Or
“Tomato – Fruit or Vegetable?”
How We – and dictionaries – Define Words
Frank Mayers, Advocate & Notary
This article will not specifically examine legal and/or judicial rules for the interpretation of contracts, laws, statutes and precedents, but will rather examine the confines and boundaries of word definition in general. It is a linguistic rather than a legalistic approach – but the implications on legal interpretation ought to be clear.
Words are the most basic of tools in the lawyers toolkit – yet all too often little or no thought is given to their true compass and span. It will be shown that words – and their definitions – are subject to the pull and strain of many factors: stretching, contracting, modifying and changing the meanings of a word or its scope. Sometimes such meanings may change 180 degrees and at other times they may take an erratic ‘quantum leap’, taking us to unexpected and surprising places. (‘Gay’ meaning ‘happy-go-lucky’ or ‘gay’ meaning ‘homosexual’).
Words are subjected to both objective and subjective factors. This ‘push and pull’ on the scopes and meanings of words may be compared to an inflating or deflating balloon (which may even ‘pop’ with the disappearance of a word) and, as will become very apparent, not everyone sees the same ‘balloon’. In fact one may say that a dictionary definition of a word is an attempt to express, as concisely as possible, the ‘greatest common denominator’ of the understanding of a word’s sense, meaning and scope. An attempt to grasp at the ‘core’ meaning of a word. However, we do not necessarily understand, intend or use, words in accordance with their dictionary meanings.
Words also expand or contract to include associative and figurative meanings, e.g. ‘concrete’ (‘concrete proposal’) water (‘watered down’), and endless other meanings, not to mention personal associations where the reasons may be unbeknown to us: – “Oh I love the name John, but detest the name Joan”. Why should one name seem to one person odious and to the next delectable, especially when they sound so similar? These ‘associations’ also influence the way we interpret words. How we first interpret a word (influenced by context and other factors) may also determine how we interpret that word in the future.
I first started becoming aware of these factors when courting my wife. Let me explain:
My mother tongue is English. My wife’s mother tongue is Italian. So – quite naturally – we communicate in Hebrew, (which we affectionately term our ‘lingua Frankie’). We were engaged in Milan, Italy and went shopping for a tie, shirt and dark suit for the wedding. The first thing I learned was that the salespersons all insisted that the tie be a grey tie stating “per matrimonio – solo grigio” (for a wedding – only grey!). Then on to the ‘dark suit’ – eventually I plumbed for a black suit, only to discover that my wife and the salesman called it ‘blu’ – which naturally translates into English as – blue. Admittedly when I held it up to the outside light I could see an element of a very dark navy blue. To me, however the suit was still black. Not only that – but the black-blue divide was marked by a divide between the English speaking and Italian speaking worlds (i.e. my family vs. her family).
This story serves as a fine example of the forces at play in the interpreting, understanding and defining of a word:
These factors influence the ‘given’ intent of a word and its ‘perceived’ meaning. If we take the blue – black example above and imagine a colour slider fading gradually from black to blue and marked from 1 -100: An English speaker may consider all gradients up to, say, 70 on the scale as being black, and beyond that point all would be blue. The Italian speaker, say, may perceive black as running only up to the 50 mark point (and beyond that, blue). Thus there would be extensive – but not absolute overlapping of what both parties perceive as being black, but there would be a disputed area (in our example between 50 – 70) where the exact meaning of a word is ‘fuzzy’. It is this fuzzy area which lawyers know how to exploit so well. It is this ‘grey area’ of the word which the ‘predator’ lawyer knows to seek out. It is his prey’s weak point. It is this grey area in which the lawyer shows us, as if to say “well, well! You thought you knew what the word meant, but I’ll show you what it really can mean!” What does “big’ really mean? What does ‘work’ mean? And ‘reasonable’? For a lawyer the most fertile lands can be those areas towards the edge of our coloured balloons (see below) where some may say that the word has lost its meaning and some may not. The point is that it is unsure.
As a translator one very quickly learns of this ‘word scope’. One can imagine the scope of the words as being two interlocking circles – the common area being the common meaning of the word between the two languages. That common area may be greater and it may be less depending on the word – but also depending on the above stated factors. Moreover, one can say that because different people view words differently, the borders of those circles are not necessarily solid lines but rather ‘fuzzy’ lines. Thus:
Cultural (Objective)
There is a debate amongst linguists and cognitive scientists as to whether the language we use effects the way we see the world and if it does to what extent? It is oft told that, for example, Eskimos have ‘such and such’ a number of words for the single word ‘snow’ in English, distinguishing between various types of snow. Or it is said that “Italian has 400 words for pasta”. This may be true. But then so does English. Why not? If an Italian can say ‘fettuccine’ , or ‘spaghetti’ or ‘macaroni’ – why can’t an English speaker? We all know these ‘Italian’ words. And if an Italian then has a specific word for a certain shell shaped pasta – why can’t an English speaker say (or indeed coin) the word or phrase “shell-shaped-pasta” (or similar)? Prof. Steven Pinker in his book “The Language of Thought” argues that a common element of all languages is that all languages have the tools (even if they do not have the specific word) to express any thought. English is rife with words borrowed and embedded from foreign languages: tsunami (Japanese), pasta (Italian), chutzpah (Yiddish), etc. And if I were to give you an example of a word in Hebrew – “Yoreh” which does not have an exact equivalent in English, we could quite easily find a solution “the first rain of the season”. The existence or non-existence of a word in a language is a result of cultural and factual forces, and this also applies to the scope we give to that word. One can may light-heartedly say that the English do not have a single word for yoreh or for malkosh (the last rain of the season) because it started raining in England with creation and will only stop on doomsday! However it is clear that the absence of these words in the English is a function of the absence of a well-defined rainy season. If we once again take the example of the blue-black suit. It may be argued that Italians view the colours differently because they have greater ‘aesthetic sensitivity’ to colour. This may or may not be true but certainly that argument could be raised when a colour blind person is involved – a definite objective factor in the understanding of a word’s meaning. What is clear is that the collective experience of the speakers of a language has a clear and distinct impact on the meaning, compass and existence itself of words. Nevertheless, there is no reason why a language cannot understand, borrow, direct or re-direct a word in order to embed it as its own.
Thus, how a nation or a language perceives and receives a word is an aspect of expressing its compass.
Personal (Subjective)
Once again if we take the example of our blue-black colour scale and use wholly hypothetical examples and say: the average Italian speaker will view black as being up to the 50 gradient and the average English speaker up to the 70 gradient. However if the ‘average’ Italian views black as being up the 50 gradient – that will means some will place the slider higher up the gradient and some lower down.
Let’s take this example: If I were to draw a picture of a simple table, with four legs, the drawing would (hopefully) immediately be recognised as representing a ‘table’. If I were to shorten one of the legs we might now add an adjective and call it a ‘wobbly’ table – but we would still call it a ‘table’. Now – if I were to completely chop off a leg – would everyone still call it a table? And if I would chop off two (diagonally opposed) legs, would we all still call it a table. How much ‘leg’ would I have to chop off before the ‘table’ becomes a mere ‘plank of wood’? Instinctively we all know that the point at which the ‘table’ becomes a mere ‘plank of wood’ would differ from person to person. The table example refers to a noun, how much more so would the discrepancies rage and run amok when using adjectives such as the much beloved legal word ‘reasonable’?
This ‘sliding – factor ‘ may be impacted by an almost endless number of reasons ranging from various degrees of colour blindness to the light at the specific location of viewing at that specific time. However it will also be impacted by a further subjective factor – where that specific person placed the ‘sliding – factor’ when he first defined the term (most probably early in childhood).
Interaction (between two speakers).
As we will see below, context is very important in defining not only the scope of a word but, especially, its core meaning. The interaction between people also has an effect on the meaning – or at least scope of meaning. Just as we adjust our language to suit our audience, sometimes consciously, sometimes unconsciously (is it a university lecture, the locker room of a football club, a children’s party)? In the same way we may, wittingly or unwittingly, adjust words and meanings we give to words. This applies, for example, to double entendres and puns. A child would not see anything but a sword in the word ‘sword’, however an adult reading it in poetry may see and add extra layers to the meaning.
Context
Translators, like realtors, like to use the expression ‘location, location, location’ when being asked for help in translating a word.
Look at this sentence: “My pen is in my hand”. A simple, straightforward sentence. Only if you heard it read out aloud would you realise that this sentence is not in English – but rather in Afrikaans! Your probable assumption that the sentence was in English was based on the fact the rest of this article is in English.
I have contrived another device of three sentences to show the importance of context and how we deduce or assume much more information from a sentence than we dare even think.
The first sentence : –
Well – it is clear that this is not a full and complete sentence. There is obviously something lacking, namely a subject, and this ‘sentence’ makes no sense whatsoever to us.
The second sentence: –
Well – neither is this a full and complete sentence. However if we had to guess what was missing most of us would most probably add the word “sentence.”
The third and last sentence:-
“This is!”
And now the three sentences in quick succession:
This is.
This is not a full.
This is!a
Suddenly, even though the first ‘sentence’ and the third ‘sentence’ contain exactly the same words the third ‘sentence’ somehow makes sense. This is because we impute it to mean “This is a sentence!” Even though the word ‘sentence’ is not used. Because of the context we ‘hear’ it, we imply it. One of the reasons is the interchange, play and order between the three above sentences. However there is also another factor at play. Akin to a magician who uses the gift of the gab to distract you whilst he conceals the ‘magic coin’, so have I intentionally used the word ‘sentence’ (about ten times) between the first and last ‘sentence’ thus highlighting and suggesting the word which I want to imply.
If we take another example of an e.mail I recently wrote to my editor asking her: “To take a quick squizz at this”. After sending her the e.mail I decided to look up the dictionary meaning of the word ‘squizz” even though I knew it to be informal. I could not find the word at all either in any dictionary or even in a Google search. (save for in the sense of a commercial name). Nevertheless, the editor had no difficulty in understanding what I meant by a completely new and invented word. And I am sure any reasonable reader would surely understand that this is merely an informal, partially tongue-in-cheek way of saying “look at this!” Once again, context is key. However, this is context joined with remarkable human ability at adaptation, the ability to fully understand something which just a moment ago did not exist. In this case almost seamlessly and without effort. Now let’s see Google Translate adapt to that!
Of course when talking about word definition in a legal context one must not forget to take into account that a word may be specifically defined in a law or in a contract. Of course the context of the contract or law will also colour the meaning and scope of the word. Take for example the definition of jurisdiction given, say a magistrate’s court, to a certain court to hear matters up to a certain amount, linked to the consumer price index. Beyond that amount matters will be heard by the district court (as is the case in Israel). Thus – the meaning of the words “magistrate’s court” will change every month with the consumer price index!
Context in legal translation is further complicated by the fact that the powers of an authorised entity or judicial instance may vary greatly from country to country and even from county to county. For example the work of a notary on the continent, which is quasi-judicial, is vastly different to that of a notary in the British Commonwealth and even more so concerning a notary (or notary public) in the USA. A magistrate in one county or jurisdiction may have greatly different powers to that in an adjacent jurisdiction. Therefore – what does the word magistrate really mean? What is its scope? Does he hear criminal matters? Civil matters? Both? Petty matters? Important matters?
Moreover, a word may have been ‘defined’ to mean something specific by one jurisdiction and something else in another jurisdiction. For example – in the absence of legislation – would it be reasonable to drive with 0.02 mg. of alcohol in the blood or would it be reasonable if that level was 0.03?
Thus, just as a word is subject to the push and pull of various forces on the compass of its meaning so too will a word be influenced by words surrounding it (which in themselves are subject to a push and pull). This is a consideration which must also be taken into account when defining words for a dictionary – i.e. how – and how much – is the meaning of the word defined by the context in which it is found.
We have already mentioned that time may influence the meaning of a word. (See the ‘gay’ example). However, more usually the changes in the words are much more gradual. As if we were moving the slider from 50 to 51 and then on to 52 and so on. Take for example the word ‘reticent’, entering English from the Latin (or more accurately speaking – from Neo Latin) meaning ‘to remain silent’ and gradually evolving (and not morphing like ‘gay’) to mean reserved, showing self – restraint, hesitant, unwilling or reluctant. One can quite easily see how a word originally meaning to “remain quiet” – came to mean “unwilling” even though the meaning is not quite the same.
Dictionary Definitions
Frozen in ink. Buttressed by the seemingly impenetrable defences of officialdom, the printed word and subjugation to the greater wisdom of those ‘in the know’. This is how dictionary definitions are commonly regarded. They are looked upon with an almost religious reverence of what words should, or indeed, do mean, and which ‘no man shall cast asunder’. These definitions are construed as having become fixed in time (and space). As being immutable. Unchangeable. The guide for ‘correct’ and ‘proper’ usage, the ‘instruction manual’ for what a word really means. These definitions are the official ‘guidelines’, unerring, timeless and most importantly – the only official and correct ‘answer’. Dictionary definitions of the words gives us the (supposed) stability, certainty and exactitude that the law so craves. (However, contrary-wise, it must also be remembered that sometimes legal language aims for the exact opposite and uses intentionally vague language to ‘smooth over’ disagreements or to ‘let the courts decide’ etc.). In the quote opening his seminal work on “The Language of the Law” by Prof. David Mellinkoff, the author quotes from a judgement of Fortesque, C.J. (from the middle of the 15th century) stating: “Sir, the law is as I say it is, and so it has been laid down ever since the law began…though we cannot at present remember that reason.”
However, as we have now seen above the definition of a word, any word, is subject to many influences and these influences do not pass over dictionary definitions.
Dictionary definitions may be used to ‘give meanings’ to words – words which may have in the interim changed, morphed or completely lost their original sense.
We now know, that the law is not unchangeable and neither are the words that make up the law. Moreover, a dictionary definition can never be more than an attempt by a lexicographer, or a team of lexicographers, at defining a word. And even they are humans of the flesh and blood sort, subject to the same subjective and objective ‘forces of gravity’ that push and pull on all word speakers and on all word hearers.
Doubts must be cast on the extent that must be attributed to the ‘officialdom’ of dictionary definitions. This, of course, is without ruling out the usefulness of dictionaries as a facilitating tool. On the contrary, dictionaries are of course very useful for discovering the ‘common wisdom’ of a word’s meaning, i.e. its ‘common usage’ or ‘core ‘ meaning.
Nowadays dictionaries tend to be descriptive rather than proscriptive. That is to say that they attempt to describe a word’s meaning rather than to proscribe what it should mean.
Nevertheless dictionary definitions are prone to a number of problems in their attempt to set a fixed or clear or stable meaning to a word.
For example, the ‘rigidity’ of dictionary definitions cannot take account of changes in meaning since its publication, nor for all tones of meaning effected by context. It must be remembered that any dictionary, even an internet dictionary, will be pressed for space and there is no possibility of including, within the scope of a fairly limited definition, the full breadth of possible uses of a certain word. A dictionary definition may also miss the mark where innovative or original use is made of language, such as in the use of poetic license.
Furthermore, dictionaries may well make use of other dictionary sources, thus amplifying problems of context and changes over time: “As a result of constant change and growth in language, dictionaries are out of date by the time they are published.” It will be noted that that usually a very long time passes between the publication of printed dictionaries – and even internet dictionaries may take a while before a term is updated. All one need do is look at internet and hi-tech terminology – much of it in everyday use – to see how rapidly language can develop and evolve.
Neither is the fast developing pace of the internet any guarantee for the currency of a word’s meanings. Internet dictionaries are often based on printed versions and therefore subject to the same malaise. Worse still is use (for example – the English – Hebrew- English dictionary Morfix – at www.morfix.co.il) of machine translation (such as Google Translate). Whilst this dictionary (Morfix) functions well as an English-Hebrew-English dictionary on a word to word basis, when a word is missing in the dictionary – or especially when a phrase or couplet of words is involved the dictionary offers an added “Google Translate” option. This is a problematic on two levels: One – this is not a dictionary source at all but rather an outside source, totally uncontrolled or influenced by the dictionary; Two – it is a not an attempt at an accurate translation, but rather a ‘stop-gap’ measure to fill in voids in the dictionary. It does not even purport to be an accurate definition but rather simply an attempt at ‘some sort of answer, hopefully as close as possible to the correct one.” The results are, quite frankly, often ridiculous. I think that what every reader is looking for when seeking a dictionary definition is to attain as close and accurate a definition as possible even if an all-encompassing-perfection is far from attainable. Language is far from being an algorithmic equation and ‘approximations’ or even outright ‘absurdities’ are not what a dictionary reader is seeking. Examples of these absurdities are especially noticeable when looking for phrases rather than specific words, thus “fruity capital” for “capital profit” “air rights” for “pooled interests”. Moreover these are examples of couplets chosen at random from a dictionary and indicative of the fact that this is no random mishap or typo.
What sources do dictionaries use for collecting and defining words? In her article Prof. Aprill refers to use made by American dictionaries such as Webster’s of the ‘polite press’, such as especially the New York Times to find the ‘common meaning’ of words. Thus leading her to ‘infer’ – possibly at a bit of a stretch – that it is the New York Times which determines the meanings of words in statutes, case law and various legislation and regulations. “that in good measure they are interpreting law according to The New York Times.” Thus reflecting also a class, social and geographical bias. It will be reiterated that how one person, or one segment of the population uses a word, is not necessarily how another segment uses the same word.
Aprill quotes from the case of Nix v. Hedden on a customs and excise case where the question in issue was whether a tomato is a fruit or a vegetable. In rejecting the dictionary definition of tomatoes as a fruit the court stated “in the common language of the people” tomatoes would be “vegetables which are grown in a kitchen garden and …not served, like fruits, generally as a desert…”
In Conclusion
In summary it is important to stress that this article is not trying to suggest that words are shapeless or without meaning. I am not saying that we can pour any meaning we wish into a word. Not at all. However, it is important to be aware of the ‘scope’ a word encompasses and to know that not all may view the ‘compass’ in the same light. Words are subject to subjective and objective pressures as well as the flux of time and context.
In Led Zeppelin’s popular song “A Stairway to heaven” there’s a line: ‘Cause you know sometimes words have two meanings’ – well actually, often, it may have even more. Much more. And many shades too.
