The well-formed legislature acts for reasons to change the law in certain specific ways. It enacts a particular statutory text to convey to the community—to promulgate—its complex choice of how to
change the law. The legal content that the legislature acts to introduce, which is what it intends to introduce, might very often be different to the semantic content of the sentences that it utters. The meaning-content that the legislature intends to convey is the legislature’s formulation of the legal propositions that it chooses to introduce. Interpreters understand the meaning of the legislature’s lawmaking act, the Act of Parliament or Congress that is this enactment, to be that which the
legislature intends to convey. In practice, interpreters understand the meaning of the Act to be what they reasonably judge the legislature to have intended to convey.105 (I refer at times to what the legislator says or means, assuming at such points that this one person is the legislature.)
The legal content that the legislature acts to introduce may sometimes, perhaps often, be identical to the semantic content of the sentences it utters, but when this is the case the reason is that this is what the legislature intended to convey. It is unreasonable for interpreters to stipulate, or even to presume, that the legislature intends to convey only this semantic content. I thus maintain that the act of
legislating is some person’s rational act of language use, to be understood in the same general way as other rational acts of language use. There are differences between legislative communication and other forms of communication, which I shall consider in this section, but they do not entail that the legislature does not act to convey the meaning-content that it intends to convey or that the legislature may rationally intend only to convey the semantic content of the sentences that it utters. Waldron was right to say ‘law makes an investment… in the determinacy-resources of natural language (such as they are, and however they are explained)’.106 The explanation, however, is that speakers exploit semantics in context to convey intended meanings.
The legislature has good reason to draft statutes carefully and to say directly and precisely what it means: legislation that is misunderstood will fail to change the law in the way that the legislature thinks warranted, clear legislation is a requirement of the rule of law, and doubt over what legislation means will give rise to pointless litigation. Legislation is detailed and precise in a way that many instances of ordinary language use—such as many of the examples set out in section III of this chapter —are not. It may seem that whatever may be the case with ordinary conversation, inference about pragmatic facts is not centrally important in legislative communication. The statutory examples set out above strongly suggest that the contrast between statutes and other forms of speech is overstated. It is true and important that legislators draft statutes with care and that interpreters read statutes very closely. In any particular instance of statutory interpretation, it is not open to interpreters to ask the legislature what it intended to convey or for the legislature to answer by restating its intended
meaning. (Over time the legislature may amend statutes to correct misunderstandings.) However, in one sense the same is true for any interpretation of any instance of language use, for the interpreter must judge what was meant before deciding whether to ask for clarification. And very many instances of language use are, like statutes, not part of a conversation—a public speech, an advertisement, a book, or even a letter to a friend. Many language users also have good reason to speak precisely, to choose their words with care—an author articulating a complex point, a lawyer arguing a brief, a friend in an otherwise informal conversation delicately raising a sensitive issue. Legislation is thus not quite as unusual as the stark contrast with ordinary conversation at first suggests.
It is logically possible that the legislature might act to convey only the semantic content of the sentences that it utters. Were this the case, interpreters would rightly understand the meaning of the legislative act, the legislature’s use of language, to be found in and exhausted by the semantic content of the statutory text. No legislature of which I am aware has ever sought to enact only the semantic content of its texts and there is very good reason for no legislature to act in this way: it would
frustrate reasonable legislative action and reasonable interpretation of legislative action.
The proposal to limit the enactment and interpretation of statutes to semantic content effectively counsels using a natural language as if it were a formal language, in which meaning is fully settled by conventional rules. The problem with the proposal is that legislators and interpreters are persons and they understand language as a natural language, in which speakers act to convey their intended
meaning to others. It may be that many legislators and interpreters do not self-consciously adopt this understanding, but this is how they themselves use language and respond to uses of language. Most language users are not skilled at distinguishing the semantic content of the sentences they or others utter (semantic facts) from the meaning that they or others intend to convey (pragmatic facts).
Therefore, if legislators attempted to legislate literally, adopting only the semantic content of the texts they enact, they would very often say something different to what they intended to say even though, by hypothesis, they intend to convey only what they say. That is, the legislators would often be wrong to think that what they say, the semantic content of the text they enact, is precisely what they meant to say.
Further, interpreters responding to the language the legislators used will very often understand the legislators to have meant other than what they said, either because the interpreters rightly recognize that the legislators were mistaken in thinking they meant what they said or because the interpreters wrongly think that what is likely to be meant is what is said. Legislators write for interpreters, who interpret what they write. Neither set of persons is well placed to stipulate that a natural language is to be treated as a formal language. The very real likelihood that neither legislators nor interpreters will consistently understand statutory language to convey only what is said, in the strict semantic sense, has the consequence that legislators and interpreters should not adopt this approach. It is unstable and unworkable because persons communicate by using and exploiting semantic content to convey pragmatic content.
I do not want to suggest that the semantic content of the statutory text is unimportant. On the contrary, the legislator has good reason to attend very closely to the semantic content of what he utters, because that content is critical if he is to convey his intended meaning and if he is not to
misdirect the community. The legislator has to promulgate complex choices in precise form, so must take much greater care in articulating the meaning he intends to convey and in disambiguating the
sentences he utters than is the case for most, but not all, other language users. And he will often rightly mean exactly what he says. There are, however, two reasons to expect the legislator to convey a
meaning-content that is not identical to what he says. The first is that the legislature may express itself imprecisely, adopting a form of words that is unintentionally ambiguous or confusing.
(28) Lands Clauses Consolidation Act 1845, s 9: ‘The purchase money or compensation to be paid for any lands to be purchased or taken from any party under any disability… and the compensation to be paid for any permanent damage or injury to any such lands [shall be as specified]’. (Emphasis added.)
The section dealt with two kinds of compensation for compulsory acquisition of land payable to persons under a disability, such as insanity: compensation for taking land and compensation for severance and injurious affection for land that is not taken but remains with the landowner. The section is poorly drafted, for the grammatical reference of ‘any such lands’ is ‘any lands to be purchased or taken’, yet the section already provides for compensation for seizure of those lands, which because they are seized do not suffer ‘any permanent damage or injury’ that attracts
compensation. Bennion argues compellingly that the legislature intended to use ‘any such lands’ to refer back to lands retained by any party under any disability, which is thus how the phrase should be
understood.107
The legislature may also adopt words that are wholly unfit to express directly what it intends to convey—as when it purports to repeal the statutes listed in Sch 4 to the Act, which does not exist, rather than Sch 3, which does exist and is entitled ‘Repeals’.108 Failures in precise, direct expression are likely to occur when legislators form and enact complex statutory texts.109 What the legislature says is not always what would best serve to convey the meaning that it intends to convey. Interpreters strive to grasp the meaning that the legislature intended to convey because they realize that what the legislature means does not reduce to what it says. The reasonable interpreter aims to identify and give effect to the content of the legislature’s lawmaking act, hence his inquiry into what the legislature intended to convey and his constant refusal, evident in countless judicial opinions, to accept that what is said must be what is meant.
The second reason why the legislature may not mean just what it says is that the legislator has good reason to be brief and to rely on interpreters to infer correctly what he means.110 He should speak as directly and clearly as possible, framing the text that he enacts to be straightforward and accessible to the legally trained reader rather than verbose and exhaustively explicit. The statutory text should be clear and clarity is not in general best achieved by exacting, exhaustive precision.111 The problem with always stating explicitly what one intends to convey is that one must articulate much that need not be said, which lengthens and may greatly complicate the semantic content of one’s utterance.
One’s audience may fail to decode that semantic content accurately because it is now much longer and more complex than is strictly necessary. Further, in making explicit what may otherwise be conveyed by impliciture or implicature the legislator, like any speaker, risks failing to say part of what he otherwise intends to mean.
For persons to understand the legislature’s act, the statutory text should be direct and well structured. That is, it should be clear how and to what extent the sections that constitute the statute form part of a larger scheme and the content of any particular section should be stated as clearly and simply as possible. The importance of clarity in legislation by no means entails that legislation should be written in ‘plain English’ or that the legislature should enact general principles rather than detailed rules. Legislating requires complex, specific choices—even if there is sometimes good reason to posit vague standards rather than a detailed code—and these choices must be carefully framed and expressed, which means that the ordinary citizen will find it difficult to understand the precise legal meaning and effect of most statutes. The legislator should enact texts that say as much as needs to be said to convey the meaning-content he intends to enact, but no more. The legislator, like other
speakers, gauges what needs to be said by asking what it is reasonable for his audience to infer from what he says in the context that he says it. If he doubts that his audience will infer his meaning, he may say explicitly what he means, although he must also take care to defeat the possible inference that he means other than what he says.
The legislator has good reason to adopt terms that convey meanings that he would otherwise have to spell out For example:
(29) Prices and Income Act 1966, s 29(4): introduced a wage-freeze by prohibiting an employer from paying remuneration ‘at a rate which exceeds the rate of remuneration {actually} paid {or contracted to be paid, though not actually paid} to him for the same kind of work before 20th July 1966’.112
and very often does, reasonably leave it to interpreters to infer that it intended to imply part of the legal content of its legislative act, such as the conditions on a statutory office (vacating the office in the event of the incumbent’s death or resignation) or the scope of statutory powers (implying ancillary powers when necessary).113 I conclude that the well-formed legislature often intends to convey
meanings that depart from the semantic content of the texts it utters—in interpreting any statute interpreters should remain open to the possibility that the legislature uses language in this way. The nature of language use does not provide a secure foundation for theories of legislating which maintain that the legislature is incapable of using language for reasons. On the contrary, the failure of the code theory of language, and the centrality of intention in the use and understanding of language, sharply undermines those theories. The semantic content of any utterance underdetermines what its author intends to mean. One understands language use by inferring what the relevant agent intended to convey. This general truth extends to the use of language to legislate, for it would be unreasonable for the legislature to enact only the semantic content of the texts it promulgates. The well-formed