More from Neal Goldfarb on "Pragmatic Enrichment"
Following up on this post, Neal Goldfarb (LawNLinguistics) comments:
For me, what's significant about the role pragmatic enrichment plays in legal interpretation is that that it provides the response to simple-minded textualist arguments such as Roberts's in PDK Laboratories and Barron's in Barron v. Baltimore. The simplistic argument is, "But the text doesn't say that." And the response is that the text is semantically underspecified: it doesn’t expressly spell out the semantics of the proposition that it expresses, and the missing element needs to be inferred. In Barron, the missing element was the agent/target_of_prohibition: the entity doing the taking to which the clause applies. And inference is involved even in the supposedly literal reading. For example, it presumably went without saying that the Fifth Amendment didn’t apply to takings by nongovernmental entities or by foreign governments.
In ordinary communication, pragmatic enrichment is pretty much an automatic process that goes on below the level of conscious awareness.* But legal interpretation is an explicit deliberative process (see my post Comprehension, ordinary meaning, and linguistics). So the question arises whether and to what extent pragmatics (the field of study, not the pragmatic phenomena that are studied) plays a role in legal interpretation where the semantic meaning is underspecified. The function of the underlying pragmatic processes is mainly if not entirely to enable the listener/reader to infer the message that the speaker/writer intends to communicate. In the case of legal interpretation there's no speaker/writer in the ordinary sense, and therefore arguably no communicative intentions in the ordinary sense. But I think that pragmatic processes are at work anyway; IMO, people can't help but draw inferences about intention, even if the intention they are inferring is being imputed to the lawmaker.
If that's an accurate description of the process of determining ordinary meaning, it arguably suggests that the process inherently includes an element of Legal Process purposivism. Because what intention is likely to be imputed to the lawmaker, other than what an intention to do what is reasonable in the situation (taking into account all specifically known relevant factors about the lawmaker's preferences)? And if that is going on under the surface, maybe it would be better to bring it out into the open. So it could well be that the result of combining textualism with a linguistically/cognitively informed model of determining ordinary meaning is that purposivism becomes part of the DNA of textualism—perhaps to a greater degree than is reflected in Scalia’s notion of objectivized intent
*It's possible that there are kinds of enrichments that may (at least according to some people) involve some level of conscious inference; I don't have a level of familiarity with the literature that would let me know that off the top of my head. And there's a variety of views about the details of how pragmatic processes work and even where the line is between pragmatics and semantics.