IALS Fellow's Seminar: How to Use the Linguistic Canons of Statutory Interpretation

No entry after dark. According to the maxim expressio unius est exclusio alterius—the expression of one thing is the exclusion of another—entry before dark is permitted. Expressio unius is a linguistic canon. Linguistic canons are employed in statutory interpretation to discern the meaning of legal text. Doctrine justifies linguistic canons based on ordinary meaning and courts apply them by mining intuitions about common usage. 

Because linguistic canons merely encapsulate the rules of language, they can be found in the jurisprudence of many legal systems, domestic or international. At the same time, it is unclear why the linguistic canons are needed at all. First, legal audiences tend to be accomplished users of the language in which the statutory text is written. It is doubtful whether they need linguistic canons to instruct them in how language operates. Second, the linguistic canons do not mandate any one conclusion. Described as “rules of thumb,” “presumptions,” or “guides,” they are easily overcome by other evidence of legislative purpose and intent. Indeed, linguistic canons often have such qualifications built into them. 

This seminar proposes a suggestive conception of linguistic canons: linguistic canons serve to remind readers of non-literal interpretive possibilities that might otherwise escape attention. The validity of a linguistic canon must not be mistaken for its utility. An original experiment demonstrates how to evaluate the utility of a linguistic canon and, contrary to received opinion, finds empirical support for preserving expressio unius among the canons of statutory interpretation. The suggestive conception respects the ordinary meaning justification underlying the linguistic canons while not rendering them merely duplicative of syntactic and conversational norms.

The theme of the proposed seminar coheres with the activities of the Sir William Dale Centre for Legislative Studies. The linguistic canons are of long provenance and have frequently been characterized as rules of statutory construction.  The research being presented offers an interdisciplinary and novel perspective on the contribution of these canons to the interpretive process. 

The content of the seminar is academic in nature but should also be relevant to legal practitioners who draft or interpret legislation. In particular, the theoretical and empirical questions raised by the presented research should give judicial decisionmakers critical insight into the role that linguistic canons play in their own thinking.

Speaker: Benjamin Minhao Chen, The University of Hong Kong, IALS Research Fellow.

Chair: Dr Constantin Stefanou, IALS Taught Programmes Director and Director of the Sir William Dale Centre for Legislative Studies.

This event is free to attend, but booking is required. It will be held online with details about how to join the virtual event being circulated via email to registered attendees in advance.