Lawyers are, of their nature, wordsmiths. They attempt to craft sentences which convey meaning which is neither more nor less than intended. They do this when they write statutes -- non-lawyer Congressmen do not really write statutes; their staff attorneys do -- and when they write wills and when they write leases and contracts and all manner of other stuff that comes off attorney word processors. When ambiguity is what is needed -- as when a statute ought not be too definite, so as to allow for localized interpretation of its application -- they write ambiguously. When great precision is needed -- as when a statute needs to prohibit only certain behaviours while permitting other similar but non-proscribed behaviours -- they write precisely.

The general rule of judicial interpretation of statutes and wills and contracts and other things written by lawyers is: "Let the plain meaning control." The need to resort to more invasive interpretation arises only when the drafter (of the statute, will, contract or whatever) has done an inadequate job of conveying precise meaning. In those cases, where else would you have a jurist go but to a dictionary, or better to several? And of course judges are going to accept the dictionary defintions which seem to make the most sense to them and reject those which make the least. What else would you have them do?

Terms like "textualism" and "strict construction" are not-very-helpful labels in that judges are human and tend to adopt whatever style of reasoning seems to them best suited to resolve the case at hand. While one may demonstrate a propensity toward textualism and strict constuctionism on the one hand or judicial activism on the other, many judges defy such simplistic categorisation.

Do you suppose that legal draftspersons tend to be prescriptivist or descriptivist in their orientation to language?

Last edited by Father Steve; 11/30/05 01:41 AM.