Language and the importance of context

Beginning with the simple proposition that language enables people to communicate with each other, it follows that people must have a shared understanding of what words mean before effective communication can take place.

Unfortunately, emphasising the need for a shared understanding does nothing to indicate how the detailed content of that understanding can be achieved. Particular problems arise where the syntax creates uncertainty and where a word has more than one meaning.

Beginning with an example of unfortunate syntax, s. 1 of the Sale of Goods Act 1979 provides that the Act ‘applies to contracts for the sale of goods made on or after (but not before) 1 January 1894’. The question which immediately springs to mind is whether it is the contract or the goods that have to be made on or after the stated date. (If you read the Act it becomes obvious that the drafter meant the contract rather than the goods, but the fact remains that the meaning of the provision is not clear on its own.)

Turning to words with more than one meaning, two simple examples will demonstrate the point.

First, suppose you see a poster in a shop window which proclaims Last Week – Everything Half Price. On a purely linguistic basis, this could mean that the shop has been having a sale but that the sale finished at the end of the previous week (and that, therefore, everything has now gone back to being full price). But you know that this is not what the poster means, and that the message it is actually trying to convey is that this is the final week of the sale (so you need to buy promptly if you want to get a bargain).

Secondly, suppose you are asked to name the last King of England. On a purely linguistic basis, you could reply that no answer is possible because, being unable to see into the future, there is no way you can know who will be the last (or final) King of England. But this response would never occur to most people, who would assume they were being asked to name the most recent King of England (and would, therefore, say George VI).

While this pair of examples may seem trivial, it does show that the simple, everyday word last can mean either final or most recent, and – crucially – that the correct choice of meaning is not to be found in the word itself, but in the context in which it is used.

These non-legal examples are cited here by way of background to the courts’ approach to the meanings of words. Two cases will suffice, namely Quinn v Leathem [1901] AC 495 and Bourne v Norwich Crematorium Ltd [1967] 1 WLR 691. In Quinn, when commenting on how words used in previous decisions of the courts should be read, Lord Halsbury LC said (at page 506):

The generality of the expressions which may be found … are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case.

In Bourne, when commenting on how words used in statutes should be read, Stamp J said (at p. 696):

English words derive colour from those which surround them. Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words so as to givethe sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language.

Once you understand that the skills which are often parcelled up together and called legal method are only specific applications of much more generally applicable skills, you will be able to see how – to some extent at least – you already possess those skills, which your study of law will refine and develop.

We can now turn to the question of how the courts apply these skills in practice. We will approach this question under two main headings, namely precedent and legislative interpretation.

In the context of precedent, once we have commented on the difference between precedent and binding precedent, we will consider the idea of bindingness in two stages. First, we will consider what it is that is capable of being binding. Secondly, we will consider which courts actually bind which other courts, as well as which courts actually bind themselves. We will also consider the differences between the practices of the English courts on the one hand and those of the European Court of Justice and the European Court of Human Rights on the other. (In passing, it may be worth noticing that binding precedent is still sometimes known by the Latin tag of stare decisis, which may be roughly translated as to stand by decisions.) In the context of legislative interpretation, there is no need to consider English courts on an individual basis, but once we have considered the interpretative practice of the English courts as a whole, it will still be necessary to compare those practices with the interpretative practices of the two European courts.

We will begin with the common law and the doctrine of binding precedent.