The Linguistic and Substantive Canons of Interpretation

Speaker: Professor Kevin Tobia (Georgetown University Law Center)

Chair: Dr Mark Dsouza (UCL Laws)

About this talk

There is a longstanding tension between “linguistic” and “substantive” canons in legal interpretation. Linguistic canons determine a text’s meaning, while substantive canons reflect normative values (e.g., fairness). This distinction is especially critical for the textualists on the U.S. Supreme Court, who view linguistic canons as essential and substantive canons as suspect. This paper's thesis is that the longstanding linguistic/substantive dichotomy is false. We argue that some “substantive” canons are also linguistic and should be applied like other linguistic canons. In support, we present an empirical study of whether ordinary people understand rules in line with some substantive canons. The study indicates that some substantive canons represent valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactivity is conventionally justified by values like fairness, but it also reflects ordinary readers’ default understanding of rules’ meanings. This paper's thesis has significant implications for legal theory and judicial decision-making, especially in an age of textualism. Beyond the exclusively linguistic canons and the exclusively substantive canons, there is an important but overlooked category: The linguistic and substantive canons.

This paper has been co-authored with Brian Slocum (McGeorge School of Law, University of the Pacific).

About the speaker

Kevin Tobia is Associate Professor of Law at Georgetown Law School. Professor Tobia’s scholarship is in legal theory, empirical legal studies, legislation, health law, and LGBTQ law. At Georgetown, he teaches Torts, the Legal Justice Seminar, and Legal Interpretation. Tobia has also taught Philosophy of Law at the University of Oxford, and his book, Experimental Jurisprudence, is forthcoming with Cambridge University Press.

Tobia received a B.A., summa cum laude, Phi Beta Kappa, in Philosophy, Mathematics, and Cognitive Science from Rutgers University; a B.Phil. (M.A.) with distinction from Oxford as an Ertegun Scholar in the Humanities; and a J.D. and Ph.D. with distinction from Yale. Tobia was an Articles Editor of the Yale Law Journal, Editor-in-Chief of the Yale Journal of Law & the Humanities, Coker Teaching Fellow in Torts, and Prize Teaching Fellow in Philosophy. Professor Tobia’s scholarship has been awarded the Yale Law School Felix S. Cohen prize for legal philosophy and the AALS Section on Jurisprudence “Future Promise Award” for scholarship in legal philosophy.

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