Brian G. Slocum on Legal Texts and Their Interpretations

Brian G. Slocum, University of the Pacific McGeorge School of Law, is publishing Conversational Implicatures and Legal Texts in Ratio Juris (2016). Here is the abstract.

Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice’s account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice’s maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of ‘catch-all’ clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its non-cooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.

Download the article from SSRN at the link.

Kenneth J. Keith on Choosing How to Codify, Develop, and Reform the Law

Kenneth J. Keith, Victoria University of Wellington, Faculty of Law, has published Making Law – Who, How and What?, a speech given at the International Conference "Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next," (London, July 2015). Here is the abstract.

This paper was adapted from a speech given at the international conference “Fifty Years of the Law Commissions: The Dynamics of Law Reform Now, Then and Next”. The speech aimed to offer a wider view of the matters discussed at the conference. In the paper, the author comments on some of the choices which are made and which will continue to be made in codifying, developing and reforming the law and the broader constitutional system. Those choices involve three questions – who – the participants, how – the processes they follow, and what – the principles they apply and the product of the work, including its form. The author reflects on the bases on which those choices are to be made by drawing on examples from discrete areas of law: reform of electoral systems, equality and the prohibition of discrimination, the law of piracy and maritime crime, and the laws of interpretation.

Download the essay from SSRN at the link.

Legislation As Concept, Legislation As Culture

Richard K. Neumann, Jr., Hofstra University School of Law, has published Legislation's Culture as Hofstra University Legal Studies Research Paper No. 2015-10. Here is the abstract.

American statutes can seem like labyrinthine mazes when compared to some countries’ legislation. French codes are admired for their intellectual elegance and clarity. Novelists and poets (Stendhal, Valéry) have considered the Code civil to be literature. Swedish legislation might be based on empirical research into problems the legislation is intended to remedy, and the drafting style, though modern today, is descended from an oral tradition of poetic narrative. Comparing these legislative cultures with our own reveals that the main problem with American legislation is not too many words. It is too many ideas — a high ratio of concepts per legislative goal. When American, French, and Swedish legislatures address similar problems, the French and Swedes draft using far fewer concepts than Americans do. In both countries, simple solutions are preferred over convoluted ones. The drafters of the Code civil thought the highest intellectual and legislative accomplishment to be simplicity. The Swedes got to approximately the same place through a cultural value that law be understandable to the public. Where the American legislative process can seem chaotic, there has been some respect for Cartesian rationality in France and for empirical evidence in Sweden. Even if American statutes were to be translated into ordinary English, they would still be labyrinths because our legislatures insist on addressing every conceivable detail that legislators can imagine. The result is excessively conceptualized legislation, imposing large numbers of duties. Statutory concepts cost money. They create issues, which must be decided by publicly funded courts and agencies with additional costs to the parties involved. Every unnecessary statutory concept wastes social and economic resources. And to the extent law seems incomprehensible to the public, it loses moral authority.

Download the article from SSRN at the link.

F. A. Hayek's View of Legislation

Cyril Holm, Uppsala University Faculty of Law, has published his dissertation, F. A. Hayek's Critique of Legislation. Here is the abstract.

The dissertation concerns F. A. Hayek’s (1899–1992) critique of legislation. The purpose of the investigation is to clarify and assess that critique.

I argue that there is in Hayek’s work a critique of legislation that is distinct from his well-known critique of social planning. Further that the main claim of this critique is what I refer to as Hayek’s legislation tenet, namely that legislation that aims to achieve specific aggregate results in complex orders of society will decrease the welfare level.

The legislation tenet gains support; (i) from the welfare claim – according to which there is a positive correlation between the utilization of knowledge and the welfare level in society; (ii) from the dispersal of knowledge thesis – according to which the total knowledge of society is dispersed and not available to any one agency; and (iii) from the cultural evolution thesis – according to which evolutionary rules are more favorable to the utilization of knowledge in social cooperation than are legislative rules. More specifically, I argue that these form two lines of argument in support of the legislation tenet. One line of argument is based on the conjunction of the welfare claim and the dispersal of knowledge thesis. I argue that this line of argument is true. The other line of argument is based on the conjunction of the welfare claim and the cultural evolution thesis. I argue that this line of argument is false, mainly because the empirical work of political scientist Elinor Ostrom refutes it. Because the two lines of argument support the legislation tenet independently of each other, I argue that Hayek’s critique of legislation is true.

In this dissertation, I further develop a legislative policy tool as based on the welfare claim and Hayek’s conception of coercion. I also consider Hayek’s idea that rules and law are instrumental in forging rational individual action and rational social orders, and turn to review this idea in light of the work of experimental economist Vernon Smith and economic historian Avner Greif. I find that Smith and Greif support this idea of Hayek’s, and I conjecture that it contributes to our understanding of Adam Smith’s notion of the invisible hand: It is rules – not an invisible hand – that prompt subjects to align individual and aggregate rationality in social interaction.

Finally, I argue that Hayek’s critique is essentially utilitarian, as it is concerned with the negative welfare consequences of certain forms of legislation. And although it may appear that the dispersal of knowledge thesis will undermine the possibility of carrying out the utilitarian calculus, due to the lack of knowledge of the consequences of one’s actions – and therefore undermine the legislation tenet itself – I argue that the distinction between utilitarianism conceived as a method of deliberation and utilitarianism conceived as a criterion of correctness may be used to save Hayek’s critique from this objection.

 Download the dissertation from SSRN at the link.