Pragmatic tools put to work -- and then put back in the toolbox: Sullivan on statutory interpretation in Canada

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Janet Giltrow

University of British Columbia, Vancouver, Canada

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Abstract

In considering the possibility of a pragmatics ‘tool-kit’ for law, whom do we imagine using these tools? When? How and for what purpose? Although we can expect that most who are involved in the tool-kit project will have experienced or at least contemplated the professional distinctions separating law from language study, have we thought carefully about barriers to the project in ideologies of language generally, and their particular expression in law especially, as described and analysed in Stein (2017)?

This paper’s attempt to address some of these questions involves tracking the tools of language study in the contributions of a first-order legal scholar in Canada, Ruth Sullivan (co-editor then co-author and editor of the authoritative Driedger on the Construction of Statutes (3rd ed. 1994) Sullivan and Driedger on the Construction of Statues (4th ed. 2002); author of three editions of Statutory Interpretation (3rd ed. 2016) and of Sullivan on the Construction of Statutes  (6th ed. 2014). The tools of pragmatics appear in Sullivan’s oeuvre in 1999 in a substantial study of ‘Statutory Interpretation in the Supreme Court of Canada.’ In that article, Sullivan declares that she will consult ‘psycholinguistic studies carried out by linguists and cognitive psychologists,’ rather than ‘philosophical approaches to language (such as deconstruction or hermeneutics)’: these approaches include the resources offered by Mey (Pragmatics: An Introduction), Brown and Yule (Discourse Analysis), and, repeatedly, Green (Pragmatics and Natural Language Understanding. (We also find Frank Smith and others on – roughly – the cognitive phenomenology of reading). In 2001 Sullivan writes about Plain Language drafting (for Statute Review, in the UK; cf. ‘The promise of plain language drafting’ 2001 for McGill Law Journal), and its ramifications for statutory interpretation. In this discussion, Sullivan cites, again Green (repeatedly), Smith, Brown and Yule, and adds Fiske, Bowers (with reservations), and – with a caution as to the challenges presented – Sperber and Wilson for Relevance Theory. After this substantial and conceptually distinguished article, the tool-kit is not opened for inspection again. So, for example, important analyses (2004, 2011) of the ‘shared meaning’ presumption in statutory interpretation in bilingual and bi-jural systems can be read pragmatically -- but the specific tools and principles of pragmatics do not show themselves. Instead, principles more familiar to legal domains are used: textualism and intentionalism. Equally, Statutory Interpretation  (3rd ed. 2016) does not open the tool-kit, although, once again, one could frame the discussion in the terms of pragmatics. We could, for one broad example, regard as an expression of principles of pragmatics Sullivan’s gradual accumulation of materials for estimating the mentality or consciousness of parliament as a basis for inference, such as Relevance Theory provides for. But from 2004 on,  Sullivans’s publications do not mention Sperber and Wilson, nor do they specify other principles (or principals) in pragmatics. Similarly, while, up to 2003,  ‘rhetoric’ is allowed its technical definition as a dimension of all utterance, from 2004 on it is restricted to its folk meaning as flourish or enticement.

Is a pragmatics tool-kit simply ill-adapted for judicial reasoning? Only useful for after-the-fact analysis by scholars whose work straddles the two domains, or for side-line critiques of canons of construction? Is the legal domain particularly dependant on folk notions of language and meaning, as Stein (2017) suggests, and thus particularly inept at handling tools of pragmatics?  Sullivan herself develops a consistently critical focus on courts’ – in her view – empty avowals about meaning and language, perhaps shifting her attention to terms more familiar to the profession. Such a shift could be analysed as a strategic targeting of language ideologies, while pragmatic principles work undercover and undeclared at other sites of commentary and review.

Even if we allow that technicalities of pragmatics may disturb those outside the field, and that Sullivan later in her career sought more familiar, less disturbing approaches to interpretation, many of the principles she consults for a pragmatic approach could be illustrated from familiar and accessible (invented or actual) examples – to trigger readers’ own experience of speaking and hearing. But it may be that legal practitioners will be primed to resist such examples – primed by the oft-repeated notion that legal language is different, and special, at the same time as the authority of law cooperates with lofty but empty commonplaces about language and meaning.