With Eve Gerber at The Browser, Breyer discussed five books that have influenced his thinking, and explained why reading widely, including literature, is essential for judges and lawyers. One book he tagged:
How to Do Things with WordsRead about another book on Breyer's list at The Browser.
by JL Austin
[P]lease tell us about JL Austin and How to Do Things with Words.
JL Austin was an ordinary language philosopher. When I studied in Oxford, I went to one of his classes and I read his books. How to Do Things with Words teaches us a lot about how ordinary language works. It is useful to me as a judge, because it helps me avoid the traps that linguistic imprecision can set. If I had to pick a single thing that I draw from Austin’s work it would be that context matters. It enables us to understand, when someone makes a statement, what that statement refers to and what that person meant. Austin set a famous exam question: you bet that all swans are white or black, but does this refer to possible swans on Mars? Not clear. The question is: what's the context? What's the scope of that bet?
When I see the word "any" in a statute, I immediately know it's unlikely to mean “anything” in the universe. “Any" will have a limitation on it, depending on the context. When my wife says, “there isn't any butter,” I understand that she's talking about what is in our refrigerator, not worldwide. We look at context over and over, in life and in law.
What do you think Austin teaches about strict constructionism and its variations?
Austin suggests that there is good reason to look beyond text to context. Context is very important when you examine a statement or law. A statement made by Congress, under certain formal conditions, becomes a law. Context helps us interpret language, including the language of a statute. Purpose is often an important part of context. So Austin probably encourages me to put more weight on purpose.