Yet, anotherscholar has asked for an inquiry into the ways ordinary English and thelanguage "in legal culture" are related to one another and the ways thelanguage of the "law must simult
The Problem: Anti-Reductionism and Reductionism
One form of the anti-reductionist thesis contends that legal language is a specialized code that only lawyers can fully speak, a bald assertion that legal discourse is not accessible to lay readers This view maintains that legal language differs from everyday English in its terms, structures, and interpretive practices, and that its meaning cannot be fully reduced to ordinary English.
- or, at least, cannot be reduced to ordinary English But the expression of that view tends to crop up in the contexts of some other point, so that determining whether a theorist intends to advance an anti-reductionist view is difficult.
For example, someone may say innocently that "it is a commonplace that that which gives the language of the law its distinctive flavor is something other than the King's or the commoner's English.' 6 To say that the "great mass of the language used by lawyers is ordinary English"' 17 still is innocent because it does not itself indicate a position with respect to the rest of the language lawyers use It does not even necessarily draw a distinction of ordinariness for the "great mass" and nonordinariness for the rest; for someone may make, as shall I, the great- mass-ordinariness point to clear-away noncontroversial areas of the lan- guage of the law in order to facilitate analysis of the rest With saying
Only lawyers can truly exploit the language of the law and even recognize its limitations, yet the initial innocence gives way as the rhetoric swells into the claim that the law’s language survives because it is upheld by those who share a priestly bond—the lawyers This hints at a belief that lawyers possess a special mastery of legal language that nonlawyers lack simply by virtue of being nonlawyers Yet it remains difficult to determine whether the theorist intends an anti-reductionist message, leaving the core claim unsettled.
16 D MELLINKOFF, THE LANGUAGE OF THE LAw 10 (1963).
The last remark of Professor Mellinkoff, quoted in the text, sits within his broader claim that legal language has outgrown its old confinement He argues that law language is no longer “bottled in bond” — the idea lawyers once pursued to keep the discipline from being made common among the vulgar This shift signals a move toward greater accessibility in legal discourse, challenging the notion that the law must remain obscure to preserve its authority.
Some compare the language of the law to a foreign tongue, arguing that common-law mens rea terms, and much of legal prose, must be translated into everyday English before their meaning and application can be learned This view isn’t anti-reductionist, but it raises questions about how innocent such a stance is: does translation reduce law to English, or does it presuppose that legal language is already part of English and thereby risk losing the distinctive legal sense in the process? It also asks whether the translation creates cognitive dissonance between the original law and its English rendering, leaving unread shades of nuance—like Inuit distinctions among snow or the German gemütliche Ecke—unlit or misunderstood Are there translation failures, and do lawyers and nonlawyers end up perceiving things differently? If law students must carry a translation manual until they master the language of the law, one wonders whether Shakespeare’s reputation as a lawyer rests on real legal literacy among his audience, or if many listeners simply missed some of the words and phrases in his plays.
Disputes about the nature of legal language are not unique to jurisprudence; philosophers and mathematicians have long debated whether mathematical propositions are reducible to empirical generalizations, to symbol-manipulation rules, or whether they are sui generis—a language unto itself One philosopher labeled the first two positions as radical and the latter as conservative, arguing that while the conservative view is perfectly correct, it is unsatisfying and unilluminating, whereas the radical opinions are untrue but interesting and illuminating The theory I ultimately present is of the radical kind: I contend that statements of our law and the central substantive legal words are ordinary English, though perhaps not always in the ordinary language sense in which J L Austin and others discuss ordinary language This thesis thus argues for a radical account in which legal language is ordinary English, with nuances that may diverge from everyday usage as described by Austin.
21 P Low, J JEFFERIES, JR., & R BONNIE, CRIMINAL LAW: CASES AND MATE- RIALS 198 (2d ed 1986).
Scholars argue that Shakespeare’s work reveals more than linguistic flair: they see him employing legal terminology and maxims, and they also point to apparently autobiographical hints that help fill gaps in his life For example, a line from Much Ado About Nothing, act IV, scene 2, is read as evidence of the author’s familiarity with the law This approach is used to account for years in Shakespeare’s biography that remain undocumented See W Knight, Shakespeare’s Hidden Life, for a fuller discussion.
SPEARE AT THE LAW 1585-95 (1973); W RUSHTON, SHAKESPEARE'S LEGAL MAXIMS
23Gasking, Mathematics and the World (1940), reprinted in LOGIC AND LAN-
Conscious positions on the nature of legal language are rare, and anti-reductionism is no exception Two notable figures stand out: legal theorist H L A Hart and philosopher Charles Caton, who works within the ordinary language tradition Caton treats the language of the law as a technical language—an adjunct or even a parasitic element on ordinary languages such as English or French—and, although his view is not strictly anti-reductionist, the grounds are complex Hart's position is anti-reductionist: he rejects the idea that legal concepts and rules can be reduced to moral or political ones, even as he conducts analytical jurisprudence within a tradition of ordinary language philosophy.
Even within a single legal tradition, a disagreement between two scholars is enough to justify investigating whether the language of the law can be reduced to English A more compelling reason follows: the anti-reductionist thesis itself is false Together, these points challenge the assumption that legal meaning can be fully captured by English alone and highlight the ongoing relevance of multilingual analysis in law.
The Due Process Limits for Anti-Reductionism
A foundational proposition of Anglo-American law is that every individual will be accorded due process under the law As part of that framework, we presume each person knows the law, but this presumption is a myth if we interpret it as meaning that everyone actually knows the law Empirically, it is false that all individuals know the law When we say the law presumes knowledge, we do not mean that every person is able to know the law, with or without the means.
25 There are exceptions, all of which build within and on the tradition begun by J AUSTIN, supra note 24, in which Austin gives an extensive examination of
Promising is analyzed as a performative act that not only communicates intention but also binds parties within legal and contractual settings See Hancher, Speech Acts and the Law in Language Use and the Uses of Language (edited by R Shuy & A Shnukal, 1980) for a treatment of how the law interprets promises in linguistic acts Likewise, Samek’s Performative Utterances and the Concept of Contract argues that certain utterances instantiate contracts, turning linguistic form into enforceable obligation.
J PHIL 196 (1965); Comment, The Language of Offer and Acceptance: Speech Acts and the Question of Intent, 74 CALIF L REV 189 (1986) 2
References to C Caton's Philosophy and Ordinary Language (Vol V, viii, edited by C Caton, 1963) anchor the discussion, with Section II B below providing the full exposition of his views The description of the relationship between technical language and ordinary language as "parasitic" is attributed to Schauer in Precedent (supra note 6, at 586 n.35).
27 See generally H.L.A HART, THE CONCEPT OF LAW (1961) See also N MAC-
28 N MACCORMICK, supra note 27, at 12-19 The phrase “ceteris paribus” is treated as a weasel term; we may try to say that what we mean is something closer to the proposition that there are no surprises in the law, that the law fits within standards of behavior and general moral precepts recognized by members of society; but that will not do either We must give up the empiricist and dispositional claims in favor of the presumption 29 -**Support Pollinations.AI:** -🌸 **Ad** 🌸Powered by Pollinations.AI free text APIs [Support our mission](https://pollinations.ai/redirect/kofi) to keep AI accessible for everyone.
To say the law presumes that every person knows the law is to set the limits of lawmaking and law enforcement and to establish a standard the system must meet This presumption creates a myth—not a falsity, but a story woven into the fabric of our lives that we strive to give solid reality, even though there will never be a universal empirical truth that “each person knows the law.” We have begun to anchor this myth in reality by establishing legal aid societies and by recognizing in the Constitution that poor persons accused of crime have a right to a lawyer, among other reforms That reality is solid because the myth is a form of truth: the law is ours, spoken in plain language rather than in lawyers’ argot We acknowledge this truth in due process claims, while understanding that due process goes beyond the mere clauses of the Constitution And we enforce due process by ensuring the law is in our language and truly ours If only lawyers could “speak the law,” justice would be confined to them; instead, due process requires the law to be accessible and answerable in the language of the people.
In criminal law, due process requires that the law be understandable to ordinary people, so no one can be convicted without fair notice that their conduct is punishable The Supreme Court has affirmed the principle that only statutory offenses are punishable, tying liability to clear legislative definitions Accordingly, there are no federal crimes outside the scope of statutes, and punishment can only follow a statute that explicitly creates the offense.
One of the many presumptions—constituting propositions—through which the law has become increasingly objectivized, a trend that accelerated around the Industrial Revolution though some forms reach back to ancient criminal law, shows how legal reasoning has moved toward objectivity These shifts reflect efforts to control juries, manage an ever more complex and large society, and respond to the rise of a middle class whose members increasingly entered courtrooms as the ranks of lawyers grew A clear illustration of this organizational shift in English law—particularly in contract law—is Hadley v Baxendale, 9 Exch 341.
Hadley v Baxendale (1854) limited contract damages to those that are foreseeable because they naturally arise from the breach or were within the contemplation of the parties at the time of contracting; by contrast, Black v Baxendale (1847) allowed the jury to award “reasonable” contract damages; since then, the Hadley rule has evolved into a more objective foreseeability standard in modern contract law, shaping how courts determine recoverable damages.
This myth is a fixture of our narrative and helps set the range of meaning available within legal discourse By anchoring certain stories as foundational, it shapes how laws are interpreted, argued, and applied, guiding the practices of judges, lawyers, and scholars alike This perspective aligns with key analyses such as Cover's Nomos and Narrative, which treats law as a social text braided with collective story, and White's Law as Language, which reads legal texts through the lens of language and literature See generally Cover, Nomos and Narrative, 97 Harv L Rev 4 (1983); White, Law as Language: Reading Law and Reading Literature, 60 Texas L Rev.
A 1982 law review discussion on common law crimes notes that most states recognize that offenses existing at common law continue to exist only in the absence of specific positive enactment; they do not permit courts to create brand-new felonies from nothing, and if a court were to claim such power, it would run afoul of the constitutional requirement of due process.
Due process in criminal law operates on two levels: first, there must be fair notice that the act is prohibited and punishable, a standard that cannot be satisfied by shared notions of blameworthiness alone; second, the people must be the source of the criminal law, so the statute’s language is comprehensible to those it binds, ensuring that the law is legitimate and understandable This dual requirement means that criminal statutes must be written in plain language that ordinary citizens can grasp, and that the public’s ability to understand the law confirms the people’s role as the source of criminal authority In fair notice cases, courts routinely debate whether statutes use words and phrases that render the prohibited conduct clear or obscure, highlighting the ongoing tension between precise drafting and public accessibility.
Three U.S Supreme Court cases—United States v Eaton, United States v Coolidge, and United States v Hudson & Goodwin—are cited to set up a fundamental disagreement with the view that the Hudson and Goodwin proposition, as originally stated, was probably wrong, even though that proposition has become so settled that it seems no longer open to argument The author signals this ongoing dispute and notes W LaFave & A Scott, Jr., Criminal Law §9, at 60 n.17 (1972), which itself cites 1923 and 1933 law review articles and notes, to illustrate how scholarly perspectives have evolved from early criticism to broad acceptance.
32 See, e.g., ALA CODE § 13A-1-4 (1982); State v Bowling, 5 Ariz App 436,
427 P.2d 920 (1967); GA CODE ANN § 26-201 (1988); ILL REV STAT ch 38, para. 1-3 (1961); State v Campbell, 217 Iowa 848, 251 N.W 717 (1933); KAN STAT.
ANN § 21-3102 (1984 Supp.); State v Heymann, 256 La 18, 235 So 2d 78 (1970);
MINN STAT ANN § 609.015 (West 1987); Mitchell v State, 42 Ohio St 383 (1884);
18 PA CONS STAT ANN § 107 (Purdon 1973); Lund v Commonwealth, 217 Va.
688, 232 S.E.2d 745 (1977); Wis STAT ANN § 939.01 (West 1988) See also MODEL PENAL CODE § 1.05(1) (1962).
" See, e.g., State v Egan, 287 So 2d 1 (Fla 1973); Pope v State, 38 Md. App 520, 382 A.2d 880 (1978); Commonwealth v Chapman, 54 Mass 68 (1847); N.M STAT ANN § 30-1-3 (1984) See also United States v Davis, 167 F.2d 228 (D.C Cir.), cert denied, 334 U.S 849 (1948).
Many authorities maintain that, in the absence of a statute depriving courts of the power to create new crimes, a majority of jurisdictions still recognize the power of courts to create common-law crimes; however, the current trend is toward abolishing such crimes, so that conduct not forbidden and punished by statute is not a crime.
W LAFAVE & A SCOTT, supra note 31, § 9, at 57 See also R PERKINS & R BOYCE,
Under the Fifth and Fourteenth Amendments of the U.S Constitution, arguments to the contrary rely on aging authorities The dates of the cases cited by LaFave & Scott (supra note 31, at 66 nn.66-67) show that many precedents are outdated Moreover, these arguments ignore that we live in a legislative age and that our understanding of constitutional due process has broadened and deepened over the last two centuries.
Statutes prohibiting conduct must declare the prohibition in clear terms and specify the penalty; when the penalty is too vague, the statute fails to create a crime For example, United States v Evans held that a federal ban on concealing an alien did not constitute a crime because the penalty was too vague, and Commonwealth v Cunningham held that a statute prohibiting overweight trucks defined “overweight” in four ways but imposed a penalty for only one, leaving the others non-crimes By contrast, State v Bishop treated statutorily prohibited conduct with no penalty as a misdemeanor Beyond penalties, courts also assess whether the statute’s terms would be understood by an ordinary English speaker as conveying the prohibited meaning; as in Rose v Locke, where the Supreme Court upheld a conviction under a “crime against nature” statute on the ground that due process requires only that the words be understood by an ordinary speaker to describe the offense.
Speaking Carefully and Speaking Technically
THREE VIEWS OF TECHNICAL LANGUAGE
In his 1953 Oxford Inaugural Lecture, H L A Hart argues that legal theorists have gone astray by neglecting four distinctive features of legal language and by being misled by the apparent similarity between questions such as “What is a corporation?” and “What is a dog?”.
69 See, e.g., DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS 9
(1980) (DSM-III) ("At the present time , there is no consensus as to how to define 'neurosis.' ").
' 0 Hart, Definition and Theory in Jurisprudence, 70 LAW Q REV 37 (1954) [hereinafter Hart, Definition].
71 Id at 39-41. therefore have failed to see that legal language is sui generis, is unique unto itself.
To define a dog, we can either point to an actual animal or offer a conventional definition based on genus and distinguishing traits Hart argues that these approaches fail for the crucial terms of legal language, because there are no ordinary factual counterparts to rights, duties, or corporations In other words, questions about the meanings of legal words cannot be answered the same way as questions about ordinary English words, since, unlike pointing to a dog, we cannot point to a right, a duty, or a corporation.
"corporation " 74 Rather, he says we must "elucidate" the sentences "She has a right to be paid by him" or "He has a duty to pay her" or "Smith
& Co., Ltd has a contract with you '75 These elucidations will show that
Legal language presupposes the existence of a legal system rather than stating it outright, and this presupposition is one of the four distinctive features of legal language The second feature concerns the use of legal terms, whose meanings rely on the related rules of law and render statements using those terms as conclusions of law derived from applying the presupposed rules to unstated but assumed facts To explain to Jones the meaning of “Smith & Co., Ltd owes $10 to White,” we must first introduce him to the English law of limited companies.
Hart does not label these "elucidations" as "contextual definitions," but the term captures his central claim that legal terms derive meaning only within the existence of a legal system and through particular rules of law Recasting his thesis as "contextual definitions" also lets us situate Hart within the Bentham–Russell–P F Strawson tradition, clarifying what is at stake when legal language is treated as sui generis.
Bertrand Russell's 1905 analysis of definite descriptions shows that phrases like "the present King of France" do not point to an actual object, since there is no current King of France Yet the sentence "The present King of France is bald" is not meaningless Russell explained this by treating definite descriptions as logical constructs rather than denoting objects: the sentence is true only if there exists a unique individual who is the present King of France and that individual is bald; if no such person exists or if more than one does, the sentence is false This theory, outlined in On Denoting, gives sense and truth-values to statements about non-existent entities and clarifies how language can convey content without picking out a real referent.
76 Id at 42 (emphasis in original).
Hart portrays Jones as a lawyer naive about theories of corporate personality, educated in a legal Arcadia where rights and duties are ascribed only to individuals and where all legal theory is banned.
Bertrand Russell, in On Denoting (1905), analyzes the sentence "The present King of France is bald" by laying out its truth conditions The proposition is true only if there exists at least one present King of France, there is at most one present King of France, and every individual who is presently King of France is bald In other words, there must be exactly one present King of France and that king is bald; if there is no present King, or more than one, or a present king who is not bald, the sentence is false.
(1) is false, the whole proposition is false and, having a truth value, is not meaningless Russell also applied this mode of definition - or analysis
Ultimately, even names like "King" and "France" lose their referential force, leaving behind only words and phrases that point to things in the world or function as logical connectors like "and." The supposed "things" prove to be sense data, whose names are "this" and "that," and Russell allows that a phrase such as "this table" can denote the table—provided we understand that the table is a fiction, i.e., a constructed entity.
Hart rejects the fictional approach to the issue of what corresponds to
He distinguishes 'company' from 'right' and rejects the idea that 'company' can be defined mediately through existing things He therefore offers an account of the meaning of 'company' that is more closely aligned with Strawson's.
Strawson’s 1950 account of “The present King of France is bald” argues that Russell confused referring to an entity with asserting its existence A speaker who utters “The present King of France is bald” refers to the present King of France and presupposes the existence of such a person—i.e., the speaker assumes, but does not state, that there is a present King of France Because that presupposition is false, the purported reference fails and the sentence is neither true nor false, though the utterance remains meaningful The similarity between Hart’s elucidations and Strawson’s notion of presuppositions becomes apparent in the way Hart outlines the elucidation of these presuppositions.
The Russell-Strawson enterprise is a meaning enterprise and one that struggles with epistemological and metaphysical questions Hart's strug-
82 See generally B RUSSELL, OUR KNOWLEDGE OF THE EXTERNAL WORLD (1960); B RUSSELL, THE PROBLEMS OF PHILOSOPHY (1968).
Hart, Definition, supra note 70, at 39, 45, 57-58 His primary target is Bentham, however, not Russell.
84See generally Strawson, On Referring, 59 MIND 320 (1950), reprinted in C. CATON, supra note 26, at 162.
Hart, Definition, supra note 70, at 50, 52-53.
I would, therefore, tender the following as an elucidation of the expression "a legal right": (1) A statement of the form "X has a right" is true if the following conditions are satisfied:
(a) There is in existence a legal system.
(b) Under a rule or rules of the system some other person Y is, in the events which have happened, obliged to do or abstain from some action.
(c) This obligation is made by law dependent on the choice either of X or some other person authorized to act on his behalf so that either Y is bound to do or abstain from some action only if X (or some authorized person) so chooses or alternatively only until X (or such person) chooses otherwise.
(2) A statement of the form "X has a right" is used to draw a conclusion of law in a particular case which falls under such rules. gle is with the nature of the law, but it also is a meaning enterprise. Having identified two kinds of presuppositional relations for legal state- ments, he then sets out the other two distinguishing features of legal language Hart's third distinguishing general characteristic of legal lan- guage is that sentences of legal language differ in meaning, import or effect (or all three) depending upon who utters them, where, and when 86 For example, a judge's saying from the bench, "Smith has a right to be paid $10 by White" has the effect of making White legally liable to Smith. But when a bus driver or a judge who is not on the bench utters the same sentence, there is no legal effect at all although the bus driver and the nonsittingjudge are expressing conclusions of law 8 7 Actually, Hart's view is even more complicated than this; for, said by a judge in a case, "Smith has a right" is not meaningless, although it is neither true nor false, because it is "official, authoritative and final." What the judge says may be "wrong," but if so its wrongness does not lie in falsity and does not arise in the same sort of way that the wrongness of "This ball is red" arises when said of a blue ball Moreover, whereas any of us may correct the person who says "This ball is red" of a blue ball, none of us may correct the judge who says wrongly "Smith has a right." There is no remedy when the umpire wrongly calls a player out 88
Hart's view is made complex by a sub-rosa speech-act analysis, particularly a performative-verb framework influenced by J L Austin This reading also casts Hart as an early forerunner of Paul Grice's extreme position, which holds that the difference between speech acts can be as consequential as the difference marked by an umpire's ruling.
The phrase "You're out!" can carry different meanings depending on context—the same words can be read differently when spoken in a general situation versus a Red Sox fan's shout This nuanced view, discussed in Definitions, sits between the interpretation Hart offered in his 1948 essay and the one he developed in his 1968 book, where he rejected a wholly ascriptional account of legal language I will therefore omit further reference to that aspect of Hart's view and instead focus on how context shapes linguistic meaning in both everyday use and legal theory.
The fourth characteristic of legal language rests on the universal function of rules, which is to apply to more than one fact Rules are general, and empirical rules are generalizations across different facts For example, the rule describing the effects of gravity on unsupported bodies generalizes across the facts of falling leaves, falling feathers, and falling stones Hence, a rule can apply to multiple contexts, illustrating the generality at the heart of legal language.
See generally Grice, supra note 15.
91 Hart, The Ascription of Responsibility and Rights, reprinted in A FLEW,
LOGIC AND LANGUAGE 151 (First and Second Series) (A Flew ed 1965).