A New York Times article from Monday has been prompting some comment on the blogs and blawgs. In "Justices Turning More Frequently to Dictionary, and Not Just for Big Words," Adam Liptak wrote about the considerable frequency with which U.S. Supreme Court Justices refer to dictionary definitions in their opinions, much to the concern — not to say derision — of linguists and lexicologists. This should come as only a mild surprise to lawyers, perhaps, who are used to the various and contestable ways meaning in statutes is determined and justified by judges.
As the linguists point out, one of the problems with going to dictionaries for meaning is that dictionaries are hardly the last word or, indeed, the most authoritative word, on words. As an editor at Oxford Press says in the article,
Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.
Moreover, dictionaries are invariably behind the times: usage changes, sometimes quite rapidly, and it takes the tomes some time to report the fact. (See, for more, Johnson in the Economist.)
From a legal point of view, this resort to dictionaries has never made any sense to me. The thought is, I gather, that legislation should (in some? most? all? cases) be interpreted according to the "plain meaning" of the words (whatever that is), which can be found, because expressed naively, i.e. disinterestedly, in the dictionary, that record of meanings. If there's merit in resorting to carefully chosen "plain meanings," surely there's no need for dictionaries. After all, the "plain" of it all means, if it means anything, the meaning that strikes a native speaker as obvious or, at least, most likely. Judges, professional deformation notwithstanding, are native speakers who can (and should) assert the plain meaning of critical terms, if necessary, without the silly reference over to thick books.
I suppose there can be cases where "plain meaning" is contentious or in serious doubt — though in such cases the force of "plain" is spent, I'd suggest. In which case, evidence can be taken as to usage, and linguists have better ways of providing it than swearing on dictionaries.
But for me "plain meaning" is usually invoked either ritually or to cover over a difficult step in reasoning. It serves little or no legitimate function as a heuristic device. Presumably a judge has understood without aid the "plain meaning" of the dozens or hundreds of words that have led her or him to the critical point of the act under consideration — at which point the meaning all of a sudden does no "go without saying." It's at that point that a court needs to explore and expose the difficulty, relate it to the point of the act, the interests at stake, etc., and make a thoughtful decision as to the outcome of the issue, whereupon the "meaning" of the section has been clarified by decision. That's what judges are engaged to do.
A quick survey of recent Supreme Court of Canada decisions shows that our top judges are not immune from consulting dictionaries, e.g.:
- 2011 SCC 25: Canadian Oxford Dictionary – ten years out of date – “control”
- 2011 SCC 13: Canadian Oxford Dictionary – seven years out of date – “demeanour”
- 2010 SCC 58: Shorter Oxford English Dictionary on Historical Principles – four years out of date – “insult”
- 2010 SCC 16: New Shorter Oxford English Dictionary on Historical Principles – four years out of date – “sedulous”
This is hardly the rash of dictioneering spotted south of the border. Indeed, it seems to be a ritual use of The Book, elaborating a word with other words — synonyms — no more determinative than the original, and then moving on without explaining why the dictionary was prayed in aid in the first place. This is a silly waste of time that only perpetuates the lazy thought that legislative words "have" meanings that are discoverable with minimal effort. And it raises the question of how the Oxford Press managed to become the official supplier of (plain) meaning to the Supreme Court of Canada.
Sedulous? That's fair game. I'd need a dictionary.
1. I think interpreting the plain meaning is more complicated than you give it credit for. The typical scenario I see is where a contract say the parties will do "X" and later need to determine if "X" includes "Y". For example, does an obligation to "operate" include an obligation to "maintain"? Ask 100 native speakers and I bet you'll get 100 answers.
The example given in the article is a good one – what does "commerce" mean?
2. More troubling in the US example is the idea that judges are cherry-picking dictionaries to get the result they want.
Mike, I think we agree, actually: interpreting meaning is in fact so difficult that it's rarely if ever best described as a search for what's "plain." Or, to put it another way, interpretation is hard and requires thought and judgment, neither of which is helped much by looking a word up in the dictionary.
Jason, re 'sedulous', fair enough. But then it's not a "plain meaning" situation. The word is relatively opaque, and really infrequently used. So we're back to the business of interpretation in the context, careful thought and judgment — minimally aided, in this case, by looking up the word in a dictionary.
Would it make any difference if the drafters of the statutes had had recourse to dictionaries in drafting them? Or does the approval of the Legislature change the nature of the process, so that interpretation is fundamentally different from composition?
Back in the last century when I taught legal writing, 'plain language drafting' did not focus on the words (except to get rid of legalisms like 'hereinafter' and duplications like 'give and bequeath' – historically different but not in the past 200 years) but on structure and layout.
Statutory interpretation involves understanding the meaning of a word when used for a purpose. Dictionaries may not be a good source of information about how the meaning of a word may change with its purpose, and are a bad source of information about the range of purposes that a Legislature might come up with for a word.
Hmmmm… seems I'm going to be on the other side of this one.
Assume the opposing sides in a dispute are arguing about what the meaning of "is", is, in a case where "is" is a part of a phrase in a contract. If the meaning of "is" is fundamental to the contract, then there has to have been a common understanding or there was never a contract. Of course, each side now wants a different gloss on the meaning of "is".
That's why the parties are in court asking somebody, who might know even less about the subject than the lawyers they're paying to posture, to decide what it was they should be held to have agreed to – as a matter of commercial reality – when they entered into the contract, never envisaging the problem they're now fighting about. (Or they did but one side or both thinks they can get away with claiming they didn't. And one side or the other or both has a lawyer prepared to assist. (After all, it's not our job to judge the truth of of what our client tell us. Our duty is limited to not misleading the court, in any way, right?)
A dictionary is merely one source the judge can look to for evidence relevant to the decision the judge has to make. That's even more the case where the dictionary is subject-matter specific; say, Brewer's Dictionary of Phrase and Fable. For those who don't know, there is such a dictionary. It has been cited once in Canadian case law reported on CanLII or Carswell-Westlaw: Bell v. Kato [1993] CanLII 379. The trial judge used that dictionary to explain why he accepted one side's expert's evidence.
Go figure. Were I judge resorting to that dictionary, it wouldn't be to find a justification for accepting the evidence of a witness.