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[其他法域] The dictionary isn't the law. The law is [复制链接]

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发表于 2011-7-17 18:32:57 |只看该作者 |倒序浏览
http://www.economist.com/blogs/johnson/2011/06/legal-language/print

Legal language
The dictionary isn't the law. The law is
Jun 14th 2011, 13:18 by R.L.G. | NEW YORK






DICTIONARY fetishism has returned to the news. Back when the Oxford English Dictionary admitted "LOL" and a few other internet-related neologisms to its collection, someone complained that the OED "is supposed to have dignity". I commented then that many people don't seem to know what dictionaries are for. They aren't for having dignity.
They also aren't for defining words so closely that America's Supreme Court should rely on them to determine the meaning of contested words. Yet that's just what justices are doing. This understandably alarms people like Jesse Sheidlower, an editor for Oxford's dictionaries. The lexicographer told the New York Times that "It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in." Justice Stephen Breyer, for example, is a fan of the OED itself. Yet this is one of the more promiscuous dictionaries, highlighting as many different historical meanings and modern senses as it can by scouring the written corpus for different uses of a word. Its rank-ordering of senses is certainly not intended to be legally dispositive, so that the first sense listed can be used by judges across the ocean to enforce contracts or put people in prison.  In fact, as the Times points out, since dictionary-makers use sources like the Times to determine how words are used (ie, what they mean), the Supreme Court is, probably without knowing it, relying on the Times.  And the Times is writing about this, closing the loop.
Rather than rely on dictionaries, statute-writers should be as careful as possible to use words in the way that they are commonly understood (especially in quality edited writing).  What is "commonly understood", then?  Large corpora (masses of text) are a good place to start.  Finding out how large aggregates of educated writers of standard English use "X" will allow the statute-book writers to use X more precisely, so those affected understand X properly. Then the courts can interpret laws properly. "How is X understood?" is the proper question, not "how do dictionaries define X?", since the dictionaries themselves are trying to answer that first question.
The irony is that judges have vastly more power than lexicographers do to define words. Supreme Court decisions are binding on absolutely everyone in America, beyond appeal to any dictionary or any other power. (Well, a few of the more conservative judges might say that a higher power still binds them.) If they say "consideration" means "coconut rum", then coconut rum it is. And lexicographers would then have to add that meaning to their dictionaries. So judges, listen to the people and to your own sense of the language; the dictionary-writers are watching you. It isn't supposed to be the other way round.
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The dictionary isn't the law. The law is
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