UCLA School of Law

In a recent paper, Legislation As Communication? Legal Interpretation and the Study of Communication, I criticize an approach to statutory and constitutional interpretation that I call the communicative-content theory of law, or, for short, the communication theory. According to this approach, our best theories of language and communication teach us that the full linguistic meaning of an utterance is what the speaker or author communicates by the utterance – call it communicative content – which may go well beyond the literal meaning of the words. The communication theorists conclude that a statute's contribution to the content of the law is its communicative content. They thus draw a conclusion about the way in which statutes affect legal obligations from the study of language. In Legislation As Communication, I argue that the communication theory fails. Because it restricts itself to linguistic considerations, it lacks the resources to draw any conclusions about a statute's contribution to the content of the law. In the present paper, I consider how the communication theory would fare if it employed what I call an objective notion of communicative content – one on which communicative content is not constituted by the content of the speaker's communicative intentions. An objective version of the communication theory suffers from a different kind of problem in addition to those explored in Legislation As Communication. I argue that, to the extent that the communication theory adopts an objective notion of communicative content, it loses its distinctive features. In particular, philosophy of language cannot play the dominant role that the communication theory assigns to it.