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.