Tuesday, May 17, 2005

Language in the Law

After studying the philosophy of language at Rice in the late '50's and early 60's, my advisor suggested that I try to persuade an English professor whose name I am embarrassed not to remember (Jack C..., I believe) about doing a year long private reading course in linguistics. The first thing he had me read was the classic George Bernard Shaw play "Pygmalion," which was later turned into the musical, "My Fair Lady." The latter has surely caused every linguist to be asked if he/she can tell where someone comes from from listening to them talk. I was able to do that just once. On meeting a very pretty young woman at a reception held during the Linguistic Institute, a summer school of the Linguistic Society of America, I ventured to say "You're from Houston," to her. To my surprise, I was right. We had a summer romance that not long after turned into a marriage. This did not follow the plot of "My Fair Lady" exactly but it was close enough.The second thing Jack C had me read was a section of "The Diversions of Purley" by John Horne Tooke. This misleadingly titled book was the first ever philosophical grammar of English (possibly the first such grammar of any language) and it makes for some fascinating skimming (actually reading it would wear one out).

Tooke was something of a revolutionary supporting among other causes, various freedoms for the people of the American Colony. Of him it has been written in Explore's Dictionary for Philosophers

For his conduct in signing the advertisement soliciting subscriptions for the relief of the relatives of the Americans "murdered by the king's troops at Lexington and Concord," he was tried at the Guildhall on July 4, 1777, before Lord Mansfield, found guilty, and committed to the King's Bench prison in St George's Fields, from which he only emerged after a year's durance, and after a loss in fines and costs amounting to £1200.

In the chapter titled "An Advertisement" from Volume I, Tooke noted that much of his writings on language had been gathering dust over the years and might never have been published if he "had not been made the miserable victim of -- Two Prepositions and a Conjunction." I found this fact to be quite remarkable -- a two volume book on the English language gets published because someone got done in by bad linguistic analyses by jurists. The fact that the analysis of language can matter so much was one of the influences that later led me to become a linguist.

The prepositions Tooke speaks of were "concerning" and "of," which he mysteriously claims had hitherto been held "to have NO meaning," and the conjunction was "that." Imagine being unjustly skewered legally due to duplicitous and incompetent linguistic analysis by the "Priests" (Tooke's word) of our courts.

The unfortunate fact is that Tooke was not the last, and probably was not the first, to be done in by linguistic incompetence by jurists. I give you the case of Sandra Day O'Connor.

In Smith v. United States (113 S. Ct. 2050 (1993) Justices O'Connor and Scalia engaged in substantial linguistic argumentation concerning the appeal by Mr. John Angus Smith over a provision of our drug laws according to which

Whoever, during and in relation to any crime of violence or drug trafficking crime...uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years...."

The relevant fact that got Mr. Smith five extra years incarceration was that he bartered his automatic MAC-10 and silencer for two ounces of cocaine. According to O'Connor, who wrote for the majority that upheld the conviction, this constituted "using a firearm." O'Connor says that according to the "natural" or "ordinary" meaning of "use" Mr. Smith's action constituted using a firearm. This is true in a mindlessly literal way. But it is not how we normally interpret "use" in a sentence like "He used a firearm to scare off the burglars." She appeals to several dictionaries to support her position, noting that "Webster's defines 'to use' as '[t]o convert to one's service' or 'to employ'." She goes on to say that Black's Law Dictionary defines it as "[t]o make use of; to convert to one's service; to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of." This use of dictionaries belies a profound misunderstanding of what a dictionary does. Dictionaries to not define words -- they give synonyms for words as well as guides to usage. We might ask Justice O'Connor how it advances our understanding to say that "to use" means "to make use of"? That is to define a word (verb) in terms of itself (the noun form of the verb), which is question begging of the worst sort. Apparently O'Connor never played the parlor game of seeing how many steps are required to go from the "definition" of a word back to that word by looking up the "definitions" of the words used to define that word. Using Dictionary.com, I looked up "utilize" and found "to put to use" as the first entry. In short, in one step, I got from "use" (the verb form) to back to "use" (the noun form) via "utilize," one of the "definitions" in Black's law dictionary. It takes only one step in the case of "to employ," as well. On the other hand, it takes no steps to go from "use" to "use" in the case of the citation "to make use of" in Black's law dictionary.

As Scalia notes,

To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, "Do you use a cane?" he is not inquiring whether you have your grandfather's silver-handled walking-stick on display in the hall, he wants to know whether you walk with a cane."

If I were Scalia, I would have argued that in the context of violent crimes and drug selling crimes, using a gun would have to involve brandishing it at a bare minimum, that is, using it in a potentially threatening manner.

I wrote a paper, "The Meaning of Meaning in the Law" on the Smith case which was published in the "Washington University Law Quarterly" (V. 73, N. 3, 1995). In the same issue a linguist (Charles Fillmore) and lawyer (Clark Cunningham) wrote a joint paper on two similar cases that had been joined in a single appeal. In one case, a gun was found locked in a trunk in the defendant's bedroom closet, with no bullets for the gun being found anywhere in the woman's domicile. In the other, a man driving a car was stopped because he had no front license plate. He was observed hiding something and police found drugs and a round of ammunition in the passenger compartment. In the trunk of the car, they found a loaded weapon and several thousand dollars. Both were convicted of "using a firearm" in the commission of a drug crime. Both my paper and that by Cunningham and Fillmore were submitted to the Supreme Court in the appeal of the joined cases. Justice O'Connor got it right this time, voiding the convictions for "using a firearm" but reaffirmed the correctness of the earlier decision in Smith v. United States. In short, rather than admitting her prior mistake, O'Connor preferred to let Mr. Smith stay an extra five extra years in prison. I wonder if Mr. Smith will make common cause with Mr. Tooke and go into the study of grammar too.

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Anonymous Anonymous said...

Thanks - I will quote this. Lawyers and dictionaries is one of my hot buttons as a legal translator.

I had a waffly entry recently but with a link to a case discussed elsewhere on the same topic.


Margaret Marks

5:37 PM


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