Plain Meaning in Context: Can Law Survive Its Own Language?
The history and application of the “plain meaning” rule poses one of the most complex challenges to the workability, soundness and integrity of the legal system. On the one side, the plain meaning rule is often derided for its excessive simplicity and for its failure to understand the role of linguistic convention and historical context in evaluating particular legal commands, whether contained in constitutions, statutes, regulations, or contracts. Yet on the other hand, a rejection of the plain meaning rule poses the real threat that language will fail of its essential communicative purpose if even the simplest of sentences falls prey to nonstop interpretive maneuvers. Put otherwise, the risk in abandoning the plain meaning rule is that a high noise-to-content ratio in legal communications will degrade the rule of law as we know it. An adequate theory of language thus has to thread the needle between nasty indeterminacy on the one hand and false precision on the other—which H.L.A. Hart called the effort to walk the fine line between the nightmare and the noble dream.1
Some measure of the evident difficulties in discharging this task is built into the title of this Conference. Its initial sentence speaks about plain meaning in context, which in turn raises at least four questions that plainly stand in need of adequate answers. The first set of questions revolves around the meaning, plain or otherwise, of the three key terms in that phrase: plain, meaning, and context. The second set of questions concerns the terms in the last clause of the title: What is law? How can law “survive” anything, let alone survive the very language it uses, when that legal language must have some connection to ordinary language for it to be intelligible at all?
In this article, I shall offer a few observations about these multiple questions. In particular, I shall explore the relationship between ordinary and legal languages and note some arguable differences between them. My general thesis is a positive one, as wellspoken native speakers of the English language should undertake this examination in a positive spirit. I reject the unhappy and unhelpful proposition that the source of the difficulty is that in general language does not work well at all. Instead, the task is to explain why language works as well as it does in a huge number of cases of great importance. We can find the answer in the compelling logic of the classical liberal tradition, precisely because it tracks most closely the conventional uses in ordinary language. That connection is not an accident. As a first approximation (from which, as will become evident, there are many refinements) the key tasks of any social or-der are to control aggression and to facilitate cooperation. Those basic imperatives are critical to the survival of any society. It would therefore be highly improbable that the language that describes and evaluates human action could develop in a fashion that did not reflect these twin social objectives. Yet it would be equally strange if it did not develop some mechanisms by which to incorporate the exceptions to these truisms into some more comprehensive social scheme.
