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09/21/2020

Legal Theory Lexicon on Communicative Content and Legal Content
Michael Ramsey

Larry Solum's Legal Theory Lexicon has an updated entry for Communicative Content and Legal Content.  From the introduction: 

One of the most basic ideas in legal theory is the distinction between "communicative content" and "legal content."  That sounds fancy, but this fundamental idea is very simple.  Legal texts of all kinds communicate; they say things.  Roughly, what they say is their linguistic meaning--the meaning of the words and phrases in context.  Some legal texts, those that are valid, create legal norms.  Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, they no longer do so.  The Confederate Constitution has communicative content.  We can read it and discern its meaning, but that document no longer generates legal content.  There are no currently valid propositions of law that are derived from the Confederate Constitution.  The legal content of documents like the Confederate Constitution is not the same as their communicative content.  This example illustrates the possibility of divergence between linguistic meaning and legal meaning.

And from later on:

Some Implications for the Debates Between Formalists and Realists

One of the important ways to use the distinction between communicative content and legal content arises in connection with the debate between formalists and realists about the interpretation of constitutions, statutes, and other legal texts.  Formalists maintain that the legal content associated with a text should be constrained by the communicative content conveyed by the text, whereas legal realists frequently argue that legal content should not be so constrained.  For example, constitutional originalists maintain that when courts engage in the construction of legal doctrines, they should consider themselves bound by the original public meaning (communicative content) of the text, whereas nonoriginalist living constitutionalists argue that the legal content of constitutional doctrines can modify, override, or even nullify the original public meaning.  Similarly, plain meaning textualists argue that courts engaged in statutory construction should consider themselves bound by the communicative content of the statutory text, whereas the more realist purposivists believe that courts may override the plain meaning of the text in order to serve the purpose or function that an ideally reasonable legislature would have had in enacting the text.