Interpreting Criminal Laws: Must We Speak of Legislative Intent?

Lawrence Solan (New York)

Recht im Kontext Lecture
Humboldt-Universität zu Berlin, Juristische Fakultät, Raum E 42 (Kommode)
Bebelplatz 1, 10117 Berlin

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In interpreting statutes, judges attempt to further important legal values: Among them are the democratic value of respecting the will of the legislature, fair notice to the accused, and the basic rule of law value that comes with interpreting codes in a coherent manner. These goals often are mutually reinforcing, but sometimes are at odds with one another.

In U.S. jurisprudence, courts pay special attention to the “ordinary meaning” of a statute’s words. The principal reason is the presumption that legislatures intend the laws they write to be so interpreted. Ordinary meaning is thus used as a proxy for what the legislature actually intended, providing an objective approach to statutory interpretation. I argue here that ordinary meaning is a realistic initial rule of thumb, but it is defeasible based on specific information that comes from investigating a law’s purpose and legislative history. Despite efforts to avoid the questions of purpose and intent, such inquiries are unavoidable and are adduced even by those who claim to oppose such inquiry. Discussion will be offered about the tension between the value of furthering the will of the legislature and other values, such as coherent interpretation of the laws, which sometimes are inconsistent with furthering legislative intent.

Lawrence Solan is Don Forchelli Professor of Law at Brooklyn Law School (New York). He holds both a law degree and a Ph.D. in linguistics. His scholarly works are largely devoted to exploring interdisciplinary issues related to law, language and psychology, especially in the areas of statutory and contractual interpretation, the attribution of liability and blame, and linguistic evidence. He is director of the Law School’s Center for the Study of Law, Language and Cognition, and his acclaimed book, The Language of Judges, is widely recognized as a seminal work on linguistic theory and legal argumentation. His most recent books are The Language of Statutes: Laws and their Interpretation, published by the University of Chicago Press in 2010, and The Oxford Handbook of Language and Law, co-edited with Peter Tiersma and published in 2012. He has authored numerous articles and book chapters, and regularly lectures in the United States and abroad.  

Professor Solan has been a visiting professor in the Council of Humanities and the Psychology Department at Princeton University. He has also been and a visiting professor at Yale Law School. He has served as president of the International Association of Forensic Linguistics, is on the board of the International Academy of Law and Mental Health, and the editorial board of the International Journal of Speech, Language and the Law.