Thursday, February 28, 2008

What's a law?

In terms of speech acts, what kind of thing is a law? I'll suggest that it is a declaration (of a state's official position on some matter), an instruction (to various parts of the state on how to conduct themselves in specified situations), an assertion of fact, or some combination of these.

An example of a law that is just a declaration is found in Chapter 2, Section 28 of the Massachusetts General Laws: "The corn muffin shall be the official muffin of the commonwealth."

This is simply a declaration of a state's official position. By itself, it asserts no fact independent of the facts that it creates, and it carries no legal consequences. In conjunction with laws that contain instructions to the state, it could have consequences. For example, if the Commonwealth passed a law that required a representation of the official muffin on the state flag, then our law would result in a requirement that a corn muffin, and no other kind of muffin, be depicted. This requirement is created by the instruction to the state, combined with the fact created by the declaration in Chapter 2 Section 28, namely the fact that the corn muffin is the official muffin of the Commonwealth.

An example of a law that is an instruction without any explicit declaration or assertion of fact is the first amendment to the U.S. Constitution, which reads:

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.

This is an instruction to Congress to not make certain laws; in combination with other laws that structure the relationship between the branches of the government, it is also an instruction to the courts to invalidate such laws if Congress creates them.

Although there is no explicit declaration, there is an implied declaration that it is the official policy of the United States to disapprove of the proscribed Congressional acts. In general, a proscription or punishment of an activity implies an official declaration of disapproval. This can be seen from the oddness of placing next to such a proscription or punishment an explicit declaration of support for the proscribed or punished activity. Such as:

It shall be the policy of the United States to promote witchcraft. Practitioners of witchcraft shall be put to death.

If this law makes no sense, it is because the implied declaration of the second sentence contradicts the explicit declaration in the first one. Many laws containing instructions will contain implied declarations within them, but not all. For example, a law setting fees for government services are not likely to contain such implications, unless the amount of the fee is meaningful. A law setting the fee for a fishing license at $25 is not likely to be an expression of one policy or another regarding fishing. But if the cost of the license was $5000, it might be seen as implying an anti-fishing declaration.

An example of an explicit factual assertion is the Second Amendment, where an assertion is adjoined to an instruction.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The instruction appears to be aimed at Congress to not pass laws that infringe on the right to keep and bear arms, to the Executive to not take action that infringes on the right, and to the Judiciary to take actions such as invalidating Congressional enactments that infringe on the right, enjoining Executive actions that interfere with the right, and compensating citizens whose rights have been interfered with. There is also a factual assertion that a well regulated militia is necessary to the security of a free state. There may be a presupposed fact that there exists a right to keep and bear arms, if one takes a naturalistic view of rights. On the view that the state creates rights, it may be a veiled declaration of a right rather than an assertion of fact.

Could a law be a freestanding factual assertion ? Could there be a law, for example, that just asserts that the weakness of labor unions (at the time of the passing of the law) is economically harmful?

I don't know of the existence of any such laws, and people would find them odd. But there would be some sense to it. If courts are bound by the laws that the legislature passes, factual-assertion-type laws would have the effect of precluding courts, in their reasoning, from making use of a proposition that contradicts a factual assertion in a law. The exploration of this relationship between the courts and the legislature is an issue for another time.

Monday, February 25, 2008

One of these days

Occasionally I'm struck by an ambiguity that's so tasty, it can only be described as geschmak. A classic example is the title of a piece of spam e-mail that I once received: "Attract men with bigger breasts."

Another one comes from Neil Young's song One of These Days, in which the singer describes a letter he's going to write. The chorus goes:

One of these days,
I'm gonna sit down and write a long letter
To all the good friends I've known
One of these days, one of these days, one of these days,
And it won't be long, it won't be long.

The conjunct "and it won't be long" creates an ambiguity that can serve as a cautionary example for drafters of legal language. The more obvious interpretation is to understand it as pleonastic*, and the conjunct as a whole being shorthand for "and it won't be long before I do what I just described." But it can also be a pronoun which refers back to the letter, in which case the conjunct is saying that the letter won't be long.

The words are disambiguated, of course, by the fact that that the letter is earlier characterized as "a long letter." To avoid contradiction, the conjunct would have to be interpreted as referring to the length of time before the singer writes the letter. It's interesting that the presence of the contradiction doesn't make the sentence unambiguous to begin with, but rather makes it ambiguous between a sensible and a contradictory reading. Reminds me of Bertrand Russell's famous touchy yacht owner example.

The lesson for drafters: look out for ambiguities at a distance! Pronouns inside coordinated structures (those with and, or, and similar words) are dangerous, because pronouns are typically flexible enough that they can pick among antecedents, and coordination is flexible enough to pick among different-sized coordinated phrases. It and there, which can be either pronominal or pleonastic, add yet more flexibility. And when you're drafting, you want rigid rather than flexible words.

* The word "pleonastic" should not be spoonerized.

Saturday, February 23, 2008

Stealing? Sharing? Stearing?

An LA Times article discusses the debate over whether it is stealing or sharing to replicate music, movies and other non-scarce goods for the benefit of those who don't pay for it.

The legal owners of copyright protections have been campaigning to have public opinion and the law recognize it as stealing, on par with lifting a CD from the shelf. As the article notes, this has met with some skepticism from the public, which apparently recognizes that replication has some aspects of both stealing and of sharing. As with stealing, the person receiving the benefit of the transaction confers no benefit on the owner. But unlike stealing, and like sharing, the person receiving the benefit does not deprive the owner of the right to enjoy the property.

Geoff Pullum on the Language Log compares it to "giving" someone a kiss. Of course, most kisses are not exchanged commercially the way music and movies are, so Pullum then compares it to a service, like giving someone a massage. If you give someone a massage and they don't pay for it, we tend to see that as stealing of a service. But that's still not a good analogy, because giving a massage requires effort on the part of the massager and takes up her time, creating opportunity costs. It therefore involves deprivation to the provider of the service, which makes it more like lifting a CD from the shelf than copying a song.

Is it a semantic debate? In a way it is. Both sides in the debate want the public to broaden its understanding of a concept to include the act of intellectual property replication, but disagree whether that concept should be "sharing" or "stealing". But what this is really about, of course, is whether, like stealing, replication is morally wrong and the law should allow the legal owner to bring a private action against the thief, or whether like sharing, it is benign and gives the owner no right to recovery.

The law, of course, does not have to declare that it is stealing or sharing. It can create a category for it in between the two, recognizing that it has elements of each, and ordering the state to treat it somewhere between its treatment of stealing and of sharing.

Wednesday, February 20, 2008

"The Plain Meaning of the Text"

I'd like to inaugurate the substantive portion of this blog by explaining why the commonly used phrase "the plain meaning of the text" is incoherent from a linguistic point of view. Since doctrines that invoke the plain meaning of the text dominate judicial approaches to the interpretation of statutes, contracts, constitutions and other texts, these approaches largely rest on an incoherent foundation. And since discussing approaches to interpretation is much of what judges and legal scholars do, I'd like to suggest that a whole lot of legal thinking is based on an incoherent conceptualization of language, law and text.

Here's the problem: text doesn't have meaning, plain or otherwise. There's no function that takes a string of text as input and returns a meaning as output. Rather, text and meaning are two separate outputs of the syntactic system. They are related, and one of the main activities that preoccupy linguists is trying to figure out the nature of the syntactic computation by studying the restrictions on the relationship between text and meaning. They are separate outputs, and they are fed into different interpretive components of the language system - text into what Chomsky calls the articulatory-perceptual component, and meaning into what he calls the conceptual-intentional component. Properly speaking, the text that we hear, read, or in the case of sign language, see, is the modality-specific translation or interpretation of the textual output of the syntactic system, by the articulatory system in the case of speech and what I suppose could be called the graphical system and the gestural system in the cases of writing and signing, respectively.

Let me try to clarify with a concrete example. Consider the ambiguous sentence I shot an elephant in my pajamas. What makes it ambiguous is that a single text corresponds to multiple meanings. Linguistic theory explains that two distinct syntactic processes, which lead to different meaning outputs, happen to converge on the same textual output (which is then processed through the modality-specific system to be read, heard or seen). So I shot an elephant in my pajamas, as a text, doesn't have a meaning, but rather two meanings, to which the text is indirectly related and mediated by the syntax.

To go a little further, figuring out the meaning of a sentence requires knowing its structure - the way in which the words in the sentence are related to each other. That means that the meaning output of the sentences must include, in addition to the words themselves, information about the structural relationships between the words. In the above sentence, in the meaning in which I was wearing the pajamas, the output contains the information that shot an elephant forms a grouping, or constituent, to the exclusion of in my pajamas. In the meaning in which the elephant was wearing my pajamas, the output includes the information that an elephant in my pajamas is a constituent to the exclusion of shot. This information is not found in the text, which makes no structure apparent, but instead linearizes the words. If interpretation of the text simply involves considering the text and no other evidence, as "plain meaning of the text" suggests, it cannot include the structure which is necessary to determine meaning.

Rather than text corresponding to a meaning, it could be said to correspond to a set of meanings - the meanings that can be generated by the syntactic system consistently with the text. That is,given a text, if you consider every syntactic procedure that generates the text as one output, and put together each meaning generated by those procedures, you'll get a set of meanings that corresponds to the text. Given nothing except the text, the interpreter or constructor has a set of meanings, typically consisting of more than one meaning to select among, and no evidence to assist her with her selection. Finding the "plain meaning of the text," then, first requires finding the set of meanings corresponding the text, which requires considering all of the syntactic processes that can produce the text, then identifying their meaning outputs, and then coming up with a strategy for deciding among them. Hardly plain, and necessarily not restricted to considering just the text.


The pinkness of the background on this blog hurts my eyes.

I'll do my best to change it sometime soon. But right now I've got stuff to do.

EDIT: There we go. A slightly less irritating blue, in the same pleasant design.

So this linguist walks into a law school classroom...

Hopefully this is the beginning of a meaningful engagement on issues relating to law and language, and not the beginning of a promising-sounding joke.

About me: I'm a 2L (second-year law student) at Case Western Reserve University School of Law. I have two masters degrees in linguistics, one from the University of British Columbia, and one from UMass Amherst. This is a mixed situation. On one hand, a master's degree ain't that valuable to begin with, and there are diminishing returns - in fact, vanishingly small returns - on additional MAs after the first one. On the other hand, even the most renowned and brilliant linguists don't have two MAs in linguistics, which makes extremely qualified, by some sort of reasoning.

My UBC masters thesis was on phrase structure and verb movement in Hebrew and English imperative constructions. My generals papers at UMass were about (1) generic possessives (like women's college) and (2) cardinal adverbials (like three times). I also worked on some issues in children's acquisition of universal quantification and maximality, which was the result of some work I did on the DELV, a dialect-neutral diagnostic of language disorders.

My main interests in law are employment and labor law, although after taking a class in labor law last semester I view the prevailing regime in the U.S. as utterly perverse, as the result of good legislation being wrecked by ideologically extreme judges and National Labor Relations Board members. I'm also interested in any kind of law that can be used to advance the public interest by undermining the class systems. I "externed" at the Employment Unit of Greater Boston Legal Services last summer, am "externing" at the Legal Aid Society of Cleveland currently, and will "extern" for the SEIU this coming summer. (explanation: extern: intern as venti: large).

I have this other blog, but I'm starting this blog specifically for language and law issues, because I think I may have more interesting things about law and language specifically, rather than the eclectic collection of things I happen to find interesting. Hopefully this will serve in part as a place to brainstorm and develop ideas for my note, which I will be writing next academic year. And since I'm not aware of any other blogs of this type, maybe it will be a place to engage with others who are interested in this issue.