How to Do Things with Law

Law is a profession of words.

—David Mellinkoff, The Language of Law, p. vi

Like the White House's concern with Obama's oath, current U.S. law manifests broad respect for and simultaneous wariness about the potency of speech. As the Introduction notes, law regulates many areas and aspects of speech, not only through First Amendment jurisprudence but also, for instance, through criminal law, evidence law, and intellectual property law. Legal actions produce or review not only government documents but also private agreements, publications, and publicly displayed art. Law criminalizes some speech: forgery, fraud, libel, perjury. Civil and criminal procedures establish conditions of speech and expression, while also occasionally mandating that particular utterances be understood in particular ways.

Language cannot be bracketed as simply something that law regulates, however. Language permeates law. Lawyers use language to draft innumerable legal acts: complaints, wills, briefs, contracts, deeds, regulations, legislation. Not only lawyers, but also notaries, city clerks, regulatory officers, legislators, juries, civil servants, and the many others with whom, against whom, or on whose behalf these identifiably legal agents work, engage in recognizably legal acts involving speech: notarizing, notifying, petitioning, declaring, convicting, acquitting, bequeathing, amending, transferring. Formal legal declarations, such as jury instructions, verdicts, trial rulings, appellate decisions, local resolutions, administrative appointments, state and federal legislation, are prepared, announced, scrutinized, and challenged in legal actions that take place through language and must themselves accord with legally prescribed mandates and standards.

This chapter discusses the attention and care that U.S. law bestows on language and speech while foreshadowing themes to be developed in the next three chapters. The first section introduces the terminology of speech acts to show how U.S. law recognizes, beyond grammar and the meaning of words, the "actlike" or "performative" quality of speech. Legal claims in particular seem to correspond to the conventional acts and procedures that J. L. Austin identifies with the "illocutionary" aspect of utterances. But, Section Two continues, insofar as legal claims seek to persuade others, they also appear to be "passionate utterances," in Stanley Cavell's terms. The persuasive or passionate aspect of legal claims, like U.S. law's occasional acknowledgment of its own limitations as to speech and hearing, complicates accounts of law that would identify it strictly with conventional speech acts. Modern law is bound to language: It uses language, and language is not completely within its control. Attending to legal language thus supplements current accounts of law offered by empirical studies and by the legal positivism that predominates in contemporary philosophy of law, Section Three concludes. Law is not necessarily a matter of power or coercion, nor of higher morality or natural or divine justice, nor even of procedural fairness. Or rather, even when law is those things, it is also always a matter of language.

One. Speech Acts of Law: J. L. Austin

Most readers are familiar with some of the ways that vocabulary and grammar are implicated in legal disputes. Ross Charnock points to an English-language example of a dispute over words in which Justice Gray in 1893 held that tomatoes were vegetables for the purposes of the Tariff Act of 1883: "In the common language of the people [...] all these are vegetables, which are [...] like potatoes, carrots, parsnips, usually served at dinner with the fish or meats [...], and not, like fruits generally, as dessert" (Nix v. Heddon, 1893).

In jurisprudential discussions today, the most famous example of disputes as to the meaning of words involves what counts as a "vehicle" in the context of a rule prohibiting vehicles in a park. H. L. A. Hart uses the hypothetical question of allowing "a toy motor car electrically propelled" into the park to discuss the indeterminacy of general standards that regulate conduct. "When the unenvisaged case does arise," he writes, "we confront the issues at stake and can then settle the question ... In doing so we shall have rendered more determinate our initial aim, and shall accidentally have settled a question as to the meaning, for the purposes of this rule, of a general word." The use of the future perfect ("shall have rendered ... and ... settled") implies the resolution or closure of a formerly open issue. Charnock notes that, in 1951, Chief Justice Goddard had considered a poultry shed to be a vehicle "within the meaning of § 1 of the Road Traffic Act of 1930" (in Garner v. Burr, KB, 1951). Twenty years earlier, U.S. Justice Holmes had held that an aircraft was not a vehicle for the purpose of transportation across state lines (McBoyle v. U.S. 1931). Such differences, as Lon Fuller points out, of course turn at least in part on the context of the dispute and on the purpose attributed to the statute or rule ostensibly controlling the case.

Many cases make explicit the link between a determination of meaning and the purpose or context of the statute or rule under which the determination is made, even if they do not go so far as to explicitly acknowledge the strange retrospectivity suggested by Hart (and taken up in Chapter Two). A 2004 U.S. Supreme Court case, for instance, considers whether a Florida DUI (driving [a motor vehicle] under the influence of alcohol) offense counts as an "aggravated felony" for the purpose of deportation under the Immigration and Nationality Act (INA). The Act defines aggravated felony to include "a crime of violence" for which the term of imprisonment is at least one year. The U.S. Code (Title 18, sec. 16) in turn defines a crime of violence as "an offense that has as an element...