Meaning in Law. Two Theories of Ordinary Meaning for Statutory Interpretation and Why They Do Not Work

Abstract

The mainstream view on legal interpretation relies on different theories of ordinary meaning in order to set down what the legal meaning is and how to grasp it. In this essay I distinguish among the current theories of meaning by classifying them into two broad groups, or better, two ideal models: rule-based theories and speaker-based theories. This distinction is not meant to be mutually exclusive nor collectively exhaustive. However, these two models, and the difference between them, are interesting for my purposes in so far as they are usually considered the best candidates to account for legal meaning, i.e. the meaning of legal texts. Against these common views, I will attempt to show that the application of both models to legal interpretation is problematic. Even though for different reasons, both models are not suitable for legal domain. The failure of both models brings out an irreducible difference between ordinary understanding and legal interpretation and produces some unpleasant consequences. In particular, it results in the collapse of the distinction between creation and application of law.