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Law & Humanities Blog

Dictionaries and Legal Interpretation

Posted: 25 Jun 2011 10:52 AM PDT

Stephen C. Mouritsen has published The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning at 2010 Brigham Young University Law Review 1915. Here is the abstract.

"Plain meaning," said Judge Frank Easterbrook, "as a way to understand language is silly. In interesting cases, meaning is not 'plain'; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary."

This paper proposes an empirical method for determining the "ordinary meaning" of statutory terms; an approach grounded in a linguistic methodology known as Corpus Linguistics. I begin by addressing a number of commonly held, but ultimately erroneous assumptions about the content and structure of dictionaries – assumptions that find their way into judicial reasoning with alarming frequency.

I then outline an approach to the resolution of lexical ambiguity in statutory interpretation – an approach based on Corpus Linguistics methods. Corpus Linguistics is an empirical methodology that analyzes language function and use by means of large electronic databases called corpora.

A corpus is a principled collection of naturally occurring language data, typically tagged with grammatical content and searchable in such a way that the ordinary use of a given term in a given context may be ascertained.

Though Corpus Linguistics is not a panacea, the methodology has the potential to remove the determination of ordinary meaning from the black box of the judge's mental impression and render the discussion of the ordinary meaning of statutory terms one of tangible and quantifiable reality.Download the article from SSRN at the link.

Foucault's Footsteps

Posted: 25 Jun 2011 08:02 AM PDT

Mariana Valverde, University of Toronto Centre of Criminology, has published Specters of Foucault in Law and Society Scholarship at 6 Annual Review of Law and Social Science 45 (2010). Here is the abstract.

To reflect on how we, in 2010, might make the best use of the analytical tools developed by Michel Foucault, we need first to go back to the 1970s and situate his work in the intellectual history of the European left. We then see that Foucault was extremely careful to avoid developing a new model, a grand social theory that might replace the Marxism that was dominant then. Instead, he cultivated more empirically grounded, historically specific habits of thought, in a series of books that did not follow a consistent plan. In Foucault's work, the basic terms are themselves tactical weapons, and hence do not have fixed meanings. That is, the terms are not concepts. This has gone largely unnoticed in the literature: Most of the scholars who use Foucault adopt the content but use it to prop up old forms. The governmentality literature has been particularly influential in many law and society circles, and it tends to use Foucault to produce an improved sociology of modernity - rather than to question our own desire to call ourselves modern and challenge our yearning for static models. This review examines one attempt to turn Foucault into a legal philosopher, a more novel but equally problematic effort to use Foucault to renovate old disciplines. The key argument of the review is that Foucault's work is most useful when, rather than attempt to "apply" it, we use it as inspiration to ourselves to examine the preconditions and foundations of our own present's intellectual habits.

The full text is not available from SSRN.

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