The pragmatic enrichment of legislation: context, inference and morality in legal interpretation
In the case of Smith v US, the US Supreme Court considered whether exchanging a gun for some cocaine constituted “using a firearm” during a drugs offence. If “use” is understood in its broad sense (employ, make use of), it does: Smith used the firearm as an item of barter. Conversely, if “use” is understood in context, it does not: to “use a firearm” is generally understood to mean as a weapon.
This kind of contextual modulation of meaning falls within the scope of pragmatics, the study of the context-dependence of linguistic communication. The traditional view is that the meaning of legislation derives from (non-contextual) word meaning and syntax. However, many pragmaticists believe all linguistic communication involves elements of context-specific meaning (such as the modulation of “use” above).
Understanding the cognitive processes underlying our linguistic capabilities would aid the development of objective methodologies of legal drafting, interpretation and judicial decision-making. In my research I will consider how far pragmatic theory applies to legal interpretation and what constitutes the relevant context for interpretation (socio-cultural assumptions, moral norms and/or legal precedents). I will also consider how pragmatic theory relates to theories of jurisprudence and the notion of the rule of law.