Conversational Implicatures and Legal Texts

• Date: 01 March 2016
• DOI: http://doi.org/10.1111/raju.12114
• Author: Brian G. Slocum
• Published date: 01 March 2016

Conversational Implicatures

and Legal Texts

BRIAN G. SLOCUM

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 fromthe literal mean-

ings 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 implica-

ture, a type of generalized conversational implicature, can account for the applica-

tion 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 noncooperative nature, though, do not establish the inap-

plicability of conversational implicatures to legislation.

1. Introduction

Natural language is full of nonliteral meanings, such as metaphors, idioms, slang,

and polite talk. In such situations, the literal meaning of the given expression will

differ from its understood meaning. In most conversational contexts, a gap between

literal and understood meaning is uncontroversial and expected. In contrast, legal

texts do not contain many of the kinds of nonliteral meanings found in conversa-

tional contexts. Nevertheless, the literal meaning of a legal text will often differ

from the meaning given to it by a court. In fact, a marked feature of many of the

interpretive principles created and used by courts is that they serve to restrict the

domains of legal texts (i.e., their scope of application), thereby creating a gap

between literal meaning and the meaning given to the text by the court (i.e., its

legal meaning) (Slocum 2008). Such an assertion should not be surprising to com-

mentators, as the tendency of courts to give texts meanings based on legal consid-

erations has been well documented. Many of these interpretive principles have

been categorized by scholars as substantive canons of interpretation. Substantive

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canons have been described as “essentially presumptions about statutory meaning

based upon substantive principles or policies drawn from the common law, other

statutes, or the Constitution” (Eskridge and Frickey 1995, 634). They have also been

referred to as “normative canons,” amongst other terms (Bradley 1998, 507). For

instance, pursuant to the presumption against retroactivity, a clear textual state-

ment is required in order for a statute to have retroactive application.

1

Similarly,

pursuant to the presumption against extraterritoriality, a clear textual statement is

required in order for a statute to have extraterritorial application.

2

A more controversial claim, which this paper will make, is that at times linguistic

phenomena, which exist independently of any legal system and either are directly

relevant to the interpretation of legal texts or provide linguistic justification for

some interpretive principle used by courts, create a distinction between the literal

meaning of the relevant text and the meaning communicated by the text.

3

Undoubtedly, there are various ways to define literal meaning, just as there are vari-

ous ways to define most other linguistic terms. Talmage (1994) indicates that literal

meaning is commonly identified with the conventional meaning of language. For

the purposes of this paper, the term is used in a similar way that is essentially syn-

onymous with the linguistic meaning of the relevant sentence that is conventional

and context-independent.

4

Incidentally, this definition of literal meaning has the

additional advantage of being consistent with how courts use the term, as they

often employ dictionary definitions without consideration of context (Solan 2010).

An important aspect of the communicated meaning of a text is the basic princi-

ple, so commonly stated by courts as to become boilerplate, that language in a legal

text should be interpreted according to its “ordinary meaning.” The ordinary

meaning doctrine stands for the concept that language in legal texts should be

interpreted on the basis of general principles of language usage that apply equally

outside the law (Slocum 2014). Legal texts are widely viewed as a form of commu-

nication (McCubbins and Rodriguez 2011; Van Schooten 2007). Ideally, assuming

that successful communication is the goal in most cases, these texts should be

understood by different people in the same way. One aspect of this broad require-

ment is that legal texts should be understandable to the general public, as well as

to judges and sophisticated practitioners. As Cappelen (2007, 19) explains, “[w]hen

1

See Landgraf v. USI Film Products, 511 U.S. 244, 272–73(1994), stating that there is “a presump-

tion against retroactivity [unless] Congress itself has affirmatively considered the potential

unfairness of retroactive application and determinedthat it is an acceptable price to pay for the

countervailingbenefits.”

2

See EEOC v. Arabian AmericanOil Co., 499 U.S. 244, 248 (1991),stating that it is a “longstanding

principleof American law that legislation of Congress,unless a contrary intent appears,is meant

to apply only withinthe territorial jurisdictionof the United States.”

3

The “meaning communicated by the text” should be taken as the meaning an appropriate

hearer wouldmost reasonably take a speaker to be tryingto convey in employing a given verbal

vehicle in the given communicative context. Thus, the focus is on external determinants of

meaning rather than internal intentions. Courts purport to interpret textual language on the

basis of externaldeterminants rather than internalintentions.

4

This characterization of literal meaning is taken from Recanati 2004. The characterization

makes literal meaning equivalent to “sentence meaning,” plus the assignment of references to

explicitlycontext-dependent elements,such as indexicals.

24 Brian G. Slocum

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