I have long been interested in the close but often unacknowledged connections between grammar and law. These are well brought out in Antonin Scalia’s “Reading Law: the interpretation of legal texts,” http://www.amazon.com/Reading-Law-Interpretation-Legal-Texts/dp/031427555X which tells us much about the true art of reading and writing that style guides and grammar books frequently overlook.
Antonin Scalia is the longest-serving associate justice of the current Supreme Court of the United States, having been appointed by Ronald Reagan in 1986. He is often depicted in the popular press as a conservative and a literalist (someone who believes that the literal wording of the US Constitution always trumps social change). These are neat, emotionally evocative but imprecise labels. Once elevated to the Supreme Court, justices are expected to shed prior political convictions—there is no right or left, liberal or conservative—only scrutiny of the way the passage of time intersects with the letter of the law. This is not to say that Supreme Court justices always transcend politics and emotions, only that ideally they should not and that this is an ideal worth pursuing.
Scalia himself rejects the term literalist, preferring textualist or originalist. For him, ideals carefully set down in words at a time of a revolution and nation-building project of seminal proportions hold more weight than the shifting fashions of jurisprudence. But this does not mean that every word should be taken ‘literally’.
In this, Antonin Scalia is fighting a battle on two fronts. On the one hand, he rejects the idea that the terms used in ancient legal texts should be held to their literal meaning in a modern sense; on the other, he argues that this is no reason to suggest that the ideas in the original laws are thus hopelessly outdated and should therefore be expunged from the statute book.
To paraphrase and perhaps trivialize an example that Scalia gives, Queen Anne in the early 18th century described St. Paul’s Cathedral as ‘awful’. At the time, this term meant ‘awe-inspiring’ and it would thus obviously be absurd to take her words ‘literally’ in the modern sense and pull the cathedral down. But it would be equally absurd to argue that, since times and architectural fashions have changed, her opinion should simply be dismissed.
Words slide and slip over time, but ideals and ideas do not. It is therefore very easy for lawyers and demagogues to hide behind the shifting fashions of words and twist the meaning of the world.
Much the same could be said of normative grammar, which has, historically, been closely associated with law. No-one bothered much about English grammar until, in the 15th century, English became for the first time the language of the courts.
Nowadays, prescriptivists, like legal literalists, lay too great a weight on antique turns of phrase, which were often wrong at the time, whilst descriptivists adopt a laissez-faire jurisprudential approach, with the underlying normative assumption that all language is guided by certain innately acquired rules and laws. Neither are correct. We should neither stick rigidly to outmoded forms, especially when these are revealed to be mere fashions of times gone by, nor should we jettison all old-fashioned language norms in the name of supposed tolerance and progress, especially when these make some crucial difference to the meaning conveyed. Meaning is after all, pace some extreme post-modernists, what language is all about.
The prohibition against splitting infinitives, for example—a bugbear of armchair prescriptivists—is a mere fossil of an 18th fashion based on the false assumption that English should imitate the supposedly superior norms of Classical Latin, whatever they were. Snobbery apart, there is no difference between “to boldly go” and “boldly to go,” although the former, more contemporary form is arguably clearer and less clunky than the fussily antiquated alternative. Nowadays, TV script-writers generally know best.
On the other hand, the use of punctuation, which some liberal descriptivists might regard as of little importance in a modern less literate world, is often crucial in avoiding potentially damaging ambiguity. The use of a comma to mark a describing rather than a defining relative clause may be crucial, although this is not always so. Likewise the serial (or Oxford) comma, marking off the last term of a list, may be an issue of much more than mere pedantic interest. To paraphrase an example Scalia gives, if Uncle Ollie’s will reads “I leave my entire estate, valued at $1,000,000 dollars, in equal portions to my grandchildren, Abigail, Brendan, Colin and Deirdre,” this could be construed to imply that Abigail and Brendan get a third share, while Colin and Deirdre get a sixth each. Putting a comma between “Colin” and “and,” however, makes it quite clear that each grandchild receives a quarter share.
Here are eight key tips culled from Scalia’s “Reading Law” which can be usefully applied by any reader, writer or learner of the English language…
- Punctuation can contribute to the meaning of the text. It is not merely decorative or optional. (As the above mentioned examples show)
- If you are referring to the same thing again and again in a text USE THE SAME WORD OR PHRASE, or refer back to it clearly with a pronoun, such as ‘it’ or ‘this’. If you insist on using different terms for the same thing, because you have been schooled to think that not to do so is ‘bad style,’ you risk seriously confusing your readers.
- The meanings of words are determined by their context, in the text and in the society in which they are embedded, NOT by preconceived definitions, even those enshrined in dictionaries. Again to paraphrase Scalia, a law that states that ‘members of the public shall not lay hands on an officer of the court’, does not mean that they can be prosecuted for shaking the judge’s hand and giving him a firm slap on the back. “Lay hands on,” in this context and in common parlance clearly means “violent assault.”
- By extension, dictionaries, although useful tools, are historically- and socially-determined documents and should not be used to trump context, convention and common sense. They are useful for pursuing rather than winning arguments. A given dictionary may well pronounce the primary meaning of the phrase “lay hands on” to be “accidentally acquire,” (as in “the castaways built a boat with anything they could lay hands on”) but it would be a gross distortion to interpret the phrase this way in the example involving laying hands on a court official.
- If a word or phrase is used in a technical sense, this should be clearly indicated and the meaning of this technical sense clearly defined. If not marked and defined as such, everyday words will be assumed to bear their everyday meaning.
- “Shall” has a mandatory sense; it is not a fancy synonym for “will” or “may” and is certainly not the standard auxiliary verb used for the first person when ‘conjugating’ the ‘future tense,’ as some grammar books would still have it. “Will” conveys the idea of conjecture or, in some contexts, intention; “may” is used to grant or request permission, or, impersonally, to convey doubt. The extent to which the use of “shall” in this crisp (legal) sense is obsolescent remains unclear and it is thus probably advisable, when writing, to employ “must” as a broadly synonymous alternative; but be aware when reading that “shall” may imply obligation.
- “In the absence of an indication to the contrary, the singular includes the plural.” The distinction between singular and plural is surprisingly fuzzier than common-sense might lead one to imagine, but I think it is fair to say that, in formal language, the singular can be assumed to cover the plural. If the law says that “it is forbidden to discharge a firearm in a public place,” a defendant would surely be hard put to claim exemption from the law on the grounds that he or she had in fact discharged five or six such weapons. The plural here would in fact be more ambiguous, leaving a loophole for a single gunman with a single gun. Interestingly, when the subject is plural, the ambiguity shifts to the singular and the plural provides clearer meaning. “Citizens have the right to carry guns,” clearly means that all citizens individually have the right to carry one or more gun. “Citizens have the right to carry a gun,” is ambiguous. It could mean that all citizens collectively may, between them, carry only one gun.
- “Literalness may strangle meaning.” Language can be and most often is at the same time both very ambiguous and very precise. A lexical item or grammatical structure invariably fans out into a field of possible meanings, although it may be possible to map this field of ambiguity with some precision, if due care for past conventions and cautious openness to possible future developments are simultaneously exercised. To insist on a pinpoint, unambiguous definition, unchanging over time, risks flirting with tyranny or descending into absurdity.