Modes of Understanding the Law
Corporate and Finance senior counsel George Williams, Jr. recently published an article, "Modes of Understanding the Law," in the interdisciplinary journal Law & Literature. The article was originally delivered as a talk at Cardozo Law School to celebrate the work of Richard Weisberg, one of the founders of the law and literature movement, and examines how different modes of interpretation contribute to understanding how to operate within the law.
Specifically, the article attempts to develop the consequences for judicial reasoning of the fact that legal requirements are set forth in texts that explicitly or tacitly contain expressions of obligation. Such expressions create what are known in logic and linguistics as opaque contexts. The article claims that the logical structure of opaque contexts implies certain consequences for the way we deal with words expressing a legal obligation when those words are applied to facts being adjudicated. These claims are further supported by a discussion of a particular logical aspect of norms. Among the potential consequences of the arguments made are an undermining of originalism from a different perspective than the ones usually discussed and a suggestion about teaching in law school.
» Read the full article (subscription required).