Metalinguistic normativity and the supercategory: Law's deployment of ordinary language and the case of Thind v US

Abstract

This paper explicates T.J. Taylor’s understanding of normativity and the constitutive power of lay metadiscourse and juxtaposes it to Harris’s concept of supercategory. It looks at the alignment between these two approaches, as well as the tensions, explaining their place within integrational theory. It then focusses on law as a supercategory, surveying briefly what integrationists have said about legal interpretation. The focus in the discussion is on the role of ordinary language arguments. In illustration of how this category works, the judgment in \ United States v Bhagat Singh Thind (1923) is analyzed, noting how the judge elected to deploy the ordinary rather the specialist meaning of Caucasian in explicating the statutory term white person. It is argued that ordinary language is a legal fiction, and therefore that it makes no sense to debate how better to give it empirical content. Any new approach to ordinary language (such as the use of corpora) needs to be domesticated within the interpretative culture of law in order to be accepted by judges. Integrationism is not designed to tell people how to decide contentious linguistic and interpretative issues, though there is no barrier to its appropriation. In conclusion, the point is made that both Taylor’s and Harris’s perspectives offer valuable insight in relation to ordinary language in law.