenomena offer conceptual advantages compared to more reductive theories that seek to identify deep underlying principles of communication applicable across various linguistic phenomena. In all cases, for a linguistic theory to be useful it must, as a general matter, be explanatory and persuasive and, importantly, offer some insight into the interpretation of legal texts. This paper argues that the legal meaning of a legal text is generally constrained by its communicative meaning, demonstrates the gap between literal meaning and communicative meaning, and finally argues in favor of theories that explain pragmatic processes in terms of specific systematic effects in language.Download the essay from SSRN at the link.