Recasting Canons of Interpretation and Construction into "Canonical" Queries: Further Canonical Queries of Presented or Transmitted Text

 

                                                                     Abstract

This Article draws from, builds upon, and continues my prior article (published in 2022 in the Wake Forest Law Review) addressing the conversion of canons of construction into “canonical” queries in both the public and private sphere. See such prior article here.

In this Article, I continue exploring further groups of canons and queries of transmitted/presented text including those outlined in appendices of my prior article. These further groups include: Queries of Signifier Scope (the Ejusdem Generis Query, the Noscitur a Sociis Query, the Expressio Unius Query, the Antecedent/Subsequent Query, and the Anaphora Query); Queries of Signifier Fit and Coherence (the Whole Text Query, the No Surplusage Query, the Absurdity Query, the Scrivener’s Error Query, the Exercise of Power Query, the Consistent Meaning Query, the Fit with the Surrounding Text Query, the In Pari Materia Query, the Particular vs. General Query, the Ellipsis Query, the Conjunction Query, the Disjunction Query, the General Query of Severability, the Relevance Query, the Presupposition Query, and the Preconception Query); and Queries of Context (including Queries turning on Linguistic, Physical, Cognitive, Type of Discourse, or Other Relevant Contexts).

This is the second in a series of four planned articles. The third will address queries of meaning and time. The fourth will address further miscellaneous queries of intent, motive, meaning and policy. My hope is that the four articles taken together will provide a detailed response to, among other works, Scalia & Garner's book titled Reading Law. 

This Article can be downloaded here.

Keywords: interpretation, construction, canon of construction, ejusdem generis, noscitur a sociis, expressio unius, anaphora, surplusage, absurdity, scrivener's error, pari materia, ellipsis, severability, context, conjunction, disjunction, meaning, relevance, whole text, text, semiotics

Recasting Canons of Interpretation and Construction into "Canonical" Queries

In a new Article I advocate recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction. This Article can be opened or downloaded by clicking here.