Statutory Interpretation

The Pragmatics of Statutory Interpretation Table of Contents Part I: Introduction 1. Natural Law, Formalism, Positivism and Dworkin 2. Felix Cohen : Transcendental Nonsense and the Functional Approach Part II : Pragmatics and Statutory Interpretation 1. Modern Theoretical Linguistics 2. The Pragmatic Approach to Statutory Interpretation Part III: Linguistic Comprehension 1. Reasoning and Interpretation 2. Code Theory of Communication 3. Schema Theory Part IV : Reading 1. Reading and Memory 2. Reading and Meaning 3. Reading and Ambiguity 4. Comprehension and Prediction Part V : Inference Theory of Communication 1. Herbert Paul Grice 2. On Truth 3. On Logic

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The Pragmatics of Statutory Interpretation 4. Grice’s Implicature 5. Maxims : Quantity, Quality, Relation, Manner 6. Implicature 7. Implicature and Intention 8. Intention and Meaning 9. Conventional Meaning 10.Grice Conclusion 11.Relevance Theory 12.Relevance and Meaning 13.Relevance and Truth 14.Further Relevance Part VI: Speech Act Theory and Statutory Interpretation. 1. Statutory Interpretation in Canada 2. Approaches to Meaning 3. Approaches to Interpretation 4. Textualism 5. The Plain Meaning Rule 6. Problems with the Plain Meaning Rule 7. Intentionalism 8. Pragmatism Part VII : Toward Acceptable Criteria 1. Meaning Revisited 2. Grice Revisited 3. Relevance Revisited 4. Conclusion

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The Pragmatics of Statutory Interpretation

The Pragmatics of Statutory Interpretation Part I : Introduction Jurisprudence – what is law? Law and philosophy share in a search for the grand narrative. Some philosophers describe themselves as participants in a large conversation spanning over many centuries. One of the recent additions to that conversation was a discussion about phenomenology. Edmund Husserl (1859-1938) and Martin Heidegger (1889-1976) helped to create new ideas on how to approach descriptions of the world. Husserl described phenomenology as the intuitive study of essences. The study of phenomenology rejected metaphysical and scientific theories for approaching any kind of descriptive analysis of subjective processes. Direct experience itself was meant to form the basis of observation and description. Heidegger made a significant contribution to hermeneutics as well as phenomenolgy. Hermeneutics is the study of how we make interpretations. These ideas were elucidated by Hans-Georg Gadamer who gave us further insight into the dynamic process of interpretation. In the context of interpretation, Gadamer said that people approach texts from the perspective of their own historical horizon. People tend to project “preunderstandings” onto a text, viewed as whole.1 Phenomenology and hermeneutics have had a much larger life beyond philosophy. Beginning as a search for essence, these ideas have infiltrated many modern disciplines. To my mind the 1

Eskridge & Frickey, Statutory Interpretation as Practial Reasoning. (1990) 42 Stanford Law Rev.321 3

The Pragmatics of Statutory Interpretation work serves as a reminder of what constitutes an appropriate acid test. Any theory constructed by anyone must hold its own against reality. The more a “theory” is seen to be in accordance with the reality, the greater weight and reliance should be placed on that theory. This paper has two themes. The search for legal justification and the nature of statutory interpretation. Statutory Interpretation is an area of law in which superior courts in Canada have an inherent jurisdiction to set norms.2 A court faced with an interpretation dispute must use skill an integrity to produce an appropriate outcome. A court must justify that outcome in a coherent and acceptable manner giving clear reasons how that outcome was reached. These grounds must be within a coherent and acceptable theory of statutory interpretation.

Some of the rules of statutory interpretation reflect the reality of the way in which reading occurs in the world, while others do not. This paper shall, inter alia, attempt to outline psychological and linguistical insights into the brain mechanisms that get put to use when people read and interpret meaning. This paper will then compare these processes to the theoretical approaches of statutory interpretation. I will echo the arguments of others, that statutory interpretation involves creative policy making, and not just looking “in” the statute; interpretation is dynamic and historically situated. “Every age has to understand a transmitted text in its own way.”3

2

See 2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, at pp.995-6.

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The Pragmatics of Statutory Interpretation 1.1 : Natural Law, Formalism, Positivism and Dworkin The search for legal justification usually includes a conversation about the legitimacy of law and its origins. Historically, there are roughly three main grand narratives in legal theory: Natural justice, formalism, and positivism. Natural justice was seen to come down from heaven. The tenants of natural law were based on morality and faith. If it was illegal then it was also immoral. Thomas Hobbes characterized natural law as following the dictates of natural justice in order to justify monarchy. Formalism challenged the legitimacy of natural law. Formalism was seen as a “rational” theory espoused by political philosophers such as John Locke, who used the ideas to build a new republic. Law was to be derived from abstract legal reasoning. Abstract thought itself claimed to be the legitimatizing force of law. Positive law can be described as civil law. It is founded on “man-made” legal principles. Positive law was to be clear and precise, although some discretion would be appropriate in unusual or difficult cases. The law would be the law because the people choose to make it law. Positive law is a popular view of the law. At its root lies Rousseau’s social contract. Hans Kelson contributed much to positive law when he argued for the legitimacy of “is” to “ought.” Kelson thought we could use pure reason to help us make sense of the world, and that we ought to do so. It appeared to Kelson that science held a 3

Eskridge & Frickey, Statutory Interpretation as Practial Reasoning. (1990) 42 Stanford Law Rev.321 5

The Pragmatics of Statutory Interpretation purity and neutrality which he found attractive, which he wanted to use to legitimize law. Legal jurisprudential scholars such as H.L.A. Hart advocated for positive law and the distinct seperation of law and morality. Hart saw the law as solving uncertainty in the affairs of the world. Hart describes two types of laws, primary and secondary. The rules of statutory interpretation would be the latter kind. Ronald Dworkin could be described as espousing a hard rights view of liberalism. His theories involve a rejection of positive law in favour of a “hard rights” approach based on moral values of dignity and equality.4 For example, interpretation is governed by the idea that each party has a fundamental right to equal concern and respect. Dworkin warns people to not get caught up in the notion of “truth” when comparing competing theories that claim objective moral or legal truth. Rather, Dworkin argues, concentrate on which theory best meets all the available arguments.

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In other

words, use the best we have, rather than search for the ‘true’ theory. Dworkin realizes that contemporary theorists hold that the meaning of ’truth’ lies in a disappointing correlation between sentences and unspecified conditions of truth. The answer to the general question, “what does it mean to say something is true,” is that a proposition in a given sentence happens to correspond to a fact in the physical world. This is very far from finding any theoretical legal ‘truth.’

4 5

Dworkin, R. Taking Rights Seriously. (1978). Dworkin, R. Objectivity and Truth: You’d Better Believe It, (1996) 25 Philosophy and Public Affairs 9

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The Pragmatics of Statutory Interpretation 1.2 : Felix Cohen : Transcendental Nonsense and the Functional Approach “When the vivid fictions and metaphors of traditional jurisprudence are thought of as reasons for decisions, rather than the poetical or mnemonic devices for formulating decisions reached on other grounds, then the author, as well as the reader, of the opinion or argument, is apt to forget the social forces which mold the law and the social ideals by which the law is to be judged.”6

As early as 1935 jurisprudential scholars such as Felix Cohen were arguing against utilizting a positivist view of law as a philosophical foundation or justification for legal action and results. He argued that jurisprudence was seen as a system of legal concepts, rules and arguments independent of ethics, economics and psychology. Traditionally legal decision-making was held to be a process of logical deduction from fixed principles, following in the rationalist tradition of John Locke. The law itself was expressed in terms of logical consequences, giving the appearance of logical reasoning. Cohen believed that this deductive reasoning mistakenly ignored the social context of the law and relevant temporal considerations. In other words the traditional legal perspective abstracted legal theory from its real-life context which permitted legal fictions to operate with apparently undue legitimacy. Cohen outlined 4 basic approaches that could be used to handle facts and their relationship to legal decision-making. 1. Classification of Facts : The classification of attributes or the collection of similarities and differences constituted one form of research. 6

Cohen, Felix. Transcendental Nonsense and the Functional Approach. (1935) Vol.35 Columbia Law Review. P.812. 7

The Pragmatics of Statutory Interpretation

2. Origin of Facts : The discovery of origins, or genesis of facts, which uncovered historical antecedents (the historicity of facts) constituted the second approach, 3. Nature of Facts : To inquire into the nature of the facts and resolve them into simpler elements. 4. Function of Facts :The fourth approach and of

particular

interest is the functional. The functional approach is to gather information and facts and contemplate the significance of the facts and understand the implications and consequences which flow from the treatment of these facts. Cohen argued that many legal arguments were purely circular. Legal terms were legal fiction. By relying on these legal fictions judges would justify outcomes which were purported to flow from logical deductions inherit in legal terms -- a legal term that they made up. In other words judge-made concepts would be used to justify legal arguments and outcomes, while in reality the content of the legal term was defined by its consequences. Yet such fictions give the appearance of an outcome based on principled legal logic, as if judges were reacting rather than acting. For example, trademarks and tradenames are said to be protected by the courts because the holder has created a thing of economic value, a property, which should be protected against 3rd parties. Cohen claims it to be circular to justify the protection of property on the value of this property which would have no value without legal protection. The court’s claim that the value of a tradename is the reason giving it legal 8

The Pragmatics of Statutory Interpretation protection, while actually it is the result of legal protection. The judge claims to be recognizing property while he is actually creating it. Cohen felt that the law should purge itself of meaningless concepts, and cease dealing with meaningless questions. He advocated for a basic revision of legal concepts that would rely on a functional approach with an emphasis on a functional bias. Function was seen as the sum of consequences which would constitute the entire meaning of a legal concept. All concepts that could not be defined in elements of actual experience were seen to be meaningless. Cohen argued that law is what the courts will do in fact, rather than a series of legal fictions created in a abstract context. From his perspective, judicial decisions are a social event. Therefore jurisprudence must look to the social forces behind the decision (the past) and beyond the decision (the future) to look at what activities are impacted by it.

Part II : Pragmatics and Statutory Interpretation

Like any word, pragmatism means many different things in very different contexts. It has been applied to politics, language, interpretation, and law. In politics, for example, anarchism was originally espoused as form of pragmatism. They claimed a rejection of theory and the creation of decentralized federalism (not unlike the working solution that Canada has adopted). In language, pragmatism is the study which focuses

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The Pragmatics of Statutory Interpretation attention on the users and the use of context rather than on reference, truth, or grammar.7 In communication theory, Georgia Green tells us that pragmatic information is information about mental models (speaker’s and addresse’s models of each other)8 In an interpretive context, pragmatics is a method of approaching meaning through the application of context. Dworkin said that interpretation goes down and down, up and up, and the further you go the more abstract things get. Pragmatics, in general, is the construction of meaning in a subject’s total context. It is a rejection of rational “abstract” meaning, which attempts to divorse an idea from its inevitable and true context. Interpreting the meaning of words is an intergral part of law. The interpretation of law has implications well beyond the courtroom and the effects reside within our communities. According to Ruth Sullivan author of Driedger on the Construction of Statutes,

“…the essential problem of

statutory interpretation is to apply a general, abstract statutory provision to a concrete factual situation.”

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The dynamics of legal interpretation are

such that an interpreter must go from a general view of the statute to specific evidence and then back to the general view.

2.1: Modern Theoretical Linguistics

Theoretical Linguistics has been divided into the study of syntax (grammar), semantics (word meaning), and pragmatics

7 8

Oxford Companion to Philosophy. Fotion 1995. p.709. Green, Georgia. The Nature of Pragmatic Information. Univ. of Illinois, unpublished. 1999.

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Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U. Ottawa L. Rev. 10

The Pragmatics of Statutory Interpretation (context). Pragmatics is the least well known. It studies the function of language use in a social context.

There are three essential elements in language use:10 1. The linguistic expression used (words, sounds, semantic encoding) 2. What the expression refers to in the real world (objects, properties, relations, events, etc) 3. The context. The semantics/pragmatics distinction is primarily a distinction between studying 1 and 2, or 1, 2, and 3. The semantics/pragmatics distinction is also distinguished by the two types of cognitive processes used in understanding utterances: decoding (deduction) and inference (induction). Semanticists study linguistic competence, as opposed to actual linguistic performances. In this context it is valid to talk of grammatical competence or pragmatic performance. Grammatical competence entails knowledge of conditions for appropriate word use or the ability to parse out grammar into a logical form. Pragmatic inferences require interpretation, and rely on inferential abilities which more closely resemble a performance than anything else. 2.2: The Pragmatic Approach to Statutory Interpretation 10

DeSwart, Henriette. Introduction to Natural Language Semantics. (Standford: Centre for the Study of Language and Information, 1998), p.8.

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The Pragmatics of Statutory Interpretation

The role of pragmatic interpretion is to provide a theory which allows a court to consider each element involved in creating an outcome in order to assign appropriate weight to the different pieces and balance them against one another. Pragmatic principles can be seen as a criteria that can establish what it means for a legislature to act rationally, reasonably, and purposefully. According to Sullivan, “There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome it produces is not unjust or unfair.”11

Context in statutory interpretation includes among other things, judicial knowledge of the subject matter, knowledge of the situation in which text is produced, and conventions of writing style. It also includes relevant conventions of statute law, the likely purpose of a statute, and the scheme devised to realize that purpose. Under this theoretical and pragmatic approach, Sullivan sees the role of courts as resolving disputes in accordance with the law. Courts must act as mediators to ensure that disputes are resolved in ways that respect all the values of constitutional democracy. This is a different from the 11

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed. (Toronto : Butterworths Ltd., 1994).

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The Pragmatics of Statutory Interpretation positivist perspective that dictate the legislatures make the law, and judges merely apply it to the particular facts. A pragmatic theory of interpretation requires that courts determine the meaning of legislative texts, determine the intention of Parliament, but also resolve disputes in a manner which respect the important values of society. The judicial task is to not only ask “What does this text mean,” or “What did Parliament intend,” but also, as Cohen would have it, “What is the right outcome?” In a pragmatic theory, the judicial task of interpretation is properly characterized as solving the interpretive problem facing the court in an appropriate and acceptable way. Sullivan suggests that to do this a court is permited to consider any relevant evidence. Interpretation is seen for what it “ought” to be, which is the creation of acceptable outcomes from a pragmatic prespective. For Sullivan, “Resolving disputes is complex, creative work and judges have a responsibility not only to carry out this work, but also to acknowledge it and justify it.”

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These words echo Supreme Court Justice L’Heureux-Dube J. in Regie des permis d’alcool, “…given the growning recognition that there are many different perspectives – the aboriginal perspective, for example – I believe that the era of concealed underlying premises is now over. In my view, those premises must be brought to the surface in order to promote consistency in our law and the integrity of our judicial system.”13

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Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U. Ottawa L. Rev. 13

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, p.1001.

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The Pragmatics of Statutory Interpretation Part III: Linguistic Comprehension Some underlying premises that courts use in statutory interpretation involve faulty assumptions about language and reading. This next section will outline a series of linguistic theories that describe how we make sense of language. Answers to these questions will lead us into the nature of thought itself and the consequences of thinking -- decision making. This analysis requires somewhat heavy reliance on empirical based psychological and linguistic theories. In general, it would be helpful to point out that human beings all have certain predispositions toward language processes and reasoning. Reasoning and the functions of the brain, can be viewed as a product of evolution; a propensity toward beneficial behaviours that developed within the physical reality of the world. Comprehension and cognition are examples of such beneficial products. 3.1: Reasoning and Interpretation There is a close association between practial reasoning and interpretation. Psychologist’s tell us that there are two basic types of cognition.14 The two types are deductive and inductive reasoning. Inductive reasoning is described as thinking by hypothesis testing. Deductive reasoning is described as drawing logical conclusions. “Code theory” (about to be explained) operates through deductive style reasoning, while schema theory is rooted in the study of inductive reasoning. 14

Mayer, Richard. Thinking, Problem Solving, Cognition 2nd Ed. Freeman and Company (New York 1992). 14

The Pragmatics of Statutory Interpretation

3.2: Schema Theory In 1932 Bartlett defined schema theory.15 This theory replaced Gestalt theory with a more precise description of understanding. According to schema theory, understanding involves the construction of a schema which serves to select and organize incoming information into an integrated meaningful framework. Schema theory recognizes that remembering and the use of memory require an active “process of construction;” during recall, a schema is used to generate or construct details that are consistent with it. The theory is based on the fact that people tend to remember, (1) the gist of a passage rather than verbatim content, (2) important information better than unimportant information, (3) information that is consistent with their perpective better than information that does not fit their perspective. Bartlett’s idea is that people abstract general meaning from prose during reading and construct their answers during recall. He also noted that people tend to make inferences about information not stated when reading. 3.3: Code Theory of Communication Historically, reading was widely perceived to be simply a matter of “decoding,” of translating the basic elements of written language. In classical code theory, the only way to 15

Mayer, Richard. Thinking, Problem Solving, Cognition 2nd Ed. Freeman and Company (New York 1992). 15

The Pragmatics of Statutory Interpretation communicate thoughts is to encode them. Code theory held that the communication of any thought could be achieved by uttering a sentence identical to it in content. Jerry Fodor’s The Language of Thought (1975), outlined an updated “code” theory of verbal communication. He recognized that that the basic coding-decoding process is supplemented by contextually informed inference routines. Though full encoding is possible, it is often unnecessary. By exploiting shared contextual information and inferential abilities, communication can succeed even when a thought is indirectly suggested rather than directly encoded.

Part IV: Reading Processes

Before we precede with an analysis of reading, a reference should be made that both verbal and text based communication share similar cognitive processes when determining meaning. Throughout the text, insights into spoken and written language will be used interchangeably. The term reader, also refers to hearer, the term speaker also refers to writer. The main difference between verbal and text communication lies in the absence of the ability to check a writer’s intention during reading, as well as the fact that language stripped of intonation provides less context for readers to reconstruct meaning. A leading Canadian authority on reading, Frank Smith wrote:

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The Pragmatics of Statutory Interpretation

“Reading is never an abstract, purposeless activity, although it is frequently studied in that way… Readers always read something, they read for a purpose, and reading and its recollection always involve feelings as well as knowledge and experience…. Reading is… a creative and constructive activity.”16

Rather than seeking a definition of reading we heed the words of Felix Cohen, and attempt to consider what is involved in reading. In Reading Without Nonsense, Frank Smith teaches us the basics. While reading we use our eyes and our minds. We use visual information as well as nonvisual information. The more nonvisual information a person has when reading, the less visual information needed. The less nonvisual information a person has when reading, the more visual information needed. The skill of reading is to make maximum use of what you know already and to depend on the information from the eyes as little as possible.17 4.1: Reading and Memory The mind makes use of memory and recall when reading. The critical difference between short-term and long-term memory is organization. Short-term memory holds unrelated items, but long-term memory is a network, a structure of knowledge, it is coherent. Long-term memory is everything we know about the world and it is organized. It is only through organization that information can become established in long-term memory, and it 16

Smith, Frank. Understanding Reading: A Pscholinguistic Analysis of Reading and Learning to Read, 5th ed. (Hillsdale, New Jersey : Lawrence Erlbaum Ass., 1994) p.31. 17 Smith, Frank. Reading Without Nonsense. 2nd Ed. Cambridge University Press. (England, 1978). 17

The Pragmatics of Statutory Interpretation is only through organization that it can be retrieved again. “Comprehension takes care of memorization.”18 4.2: Reading and Meaning There is a difference between the “visual information” on the page and meaning. Smith tells us that readers should expect to bring meaning to print rather than expect to receiving meaning from print.19 Smith is not the only one to believe that there is far more to language and comprehension than what resides in the visual information. Noam Chompsky in his theory of syntax delinates two basic structures of spoken and written language. They are surface structure and deep structure.20 Surface structure is visual information, the physical characteristics of langauge. Deep structure is an alternative term for meaning. Much of the deep structure of language is not in the surface structure at all. No one-to-one correspondence exists. The reality is that the physical aspects of language, the print or the sound, contain insufficient information to convey meaning unambiguously. One surface structure may have more than one deep structure and one deep structure may have more than one surface structure. Ambiguity is unavoidable in language use. Meaning lies beyond mere words. For example, often grammar cannot be determined until meaning is allocated to a sentence. “Flies” is a verb in time 18 19 20

Ibid Ibid Chomsky, Noam. Aspects of the Theory of Syntax, Cambridge MA, MIT Press (1965).

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The Pragmatics of Statutory Interpretation flies and a noun in fruit flies. Only after you know what the sentence means can you determine the grammar. Words themselves have too many meanings. Once a word gets into common use it tends to be given as many meanings as possible. The human brain works best by using a few elements very productively rather than using many elements restrictively. You cannot tell what grammatical functions of many common words are when taken in isolation. (Consider, sock, run, walk, house, fence, bottle.) 4.3: Reading and Ambiguity Language itself is ambiguous. Comprehension allows for our attention to select and emphasize the appropriate contextual cues. Lexical ambiguity is resolved or at least managed by comprehension. Most utterances only have one intended interpretation. Usually there is little argument about that interpretation based on knowledge of the intention. Ambiguity poses no problem for the producer of language, for the speaker or the writer. They already have a reasonable idea of what they are saying, and provided they produce an expression that is not incompatible with their intentions, they rarely suspect that their words may have some alternative interpretation. Meaning seems self-evident when we are speaking and writing. Speakers and writers are the last people to be aware of the unintentional effects, such as puns. They get embarrassed or annoyed when distortions of their meaning or “misinterpretations” of what they say are pointed out to them. 19

The Pragmatics of Statutory Interpretation The reason why readers and listeners are usually no more aware of possible ambiguity than the writer or speaker who produces the language has to do with context. Context limits the range of ambiguity. If the discussion is about transportation we never consider that table might refer to a piece of furniture. In the expectation of a particular sense, we discard or are completely unaware of potential nonsense. We may not be able to predict exactly what a writer or speaker will say, but we know enough to not consider unlikely alternatives. The generation and testing of predictions is the way we comprehend just about everything in life. 4.4: Comprehension and Prediction We have a schema in our heads, a theory of what the world is like, and this theory is the basis of all our perception and understanding of the world. We need prediction to survive, there is too much ambiguity in the world, too many alternatives. In predicting the possible meaning that a word is likely to have on a particular occasion we are not aware of every potential ambiguity. Prediction is the prior elimination of unlikely alternatives. Prediction is asking questions and comprehension is getting those questions answered. Comprehension is a state of not having any unanswered questions. Comprehension is a state of zero uncertainty. Comprehension is also relative, it depends on the questions you ask. It is unlikely that any two people would ever in fact ask exactly the same questions of the same piece of text. 20

The Pragmatics of Statutory Interpretation

George Yule and Gillian Brown explain relative comprehension in Discourse Analysis, “However objective the notion of “text” may appear as we have defined it, the perception and interpretation of each text is essentially subjective. Different individuals pay attention to different aspects of texts. The content of the text appeals to them or fits into their experience differently.”21

Reading is extracting information from a text for a purpose. The purpose is to answer specific questions that we are asking. Frank Smith suggests that the moment we pay attention to such irrelevant details as the paper or the print, we risk losing concentration upon the sense of what we are reading. There is a skill in asking questions and knowing how to find answers in a text. The questions we ask in reading are almost invariably implicit. We are aware of the process of selecting and evaluating answers, but we are not always aware of the questions we ask, or even that we are asking them.

Part V: Inference Theory of Communication Herbert Paul Grice (1913-1988) was a philosopher who is best known for his analysis of speaker meaning, conversational implicature, and intention-based semantics. Primarily due to this work and his ideas, philosophical debate over the nature of meaning shifted during the 1970’s and 1980’s from linguistic representation to mental representation. The problem of explicating the meaning of words changed to focus on the problem of explicating the content of mental representations. 21

Yule & Brown.Discourse Analysis. (Cambridge: Cambridge University Press, 1983) p.11.

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The Pragmatics of Statutory Interpretation Theorists now assume that the meaning of words is derived from the content of mental representations. 5.1: Herbert Paul Grice22 Grice was a philosopher of language who was interested in drawing a distinction between the meaning of words and the use of words. He belonged to a long tradition in philosophy that treated communication as a matter of a speaker’s using words to enable hearers to recognize the content of their thoughts. (intention-based communication) He laid out the groundwork for a theory that eventually challenged this traditional view. He began by demonstrating a difference between when a sentence is inappropriate because it fails to be true, i.e. it doesn’t correspond with the world, and when a sentence is inappropriate for reasons of a different kind.

5.2: On Truth

To begin the first task, Grice outlined situations where the meaning of statements relied on external conditions for their truth. So for example, if an external condition failed to correspond to the world, ie. failed to be true, then the proposition was deprived of its truth-value. If a condition was false, the proposition might be false, i.e.

lacking a truth-

value. If the external condition was true, then the statement could be either true or false. 22

Grice H.P. Studies in the Way of Words. Harvard University Press (1989). 22

The Pragmatics of Statutory Interpretation

Any given proposition will be inappropriate if it was pointless. To Grice’s mind, it would be pointless unless there were a real or supposed possibility that the proposition was false. i.e. you can test for it. The main point is that whether the proposition is true, false or lacks a truth-value depends on the facts. This signaled the end of the metaphysical search for ‘truth.’ The original formulation of “speech-act” behaviour was responsible for the end of the big truth.23 This view considered the many different uses of the word “truth,” and decided that primarily “truth” was the property of an utterance. For example, to say “Smith is happy,” is to say that, “it is true that Smith is happy.” And not merely to assert it but also to endorse, confirm, concede, or reassert it(etc.). To say “it is true that Smith is happy,” is to make a concealed reference to utterances. To say such a thing is to implicate that someone might say so. To assert that a proposition is true is only to assert that proposition.24 Grice maintains that truth should really be called “factually satisfactory.” The truth of the utterance is dependent on the reality of whether or not Smith is happy regardless of what someone may say about it. Grice maintained that when discussing the meaning of a particular word or phrase it was a mistake to look for ‘truth’ in the facts, if the condition for its applicability was 23 24

P.F.Strawson. “Truth,” Analysis 9, no.6 (1949). Ramsey. Foundations of Mathematics, pp.142-143.

23

The Pragmatics of Statutory Interpretation actually speaker-relative. Whether a statement in this context was inappropriate or not was best explained by reference to certain general principles of discourse or rational behaviour, rather than in reference to a truth-value.

5.3: On Logic Grice approached logic from a critical point of view. He was trying to pursuade formalists that formal devices of logic were unnecessary. He thought that natural language operated in the same way as these logical constructs, thereby making these constructs superfluous. Formalists assume that the primary yardstick by which to judge the adequacy of a language is its ability to serve the needs of science. Formalists’ generally believed that an expression cannot be guaranteed as useful unless an analysis of its meaning had been provided, and that every analysis would take the form of a precise definition based on logical equivalence. Formalists’ wanted to use logic to construct an ideal language, incorporating formal devices, the sentences of which would be clear, determinate in truth value, and certifiably free from metaphysical implications. The fear was that we cannot be certain that natural language expression were not metaphyscially “loaded.” Grice claimed that natural language and formal devices did not actually diverge in meaning if only you understood the mechanism of implicatures.

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The Pragmatics of Statutory Interpretation 5.4: Grice’s Implicature Casual comments made by someone such as, “he likes his job, he hasn’t been to prison yet,” suggest that a speaker is implying more than is said. That we may or may not enquire after the implicature depends on our ability to comprehend the meaning in the given context. “Implicature” is a blanket word to avoid having to make choices between words like “imply,” “suggest,” “indicate,” and “mean.” ‘Conversational implicature’ is the term Grice used to explain what was not said but intended anyway. It relies on what he dubbed the “cooperative principle.” “The

Cooperative Principle

:

Make your conversational contribution

such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exhange in which you are engaged.”25

The cooperative principle subsumes a number of submaxims, such as “make your contribution as informative as is required,” “Do not say that for which you lack adequate evidence,” “Be relevant,” and “avoid obscurity.” According to Grice, everyone recognizes in cooperative efforts a common purpose or set of purposes, or at least a mutually accepted direction in conversation. At each stage in the coversation some possible conversational moves would be excluded as conversationally unsuitable.

25

Grice H.P. Studies in the Way of Words. Harvard University Press (1989). P.26. 25

The Pragmatics of Statutory Interpretation 5.5: Maxims : Quantity, Quality, Relation, Manner Conversational maxims are connected to the particular purposes that conversations are adapted to serve. We are to assume the overall purpose in conversation is to promote a maximally effective exchange of information. The conversational maxims fit in four categories, quantity, quality, relation, and manner. The maxims are set out below as recast by Georgia Green:

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Quantity, Quality, Relation, and Manner Quantity I.

An agent will do as much as is required for the

achievement of the current goal II.

An agent will not do more than is required

Quality : Agents will not decieve co-agents. Consequently, an agent will try to make any assertion one that is true. I.

Agents will not say what they believe to be false

II.

Agents will not say that for which they lack adequate evidence

Relation : An agent’s action will be be relevant to and relative to an intention of the agent. Manner : Agents will make their actions perspicuous to others who share a joint intention. I.

Agents will not disguise actions from co-agents. Consequently, agents will not speak obscurely in attempting to communicate.

26

Green, Georgia. The Nature of Pragmatic Information. Univ. of Illinois, unpublished. 1999. 26

The Pragmatics of Statutory Interpretation II.

Agents will act so that intentions they intend to communicate are unambiguously reconstructible.

III. Agents will spend no more energy on actions than is necessary. IV.

Agents will execute sub-parts of a plan in an order that will maximize the perceived likelihood of achieving the goal.

Grice wants us to think of the cooperative principle as not merely something that all of us or most of us do in fact follow, but as something that it is reasonable for us to follow, something that we should not abandon. Grice thinks of the observance of cooperative principle as a quasi-contractual matter. Grice is not suggesting that the maxims of conversation are rules. A persons may violate a maxim. For example, someone may be unable to fulfil one maxim without violating another; or someone might flout a maxim for a purpose. His point is that when they do this it gives rise to a conversational implicature. The maxims get exploited to bring about some unstated purpose. 5.6: Implicature The formal representation of an implicature: ‘A’ who by saying that p (proposition) has implicated that q (entailment), provided: (1)‘A’ is presumed to be observing the conversational maxims or at least the CP. 27

The Pragmatics of Statutory Interpretation

(2)He is aware q is required to make p consistent with observation of CP. (3)‘A’ thinks hearer can work out that q is required to make p consistent with observation of CP. A conversational implicature must be capable of being worked out. To work out a particular conversational implicature the hearer will rely on : (1)the conventional meaning of the words, together with the identity of any references that may be involved. (2)the CP and its maxims. (3)the context, linguistic or otherwise, of the utterance. (4)other items of background knowledge. (5)that all relevant items falling under the previous headings are available to both participants and both participants know or assume this to be the case. In other words, he has said ‘that p’, he is using CP, he knows that I know that he knows ‘that q’ is required; he intends me to think ‘that q,’ or at least he is willing to allow me to think ‘that q;’ so he has implicated ‘that q.’ To calculate a conversational implicature is to calculate what has to be supposed in order to preserve the supposition that the CP is being observed. 28

The Pragmatics of Statutory Interpretation

An implicature usually creates a meaning that is other than a conventional or literal meaning. Grice lays down a test to determine if a proposition (the total significance of the utterance) is conventional or conversational (nonconventional). He suggests we check the language for nondetachability and cancellability. Nondetachability : is it possible to find another way of saying the same thing which lacks the implicature. For example the word “try” ‘A’ tried to do ‘x.’ This implies that someone thought there was a chance of failure. The implicature (of failure) is nondetachable insofar as it is not possible to find another way of saying the same thing which simply lacks the implicature. The implicature of ‘A’ tried to do ‘x’ is also carried if one said ‘A’ attempted to do ‘x,’ ‘A’ endeavoured to do ‘x,’ ‘A’ set himself to do ‘x.’ It appears that the implicature does not depend on the manner in which what is said has been said, and it is also subject to the limitation that there may be no alternative way of saying what is said, other than introducting peculiarities of manner, or by being artificially long-winded. Cancellability : if I add “but not p,” or “I do not mean to imply that p.” If the implicature is not detachable and not cancellable then it must be permanent and conventional. The CP dictates that the senses of a word are not to be multiplied beyond necessity. We are to consider that it is 29

The Pragmatics of Statutory Interpretation better to strengthen our meaning by achieving a superimposed implicature, than by making a relaxed use of an expression. 5.7: Implicature and Intention An implicature is required to preserve the assumption that a speaker is observing the cooperative principle, if not at the level of what is said, at least at the level of what is implicated. In other words, we assume the speaker is observing the CP and imply whatever information is necessary to modify what is said. This entail a theory of ‘intention.’ The basic formulation of intention by Grice involves a desire on behalf of the speaker to intend to produce a certain response in an audience. If there is no audience, people pretend as if there is one. It is intended that an audience should recognize the intention of the speaker. The recognition should be in part the audience’s reason for producing the response intended. ‘U’(utterer) utters ‘x’ intending ‘A’ (Audience) to produce ‘r’ (response), to think U intends A to produce r; to think U intends the fulfillment of r to be based on the recognition by A that U intends that A produce r. In Grice’s theories the speaker’s intention is to be recognized by virtue of a knowledge of the conventional use of the sentence.

It requires that a speaker know the conventional

force of the words chosen. 5.8: Intention and Meaning 30

The Pragmatics of Statutory Interpretation

Grice argued that the use of language was one among a range of forms of rational activity. He advocated that the use of language involved a form of rational cooperation. Grice believed that a rational creature was a creature that evaluates. He defined rational behaviour in terms of making evaluative decisions. He was concerned with the elements of meaning that were present by virtue of convention, and those that were present by virture of something other than convention. For Grice the word ‘meaning’ was used in two different senses. It’s use had a natural sense and a nonnatural sense. natural sense

-- “These spots mean (meant) measles.” “Means”

“means something” “means that” It is meaningless to argue against natural meaning. More formally, x means ‘that p’ entail p. Nonnatural sense – I can argue against it. For example, “those three rings of the bell mean school is over.” Formally this can be represented by, x means ‘that p’ do not entail p. The causal theory of meaning which Grice amends said that “For x to mean something, x must have (roughly) a tendency to produce in an audience some attitude (cognitive or otherwise) and a tendency, in the case of a speaker, to be produced by that attitude.” These tendencies were seen as being dependent on “an elaborate process of conditioning attending the use of the sign in communication.” 27

27

Stevenson, C.L. Ethics and Language, (New Haven, 1944). Ch3.

31

The Pragmatics of Statutory Interpretation

What was absent from this causal meaning were situations where meaning was adapted to the situation. Grice described two different meanings of meaning. The first he called timeless meaning, similar to causal meaning, and the second was occasion-meaning, which was created to adapted to the situation. For Grice the correct and incorrect use of ‘x,’ was nothing more than a usual or an unusual use of ‘x.’ U must think, however, that the audience has this usual sense of ‘x.’ in their repertoires. A correct use of a sentence or a word corresponds to the standard use, this entails that the words have, “an ordinary (or accepted) use.” 5.9: Conventional Meaning In his theory a proper understanding of what is said involves knowing the standard use of the sentence in question. What a particular speaker means by a particular utterance on a particular occasion is to be identified with what he intends by means of the utterance to get his audience to believe. What a sentence means in general is to be identified with what would standardly be meant by the sentence by particular speakers on particular occasions; and what renders a particular way of using a sentence standard may be different for different sentences. If a speaker intends by means of an utterance to get an audience to believe something – the speaker must think that there is some chance that the audience will recognize from the utterance what it is they are supposed to believe.

32

The Pragmatics of Statutory Interpretation Explicit intentions are rare, so in their absence, we rely on the same criteria that we would rely on in the case of nonlinguistic intentions; a sense of general usage. An utterer is held to intend to convey what is normally conveyed (or normally intended to be conveyed), and people require a good reason for accepting that a particular use diverges from general use. The implicature depends on what is to be expected, not on what is universally true. One would assume that the meaning for the word is common knowledge. But this is not accurate. The truth is that it is noncontroversial, in the sense that it is something we would expect the hearer to take from us. Obviousness requires consent, on the part of the parties concerned, in the obviousness of what is thought of as obvious. Word meaning and speaker meaning can be different, it depends on the context. To say a sentence means something is to understand what the speaker means on a particular occasion. Or, it means that it is conventional to use this sentence this way. Convention is one way of fixing what a sentence means. One cannot know speaker meaning completely so at some point we merely deem that we know what they mean. The hearer recognizes or deems that the speaker intends the hearer to accept the proposition and the hearer thinks that the speaker intends the hearer to think that the speaker intends that the hearer recognize the meaning of a proposition. This explaination affords a possible infinite regress that is best stopped by a hearer by just deeming the intention of the speaker. 5.10: Grice Conclusion 33

The Pragmatics of Statutory Interpretation

Grice’s intention-based semantic description of speaker meaning rests ultimately on a conception of conventional meaning, or ‘timeless’ meaning. Timeless meaning of a form of words may be defined in terms of what speakers have in their “repertoire” to do by means of that form of words. A speaker may reasonably expect that an utterance of that form of words will produce the intended effect. Conversational implicature is a function of a theory of human behaviour generally, not something specifically linguistic. It is based on inferences of intentions for actions in general. Conversational implicatures arise from the assumption that it is reasonable (under the particular circumstances of the speech event in question) to expect the audience ‘A’ to infer that the speaker ‘S’ intended ‘A’ to recognize ‘S’s’ intention from the fact that ‘S’ uttered whatever ‘S’ uttered. Conversational implicature is inherently indeterminate. 5.11: Relevance Theory Recently (1986) Dan Sperber and Deirdre Wilson have used Grice’s theories to push theoretical pragmatics further.28 Inferences are seen to be guided by relevance. Relevance is viewed as an interpretation that fits with pre-existing knowledge and has a low processing effort. In general, relevance theory is the study of mental representations. It assumes that what can be communicated goes 28

Sperber Dan, Wilson D, Relevance : Communication and Cognition. Harvard University Press, Cambridge, MA. (1986). 34

The Pragmatics of Statutory Interpretation well beyond what can be encoded. The idea is that language is merely used as a “conduit” to communicate concepts. Sperber and Wilson have formed two main principles of relevance used in communciation, The Cognitive Principle of Relevance – Human cognition tends to be geared to the maximization of relevance. Communicative Principle of Relevance – Every act of ostensive communication communicates a presumption of its own relevance. In this theory words are used as pointers to contextually intended senses. Utterances are merely pieces of evidence of the speaker’s intention. It is easy to show that a speaker cannot always be expected to produce the most relevant possible utterance. However, the ostensive stimulus is relevant enough for it to be worth the readers effort to process. It is the most relevant. The cognitive process of inference integrates the linguistic contribution of communciation with other readily accessible information (ostensive behaviour) in order to reach an interpretive hypothesis concerning the speaker’s intention. Inference processes are constrained and guided by the communicative principle of relevance, which licences a hearer to look for an interpretation that makes sense and does not put him to any unjustifiable processing effort. The greater the effort the lower the relevance. Relevance theory believes that classical code theory is patently wrong. The classical theory treats coding-decoding as 35

The Pragmatics of Statutory Interpretation the only explaination of communication, which entails as a core theoretical claim that every communicable message is fully encodable. This empirical claim has little empirical support. In updated code theory inferences are seen as shortcuts to coding-decoding, relevance theory sees them as something more. 5.12: Relevance and Meaning There are fixed relationships between the mind and the world. One of those relationships is represented in the language that we speak. Mental representations have a structure similar to a sentence and combine elements to form a mental repertoire like a lexicon. Mental concepts are relatively stable and distinct structures in the mind. According to relevance theory, there are many more concepts in our minds than words in the language we speak. These concepts may be both stable and communicable without being encoded in words. The concept communicated by use of a word on a given occasion may go well beyond the concept encoded.

Much research has cast doubt on the view that word meanings can be analysed in terms of context-independent prototypes, and suggests instead that ad hoc meanings are constructed in context.29 These occasional meanings may stabilise into concepts, for the speaker, the hearer, or both.

29

Sperber Dan, Wilson D, Relevance : Communication and Cognition. Harvard University Press, Cambridge, MA. (1986). 36

The Pragmatics of Statutory Interpretation New senses are constantly being constructed in context. The stabilisation of a word in a language is a social and historical affair. It is a slow and relatively rare process, involving co-ordination among many individuals over time. The ad hoc concept constructed by an audience is unlikely to be exactly the same as the speaker. Sperber and Wilson maintain that it is an illusion of the code theory that communication aims at the duplication of meanings. Sometimes it does, but normally it aims at something looser. The fact that a public word exists and is successfully used in communciation does not make it safe to assume that it encodes the same concept for all successful users; and in any case, the concept communicated will only occassionally be the same as the one encoded. Communication succeeds because words point the hearer in the intended direction. Sperber and Wilson believe that there are three kinds of mapping between mental concepts and public words. The mapping between words and concepts may be one-to-one, one-to-many, many-to-one or a mixture of these. However, the idea that there is an exhaustive, one-to-one mapping between concepts and words is quite implausible. Some concepts have no corresponding word, and can only be encoded by a phrase. For example, uncle or aunt. We have many beliefs and expectations about uncles-or-aunts. It makes sense to assume that these beliefs and expectations are mentally stored in a mental concept. At the opposite pole, a person may not know the word sibling but still have a concept that has brother and sister as sub-categories.

It is plausible that not

all words map onto concepts, nor concepts onto words. 37

The Pragmatics of Statutory Interpretation

Some words are more like placeholders, such as “it.” It does not encode a concept at all. Many words encode not a fullfledged concept but a pro-concept. My, have, near, long – they have some conceptual content, but as with pronouns their semantic contribution must be contextually specified for the associated utterance to have a truth value. Whether or not a word encodes a full concept, the concept it is used to convey in a given utterance has to be contextually worked out.

5.13: Relevance and Truth In relevance theory the bearer of truth is not the sentence but the proposition or thought the speaker uses the sentence to express on a given occasion. Reference assignment & disambiguation can result in truth – (evaluable propositional representation if and only if the context is true). Formal logic has traditionally relied on truth-conditional semantics. However, under this analysis truth requires reference to a context, which makes truth pragmatic. Pragmatic inferences create narrowings and loosenings of encoded concepts. Pragmatic inferences may entail loss of encoded information. The precise and clear language desired by the positivists in the search for truth may not factually correspond to the world or the processes invovled in truth acquisition.

38

The Pragmatics of Statutory Interpretation 5.14: Further Relevance In a world of “semantic underdeterminancy” it only further complicates matters to discover that a shifting context may mean that a single sentence could have different truth conditions on different occasions of use. Under relevance theory the hearer manages with this problem by constructing meaning in the following manner: 1. Following a path of least effort, 2. the hearer or reader decodes the linguistic information and then uses that information to form a template for the meaning. 3. The reader enriches the meaning at the explicit level by using formal deduction, and logic (explicature), and 4. The reader compliments the meaning at the implicit level using inferences and the CP (implicature). 5. When the resulting interpretation meets with expectations of relevance, the reader stops.

Part VI: Speech Act Theory and Statutory Interpretation.

39

The Pragmatics of Statutory Interpretation A number of different articles have already noted a theoretical and logical bridge between speech act theory and statutory interpretation.30 Speech act theory suggest that when people express themselves they produce more than grammatical structures and semantic meaning, they intend to perform ‘actions’ via the utterance. We create utterances with the intention of having an effect. We assume that the hearer will recognize the effect that we intended. When legislatures enact a statute they are initiating communication with an audience. The speaker is the legislature, which is the will of the people, and the hearer’s are the people who are subject to crown jurisdiction. Speech-act theory is grounded in the speaker-hearer context and the notable rules which govern conversations. If we treat statutes as a legislative utterance we can gain some insight into possible restrictions and limitations that rational conversation impose on speakers. The rules of statutory interpretation as related to us by the Supreme Court also reflect many of these rational implications inherit in communication, especially text-based. Legislation is an attempt at communication, it shares a similarity with the insights of modern linguistic theorists. Statutory interpretation is a method of creating meaning. 6.1: Statutory Interpretation in Canada

30

Miller, Geoffrey. Pragmatics and the Maxims of Interpretation. (1990) Wisconsin Law Review. pp.1179-1225. See also Sinclair, M.B.W. Law and Language : The Role of Pragmatics in Statutory Interpretation. (1985) University of Pittsburgh Law Review, v46. pp.373-420. 40

The Pragmatics of Statutory Interpretation The point of statutory interpretation is not to study how communication occurs but to answer a question or resolve a dispute. Currently, the Supreme Court assumes that the statutory text is the most authoritatve interpretative source. The text is considered the starting point for interpretation, and textual arguments carry the greatest argumentative weight. The Court supports an intentionalist approach to textual analysis, “The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.31

The Court’s first duty in resolving interpretation disputes is to give effect to the intention of the enacting legislature.Where there is evidence from which the intent of the legislature can be inferred, and when the inference seems compelling, the judge is bound to give it considerable weight. The interpretive theory seems to be beyond code theory and supports an inference based intentionalist approach. The Court has yet to accept pragmatics as the governing rule in interpretative disputes about meaning.

6.2: Approaches to Meaning In a legal context the term meaning is used to describe many different things. The word is used indiscriminately by judges to refer to approximately 5 different distinct meanings.32

31

Driedger, Elmer. Construction of Statutes, 2nd ed. (Toronto : Butterworths Ltd., 1983), at p.87.

32

Sullivan, Ruth. Statutory Interpretation in the Supreme Court of Canada (1998) 30 U. Ottawa L. Rev. 41

The Pragmatics of Statutory Interpretation 1. Dictionary Meaning – abstract semantic definition stripped of context. (The courts assumes that the meaning of words known by every competent user of language is equivalent to their dictionary meaning.) 2. Literal Meaning – an abstract dictionary-like meaning but from a particular context. 3. Utterance Meaning, (speakers meaning or intended meaning). Utterance meaning uses syntax, semantics, and context to inform content. 4. Audience-based Meaning – sometimes called ordinary meaning or first impression meaning. This is meaning as understood by particular audience, ie public at large.

-

(a) Technical Meaning, the meaning known by a specialized sub-group.

-

(b) Legal Meaning, if the specialized sub-group is lawyers and judges.

5. Applied Meaning – the meaning of a text in relation to particular facts. 6.3: Approaches to Interpretation Sullivan categorizes the Supreme Court of Canada’s approach to interpretation as consisting of three distinct theories of statutory interpretation :” (1) textualism (also called literalism), which underlies the plain meaning rule, (2) intentionalism, which underlies Dreidger’s modern principle of

42

The Pragmatics of Statutory Interpretation interpetation, and (3) pragmatism, which explains and justifies the actual practice of modern courts.” 6.4: Textualism (Literalism) The text provides the best, first, and usually only necessary evidence as to the intention of the legislature and the meaning of any statute. Interpretation of the text is unnecessary because the meaning is clear. The plain meaning of the words governs, this is in accordance with the rule of law. No other evidence going toward meaning is necessary. The literalist position is that other provisions of an Act, legislative purpose, and real world consequences have no role to play in the intial determination of meaning. Lamer C.J. in Ontario v. C.P. Ltd. : “…the first task of a court construing a statutory provision is to consider the meaning of its words in the context of the statute as a whole. If the meaning of the words when they are considered in this context is clear, there is no need for further interpretation. The basis for this general rule is that when such a plain meaning can be identified this meaning can ordinarily be said to reflect the legislature’s intention…the best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what it says, when this can be clearly ascertained.”33

As a point on the mechanics of comprehension it would seem obvious that it is always necessary in construing a statute, and in dealing with the words you find in it, to consider the object with which the statute was passed, because this context aids the understanding of the meaing of the words in the Act. No word is ‘plain’ without first having cognitive inferences limit the context. 33

Ontario v. C.P. Ltd. [1995] 2 S.C.R. 1028, pp. 1049-50.

43

The Pragmatics of Statutory Interpretation 6.5: The Plain Meaning Rule This rule assumes that it is possible to determine the plain meaning of a text simply by reading it. Only when a text is ambiguous is interpretation required. This rule assumes that plain texts are capable of only one plausible meaning, a meaning that resides in the expression of the words. Ambiguous texts are capable of more than one plausible meaning. If a text is ambiguous the interpreter may refer to other material outside of the text. 6.6: Problems with the Plain Meaning Rule 1. The assumption that texts have a plain meaning. The assumption that the plain meaning can be determined by systematic analysis. There are many steps in determing plain meaning. Plain meaning is actually a product of uncertainty, arbitrary choice, inconsistency and confusion. Identifying the text to be interpreted can sometimes be a personal arbitrary choice. Defining the co-text or surrounding text to inform the words to be interpreted is also a product of arbitrary personal choice. The task of determining meaning demonstrates that judges are unaware that the word meaning is used to mean different things in different contexts. 2. The assumption that the plain meaning is the same for everyone is also wrong. The plain meaning rule assumes that what is plain to one person is plain to another. It assumes that by using the right words arranged in the right order, the meaning will be communicated to the reader automatically simply through reading. This is just not reality.

44

The Pragmatics of Statutory Interpretation In the plain meaning rule the distinction between “plain” and “ambiguous” is very important. If the text is plain, there is no need for interpretation; the plain meaning prevails over other evidence of legislative intent. If text is ambiguous then interpretation is required.and other evidence can be relied on. A text is ambiguous it it is reasonably capable of bearing more than one plausible meaning. As we have seen from communication theory, context and predictions are used to define plausible meanings, hardly the objective content of the words themeselves. We know from linguistic theory that the shorter a text and the more limited its co-text and context, the greater the scope for multiple readings. Judgements about plausibility are rooted in the sensibilities of individual speakers, they are highly subjective and naturally differ from one reader to the next. Determining the plain meaning of a text depends on an arbitrary identification of the text and co-text, shifting and uncertain conceptions of meaning, and highly subjective judgements about plausibility. These problems undermine the credibility of the plain meaning rule. 6.7: Intentionalism This is the theory that the intention of the legislature governs interpretation. Meaning can be given to a text by understanding the what the speaker intended. Intentionalists of the court will use any extrinsic evidence that is relevant and reliable. They do not require ambiguity before using extrinsic aids during interpretation.

45

The Pragmatics of Statutory Interpretation McLachlin J. as she was then put down in the dissent in R.v.McIntosh: “The point of departure for interpretation is not the ‘plain meaning’ of the words, but the intention of the legislature. The classic statement of the ‘plain meaning’ rule , in the Sussex Peerage Case… makes this clear: “the only rule for the construction of Acts of Parliament is, that they should be construed according to the intent of the Parliament which passes the Act” …it is the intention, and not the “plain meaning”, which is conclusive.34

According to Sullivan, the intentionist approach recognizes that the text is important during interpretation. If the text is clear and precise the court must give it appropriate weight. However, the court is free to consider other extra-textual evidence, which if persuasive, can be evidence to reject a clear and precise text in favour of the intention of Parliament. In McIntosh, McLachlin J. is not against the Court correcting an error in the legislative text in order to align it with the intention of the legislature. Textualism would reject adding words in a statute because the rule of law allows only the legislature to create law. Additions are seen as amendments. Intentionalism however, sees adding words as a legitimate form of interpretation, not amendment, so long as the addition is based on cogent evidence of true legislative intent. McLachlin J. in Opetchesaht Indian Band v. Canada links together the plain meaning rule and the intention of Parliament : “the process of statutory interpretation requires that the intention of Parliament be ascertained first by considering the plain meaning of the words used in 34

R. v. McIntosh [1995] 1 S.C.R. 686, pp.712-3.

46

The Pragmatics of Statutory Interpretation the statue…where “the words used in a statute are clear and unabmiguous, no further step is needed to identify the intention of Parliament.”35

However there are limitations to the intention of Parliament. The intention is inferred from reading the text in total context. Inference drawing by judges is no different from the process relied on by the readers of any text. Conclusions about writer’s intentions are always speculations, a mix of text and knowldege. Often the intention of the legislature does not suffice to resolve the problem before the court. Circumstances often arise which the enacting legislation did not or could not have contemplated. In reality the intentionalist denies responsibility for her own choices and loses credibility with her audience. Legislation is drafted in the form of a general rule that will apply to facts which the legislature has not even attempted to imagine in some cases. Intention is really only what the judge makes up as the intention. This deemed intention is based on their personal inferential skills and is usually justified by the plain meaning rule. Driedger conceives of the “intention of Parliament” as composed of four elements.36 1. expressed

intention – intention expressed by the enacted

words.

35 36

Opetchesaht Indian Band v. Canada [1997] 2 S.C.R. 119, at p.152. Driedger, Elmer. Construction of Statutes, 2nd ed. (Toronto : Butterworths Ltd., 1983) P.87.

47

The Pragmatics of Statutory Interpretation 2. implied intention – the intention that may legitimately be implied from the the enacted words. 3. presumed intention – the intention that the courts will in the absence of an indication to the contrary impute to Parliament. (conformity with international law, constitutional law, general statute book, common law.) 4. Declared intention – intention that Parliament itself has said may be or must be or must not be imputed to it. Textualism makes use only of express intention. Intentionalism relies on implied intention. The pragmatic approach advocated by Sullivan is presumed intention. 6.8: Pragmatism The third approach to interpretation outlined and endorsed by Sullivan is pragmatism, refered to in the U.S. as practical reasoning. Intentionalism and Pragmatism share a context based approach to interpretion permitting the Court to rely on the entire range of interpretive aids such as purpose, consequences, extra-textual context, traditional and newly emerging legal vales, and relevant extrinsic materials. The main difference between the two approaches is the acceptability criteria. Intentionalism prefers the outcome that demonstrates the intention of the legislature. Pragmatism prefers the outcome that solves the dispute in an appropriate manner. L’Heureux-Dube J. in the Regie des permis d’alcool expresses a similar practical reasoning pragmatic modern

48

The Pragmatics of Statutory Interpretation approach. She uses the term “modern approach” to designate a synthesis of the contextual approaches that reject the “plain meaning” approach: “According to this “modern approach”, considerations must be given at the outset not only to the words themselves but also, inter alia, to the context, the statute’s other provisions, provisions of other statutes in pari materia and the legislative history in order to correctly identify the legislature’s objective.”37

The Sullivan pragmatics requires judges to acknowledge and justify the other factors that influence their judgements. It requires judges to address the crucial problem of weight. Pragmatism is more persuasive because it asks judges to attribute only as much weight to the text as it can bear having regard to considerations like relative clarity, and only as much weight to legislative intention as it can bear having regard to the cogency of the inferences that can be drawn from reading the text in total context and from relevant extrinsic evidence. The pragmatic account of statutory interpretation is often resisted because it is thought to give too much discretion to unelected judges, contrary to both democratic principle and the rule of law. The pragmatism merely acknowledges the discretion they have, and must have, to resolve interpretation disputes. The only real question is whether we are content with formalism or want to know the “real” reasons for a decision. From the above survey it seems to me that statutory interpretation cannot be founded on the wording of legislation alone. Audience based meaning, or ordinary meaning, should be used by courts to protect the reasonable expectations of the 37

2747-3174 Quebec Inc. v. Quebec (Regie des permis d’alcool), [1996] 3 S.C.R. 919, p.1001.

49

The Pragmatics of Statutory Interpretation governed. However strict adherence to the plain meaning rule should only occur if an expression and the words used have a well-defined “plain meaning” within the specific community addressed by the legislature. Too often in practice the plain meaning rule acts as a proxy for strict construction. The legislatures prefer strict construction of fiscal and penal legislation. This policy is grounded in respect for private property, human freedom and the rule of law. The plain meaning rule is used to disguise what is actually happening. The court purports to give primacy to the text when in fact it is giving primacy to common law values. The ordinary meaning of a text can be compellingly clear and in such cases it carries significant weight. However it is still important for judges to look at other sources of legislative intent as well as to relevant constitutional and supplementary law to produce an appropriate outcome.

Part VIII: Toward Acceptable Criteria The underlying values of the liberal rule of law, namely openness and accountability of public decision-making, can function as the criteria by which to judge the actual performance of statutory interpretation. To measure how far the dominant claims, values or assumptions of a theory are realized in the law. In Reference re sucession of Quebec: “A system of governement cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is

50

The Pragmatics of Statutory Interpretation more. Our law’s claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure.”38

Sullivan defines the criteria for an appropriate dispute solution. 1. The solution must conform to text, the more precise and clear, the more weight the text should carry. 2. The solution must fulfil the intention of the legislature. The more evidence of intent, the greater the weight. 3. The solution must also produce an outcome that is just and reasonable. This phrase incorporates public values. The greater the argument to uphold these values the more weight they should receive. Personally I would consider adding a fourth acceptability criteria. An appropriate solution must also carry with it the appearance of justice. Part of the acceptability criteria of a judicial decision should be designed to not bring the administration of justice into disrepute. This is a comment on procedure as well as function of interpretation. 7.1: Meaning Revisited When determining the meaning of what is said, lexicon and syntatic structures are not enough. Meaning is a product of, 1. semantic encoding of words plus the context of utterance, and

38

Reference re sucession of Quebec,[1998] SCJ 61 para 67.

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The Pragmatics of Statutory Interpretation 2. propositions that the speaker’s words express (mental concept). It is quite possible that in reality words don’t have fixed literal meanings. The idea that someone could divine core literal meanings from interpretation in a “null” context is an impossible task. There are no null contexts where speaker and hearer make no assumptions about each other in which utterances could be interpreted. If words have normal meanings, it is only relative to an assumed speech community. What is considered normal is a reference to community standards. Value judgements are implicit in plain meaning determinations. 7.2: Grice Revisited There are facts about what speakers believe other speakers believe about conventions for using words. And despite indeterminacy, plausible candidates in a given context are limited. Rational speakers consider how likely it is that their intended audience will be able to understand them. Overall, the expectation of speaker’s intention is key to understanding. We all use language in accordance with the cooperative principle. We will only use a referential term ‘x’ when we believe that our hearer will be able to identify our intended referent from the reference to it by that term and will believe that we intended him to do so. Task of hearer is to deduce what sense the speaker most likely intended, and he will use all available clues to do so, 52

The Pragmatics of Statutory Interpretation without regard to whether they come from within or outside the immediate sentence or bit of discourse at hand. Speaker should take into account the hearers’ immediate accessible assumptions and the inferences that can readily be drawn from hearer’s perspective. 7.3: Relevance Revisited Information processing involves effort, it will only be undertaken in the expectation of some reward. Just as an assertion comes with a tacit guarantee of truth, so ostension comes with a tacit guarantee of relevance. Ostension is intended to attract attention. The principle of relevance make manifest the intention behind ostension. Obviously ostensive communication such as statutes carry a presumption of its own optimal relevance. Theory supports the application of the plain meaning rule but on other grounds than have traditional been put forward. Intention is used to bridge the gap between encoded information and the interpreter’s pragmatic inferential powers. The inferential process is independent of encoded information. For communication to succeed sometimes the inference must displace the encoded information. Perhaps judges are merely pawns of cognitive efficiency. Courts have traditionally used common sense to approach interpretation exercises. In the past, their questions have been about the ordinary meaning of a word, and the plain meaning of a word. The court should also be asking itself other questions during interpretation, such as if the meaning of a 53

The Pragmatics of Statutory Interpretation phrase is conventional or novel, or audience specific. The court must address any plausible underlying mental concepts that may not be fully encoded in the text. Fixing gaps becomes a legitimate process. If the word or phrase to be interpreted is ambiguous to a reasonable individual when placed within its total conxtex, and an appeal to conventional meaning is unable to provide a certain and satisfactory answer, then a judge must use deduction and inference to contruct the meaning. From a relevance perspective, a court must search after the mental representations fully or partially encoded and not the abstract definition of a words. Meaning is not in the words, it is in the idea behind the words. The law is not a bunch of phrases, it is consists of ideas, however imperfectly communicated by language. Based on relevance theory a court must, 1. Decide whether or not a full or impartial coding of the mental representation is present in the text. 2. If the coding is impartial they should supplement it with deductive logic and context driven inferences. 3. When these two processes yeild an interpretation that matches the overall purpose of the Act, they are done. 7.4: Conclusion The thing about the phenemonological insight is that theory should reflect reality in some manner. In other words, 54

The Pragmatics of Statutory Interpretation experience is the starting point of theory rather than metaphysics. The closer a theory can be shown to approximate to reality and the processes of experience the more reason there is to believe it; the greater its claim to legitimacy. It is interesting to note that formalism seems to be comforting for some people. They rely on formalism to understand the law and justify its application in the absence of knowledge that creates doubt. Positivism and the like provide certainty for people who sleep better at night secure in this faith, but it does little to address reality. In natural law, the law is moral. What is illegal is immoral. For positive law, Hart argues that law and morality should be separated. He says this will protect morality, while allowing for plurality. I argue that pragmatic law is a new social form of law that will eventually challenge and replace positive law. The separation of morality from law is impossible in reality. Life itself is a moral experience. What ground does a law without morality stand on if not immoral ground? Formalists reacted to the moral natural law by claiming to create a system that was neutral. But even neutrality is a value choice. Positive law, like formalism desires to remove morality from public law, as if it were possible. This choice does not protect morality, it only diminishes its power for action. There are common core values in society and they are represented in the law. Language use and inference require evaluate judgements. The creation of perspective itself and every human action is imbuded with moral decision-making. Positivist theories attempt 55

The Pragmatics of Statutory Interpretation to claim that they represent abstract truth, in the absence of the knowledge that the philosophy of language suggests that this goal of abstract truth or abstract logic is an illusion and quite impossible. In fact, the actual use of the word ‘truth’ should replaced by ‘factually satisfactory.’ At the end of the day, value choices inform every decision-making process. A pragmatic law will accept this reality and attempt to create public law that reflects this aspiration. To echo the ideas of Grice, a rational actor is one that evaluates. This entails context driven, value-laden individuals who resolve disputes using the tools and rules of statutory interpretation.

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