Mootz on Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence @jaymootz

Francis Joseph Mootz, McGeorge School of Law, is publishing Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence in volume 20 of the Nevada Law Journal (2020). Here is the abstract.

The “new textualist” approach to legal interpretation, most closely identified with the late Justice Scalia, argues that the meaning of a legal text is just the ordinary meaning that the words would have had for an average competent speaker of the language at the time of their enactment as a statute. Too often, judges appear to be drawing on their vague intuitions about “ordinary meaning,” usually under the cover of citing to malleable and contradictory dictionary definitions. This poses a serious problem, because a primary justification for new textualist methods is the ability to discern legal meaning in an objective manner that rises above a particular judge’s subjective desires. Some legal theorists recently have turned to corpus analysis, claiming that this tool developed by professional linguists provides the empirical methodology capable of identifying the ordinary meaning of words used in a legal text by rigorously examining how the words generally were used at a given point in the past. Although not foolproof, legal scholars argue that corpus analysis often will be able to identify the ordinary meaning of words and phrases as they were used when the legal text was adopted, thereby providing an objective means to specify legal meaning under the new textualist approach. The lure of corpus analysis for legal theorists is the most recent in a long history of similar Siren calls. We are seduced by the promise of a methodology that claims to apply the law to a specific case in a manner that permits observers to monitor and assess whether that application of the law is objectively correct. But this allure inevitably founders on the rocks, leaving us unfulfilled, disappointed, and searching for the next promising suitor to lead us to a method for determining objectively correct answers. In this essay I argue against the deep impulse that motivates the contemporary turn to corpus linguistics precisely because this enticing “new” method re-inscribes the profoundly misguided theoretical premise of modern law that there are clear lines between “the law” and its “application to a specific case.” In his oration at the commencement of the 1708 term at the University of Naples, Giambattista Vico lamented the abandonment of rhetorical understanding and the misguided embrace of Cartesian analysis as the model of genuine knowledge. The past three centuries have borne witness to this slavish adherence to a focus on objective and empirical inquiry, neglecting the unavoidable role of rhetorical persuasion in legal meaning. My essay proceeds in the spirit of Vico’s great oration. I urge that, at long last, we should return to a conception of legal meaning as rhetorical knowledge.

Download the essay from SSRN at the link.