Communicative Content and Legal Content
Solum, Lawrence B., Notre Dame Law Review
This Essay investigates a familiar set of questions about the relationship between legal texts (e.g., constitutions, statutes, opinions, orders, and contracts) and the content of the law (e.g., norms, rules, standards, doctrines, and mandates). Is the original meaning of the constitutional text binding on the Supreme Court when it develops doctrines of constitutional law? Should statutes be given their plain meaning or should judges devise statutory constructions that depart from the text to serve a purpose? What role should default rules play in the interpretation and construction of contracts? This Essay makes two moves that can help lawyers and legal theorists answer these questions. First, there is a fundamental conceptual distinction between "communicative content" (the linguistic meaning communicated by a legal text in context) and "legal content" (the doctrines of the legal rules associated with a text). Second, the relationship between communicative content and legal content varies with context; different kinds of legal texts produce different relationships between linguistic meaning and legal rules.
I will proceed as follows. In Part I, "Distinguishing Communicative Content and Legal Content," I will investigate the questions raised by differentiating the linguistic meaning of legal texts from the legal content that the texts create. In Part II, "Communicative Content," I will provide an account of communicative content in general and then apply that account in more particular contexts (contract formation, constitutional interpretation, and the interpretation of judicial opinions). My aim is to show that the differences between these contexts lead to systematic differences in the ways we discern the communicative content of different types of legal texts. In Part III, "Legal Content," I will investigate the role that communicative content plays in the determination of legal content. Again, I will investigate different contexts of legal communication, but in this Part with the aim of showing that the role played by communicative content in determining legal content is context sensitive. In some contexts, the meaning of the text has pride of place, but in other contexts, communicative content plays only a secondary role. Finally, in the Conclusion, I will say something about the payoff of this investigation for legal theory and practice.
I. DISTINGUISHING COMMUNICATIVE CONTENT AND LEGAL CONTENT
For any given legal text, we can distinguish two kinds of content.
First, legal texts have communicative content. The phrase "communicative content" is simply a precise way of labeling what we usually call the "meaning" or "linguistic meaning" of the text. Legal texts also have associated legal content. "Legal content" is a precise way of labeling the content of the legal norms the text produces. In the case of the Constitution, for example, we can distinguish the communicative content of the constitutional text and the legal content of the doctrines of constitutional law that are associated with the text.
Here is a simple example of the distinction between communicative content and legal content. The text of the First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (1)
The word "Congress" in the First Amendment has communicative content, usually it is understood to refer to the Congress of the United States, consisting of the House of Representatives and the Senate. But the legal content of First Amendment doctrine is not limited in this way: for example, the freedom of the press applies to judicially created defamation law. (2)
Consider some examples of the issues that arise once we distinguish communicative content and legal content. …