Language and the Law Revisited: An Intellectual History of Contractual Interpretation

Abstract

Lawyers, like other human beings, are users of language. A facility with words is a desirable attribute for a good lawyer. On the negative side, lawyers attract both distrust and derision for their supposed abuses of ordinary language, such as the deployment of arcane terms, over-elaborate syntax and gobbledegook. The areas in which issues arising from the drafting and interpretation of legal language have attracted most attention to date are the fields of constitutional and statutory law. This is unsurprising given that such documents govern the exercise of significant social and political power. In contrast, this paper addresses issues of construction in private law, and in particular, contractual interpretation.

Ascertaining the meaning of the language deployed by contracting parties constitutes a large proportion of the business of courts and tribunals dealing with commercial disputes. It is tempting to see this as a problem inherent to language due to its flexibility and vagueness, or else to detect a link with the supposed nit-picking mentality of lawyers, always keen to identify an unintended ambiguity in words or loophole in documentation. In practice though, most disputes which have to be resolved by resorting to interpretation are not problems about the meanings of words or ones which require familiarity with grammatical niceties. Rather, they are problems about the application of the language of a contract to the (perhaps unexpected) events which have subsequently transpired. As such they represent an unavoidable source of potential dispute.