1. I don't feel these English judges are using "linguistics" correctly, because they're just working with the English language, not doing linguistics! Some of them have a degree in classics, but I don't think any have a degree in linguistics.

  2. If I'm correct, what noun is accurater?

RA Duff. Intention, Agency and Criminal Liability (1990). p 16.

  Lord Cross did discuss the ordinary meaning of 'intention'. The 'ordinary man', he thought, might well count as intended consequences which w ere foreseen as being 'probable': if someone planted a bomb in a crowded street, knowing 'that it was likely that some people would be injured', though 'it was a matter of indifference to him whether they were injured or no~', the. ordinary man might well argue that he 'did not injure these people unintentionally; he injured them intentionally. So he can fairly be said to have intentionally injured them - that is to say, to have intended to injure them'. But, he recognized,

a logician might object that the ordinary man was using the word 'intentionally' with two different shades of meaning, and I am prepared to assume that as a matter of the correct use of language the man in question did not intend to injure those who were in fact injured. (p. 96)

His concern, however, was not with 'a problem of linguistics': again, what mattered was that someone who acted with such foresight of the relevant consequence was guilty of murder, whether or not he strictly intended that consequence.

Conor Medsystems Inc v Angiotech Pharmaceuticals Inc & Ors [2008] UKHL 49 (9 July 2008).

  1. Its origin was in the judgment of Diplock LJ in Johns-Manville Corporation's Patent [1967] RPC 479, a case about a method for production of asbestos cement. After referring to two items of prior art Diplock LJ said at p 495:

"It is enough that the person versed in the art would assess the likelihood of success as sufficient to warrant actual trial. . . . The Superintending Examiner and the Patents Appeal Tribunal were both of opinion that, filtration processes being common to many industries, these documents, although addressed primarily to the mining and paper industries respectively, were likely to be read by those concerned with the asbestos cement industry, and that such readers would have realised that here was a newly-introduced flocculating agent which it was well worth trying out in their own filtration process. I can see no grounds which would justify this court in reversing this concurrent finding by two expert tribunals."

Diplock LJ was not here expounding a technical doctrine. On the contrary, he was at pains to stress the need to avoid generalisation. A little earlier in his judgment he had said (at pp 494-495):

"I have endeavoured to refrain from coining a definition of 'obviousness' which counsel may be tempted to cite in subsequent cases relating to different types of claims. Patent law can too easily be bedevilled by linguistics, and the citation of a plethora of cases about other inventions of different kinds. The correctness of a decision upon an issue of obviousness does not depend upon whether or not the decider has paraphrased the words of the Act in some particular verbal formula. I doubt whether there is any verbal formula which is appropriate to all classes of claims."

Lehman Brothers International (Europe), Re [2012] UKSC 6 (29 February 2012)

  1. It is not in issue that CASS 7 was made for the purpose of fulfilling the EU requirements contained in the Markets in Financial Instruments Directive 2004/39/EC ("MiFID") and the Commission Directive 2006/73/EC ("the Implementing Directive") and that CASS 7 should therefore be interpreted, as far as possible, so as to give effect to these Directives: see, for example, HM Revenue and Customs Comrs v IDT Card Services Ireland Ltd [2006] STC 1252. As Arden LJ explained at paras 59 to 62 of her judgment, this requires a two-stage test to be applied. The first involves interpreting the Directives. The second involves interpreting CASS 7 in the light of the meaning of the Directives. At para 57 of his judgment, Briggs J correctly stated that domestic legislation which is made for the purposes of fulfilling the requirements of EU law contained in a Directive must be interpreted in accordance with the following principles: (i) it is not constrained by conventional rules of construction; (ii) it does not require ambiguity in the legislative language; (iii) it is not an exercise in semantics or linguistics; (iv) it permits departure from the strict and literal application of the words which the legislature has elected to use; (v) it permits the implication of words necessary to comply with Community law; and (vi) the precise form of the words to be implied does not matter.

David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics Ltd & Ors (Scotland) [2014] UKSC 48 (30 July 2014)

  1. That is not, of course, necessarily the end of the matter, as interpretation of statutes is not merely an exercise in linguistics. While the natural meaning of an expression or a provision is as good a place as any (and very often the best place) to start, it is seldom, if ever, the only factor to take into account. I would accept that if there were other good reasons to do so, it may well be appropriate to depart from the natural meaning of section 11(3), and in particular the words "caused as aforesaid", and to give those words the less natural meaning for which Morrison contends.
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    Even if these uses fell outside the typical definition of the word linguistics in linguistic academia, linguistics does not get to decide what the word must mean outside of the field—something linguists typically condemn in the first place. – Nardog May 26 at 5:25
  • @Nardog, there is even within linguistics a careless abuse of terminology, and consequent calls to correctness. The pertinant question following your comment would be, whether the judges used the word as within the context of the field, and if so, whether they used it correctly. Since all examples say that hinging on the literal interpretation is not ... the consequent question would be whether that's in agreement with linguistics. You imply it were, and weren't. That's confusing. Having your cake and eat it, too. Typical language lawyer. – vectory May 26 at 17:02
  • Are the judges using the word? yes. Is the use correct? Depends on what they meant to achieve. They successfully implied the literal interpretation of a text. That doesn't appear incorrect. Are the statements about the literal interpretation correct? That's far too broad a question. – vectory May 26 at 17:08

Yes, they are using the word correctly. They are referring to claims about language structure and meaning, i.e. syntax and semantics. In these instances, this would be an instance of applied linguistics, that is, applying the methodology of linguistic science to the problem of interpreting law. The fact that the issues at stake are questions about English does not invalidate the linguisticness of these questions, indeed most syntax and semantics as practiced is about English.

A degree in linguistics is not necessary to be able to competently distinguish technical claims about language from technical claims about law. In the aforementioned instances, the justices seem to be arguing that questions of law are dispositive and questions of language are tangential (I have no opinion whether their position is correct).

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