Legal Theory Lexicon

  • Legal Theory Lexicon 102: Motives and Functions

    By Lawrence B. Solum

    Introduction

    The law frequently deploys the idea that actions, events, and communications have motives, purposes, or functions. Consider the following list of questions:

    • What is the goal of that statute?
    • What function did the clause of the contract perform?
    • What was the purpose of the military intervention in Venezuela?
    • What motivated her sale of shares in the company?

    This Lexicon entry explores an important distinction between subjective motivations, on the one hand, and objective functions, on the other. These concepts are deployed in a wide variety of legal contexts, playing an important role in theories of statutory interpretation, the context of judicial review, and elsewhere. The basic idea of the distinction is simple. When we think about purposes or goals, we can distinguish between motives (psychological states) and functions (objective properties). The motive for enacting a statute might be “to get campaign donations from a special interest group,” but the function of the statute might be quite different, “to enable the production of greater quantities of petroleum.”

    As always, this Lexicon entry is written for law students, especially first-year law students, with an interest in legal theory.

    An Example of the Distinction in Action: Statutory Interpretation and Construction

    Simplifying, let us assume that there are three basic approaches to statutory interpretation and construction:

    Textualismholds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the meaning (communicative content) of the statutory text.

    Subjective Intentionalism holds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the motives (subjective intentions) of the legislators who enacted the statute

    Objective Purposivism holds that the legal content of statutory doctrines and the decision of statutory cases should be determined by the function (objective purpose) of the enactment.

    Let’s put textualism to the side and focus on the difference between subjective intentionalism and objective purposivism. One might think that intentions and purposes are more or less the same thing, and hence that intentionalism and purposivism are just different names for the same theory. But that would be a mistake. Subjective intentions are motives or psychological states. Objective purposes are functions that statutes are designed to achieve.

    The subjective intention of a legislator might have the same content as the objective purpose or function that the statute was designed to achieve. For example, a legislator might vote for a gun control statute that prohibits the ownership of assault rifles in order to reduce the incidence of casualties from mass shootings, and that might also be the function that the statute was designed to achieve. But motive and function may be quite different. The assault rifle statute might have been motivated by the legislators’ desire to compromise between two important constituencies, hunters and gun control advocates.

    Consider a hypothetical involving the application of the assault rifle statute to a new weapon, a rifle that looks like a traditional hunting rifle but has the same capacities as a military assault rifle. A judge applying an objective purposivist approach to statutory interpretation might conclude that the new weapon is an assault rifle because it has the same level of casualties as military-style assault weapons. But the application of subjective intentionalism might lead to the opposite result. The new weapon looks like a hunting rifle and the political motivations of the legislators (their subjective intentions) did not extend to prohibition of rifles marketed to and primarily used by hunters.

    What are Functions?

    The basic idea of subjective intentions or motivations is relatively easy to grasp. Humans act from motives all the time! But the notion of a function or objective purpose is a bit trickier. One might be tempted to say that functions are just motivations in disguise. Or one might have the thought that objective purposes are really just hypothetical or counterfactual intentions.

    One way to get at the notion of function or objective purpose is by thinking about artifacts–things that are designed to accomplish some purpose or to serve some function. A classic example is a clock. Clocks are designed to serve a function, to tell time. But it need not be the case that any particular clock does tell time: if there is a power outage, the clock built into my stove no longer tells time (until it is reset and restarted), even though that is its objective. Moreover, a clock can have the function of telling time, even if the clock maker did not have the subjective intention that it should do so. We can imagine someone building a clock from a set of instructions in order to produce a beautiful object and without any intention to build a clock that actually works–even if the clock does in fact tell time. And we can even imagine that the set of instructions was produced by an artificial intelligence (such as a large language model) that lacks subjective intentions (motivations) altogether!

    So, a legislature might enact a statute that was drafted using a model statute from another jurisdiction. The legislative staffer who did the drafting could simply have copied language from the model without giving any thought to functions that the statute would serve, and members of the legislature could vote for the statute on the basis of political motivations–again without thinking about the functional construction of the statute.

    Conclusion

    The distinction between motive and function is a basic one deployed by the law in many contexts, although this Lexicon entry has explored the distinction in the context of statutory interpretation and construction. The key to grasping the distinction is the idea of function, and that idea is best approached via the notion of an artifact designed to perform a function.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 102: Motives and Functions

    (First posted on March 15, 2026)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 101: General Law

    By Lawrence B. Solum

    Introduction

    The idea of “general law” or “general common law” is usually introduced to law students in the course on Civil Procedure in connection with Erie Railroad v. Tompkins, 304 U.S. 64 (1938). In that course, students might learn about the distinction between two kinds of common law, local and general. Local common law was particular to a given state or region: for example, local customs or practices might form the basis of common law norms governing property law. General common law was shared by all common law jurisdictions: for example, contract law was general and was, in theory, the same in every state, England, and other common-law jurisdictions. The idea of “general law” extended beyond the common law and encompassed international law, maritime law, and admiralty law–bodies of law that were thought to be uniform across national boundaries and to extend to both civil law and common law jurisdictions.

    This Lexicon post introduces the idea of “general law.” As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    The Erie Doctrine

    Because the general common law was not the law of any particular jurisdiction, federal courts were free to depart from state-law precedents when deciding diversity-of-citizenship cases involving general common law. This understanding of the role of federal courts in general common law cases was reflected in the Supreme Court’s decision in Swift v. Tyson, 41 U.S. 1 (1842), but the general common law was well-established long before Swift was decided. The workability of the general common law depended on voluntary agreement between cooperating jurisdictions to converge on a uniform set of legal rules and standards governing general common law topics, but the system of convergence was never perfect and began to break down in a series of cases including Black and White Taxicab and Transfer Company v. Brown and Yellow Taxicab and Transfer Company, 276 U.S. 518 (1928), in which the federal courts adopted general common law rules that were clearly different than the common law rules adopted by some states.

    Erie Railroad v. Tompkins announced that there is “no general federal common law” and purported to overrule Swift v. Tyson. The reasoning of Erie was influenced by Justice Holmes’s long campaign against Swift, expressed most famously in his dissent in Southern Pacific Company v. Jensen, 244 U.S. 205 (1917): “The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.” Holmes’s view was clearly influenced by legal positivism as articulated by John Austin. Austin’s version of positivism, “sovereign command theory,” held that law is the command of the sovereign backed by the threat of punishment. If law is always the command of a particular sovereign, then common law must be law made by the judges of some particular nation or state. If the common law of some state (e.g., Ohio) is made by Ohio judges, then all common law is really local common law and the category of general law is an empty set.

    The legal basis for the Court’s decision in Erie is notoriously unclear. But Erie seems to have initiated a process that led to the demise of the distinction between general and local common law. After Erie, federal courts were bound to follow the common law rules of particular states irrespective of whether the question was classified as one of general or local common law.

    The General Law Revival

    Until recently, the concept of general law was considered moribund. American law students learned about the distinction as a historical curiosity in connection with the Erie case. For this reason, the notion that contract law was general law was not likely to play a significant role in a course on contract law. I think it is fair to say that many American lawyers, judges, and scholars may not have heard of the concept of general law or had forgotten about a concept that was mentioned briefly in their contracts course. Moreover, Erie is not always taught in the course of civil procedure, and one can learn the Erie rule without discussing the general law at all.

    But the notion of general law is now undergoing a revival as a result of the scholarship and theorizing of Professor Stephen Sachs, along with others such as William Baude and Jud Campbell. This revival is connected to what is usually called “Original Law Originalism,” a theory that holds that the “original law” remains in effect until it is lawfully changed. Because the original law in the United States included the general law, that law remains in effect unless Erie lawfully did away with it. If Erie was wrongly decided, then courts might still be obliged to follow the general law–even if judges today are unaware of that obligation.

    General Law and the Constitution

    The general law revival has played an especially prominent role in the context of constitutional law–particularly in connection with unenumerated constitutional rights. For example, it might be argued that the rights retained by the people, referenced in the Ninth Amendment and the privileges or immunities of citizens of the United States recognized by the Fourteenth Amendment were understood as general law rights. If this theory is correct, then the Supreme Court’s unenumerated rights jurisprudence would need to be adjusted to take the general law into account.

    General Law, Natural Law, and Legal Positivism

    Recall that Justice Holmes’s critique of the general law was grounded in legal positivism–a theory of the nature of law. Although Holmes seems to have relied on Austin’s sovereign command theory, contemporary legal positivism has gone in a different direction. The most influential strands of legal positivism in the Anglophone world have been heavily influenced by the ideas of H.L.A. Hart and Joseph Raz. In particular, Hart’s theory dispenses with the notion that law must be the command of a sovereign and instead relies on the notion of a “rule of recognition,” a social rule or norm shared by officials. The rule of recognition provides the criteria for identifying the content of the law. Hart’s view might be used to provide a positivist account of the general law as system of voluntary cooperation among common law jurisdictions in which judges adopt the general common law rules recognized by a majority of cooperating jurisdictions. The relevant rules of recognition of the cooperating jurisdictions accept this practice and hence the general common law is the positive law of those jurisdictions.

    What about Holmes’s contention that the common law is not a “brooding omnipresence in the sky.” Here Holmes seems to be referring to natural law theory, perhaps assuming that natural law theory is based on divine commands by God (the brooding omnipresence). Whatever misconceptions Holmes might have had about natural law theory, there is substantial evidence that the historical concept of the general law was based in part on the natural law idea that right reason could discover moral principles that should guide judges and lawmakers irrespective of their national or subnational affiliations. This would provide an account of the idea that the general law (derived from the natural law) is the same throughout the world.

    The natural law account of the content of the general law might work for those who subscribe to natural law theory generally, but it will create problems for legal positivists, especially for those who subscribe to what is called “exclusive legal positivism.” One way of articulating the exclusive version of legal positivism is via the respective role of moral facts and social facts in determining legal content. Legal positivism would be the view that legal content is determined by social facts, and the exclusive version of legal positivism would be the view that only social facts can determine legal content. Joseph Raz was one of the most prominent proponents of exclusive legal positivism–although space does not permit a reconstruction of his argument for that view in this Lexicon entry.

    If exclusive legal positivism is correct and if the historical concept of the general law is bound up with a natural law theory, then the general law revival might be in trouble. If the historical view that general law was universal is based on a mistaken view of the nature of law, then that conception of the general law cannot be revived–as it would rest on a philosophical mistake. Perhaps, the general law could be saved by substituting the positivist system-of-voluntary-cooperation account, but then the general law that would be revived would be a very different version of the historical version that might have been part of the original law.

    Conclusion

    The revival of the general law is certainly one of the most interesting and controversial developments in contemporary legal theory. The issues raised by the revival are deep and complex. So, this Lexicon entry has only begun to explore the idea of the general law.

    Related Lexicon Entries

    Bibliography

    • William Baude, Jud Campbell & Stephen E. Sachs, General Law and the Fourteenth Amendment, 76 Stan. L. Rev. 1185 (2024).
    • William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467 (2024).
    • Anthony J. Bellia Jr. & Bradford R. Clark, General Law in Federal Court, 54 Wm. & Mary L. Rev. 655 (2013).
    • Danielle D’Onfro & Daniel Epps, The Fourth Amendment and General Law, 132 Yale L.J. 910 (2023).
    • William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513 (1984).
    • Caleb Nelson, The Persistence of General Law, 106 Colum. L. Rev. 503 (2006).
    • Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156 (2017).
    • Stephen E. Sachs, Finding Law, 107 Calif. L. Rev. 527 (2019).
    • Stephen E. Sachs, Life After Erie (Scalia Lecture, Harvard Law School, Nov. 1, 2023).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 101: General Law

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 100: Constitutional Pluralism

    By Lawrence B. Solum

    Introduction

    The world of contemporary constitutional theory is complicated. Although originalism is the focus of attention in many recent discussions, there are a plethora of nonoriginalist positions. One of these is usually called “constitutional pluralism,” an approach to constitutional interpretation and construction which holds that constitutional practice should be guided by multiple “modalities” of constitutional justification, including text, historical practice, precedent, and others. This Lexicon post provides an introduction to constitutional pluralism for law students (especially first year law students) with an interest in constitutional law and theory.

    Constitutional Law as a Complex Argumentative Practice

    Constitutional pluralism can be theorized in several ways, but for the present purposes, let us stipulate that constitutional law ought to be viewed as a complex argumentative practice. When a judge decides a case, the judge ought to justify their decision by employing the legitimate forms of constitutional justification, and should exclude other considerations.

    So, a judge may properly consider the meaning of the constitutional text and precedent and write an opinion that justifies their decision on the basis of those two modalities but it would be improper to consider the impact of the decision on the electoral success of a political party or the benefits of the decision for a special interest group.

    Importantly, constitutional pluralism is grounded on the idea that constitutional law is a practice–a way of doing things with an internal logic and structure. Frequently, constitutional pluralists claim that this account of constitutional law is descriptively accurate. Constitutional pluralism is the way lawyers and judges actually do constitutional law. This strategy avoids or brackets another set of issues about the normative justification for pluralism. In other words, some constitutional pluralists believe that constitutional pluralism is just the way we already do constitutional law and avoid the question whether the status quo is normatively justified.

    What are the modalities of constitutional justification?

    There is no “official” list of the legitimate forms of constitutional argument. Different pluralists have different lists.  For illustrative purposes, I will employ five modalities, which I will call (1) text, (2) historical practice, (3) precedent, (4) constitutional values, and (5) institutional capacities. But additional modalities could be added to the list, including “structure,” “policy consequences,” “morality,” “constitutional narratives,” and “constitutional identity.”  I will briefly discuss these possible additions to the list.

    Text: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of meaning of the constitutional text. Thus, it would be legitimate to argue for a constitutional rule that extends birthright citizenship to the American born children of undocumented parents on the ground that the text of the first clause of Section One of the Fourteenth Amendment requires that result. Arguments from original public meaning would be textualist arguments, but a constitutional pluralist might also make arguments from the contemporary meaning of the text.

    Historical Practice: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of historical practice, including statutes enacted by Congress, actions of the executive branch, and actions by state governments. Thus, if Congress has enacted many statutes delegated legislative power to independent regulatory agencies over a long period of time, that would constitute a strong argument for the constitutionality of that practice and against a strong version of the nondelegation doctrine.

    Precedent: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of precedent including (but not limited to) the decisions of the Supreme Court. Thus, if the Supreme Court has adopted a set of constitutional doctrines in the Noel Canning case, there is an argument from precedent that those doctrines are justified. Arguments from precedent are strongest if there are many precedents extended over a long period of time in favor of a constitutional rule or standard. Such arguments are weakest if there is only one precedent, it is very old, and has been undermined (but not overruled) by subsequent cases.

    Constitutional Values: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of values that are immanent in constitutional practice, paradigmatically values that express the goals, functions, and justifications for the provisions of the constitutional text. Thus, equality is a constitutional value because it represents the goal of the Equal Protection Clause, and liberty is a constitutional value because it represents the goal of the Due Process Clause.

    Institutional Capacities: Constitutional arguments are legitimate if they justify constitutional doctrines and decisions on the basis of the functional capacities of constitutional institutions. For example, it could be argued that Congress is the constitutional institution that is best situated to determine whether a given policy question should be resolved by Congress itself, by a regulatory agency, or by the Courts. If this is the case, this argument supports the conclusion that a delegation of regulatory authority to an agency is constitutional.

    Possible Additions to the List: Different pluralists may have different lists of modalities. For example, “structure” is sometimes listed as a modality. I have excluded it, because I believe that constitutional structure arguments can be reduced to textual arguments (implications from the structure of the text) or constitutional values arguments (values that are implicit in the structure of the constitution rather than a particular provision). Other modalities might include: (1) policy consequences or pragmatism, (2) morality or natural law, (3)  constitutional narratives or historical stories about constitutional development, and  (4) constitutional identity or arguments from how the American people understand their identities as constituted by the constitution. And there could be other modalities as well.

    The Relationships between the Modalities

    Conceptually, we can imagine several versions of constitutional pluralism, each with its own account of the relationship between the modalities.  Here are some of the possibilities:

    The Standard Account, No Hierarchy: The standard account is that all of the modalities are equal, independent, and sufficient.  They are equal in the sense that there is no hierarchy among the modalities.  They are independent in the sense that an argument from one modality (e.g., text) is not required to take into account the other modalities (e.g., precedent). They are sufficient in the sense that a constitutional doctrine can be justified on the basis of any one modality, even if all of the other modalities point the other way. On the standard, account, if a doctrine or decision can be justified by precedent, then the judge can legitimately reach that decision, even if the constitutional text, historical practice, constitutional values, and institutional capacities all point the other way. Indeed, the judge is not required to even consider all the modalities: if precedent supports an outcome, then the judge can stop there. In other words, if the modalities conflict, judges must simply choose an outcome, because pluralism does not tell them what to do on the standard account.

    The Balancing Theory, the Modalities Must Be Balanced: A second possible version of constitutional pluralism would be based on the idea of balancing (in a loose sense). On the balancing theory, a judge ought to consider all of the modalities. If they all support one outcome or doctrine, then the judge must reach that outcome. But if the modalities point in different directions, then they must be balanced. For example, if both precedent and historical practice strongly support one outcome, but the text points in a different direction, then the judge is required to determine the strength of each modality. The judge might conclude that since there are many precedents and a longstanding historical practice in favor of one doctrine (say a very weak nondelegation doctrine), the judge may decide that this outweighs the contrary argument from constitutional text.

    The Hierarchical Alternative, Lexical Ordering of the Modalities: A third possible version of constitutional pluralism would be based on the idea that there is a lexical ordering of the modalities. For example, the text modality might come first, if the text is clear, then text governs. But if the text is unclear, but there is a controlling precedent (or set of precedents), then precedent governs. If neither text nor precedent is clear, then a longstanding and consistent historical practice will govern. But if historical practice neither longstanding nor consistent, then constitutional values will be considered. If none of the other modalities resolves the case, then institutional capacity will be decisive. Of course, the hierarchical ordering could be different or more complex.

    Constitutional Pluralism and Underdeterminacy

    One objection to the standard account of Constitutional Pluralism flows from the fact that it implies that most constitutional questions have many right answers. In other words Constitutional Pluralism leads to the underdeterminacy of constitutional decisionmaking.  Indeed, it could be argued that almost all of the most important constitutional questions (federalism, separation of powers, the content of unenumerated constitutional rights, and so forth) can be answered in radically different ways–each of which can be justified using constitutional pluralism.

    As a descriptive matter, this underdeterminacy might be counted as a plus factor. If pluralism is a descriptive theory of constitutional law, then it could be argued that pluralism explains why constitutional law is underdeterminate as a matter of fact.  But as a normative view, the underdeterminacy of constitutional pluralism might be seen as a negative. It might be argued that constitutional pluralism makes constitutional decisionmaking depend on the political ideologies and moral values of judges (especially Supreme Court Justices).

    The underdeterminacy of Constitutional Pluralism entails that it is difficult to evaluate for those who believe that we should evaluate normative constitutional theories on the basis of the outcomes they will produce. Constitutional Pluralism can justify both Roe v. Wade and Dobbs, both Wickard v. Filburn and United States v. Lopez, both Humphrey’s Executor and a decision to overrule that case. Constitutional pluralism opens the door to constitutional outcomes that are conservative, progressive, liberal, and libertarian.

    Conclusion

    Constitutional Pluralism is one of the most important and influential constitutional theories. One reason for its importance is that captures significant aspects of actual constitutional practice.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 100: Constitutional Pluralism

    (First posted on March 1, 2026.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 099: Semantics and Pragmatics

    By Lawrence B. Solum

    Introduction

    This Lexicon entry provides an introduction to the distinction between semantics and pragmatics–ideas that play a fundamental role in theoretical linguistics and the philosophy of language. Although the terminology is unfamiliar to many lawyers, the basic idea behind the distinction is fundamentally important to theories about the interpretation and construction of legal texts. “Semantics” deals with the meaning of words and phrases as well as the role that syntax (grammar) and punctuation play in communication.  “Pragmatics” deals with the role of intention and context. Lawyers sometimes express this distinction using other words. The lawyer’s idea of literal meaning is related to semantics, whereas the notion of contextual meaning is connected to pragmatics.

    Before going further, it is important to note that the word “pragmatism” may have associations in legal theory that are only remotely connected to the notion of “pragmatics” in theoretical linguistics. “Pragmatism” is associated with the consequentialist approach to normative legal theory developed by the great judge and scholar, Richard Posner. But a pragmatic approach to the interpretation and construction of legal texts is not the same thing as the “pragmatics,” which focuses on the role of intention and context in the production of legal meaning.

    The Foundations of the Semantics-Pragmatics Distinction

    The distinction between semantics and pragmatics is rooted in ideas about how communication works. When someone uses words to communicate, we might be tempted to assume that the meaning of what they say can be recovered by carefully parsing each word or phrase and then reconstructing the relationship between these terms by attending to the grammar and punctuation that connects them. In other words, we might think that semantics can do all the work of interpretation. But that would be a mistake, because it would ignore the roles of intention and context in the production of meaning.

    One important role of context stems from the fact that words and phrases in a natural language such as English are pervasively ambiguous: they have more than one meaning or sense. So, the word “bank” in a statute might represent a financial institution or the land abutting a river. If we tried to interpret the statute without taking context into account, we might not be able to discover which sense of “bank” was intended.  Fortunately, readers of statutes do consider context. So, if the statute is the Clean Water Act, it would be likely that “bank” meant the land abutting a river, but if the statute was the Banking Act of 1933, it would be almost certain that “bank” meant a financial institution.

    Another important role of context and intention stems from the fact that written texts (and oral utterances) are rarely (if ever) fully explicit. Putting it another way, much of the content of what we say and write is implicit. Consider the following simple example:

    Jack and Jill are married.

    Literally, this sentence means something like: “It is the case that Jack is married, and it is the case that Jill is married.” But in context it is likely that this sentence conveyed an important additional information, which we can put in brackets.

    Jack and Jill are married [to each other].

    If we provide some additional context, this becomes especially easy to see:

    Have you heard the good news? Jack and Jill are married. Finally!

    The implicit [to each other] is conveyed implicitly.  And this enables us to see that semantics is not doing all the work! Pragmatics is playing a key role.

    A Typology of Pragmatics

    Another way to appreciate the role of pragmatics and how it is different from semantics is via a simple typology that enables us to differentiate the different ways that pragmatics operates

    Contextual Disambiguation–Although words in English and other natural languages are frequently ambiguous (have more than one sense), readers and listeners are able to disambiguate (pick out the intended sense) by attending to context. The “bank” example discussed above illustrates this role of pragmatics.

    Implicature–“Implicature” (a word coined by Paul Grice) refers to the phenomena whereby a speaker or author says one thing, but means something quite different. The classic example is a letter of recommendation that says, “Joseph was punctual and regularly attended class.” In context, if this is the best that can be said of Joseph, the real message of the letter is something like, “Don’t hire Joseph.”

    Impliciture–The word “implicture” (coined by Kent Bach) is a technical term that refers to unstated content. The example of “Jack and Jill are married [to each other]” illustrates the idea of implicit but unstated content to which the word “implicit-ure” refers.

    Presupposition–Sometimes, we say something that presupposes something else. For example, if I say, “Cass is no longer the director of OIRA,” my statement presupposes that Cass was at one time the director of OIRA, even though I did not say that explicitly.

    Modulation–We can use words in new ways that are nonetheless conveyed to listeners or readers via their understanding of the context. For example, the phrase “recess of the Senate” in the Recess Appointments Clause may have conveyed a new idea, the intersession recess of the newly created Senate. Indeed, the word “modulation” itself was used in a new way when it was first used to refer to the linguistic phenomenon of modulation.

    This typology is not intended to be exhaustive. There may well be other recurring pragmatic mechanisms.

    Semantics

    If pragmatics is about context, then we might say that semantics is about features of language use that recur across contexts. One important aspect of pragmatics involves the meaning of individual words and of phrases. Legal interpretation frequently focuses on this aspect of semantics with lawyers and judges arguing about the proper “definition” of a key word or phrase in a statute. But there are other semantic mechanisms that contribute to meaning, including syntax (or grammar). Understanding a sentence requires us to understand the relationship between its parts and hence to understand how nouns, verbs, prepositions, adjectives, and adverbs operate. Written communication involves punctuation marks: lawyers know all too well that the placement of a comma can change the meaning of a sentence.

    Compositionality

    Sometimes meaning is compositional–the meaning of a whole sentence can be gleaned from the meaning of each individual word and the syntactic relationships between words. When lawyers talk about the literal meaning of a sentence in a statute or other legal text, they are frequently referring to the compositional meaning.

    But not all meaning is compositional. This is clear in the case of idioms. If I say, “Congress kicked the can down the road,” I am not saying anything about a can that was kicked further along some highway or byway.  The meaning of my utterance was not compositional! Likewise, the meaning of any sentence that includes implicit content is not compositional–because the implicit content cannot be gleaned from the words alone.

    Conclusion

    There is much more to be said about the semantics-pragmatics distinction, but the aim of this Lexicon entry has been very modest. The overwhelming majority of law students enter law school with no exposure to either linguistics or the philosophy of language. But lawyers have to deal with meaning, and the semantics-pragmatics distinction is an essential tool for tackling the interpretation of legal texts in a rigorous way. This is especially important for textualists, who aim to recover the communicative content of constitutions, rules, regulations, and statutes.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 099: Semantics and Pragmatics

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 098: Speaker’s Meaning and Sentence Meaning

    By Lawrence B. Solum

    Introduction

    Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do.  In a previous Legal Theory Lexicon entry, a distinction was made between “interpretation” and “construction.”  Although we could use other words to express the distinction, it expresses an important conceptual difference between two activities: (1) discovering the “meaning” of a legal text, and (2) determining the legal effect given to the text.  Thus, statutory interpretation aims to recover the meaning of the words and phrases of a statute in context, whereas statutory construction provides the legal norms that courts will use to apply the text to the facts of a particular case.

    With this distinction in mind, we can ask the question, “How do we figure out the meaning of a legal text?” In some cases, we can tell what the statute unambiguously means without asking the “how” question.  But other cases are more difficult.  When there is an argument about what a statute means, it may be helpful to turn to theoretical linguistics and the philosophy of language for a theory of communication.

    One such theory was developed by the philosopher Paul Grice.  A key component of Grice’s theory is the distinction between “speaker’s meaning” and “sentence meaning.”  Although most lawyers have never heard of Grice, every lawyer has an intuitive grasp of the difference between literal meaning (the bare meaning of the words as combined by syntax and punctuation) and the meaning that a speaker or author intended to convey in context.  This entry in the Lexicon provides a basic introduction to Grice’s ideas.  As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    Speaker’s Meaning

    The meaning that a speaker or author intended to convey to a listener or reader is what Grice calls “speaker’s meaning.”  And Grice developed a very precise and illuminating theory.  Grice uses the word “utterance” to refer to oral communications, and I will use that word as well.  For Grice the speaker’s meaning of an utterance is the meaning that the speaker intended to convey to the listener via the listener’s grasp of the speaker’s communicative intentions.

    Wow!  That sounds complicated!  Let’s unpack Grice’s formulation step by step.  We can start with an example.  It is a Tuesday and the following exchange takes place:

    Ben says to Alice: “Pizza day!”

    Alice says, “Great!  See you there.”

    Suppose that in context, when Ben says “Pizza day!” he means to say: “Today is the day that we usually have Pizza at Lampo’s at noon, and I don’t have a conflict.”  But he doesn’t have to spell it out, because Alice knows that Ben and Alice have Pizza at Lampo’s every Tuesday at noon unless Ben has a meeting.  When Ben says “Pizza day,” Alice relies on her background knowledge and grasps that by saying “Pizza day!” Ben is conveying that he plans to meet her for Pizza.  By replying “Great!  See you there”, Alice conveys that she is pleased and that she will be at Lampo’s at noon today.

    Notice that the content communicated by Ben and Alice is much richer in content than the literal meaning of their utterances.  This brings us to the idea of “sentence meaning.”

    Sentence Meaning

    Grice contrasted the speaker’s meaning of a particular utterance on a particular occasion with sentence meaning.  The sentence meaning of an utterance is simply the literal meaning of the words, phrases, and sentences.  The literal meaning of “Pizza day” is very sparse.  Pizza is a food consisting of a crust and toppings such as tomato sauce and cheese.  Day is a unit of time.  The phrase “pizza day” could mean any number of things.  It might be a day upon which there are pizzas–pizza day at the cafeteria.  Or it might be a day when a particular person, Vibiana, ate a slice of pizza.  Or it could be the day when the refrigerated truck delivers frozen pizzas to the market.  The expression “pizza day” is incomplete when it is considered out of context.  It has meaning, but that meaning is sparse.

    Of course, “pizza day” isn’t even a grammatically complete sentence, but we can imagine Ben saying, “Today is pizza day,” which is grammatically complete.  Notice, however, that the literal meaning of “Today is pizza day.” is still ambiguous.  It could express that idea that today is the day Ben and Alice have pizza for lunch or the day when the truck delivers frozen pizzas to the market.  This grammatically complete sentence does not express a complete thought if it is considered without any context.

    The account of sentence meaning that I have just offered is simplified.  Grice’s own explication of this idea changed over time and was expressed in technical language.  But I hope that I have conveyed the gist of his idea.  The speaker’s meaning of an utterance is the meaning of the utterance on a particular occasion–the meaning that the speaker intended to convey.  The sentence meaning of an utterance is the meaning that the words have generally and is a function of the conventional semantic meanings of words and phrases as combined by the conventions and regularities of syntax (and in the case of written communication, punctuation as well).

    The Relevance of Speaker’s Meaning and Sentence Meaning to Legal Interpretation

    There are many different theories of legal interpretation and their vocabulary differs with context.  Let’s use statutory interpretation and construction as an example.  There are three basic views of statutory interpretation:

    • Textualism: the legal norms that implement a statute should be determined by plain meaning of the statutory text.
    • Purposivism: the legal norms that implement a statute should be determined by the objective purpose of the statute, where objective purpose is understood as the purpose that an ideal legislature would have had in enacting the statutory text.
    • Intentionalism: the legal norms that implement a statute should be determined by the subjective policy preferences of the actual legislators that enacted the statute.

    The distinction between speaker’s meaning and sentence meaning allows us to clarify these theories.  For example, textualism is sometimes criticized on the grounds that textualists are literalists who ignore context; in other words, the critics assume that textualists aim to recover the sentence meaning of the statutory text.  Textualists themselves deny this.  They argue that they are concerned with the meaning of the statutory text but only for the purpose of clarifying the meaning that the statute conveyed.  In other words, they are aiming to recover something that is more like speaker’s meaning than it is like sentence meaning.  Purposivism, on the other hand, is only indirectly concerned with the meaning of the statute: because purposivists are after an idealized purpose they may sometimes prefer to focus on literal meanings (sentence meaning) to contextualized meanings (speaker’s meaning)–because the very sparseness of sentence meaning creates an empty vessel into which a judge’s version of objective purpose may be poured.

    Likewise, the idea of speaker’s meaning helps us to understand intentionalism.  Intentionalism is concerned with intentions, but the kind of intention is not the communicative intentions that Grice’s idea of speaker’s meaning uses.  Instead, intentionalists are concerned with policy preferences.  This distinction is important.  If intentionalism aimed to recover the communicative intentions of the legislature, it would actually be a form of textualism.  In my experience, it is common for discussions of statutory interpretation to equivocate on this issue.  When that happens, conceptual confusion results.

    Conclusion

    There is much more to be said about the speaker’s meaning, sentence meaning, and legal communication, but I hope that this entry in the Lexicon has given readers a basic understanding of Grice’s distinction and the ways in which it can shed light on questions of legal theory.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 098: Speaker’s Meaning and Sentence Meaning

    (Last modified on October 6, 2024.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 097: Meta-Level Arguments

    By Lawrence B. Solum

    Introduction

    Many legal questions involve the application of settled law to the facts of a particular case.  But there are other cases, where the law is unsettled, either because there is no controlling precedent or because there is an ongoing dispute about whether the controlling decision is correct.  This topic is discussed in Legal Theory Lexicon 095: Open and Contested Questions of Law.  Sometimes the framework for the resolution of an unsettled question of law is well-established: the open or contested question of law can be settled at the issue level.  Other times, there are disputes about how to settle the open or contested question: for example, if the question is one of statutory interpretation and construction, the resolution of the question may hinge on whether the methodology employed by the court is textualist, purposivist, intentionalist, or something else.  We can call this kind of question, a “meta-level question.”  This topic is discussed in Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions.

    Law students spend a lot of time learning the legal doctrine and developing the ability to apply the law to complex fact patterns.  This is the skill that is tested by the standard issue-spotter exam.  And many law students are exposed to open and contested questions of law.  Some professors treat such questions as an opportunity to express their own opinions as to how the questions should be resolved; others may ask students to take a position and make an argument on the open or contested question.  But in the first year of law school, it is relatively rare for students to get a systematic exposure to meta-level questions.  And a systematic exposition of the kinds of arguments that can be advanced at the meta-level is even rarer.

    This entry in the Legal Theory Lexicon offers an introduction to meta-level argumentation.  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Internal and External Critique of Meta-Level Theories

    One useful distinction is usually expressed by differentiating “internal critique” from “external critique.”  An internal critique of a meta-level theory accepts the basic premises of theory but shows that the theory or the justifications for the theory fail from this internal perspective.  There are many different kinds of internal critique.  One simple mode of internal critique challenges the validity of the argument for a meta-level position.  For example, it might be argued that the fact that the constitutional text is written leads to the conclusion that it should be interpreted on the basis of its original meaning.  One frequent criticism of this argument is that the conclusion does not follow from the premises.  Another kind of internal critique is based on an internal inconsistency is a theoretical position.  For example, a theory that asserted that common-law decisions are judge-made law, and that hard cases in the common law are decided by following precedent would be internally inconsistent.

    External critique operates on the basis of premises that are outside of the theory being criticized.  For example, textualism might be criticized on the ground that legislatures are poorly equipped to understand the legal consequences of the statutes they write.  Therefore, textualism will lead to interpretations of statutory language that produce unintended consequences and bad policy.  Or a theory of the common-law might be based on a deontological theory of morality; judges should decide cases on the basis of considerations of justice and fairness.  A critique of this theory might start with the rejection of deontology in favor of consequentialism; this move then could lead to the argument that decisions based on fairness will lead to bad consequences and hence to bad decisions.

    Public Reasons and Deep Theories

    Another useful distinction differentiates between “public reasons” and “deep theories.”  Let’s begin with a list of theoretical positions that are “deep” in the sense specified by this distinction:

    • Utilitarianism–the view that ultimate value is utility, which might be understood as the maximization of pleasure and the minimization of pain.  (But there are other forms of utilitarianism.)
    • Social Contract Theory–the view that government should have all and only those powers that would be granted to government by persons forming a social contract in the state of nature.
    • Egalitarianism–the view the most important criterion for judging the rightness or wrongness of a legal norm is the effect the norm will have on equality.  (Note that there can be many different views about what kind of equality counts.)

    The reasons provided by these deep theories can be contrasted with reasons that are “shallow” in the sense that the avoid commitment on ultimate questions of morality or political philosophy.  Rawls used the phrase “public reason” to describe justifications that can be viewed as reasonable by persons who differ about the deep questions.  Here are some examples:

    • Equal Citizenship–all citizens should be viewed as political equals and therefore no citizen should be denied the basic rights of citizenship such as the rights to vote and hold office.
    • The Relevance of the General Welfare–the general welfare is relevant to questions of law and public policy, even if it is not the only relevant factor.  Hence, a meta-level theory that would lead to disastrous consequences for society as a whole can be argued against on that ground.

    There is a Legal Theory Lexicon entry on public reasons: Legal Theory Lexicon 009: Public Reason.  One advantage of arguments based on public reasons is that they may be able to produce an “overlapping consensus” or “incompletely theorized agreement.”  Deep reasons fare badly on this score, because almost any deep theory of ethics or political morality is rejected by many or even most citizens. This topic is discussed in the following Lexicon entry:  Legal Theory Lexicon 037: Overlapping Consensus & Incompletely Theorized Agreements.

    Outcome Arguments and Process Arguments

    Another useful distinction can be made between outcome-based arguments and process-based arguments.  An outcome-based argument is one that looks to the consequences of adopting a meta-level theory.  The following are examples of outcome-based arguments:

    • Originalism will lead to bad outcomes because the Constitution is very old and adherence to its original public meaning would hobble the regulatory state and result in bad policy on many issues, including climate, pollution, and the regulation of financial institutions.
    • Statutory intentionalism will lead to bad outcomes, because the actual intentions of Congress are motivated by the power of special interest groups and not good public policy.

    Process arguments focus on the way that decisions are made.  For example:

    • Statutory textualism is more legitimate than rival views, because it requires judges conform to legal norms made by elected officials.  Purposivism is less legitimate, because it requires judges to adopt statutory constructions that conform to the judge’s own views about what the purpose of the statute should have been.
    • Common law constitutionalism is better than originalism, because judges are institutionally competent to engage in common law reasoning but they are not trained in the historical methods required to discern original meaning.

    The Method of Reflective Equilibrium

    There is a Legal Theory Lexicon entry on “reflective equilibrium”: Legal Theory Lexicon 069: Reflective Equilibrium.  The basic idea of this method is that meta-level positions can be justified using the following procedure.  We start with our intuitive beliefs, both about general principles and particular cases.  We then examine these beliefs to see if they are consistent.  For example, we might start out with a belief that Roe v. Wade was rightly decided because it protects a fundamental right of privacy and another belief that Lochner v. New York was wrongly decided because it protected an unenumerated constitutional right that could not be justified on the basis of the constitutional text.  If the right to privacy is also an unenumerated right that cannot be justified on the basis of the constitutional text, we would then try to reconcile these two beliefs.  If at the end of the day, they cannot be reconciled, then one belief or the other would need to be modified.  For example, we might jettison the idea that unenumerated rights are illegitimate.  Or we might instead conclude that such rights are legitimate if they ensure political equality, but not legitimate otherwise.  This process continues until our beliefs about both particular cases and general principles are mutually supportive and consistent.  At that point we have reached what Rawls called “reflective equilibrium.”

    The method of reflective equilibrium can be contrasted with what Rawls called “the method of geometry.”  The analogy to geometry is designed to bring out the possibility that meta-level theories might be justified by arguments from “first principles.”  If there were a set of principles of political morality or normative legal theory that were self-evidently true, it might be possible to justify a meta-level theory by deductive argument.  The practical problem with such a theory is that there does not seem to be any agreement on what the self-evidence premises of political morality are.

    Conclusion

    This entry in the Legal Theory Lexicon introduced some very general and basic ideas about meta-level arguments.  Such arguments operate at a very abstract and general level.  So, it is not surprising that the distinctions that we have examined are quite abstract and general as well.  Nonetheless, I hope that this Lexicon entry has provided a set of tools for thinking about meta-level argumentation.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 097: Meta-Level Arguments

    (Last revised on December 4, 2022.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions

    By Lawrence B. Solum

    Introduction

    There is a fundamental distinction between two kinds of questions that lawyers and judges ask.  Let’s begin with some examples of what we can call “issue-level questions”:

    • What is the standard of care in a negligence action?
    • What is the proper test for federal question jurisdiction under 28 USC §1331?
    • Are laws that classify on the basis of sexual orientation subject to heightened scrutiny under the Equal Protection Clause?

    These issue-level questions can be contrasted with what we can call “meta-level questions.”  Here are some examples:

    • Should tort law be based on ex post considerations of fairness or ex ante assessment of welfare?
    • Should the interpretation of statutes be guided by the plain meaning of the text, the objective purpose of the statute, or the subjective intent of the legislature?
    • Should the interpretation of the constitutional text be guided by originalism or by some form of living constitutionalism?

    In the first year of law school, students encounter countless issue-level questions, usually explored by discussing the cases in which they arise. Frequently, one aspect of the discussion concerns the normative question: “what should the law be?”  In common law courses, that discussion might focus on ex post considerations of fairness or ex ante considerations of policy consequences.  Those discussions are about issue-level questions.

    What about the meta-level?   At many law schools, the meta-level questions are rarely discussed explicitly, although they may be lurking in the background.  If there is a required course in Legislation and Regulation, there might be a unit on statutory interpretation and construction.  Some constitutional law courses spend a class session or two on originalism versus living constitutionalism.  Common law courses frequently include some cursory discussion of the question whether common law is discovered or made.

    This entry in the Legal Theory Lexicon provides a brief introduction to the distinction between issue-level questions and meta-level questions.  As always, the Lexicon is written for law students, especially first year law students, with an interest in legal theory.

    The Basic Distinction

    The intuitive idea of the distinction between issue-level questions and meta-level questions is not difficult to grasp.  When the word “meta” is attached to some other word, it usually indicates conceptual ascent–going up a level of abstraction.  But “meta” indicates something else as well.  Metaethics is about fundamental assumptions in normative ethics.  Meta-level questions are about the resolution of issue-level questions. Thus, a meta-level theory of statutory interpretation aims to guide the resolution of issue-level questions about the interpretation and construction of particular statutes.  A meta-level theory of constitutional interpretation and construction tells us how to resolve issue-level questions of constitutional doctrine.  A meta-level theory of the common law instructs judges as to how they are to engage in common-law decisionmaking.

    The Domains of Meta-Level Theorizing

    Some meta-level theorizing takes place at a very high level of abstraction.  For example, the phrases “legal formalism” and “legal realism” (or “legal instrumentalism”) are sometimes used as labels for very abstract normative legal theories.  When the words are used in this way, legal formalism combines a preference for rules over standards with the view that judges ought to consider themselves bound by written constitutional provisions, statutes, and precedent.  Legal realism is harder to pin down, but some strands of legal realism endorse standards over rules and counsel judges to attend to considerations of policy and principle; other strands of realism counsel judges to attend to the particular facts of the cases that are before them and eschew grand theories.  Many realists or instrumentalists reject the idea that judges should consider themselves bound by constitutional and statutory texts or by the formal doctrine of stare decisis.  So, normative legal formalism and normative legal realism are meta-level theories at a very high level of generality.

    Other meta-level theories are less general because they focus on specific domains of law.  Here are some examples:

    Meta-Level Constitutional Theories:  There are so many different views in constitutional theory!  Simplifying, we might distinguish between originalism and living constitutionalism–both of which are really families that include many members.  These days, the predominant originalist theory is “public meaning originalism,” but a few decades ago, “original intentions originalism” was more common and today there is talk of “original methods originalism” and “original law originalism”–and “living originalism” as well.  Living constitutionalist views include common-law constitutionalism, constitutional pluralism, the moral readings theory, and various forms of Thayerianism (views that emphasize deference to elected officials and therefore affirm a very restrictive view of judicial review).
    “Which constitutional theory should guide judges?” is a meta-level question.

    Meta-Level Statutory Theories: There are three basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism, but there are other approaches as well, including the ad hoc pragmatism advocated by Richard Posner.  Debates about which approach to statutory interpretation is best take place at the meta-level.

    Meta-Level Theories of the Common Law: Theoretical work on the common law is more difficult to organize than is the work on statutes and constitutions.  One line of meta-level disagreement concerns the question whether common-law ought to be judge-made law or whether judges should limit themselves to the discovery of preexisting social norms and customs.  Another disagreement concerns the respective roles of principle (or deontological reasoning) and policy (consequentialist reasoning).  Ronald Dworkin’s theory of law as integrity posits that common-law judges ought to decide individual issues and cases in accord with the moral theory that best fits and justifies the law as a whole.  The choice between normative theories of the common law takes place at the meta-level.

    Theory and Anti-Theory at the Meta-Level

    The discussion so far has assumed that meta-level questions can be distinguished from issue-level questions and that meta-level questions ought to be addressed from some theoretical perspective.  But this assumption is not universally shared.  Some legal theorists have anti-theoretical views about meta-level questions.  The most well-known group of anti-theorists are the pragmatists, including Richard Posner as well as the so-called “prairie pragmatists,” Daniel Farber and Suzanna Sherry.  Another strand of anti-theory draws on “particularism”–a view that is well developed in moral philosophy.  Some of the legal realists may have had particularist views.  What pragmatists and particularists have in common is an aversion to theories that abstract away from particular issues and cases.  In one sense, the antitheorists deny that there is a true distinction between issue-level and meta-level questions, but in another sense pragmatists and particularists have meta-level theories themselves.  Pragmatism is the meta-level theory that recommends pragmatic, consequence focused decisionmaking.  Particularism is the meta-level theory that counsels judges to decide each case on the basis of its particular facts.

    The Role of Meta-Level Questions in Legal Practice

    Much of the work of lawyers and judges is like “normal science.”  There is an agreed upon framework for analyzing issue-level questions.  Lawyers make arguments within that framework.  Judges decide cases using the framework.  Meta-level questions simply don’t come up.  But it isn’t always like that.  Judicial agreement that statutory interpretation should be guided by legislative intent is questioned; another theory, textualism, gains adherents on the bench.  Once this happens, meta-level questions arise.  There is a particular statute that raises an issue-level question.  The legislative history of the statute indicates that Congress wanted the question to come out one way, but the plain meaning of the statutory text suggests a different answer.  The case now hinges on a meta-level question: which approach to statutory interpretation and construction should the court use?

    In recent years, meta-level questions of constitutional theory have arisen in the Supreme Court on a regular basis.  One of the consequences of the appointment of a significant number of originalist judges to the lower federal courts is that meta-level disputes between originalist and living constitutionalist judges have begun to surface explicitly in judicial opinions at the Court-of-Appeals level.

    Conclusion

    Once you become aware of the distinction between issue-level and meta-level questions, it becomes apparent that both kinds of questions are pervasive, both in law school and in legal practice.  Many of the most controversial issues in American law are controversial precisely because of a meta-level disagreement.

    Related Lexicon Entries

    Bibliography

    Although the distinction between “issue-level questions” and “meta-level questions” is well understood by legal theorists, there is, so far as I know, no literature on the distinction itself.  There are analogous terminological issues in philosophy.

    • Geoffrey Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2012).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 096: Issue-Level and Meta-Level Questions

    (Last modified on November 27, 2022.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 095: Open and Contested Questions of Law

    By Lawrence B. Solum

    Introduction

    First-year law students may come into law school believing that they will learn “the law”–a body of settled rules that decide cases.  But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court.  Sometimes there is “settled law.”  But some questions are open and others are contested.

    This installment in the Legal Theory Lexicon takes a look at open and contested questions of law and contrasts these two categories with law that is settled or binding  As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

    Open Questions of Law

    What is an “open question of law”?  Let’s start with a relatively simple example from an opinion by Judge Sweet of the United States District Court for the Southern District of New York.  The case involves a question about the application of the Fifth Amendment right against compelled self-incrimination in the context of private papers in light of binding precedent that addressed the application of the Fifth Amendment to business records.  Here is how Judge Sweet used the phrase “open question of law”:

    The Second Circuit has followed the Fisher–Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury . . . and affirmed the district court’s order directing the witness to produce a tape recording, found to be a business record, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. . . . The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit. Accordingly, to the extent the documents subpoenaed are non-business records, movant’s motion to quash presents an open question of law.

    In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F. Supp. 1059, 1064–65 (S.D.N.Y. 1990) (citations omitted and emphasis added).  From the perspective of the District Court judge, the question whether private non-business papers was open, because there was no controlling precedent on the question.

    Open questions of law arise in the context of vertical stare decisis, where the question is whether a lower court is bound by the holding of the opinion of a higher courts, but they also can arise in the context of horizontal stare decisis.  For example, a three-judge panel of the Second Circuit could be faced with the same open question as was Judge Sweet–and so could the United States Supreme Court.  Unlike a District Court judge who is bound by precedent from the relevant Circuit and from the Supreme Court, the Supreme Court itself is not bound by horizontal stare decisis.

    Nonetheless, there is an important difference between legal questions the Supreme Court has previously decided and those which are open, even when the court is one of last resort and does not consider itself bound by its own prior decisions.  At the very least, courts of last resort consider their own prior decisions to be presumptively valid, and they may go further and give them considerable “weight.”

    The question as to what constitutes a holding is the subject of another entry in the Lexicon.  A question of law is open if it is not governed by a prior holding that has either vertical or horizontal stare decisis effect.

    Contested Questions of Law

    Contested questions of law are conceptually distinct from open questions.  A question of law is contested if it is the subject of current disagreement and dispute.  Importantly, questions of law may be contested, even though there is a controlling precedent from the relevant court of last resort.  For example, the constitutionality of the death penalty under the Eighth Amendment was actively contested by the Justices of the United States Supreme Court, both before and after Furman v. Georgia, a 5-4 decision that invalidated all the death penalty statutes that were in place at the time of the decision.  Some Justices believed that the death penalty was always unconstitutional; others believed that Furman was wrongly decided.  The Justices continued to disagree and dissent despite the fact that there was a controlling decision that bound the lower federal courts. When Furman was eventually  overruled, the question continued to be contested for some time.

    If the law is contested, it is contested by some group.  For practical purposes, it matters very much who is contesting.  For example, if some question comes before the Supreme Court and is resolved by a nine to zero decision, the fact that a group of law professors or political pundits disagree may not have much practical significance.  But if the Supreme Court decides an issue by a five to four decision and the dissenting Justices continue to press their argument in subsequent cases, that fact has practical consequences.  Lawyers may continue to argument the point in their briefs to the Supreme Court, and the Justices may continue to argue and deliberate about the contested question.  Justices may change their minds or newly appointed Justices may tip the balance on the issue.

    The contestedness of a question may vary over time.  Academic critics of the death penalty continue to press their points, but there is no active campaign by a group of Justices on the Supreme Court to overrule the decisions holding that the death penalty is not per se unconstitutional.  By way of contrast, Roe v. Wade was actively contested by the Justices despite the fact that the Supreme Court has declined to overrule it on many occasions over a period of decades. Dobbs eventually overruled Roe, but the validity of Dobbs continues to be actively contested

    The Relationship Between Open and Contested Questions of Law

    Some questions of law are neither open nor actively contested.  Such questions are settled in the fullest sense of “settled law.”  Other questions are both open and contested: there is no controlling precedent and the relevant judges disagree about what the legal norm ought to be.  And yet other questions of law are open (there is no controlling precedent), but uncontested–all of the relevant judges agree about what the rule ought to be.  And finally, there are questions of law that are contested despite the fact that there is a controlling precedent.

    Contested Uncontested
    Open Open and contested.

    No controlling precedent; judges disagree about the legal norm.

    		 Open but uncontested.

    No controlling precedent, but all judges agree on the norm. May be settled in practice.
    Not Open Contested but not open.

    Controlling precedent exists, but judges actively dispute its correctness.

    		 Settled law.

    Controlling precedent exists and no judge actively disputes it. Settled in the fullest sense.

    Settled Law

    The distinction between open and contested questions of sheds light on another important concept–the notion of “settled law.”  Because a question of law can be contested even if it is not open, “settled law” is not identical with the set of legal issues upon which there are controlling precedents.  Moreover, settled law can become “unsettled” if lawyers and judges begin to question the correctness of holdings that are binding (in the vertical stare decisis context).  The process of unsettling law is sometimes related to large movements in legal theory.  For example, if the Supreme Court’s approach to statutory interpretation and construction shifts from a mixture of purposivism and intentionalism to textualism, then many questions of statutory interpretation that are not “open” may become “contested.”

    In addition, there may be settled law, even on questions that are technically open.  Consider an issue of law that has not been addressed by the Supreme Court or the Courts of Appeal.  Suppose that many District Courts have addressed the question and that they all come out the same way.  Remember, District Court decisions have no stare decisis–even within the district in which the decision was rendered.  Now add the fact that the question is uncontested; no one is arguing that all the District Courts have gotten it wrong.  The law on this question is settled–even though it involves an open question of law.

    How Do Courts Decide Questions of Law that Are Both Open and Contested?

    When the law is both open and contested, two things are true: (1) there is no controlling precedent and (2) there is a first-order disagreement about what the legal norm ought to be.  How are such questions resolved by courts?   Judges might vote their policy preferences–and surely they sometimes do.  But many judges believe that it is improper for a judge to resolve an open and contested question based on their personal preferences.  Such judges may resort to second-order legal theories to resolve first-order questions.  For example, if the open and contested question involves a statute, the judge might look to a theory of statutory interpretation and construction such as textualism, purposivism, or intentionalism.

    Similarly, if there is an open and contested question of constitutional law, the judge might look to the original public meaning of the constitutional text, on the one hand, or look to some form of living constitutionalism, on the other.

    Of course, judges disagree about which second-order legal theories are best.  Some judges are statutory textualists, but others believe that they are bound by legislative intent; yet others attempt to discover the objective purpose of the statute.  Moreover, there are judges who are pragmatists or pluralists about statutory interpretation.  In other words, the question as to which second-order theory of statutory interpretation and construction is best is itself a contested question of legal theory.  And the same is true for second-order theories of the common law and of constitutional interpretation and construction.

    This fact is important for lawyers.  Lawyers almost always try to argue that their client is entitled to win on the basis of existing caselaw, but when there is an open and contested question of law, appeals to the cases and preexisting black-letter law will not suffice.  Good advocates recognize this fact, but it is not uncommon to read a brief that claims that an obviously open question of law was resolved in a prior case.

    Moreover, the existence of open and contested questions of law might also be important to law students, who might be inclined to approach law school exams via the familiar IRAC formula.  The problem arises at the “R” (rule) step, because if the exam includes an open and contested question of law, there is no “R”–no preexisting legal norm that resolves the question.

    Conclusion

    Lawyers, law students, judges, and legal scholars all need the ability to recognize open and contested questions of law.  Of course, lawyers sometimes given advice about or litigate questions that are neither open nor contested and judges decide such questions.  For legal scholars, it is a bit different.  Traditional doctrinal scholarship–especially treatise writing–includes case crunching that synthesizes the black letter law.  But most modern legal scholarship that addresses first-order questions of law addresses questions that are open, contested, or both.

    Related Lexicon Entries

    Bibliography

    • G. Alexander Nunn & Alan M. Trammell, Settled Law, 107 Va. L. Rev. 57 (2021).

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 095: Open and Contested Questions of Law

    (This entry was last modified on September 14, 2024.)

    Link to the Legal Theory Stack Legal Theory Stack The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 094: Words and Concepts, Sentences and Propositions

    By Lawrence B. Solum

    Introduction

    Even before entering law school, law students are likely to know that lawyers work with words and ideas.  But most law students are likely to get through the first year without learning of one of the most basic distinctions in legal theory–the distinction between words and concepts–and the closely related distinction between sentences and propositions.  This entry in the Legal Theory Lexicon provides a very short introduction to these ideas and their applications in legal theory.

    A word of warning.  The notion of a concept plays an important role in legal theory, but typically legal theorists take the nature of concepts themselves for granted.  With the exception of work on the nature of law, where the notion of a concept is sometimes interrogated, legal theory rarely discusses deep questions about the nature of concepts themselves.  The discussion that follows ignores many important philosophical questions about concepts.  This is the Legal Theory Lexicon and not the Philosophers Lexicon.  For an introduction to the philosophical issues, I recommend the entry on Concepts in the Stanford Encyclopedia of Philosophy, which is cited in the bibliography at the end of this Lexicon entry.

    What is a Concept?

    Let’s begin with concepts.  What is a concept?  And how is a concept different from the word or phrase that is used to express that concept in a natural language like English?  We can start with an example.  One of the meanings of the word “law” refers to the system of legal norms.  “The law in the United States includes a right to the freedom of speech.”  The word “law” is used to express an idea or concept.  The concept law can be represented by other words.  Most obviously, the word “law” in English is translated as “recht” in German, “loi” in French, and “ley” in Spanish.  But the concept law can also be expressed in English in other words or phrases.  For example, the phrase “system of legal norms” can be substituted for the word “law” in a variety of contexts. Relatedly, many words are ambiguous: the same word can represent more than one concept. For example, the word “bank” can refer to a financial institution or the soil adjacent to a river.

    Words and phrases express concepts, but words are not the same kinds of things as concepts.  There is a conceptual distinction between a word and the concept that the word expresses.

    Words, Phrases, and Terms

    Some concepts are expressed by single words, but others are expressed by phrases (groups of words).  Some phrases are compositional: the meaning of the phrase is determined by the meaning of the individual words that make up the phrase.  Other phrases are idiomatic: the meaning of the phrase is not the product of the meaning of the individual words.  Here are some examples of idioms:

    • “Burn the midnight oil”
    • “Cry over spilt milk”
    • “Devil’s advocate”

    Each of these phrases has an idiomatic meaning that is well known to competent speakers of American English, but is not reducible to the meanings of the words that compose the idiom.  A “devil’s advocate” is not the advocate of Satan.  “Crying over spilt milk” does not involve milk and it does not require crying.

    We can use the word “term” to represent a unit of meaning, which could be a word or a phrase.  Thus, “law,” “legal system,” and “devil’s advocate” are all terms that represent concepts.  This Lexicon entry is entitled “Words and Concepts” but a more accurate title might have been “Terms and Concepts.”

    Sentences and Propositions

    What about sentences?  Words and phrases are combined into sentences.  Individual words and phrases have semantic meanings that associate them with concepts.  Sentences also have semantic meanings (or literal meanings), but these meanings are not just a function of the meaning of the individual words and phrases that make up the sentence.  Syntax plays a role in sentence meaning.  For the rough and ready purposes of this Lexicon entry, syntax might be thought of as something like grammar and (in the case of written sentences) punctuation.

    We can use the word “proposition” to express the idea that the meaning of a sentence can be thought of as an abstract object.  Just as a word expresses a concept that can be expressed using other words, so too sentences express propositions that can be expressed using other sentences.  Thus, this Lexicon entry could be translated into Mandarin or Romanian (as many other Lexicon entries have already been translated).  And every sentence is this Lexicon entry could have been written using a different sentence in English that would have expressed the same proposition.  For example, many sentences in English that are expressed in “active voice” can be rewritten in passive voice.  “I wrote the first sentence of this Lexicon entry” can be rewritten as “The first sentence of the Lexicon entry entitled ‘Words and Concepts’ was written by me.”

    As concepts are to words and phrases, so propositions are to sentences.  Again, a word of warning: this view of the relationship between concepts and propositions is controversial in philosophy, but for the purposes of the Lexicon, I am ignoring many of the foundational issues about the nature of concepts.

    A Common Error: Mistaking Definitions for Concepts

    Here is a very common mistake made in academic legal writing: conceptual issues are described as definitional issues.  For example, in an article about foundational issues in international law, the author might say that a dispute about the nature of international law is a definitional dispute.  Of course, it is possible that the dispute is really about the meaning of the phrase “international law,” but it is more likely that the author is talking about the concept of international law and that the dispute is conceptual rather than definitional.  One way to see the difference is to ask these questions: (1) could the dispute be expressed in a different language?, and (2) could the dispute be reframed in English using other words?  If the answer to both of these questions is “yes,” then there is a good chance that the issues are conceptual and not definitional.

    Of course, many disputes are merely terminological, but terminological disputes can be avoided by stipulated definitions.  If stipulation doesn’t provide a way around the issues, then the dispute is not really about the meaning of a word or phrase, it is actually about a concept or the nature of some kind.

    Concepts and Conceptions

    There is a Lexicon entry on the concept-conception distinction, which is frequently invoked by legal theorists.  This distinction was made famous by John Rawls in A Theory of Justice and was adapted to legal theory by Ronald Dworkin.  The gist of the idea is that certain concepts, such as justice, are contested.  There are different theories about the nature of justice and these theories compete with each other.  These competing theories can be described as “conceptions.”  So we have different conceptions of the concept justice.  Notice that the debates over the nature of justice are not about the definition of the word “justice.”

    Linguistic Determinism (the Whorfian Hypothesis)

    One of the ideas about the relationship between words and concepts is associated with Benjamin Whorf and is sometimes called “linguistic determinism” or “the Whorfian hypothesis.”  The gist of this idea is that our language determines our concepts.  Thus, it is claimed that Eskimos have 50 words for snow or that the Hopi do not have a concept of time.  This Lexicon entry won’t explore the empirical and philosophical issues raised by debates over linguistic determinism, but I do want to warn readers that they should not casually assume that linguistic determinism has been confirmed by social scientists.  It may be the case that the Eskimos do have many words for snow (as very recent research purports to show), but that does not entail linguistic determinism.  The notion that the Hopi lack a concept of time is probably false.  Before you make big assumptions about linguistic determinism, do some serious investigation!

    Conclusion

    As is usually the case, this Lexicon entry barely scratches the surface.  I hope that the ideas that I have introduced here are sufficient to give you a sense of the difference between words and concepts.  The bibliography includes some suggestions for additional readings!

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 094: Words and Concepts, Sentences and Propositions

    (This entry was last modified on January 18, 2026.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.

  • Legal Theory Lexicon 093: Common Law

    Legal Theory Lexicon 101: General Law.

    rong>Introduction

    By Lawrence B. Solum

    Law students encounter the notion of “common law” very early in their legal education, frequently in an orientation program or on the first day of classes.  The standard law school curriculum includes courses in contracts, property, and torts, which are “common law” subjects.  And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects.  But what is the common law?  And what is the role of the concept of the common law in legal theory?  This Lexicon entry explores these questions.

    As always, the Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

    A Rough Typology & the Hierarchy of Authority

    One way to understand the notion of “common law” is to place the common law in a typology with other forms of law and to organize the forms of law into a hierarchy of authority.  Such a typology might look like this:

    • Constitutions: The United States Constitution and the constitutions of the several states are examples.
    • Statutes: Statutes are directly enacted by a legislature, e.g., Congress or a state legislature.
    • Regulations and Rules: Regulations are typically promulgated by administrative agencies, such as the Environmental Protection Agency or the Federal Aviation Agency.  Similarly, various bodies promulgate rules, such as the Federal Rules of Civil Procedure.
    • Common Law: Common law is found in judicial opinions and can be conceived as case law.  Usually common law is distinguished from case law that interprets a constitution, statute, rules, or regulations.

    The conventional understanding is that there is a hierarchy of authority, with constitutions at the top, followed by statutes, rules and regulations, and then common law.  If a common law norm is inconsistent with a regulation or rule, statute, or constitutional provision, the common law norm gives way and the higher form of authority governs.

    Two Approaches to the Common Law

    What is the source of the common law?  Simplifying a complex debate, we can identify two theories of the nature and source of the common law, the “discovery theory” and the “judicial legislation theory.”

    The Discovery Theory

    The core idea of the discovery theory is that the common law preexists the judicial decisions that identify common law norms.  Judges don’t “make” the common law; they “discover” it.  On this view, there must be some source of the preexisting common law that is independent of the judicial decisions that discover it.  Traditionally, there are two candidates for the source of discovered common law, “natural law” and “social norms or customs.”

    On the natural law interpretation, common law decisions articulate principles of natural law, which are moral principles discoverable by human reason.  If this view were correct, then morality would be the source of the common law, and common law reasoning would be a form of moral reasoning, sometimes called “right reason.”

    On the social norms interpretation, common law decisions articulate preexisting social norms or customs.  Thus, the common law of property would reflect the norms of the community with respect to the ownership of land and things.  As members of the community, judges would apply and articulate their intuitive knowledge norms that they have internalized.

    The natural law theory and the social norms or custom theory might be rivals, but they might also be reconciled in various ways.  Custom might be considered an imperfect or approximate guide to the natural law, subject to correction when judges discover a gap between the customs of a community and the requirement of right reason.

    The Judicial Legislation Theory

    The judicial legislation theory denies the fundamental assumption of the discovery theory: common law is judge-made law.  On the judicial legislation theory, judges are given the power to engage in interstitial legislation.  Unlike, a legislature, judges are not authorized to write statutes.  Instead, judges legislate on a case-by-case basis, making incremental changes in the rules within the limits of the doctrine of stare decisis or precedent.

    Most contemporary legal theorists affirm the judicial legislation theory of the common law.  The natural law version of the discovery theory seems to depend on the acceptance of natural law views about the nature of law, but most contemporary legal theorists are legal positivists.  The notion that the common law involves judicial legislation was the view of the legal realists, and continues to dominate legal theory in post-realist legal thought.  There has, however, recently been a revival of the view that the common law is grounded in customs and social norms.

    Another View: Dworkin’s Theory of the Common Law

    Ronald Dworkin has a distinctive theory of the common law.  The gist of Dworkin’s theory is that common law cases should be decided in accord with the moral theory that best fits and justifies the preexisting legal materials as a whole.  Simplifying, a judge deciding a property case would look at all of the prior common-law property cases and then develop the theory of property law that best justifies the pattern of decisions.  Dworkin believes that there is a “right answer” to every common law question–so his theory is inconsistent with the idea that common law involves judicial legislation.

    The Doctrine of Stare Decisis

    Closely related to the concept of the common law is the idea of stare decisis (the doctrine of precedent).  The common law develops via the doctrine of stare decisis, which distinguishes between the holdings and dicta.  On the traditional formulation of the theory, holdings are binding, but dicta are not, although they may constitute persuasive authority.  The various views about what constitutes the holding of a case are explored in a prior Lexicon entry (Legal Theory Lexicon 005: Holdings).  The traditional view is that the holding of a case is the ratio decidendi, the legal norm that is entailed by the reasoning that is necessary to the outcome given the legally salient facts presented by the record and the arguments of the parties.  The doctrine of precedent operates to constraint the power of judges to make common law; the rules they announce are limited by the facts and issues raised in the case to be decided.

    General and Local Common Law

    Most law students read the Supreme Court’s decision in Erie Railroad v. Tompkins in their course in civil procedure, and they may also read an excerpt from the Supreme Court’s prior decision in Swift v. Tyson.  Those cases introduce a distinction between “general common law” and “local common law.”  The idea of this distinction was that some common law topics are governed by “general common law,” which is the same in every common law jurisdiction.  Commercial law and maritime law are examples of doctrinal areas that were thought to be governed by general common law at the time Swift v. Tyson was decided.  Local common law governed topics where local customs created rules that were not followed by all common law jurisdictions.  Many property law norms were considered to be matters of local common law.

    Erie Railroad v. Tompkins rejected the idea that federal judges were free to adopt views of the general common law that differed from those adopted by state courts, leading to the demise of the distinction between general and local common law.

    Normative Criticism of Common Law

    Jeremy Bentham is famous for his critique of the common law.  Bentham argued that the common law was defective for multiple reasons.  One reason is that the common law is driven by the doctrine of precedent; Bentham argued that codified law based on utilitarian principles provides a superior method of lawmaking.  Bentham also contended that codified statute law is public and easier to ascertain than is the common law, which is relatively difficult to ascertain.

    Conclusion

    The idea of the common law has produced a vast literature exploring many issues that are beyond the scope of this Lexicon entry, but I hope to have provided a starting point for further investigation.  Some additional sources are provided in the bibliography provided below.

    Related Lexicon Entries

    Bibliography

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 093: Common Law

    (Last modified on August 31, 2024.)

    Link to the Legal Theory Stack

    Legal Theory Stack

    The Legal Theory Stack informs readers of a new or revised Legal Theory Lexicon entry every Sunday along with summaries of the Download of the Week and the Legal Theory Bookworm recommendation.