How We Play Games with Words in the Law

08 Sep, 2016 ADMINISTRATIVE LAW 0

How We Play Games with Words in the Law

Janet Ainsworth

David Mellinkoff (1963: vii) began his germinal volume “The Language of the Law” with this observation: “The law is a profession of words.” Perhaps it would be more accurate to say that the law is a profession in search of the meaning that inheres in words. Lawyers and judges—particularly those of the textualist persuasion—are inclined to look for literal word meaning by consulting authoritative sources such as dictionaries when meaning is at issue. Linguists—particularly those of the descriptive persuasion—are more inclined to agree with the philosopher Ludwig Wittgenstein that meaning is use. But it is that rare combination of perspectives in the lawyer-linguist like Peter Tiersma that can appreciate that meaning in law is to be found somewhere betwixt and between authority and practice. Law, both in its most mundane and particularized instances—the drafting of a contract, the testimony of a witness in court—and in its grandest and more generalized exemplifications—the framing of a constitution, the pronouncement of a high court opinion—is fundamentally constituted by the meaning of the language used in achieving its ends. As a result of his dual training and experience in linguistics and law, Tiersma is well situated to apply his understanding of the nature of language and communication to shed light on a wide spectrum of legal problems and practices.

One of his earliest explorations of language issues inherent in legal doctrines was Tiersma’s 1990 article, “The Language of Perjury: ‘Literal Truth,’ Ambiguity, and the False Statement Requirement.” In this article, Tiersma examines the linguistic issues entailed in the crime of perjury, the intentional making of a false material statement under oath. He considers the surprisingly limited scope of perjury laws, noting that many forms of communicative deception are entirely outside the reach of the law. In particular, Tiersma focuses on a 1973 Supreme Court case, U.S. v. Bronson, as an example of how the law’s approach to deceptive answers in perjury doctrine is inconsistent with what linguists know about how people use non-literal language in their everyday communication.

The Bronston case arose out of a bankruptcy proceeding in which Bronston was asked on the stand about whether he had any Swiss bank accounts. He truthfully answered that he did not. The follow-up question, “Have you ever …?” was answered with, “The company had an account there for about six months.” This was also true; however, Bronson himself had formerly had a Swiss bank account as well, which his answer did not disclose. The Supreme Court unanimously overturned Bronson’s conviction for perjury, holding that his answer was literally true, even though non-responsive and evasive.

In analyzing this case, Tiersma (1990: 381–383) observes that the literal propositional content of our utterances seldom corresponds with what we are actually trying to communicate to others. H. P. Grice (1975)

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