Bernstein on Legal Interpretation and the Half-Empirical Attitude

Anya Bernstein, SUNY Buffalo Law School, has published Legal Interpretation and the Half-Empirical Attitude. Here is the abstract.

Legal writers have recently turned to corpus linguistics for help interpreting legal texts. Corpus linguistics — a methodology that analyzes large data sets of language use for patterns — promises to give empirical grounding to the claims about ordinary language that pervade legal interpretation. Yet, I argue here, legal corpus linguistics departs from these empirical origins, ignoring the crucial contexts in which legal language is produced and interpreted.

First, legal corpus linguistics ignores the legal context of legal language — mechanisms (or felicity conditions) that give legal language authority, such as judicial precedent and statutory co-text. So it provides evidence about language use that obscures and misstates the actual issues legal interpreters face. Second, legal corpus linguistics ignores the institutional context of legal language — the way it is produced by certain speakers, taken up by certain audiences, and formulated in particular genres. When legal corpus work treats language as socially undifferentiated, its empirical findings become relevant only after one accepts a host of fictions about language and society.

The underlying problem, I show, is a mismatch of methodology and goal. Corpus linguistics in linguistics rests on an empirical claim that its analysis illuminates a truth about the language it studies. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim that its analysis ought to influence our interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call the half-empirical attitude of legal corpus linguistics.

Finally, drawing on key traits of corpus linguistics in linguistics, I suggest how legal corpus linguistics could be useful to the production and interpretation of legal texts, and contribute to the development of legal theory, if it embraces the other half of an empirical attitude.

Download the article from SSRN at the link.