William Baude asks, "Is ‘the language of the law’ a language?"

Is ‘the language of the law’ a language?
William Baude
The Volokh Conspiracy
May 8, 2017

I well let McGinnis and Rappaport defend their paper from Goldfarb’s critique, but I wanted to chime in to flag an alternative way of thinking about legal interpretive rules — as law, not language.

Three months ago, Steve Sachs and I published an article, called “The Law of Interpretation,” which takes this legal view. (Longtime readers may recall that I also blogged about here at Volokh last year).

In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.

Faculty: 
William Baude