One recent and recurring topic in legal interpretation is the nature and status of rules of legal interpretation — such as the rule of lenity, the anti-surplusage canon, and much more. In an important recent paper, John McGinnis and Michael Rappaport argue that such rules should be seen as part of “the language of the law.” From the abstract:

There has been a long-standing debate over whether the Constitution is written in ordinary or legal language. Yet no article has offered a framework for determining the nature of the Constitution’s language, let alone systematically canvassed the evidence.

This article fills the gap. First, it shows that a distinctive legal language exists. This language in the Constitution includes terms, like Letters of Marque and Reprisal, that are patently technical, and terms, like good behavior, that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules such as those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.

The article shows how to determine whether a document is written in the language of the law. The most important factor is the language of the document itself. The pervasive presence of technical legal terms provides strong evidence that a document is written in the language of the law, because ordinary language cannot easily account for even a small number of legal terms. The purpose of the document also counts. Insofar as it is written to inform officials of their duties, it is more likely to written in legal language, because that language allows more precision. The language of similar documents provides additional evidence. Since other constitutions at the time were written in the language of the law, that militates in favor of reading the Constitution in that same language.

The article supplies strong evidence that the Constitution is written in the language of the law. The article is the first to count the legal terms in the Constitution and approximates them at a hundred. Moreover, the Constitution’s text both blocks the operation of certain legal interpretive rules and calls for the application of other such rules. Finally, the judges and legislators charged with implementing the Constitution in the early Republic frequently deployed legal interpretive rules to resolve contested issues.

The Constitution’s legal language has important theoretical and practical significance. Theoretically, it shows that that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

In a recent post at LAWnLinguistics, Neal Goldfarb blogs “about two related aspects of the paper that I think are problematic”:

One is its treatment of “the language of the law” (a phrase that I will henceforth capitalize whenever I use it in the way that McGinnis and Rappaport do). McGinnis and Rappaport come close to treating The Language of the Law as a full-blown language on the order of French and Japanese, which I don’t think is justified by the facts. The other major problem that I see lies in the analogy that the paper draws between the rules of legal interpretation and what it calls the “interpretive rules” of ordinary language (which are better described as the cognitive processes involved in the comprehension of utterances and texts). This analogy, which plays a key role in McGinnis and Rappaport’s argument, is invalid because each of the things that they are analogizing is fundamentally dissimilar from the other.

Goldfarb goes on to argue that rules of legal interpretation operate very differently from rules of linguistic interpretation because the processes of linguistic rules “occur auto­matically, effortlessly, and, for all practical purposes, instantaneously. Moreover, these processes occur below the level of conscious awareness and inaccessible to introspection. Legal interpretation, on the other hand, is a deliberative process by which the interpreter consciously thinks about how the utter­ance or text should be understood.”

Goldfarb also argues that linguistic rules “are emergent properties that arise from the normal functioning of human cognition. Legal interpretive rules, on the other hand, are very different. They are promulgated explicitly by actors vested with institutional authority, and they are owed obedience, or at least deference, by other institutional actors.”

I well let McGinnis and Rappaport defend their paper from Goldfarb’s critique, but I wanted to chime in to flag an alternative way of thinking about legal interpretive rules — as law, not language.

Three months ago, Steve Sachs and I published an article, called “The Law of Interpretation,” which takes this legal view. (Longtime readers may recall that I also blogged about here at Volokh last year).

In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.

On the other hand, our conception of legal rules also isn’t quite like Goldfarb’s. I take his point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utter­ance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.

We think this picture best captures how rules of interpretation operate in our system. Others may disagree. (McGinnis and Rappaport have their own responses to our position in their article, which is worth reading.) But for now I just wanted to point out that “the law of interpretation” provides an alternative explanation to “the language of the law,” and one that is not susceptible to these linguistic critiques.