Communicative content and legal content.

• Author: Solum, Lawrence B.
• Position: Distinction and relationship between linguistic meaning conveyed by legal texts and the legal rules doctrines associated with texts

INTRODUCTION

This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules.

I will proceed as follows. In Part I, "Distinguishing Communicative Content and Legal Content," I will investigate the questions raised by differentiating the linguistic meaning of legal texts from the legal content that the texts create. In Part II, "Communicative Content," I will provide an account of communicative content in general and then apply that account in more particular contexts (contract formation, constitutional interpretation, and the interpretation of judicial opinions). My aim is to show that the differences between these contexts lead to systematic differences in the ways we discern the communicative content of different types of legal texts. In Part III, "Legal Content," I will investigate the role that communicative content plays in the determination of legal content. Again, I will investigate different contexts of legal communication, but in this Part with the aim of showing that the role played by communicative content in determining legal content is context sensitive. In some contexts, the meaning of the text has pride of place, but in other contexts, communicative content plays only a secondary role. Finally, in the Conclusion, I will say something about the payoff of this investigation for legal theory and practice.

1. DISTINGUISHING COMMUNICATIVE CONTENT AND LEGAL CONTENT

   For any given legal text, we can distinguish two kinds of content.

   First, legal texts have communicative content. The phrase "communicative content" is simply a precise way of labeling what we usually call the "meaning" or "linguistic meaning" of the text. Legal texts also have associated legal content. "Legal content" is a precise way of labeling the content of the legal norms the text produces. In the case of the Constitution, for example, we can distinguish the communicative content of the constitutional text and the legal content of the doctrines of constitutional law that are associated with the text.

   Here is a simple example of the distinction between communicative content and legal content. The text of the First Amendment reads as follows:

   Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (1) The word "Congress" in the First Amendment has communicative content, usually it is understood to refer to the Congress of the United States, consisting of the House of Representatives and the Senate. But the legal content of First Amendment doctrine is not limited in this way: for example, the freedom of the press applies to judicially created defamation law. (2)

   Consider some examples of the issues that arise once we distinguish communicative content and legal content. In constitutional theory and practice, there is an important debate between originalists and living constitutionalists. (3) In the domain of statutory interpretation, there is the fundamental divide between plain meaning theorists and purposivists. (4) In discussions of the doctrine of stare decisis (or precedent), there is a long-standing dispute between the traditional theory of the ratio decidendi and the predictive theory (associated with legal realism) that sanctions legislative holdings. (5) In addition to these familiar debates, similar issues arise in more particular contexts--the interpretation and construction of contacts, wills, trusts, patents, judgments, injunctions, rules of procedure, administrative regulations, and so forth. These conundrums are explicitly disputed by legal scholars in the context of writings (authoritative legal texts that are inscribed and published), but similar problems arise in the context of unwritten or oral communications that possess legal authority--including oral contracts, rulings from the bench, and so forth.

   These debates about the interactions between communicative content and legal content involve two distinct questions. The first question concerns the determination of communicative content: How do we discern the meaning communicated by a legal text? The second question concerns the role that communicative content plays in the construction of legal content: How does the linguistic meaning of a legal text contribute to the content of legal rules (understood broadly to include rules, standards, principles, and mandates) that in turn determine legal effect? The Essay will start by tackling the question of communicative content and then move to questions about the relationship between communicative content and legal content.

   The overall thesis of this Essay is the claim that the correct approach to each of these questions is context sensitive. That is, I will argue that the determination of communicative content proceeds differently in different legal contexts--although we can identify some very general features of legal communication that explain these differences. More concretely, drafting a constitution is different than entering into an oral contract, and writing a judicial opinion is different still. And I will argue that the contribution of communicative content to legal content is context sensitive as well. The considerations that bear on the contribution of the constitutional text to constitutional doctrine are different than the considerations that bear on the contribution of the text of statutes, wills, and judicial orders to legal doctrines (or rules in the broad sense) and hence to ultimate legal effect. Finally, I will make another claim about the relationship between communicative content and legal content. I will claim that it is possible for this relationship to be contested on normative grounds and that in American legal culture, the role of meaning in determining legal effect is, in fact, contested.

   I should warn the reader that this Essay does not present a full account of my own views about the relationship between communicative content and legal content. Elsewhere, I have developed an account of constitutional interpretation and construction that argues for a particular theory of communicative content that roughly corresponds to what is sometimes called "public meaning originalism." (6) And I have suggested that originalists characteristically endorse what I call the constraint principle--which requires that the communicative content of the Constitution (i.e., the original meaning) should constrain the content of constitutional doctrine, unless a defeasibility condition obtains. (7) With Tun-Jen Chiang, I have also written about the interpretation-construction distinction in the context of patent law. (8) My prior work does not address the analogous questions that arise in the interpretation and construction of statutes, contracts, oral judicial rulings, and so forth. The arguments made in this Essay will make it clear that my views about constitutional theory are bounded by context; I will not present anything approaching a set of fully developed theories of interpretation and construction in nonconstitutional contexts, but I will gesture towards some of the considerations that might shape such theories for judicial opinions, statutes, and other legal texts.

   Another preliminary point concerns terminology. Because this Essay is focused on the distinction between communicative content and legal content, it is important to distinguish between two related activities ("interpretation" and "construction"). The first activity is the discovery of the communicative content of a legal utterance: I will use the term interpretation to name this activity. The second activity is the determination of the legal content and legal effect produced by a legal text: I will use the term construction to name this second and distinct activity.

   The interpretation-construction distinction is an old one in American legal theory. (9) Moreover, the theoretical distinction is reflected in legal usage: the interpretation-construction distinction has been invoked in numerous cases (10) and by a variety of distinguished authorities. (11) The distinction has been much discussed recently in constitutional theory, but the words "interpretation" and "construction" are also used in a broader sense to refer to a single process that encompasses both activities (discovering meaning and determining legal effect). Nothing hangs on the terminology, since we could describe the interpretation-construction distinction using other words. (12)

   Finally, some important issues are bracketed for the purposes of this Essay. There are strong connections between debates about the nature of law (between positivists, natural lawyers, and interpretivists) and the questions addressed here. This Essay will skirt these connections. If the positions that I take here are correct, then any theory of...