A Note on Legal Definitions

When should law define “woman”?

Anything which grounds distinct legal rights, duties, privileges, or immunities must have legal meaning. Whether it requires a precisely articulated legal definition is another question entirely. Indeed, there are often very good reasons not to define legal concepts where definition may cause more confusion that it alleviates. Roman jurists expressed this concern in the maxim Omnis definitio in iure civili periculosa est: parum est enim, ut non subverti posset; “All definition in law is dangerous, for one can rarely be found that cannot be overthrown” (D. 50.17).

The central insight that we can draw from the Digest here is that definitions can be double-edged swords. On the one hand, they help to narrow and sometimes expand possible interpretations of the meaning of a given concept to create a carefully tailored legal rule. On the other hand, definitions are often unnecessary and can sometimes lead to confusion or worse, the frustration of the purpose of a given legal rule itself.

Indeed, sometimes concepts are referenced in statute for the express purpose of delegating broad interpretative powers to actors such as legal officials or judges. Standards such a reasonableness, fairness, justification, or legitimacy are almost never defined in statute or law. They nevertheless do vital work and carry important legal meaning. It is a serious mistake to assume that if a term is not defined it has no legal meaning. In fact, sometimes defining terms limits meaning and frustrates purpose.

This is reflected in HLA Hart’s warning when discussing legal interpretation and the options an interpreter has open to them when dealing with contested terms using his classic example of a rule banning vehicles from parks:

He either takes the meaning that the word most obviously suggests in its ordinary nonlegal context … or one which the word has been given in some other legal context, or, still worse, he thinks of a standard case and then arbitrarily identifies certain features in it – for example, in the case of a vehicle, (1) normally used on land, (2) capable of carrying a human person, (3) capable of being self-propelled – and treats these three as always necessary and always sufficient conditions for the use in al contexts of the word “vehicle,” … This choice, not “logic,” would force the judge to include a toy motor care … and to exclude bicycles … In all this there is possibly great stupidity but no more “logic”.

Legal interpretation does not occur in a vacuum. It’s goal is to ascertain legal meaning and often this will require recourse to language and the vitally important but often derided form of background social knowledge; common sense.

Technocrats and intellectuals tend not to approve of common sense, usually I suspect because it requires that one embed oneself within the working knowledge of a community when its detractors would much prefer to sit above and apart from the common person. That may be possible for some fields, but it cannot be the position of the lawmaker or legal interpreter. Shared knowledge and common understanding is vital for any legal system to operate, let alone flourish.

Legal meaning can manifest in one of two general ways: it can either track ordinary meaning or it can track a special, technical meaning that departs from ordinary meaning in carefully selected ways. Both of these approaches have their benefits and their drawbacks and a good legal system will have a good balance between them. Too much technical meaning, usually in the form of extensive and overly complex definition, can make the law incapable of being understood and legal rules impossible to follow. No definition at all can cause the same problem when the ordinary meaning of a term is contested or where its meaning within a given legal context is unclear.

This balance is vital to the health of any legal system and is necessary to the rule of law. But this is not just a concern with the overall split between technical or ordinary meaning within the system; it is also a concern which may require the introduction of definition where there was once no need. The primary cause of this is when the ordinary meaning of a term has become contested to such a degree that there is no longer a shared understanding or common point of reference against which to anchor meaning.

A glaringly obvious example of this phenomenon occurring over the last decade is the almost total breakdown within western societies of any consensus over the meaning of the word “woman”. For thousands of years, law could reference man and women or male and female with very little need to define terms because legal meaning tracked ordinary meaning and common sense. There is, however, a long history of the law dealing with those who do not fit neatly into these categories.

We have distinguished on the basis of sex for millennia. Where the law draws distinctions, particularly those that involve significant differences in rights and entitlements, there will be times when the boundary is tested. Where someone’s sex is contested, the law needs to have an answer. And it did. In Roman law, canon law, and then later common law, an individual’s sex was always one of three possibilities: male, female, or hermaphrodite, sometimes also known as intersex but which is now more accurately described as conditions of differences in sex development (DSDs).

DSDs are a group of rare conditions where the reproductive organs and genitals don’t develop as expected. In Roman and Canon law, there was recognition of differences in sex development, but people were then classed as either male or female, depending on which characteristics appeared most dominant. The goal was, in a crude fashion limited by the state of scientific knowledge at the time (another aspect of common sense), to ascertain the true sex of someone whose sex was ambiguous.

By the mid-twentieth century, a new phenomena had arisen distinct from indeterminate sex: individuals who were undergoing extensive medical intervention, including surgery, to appear as close to the opposite sex as they could. This development set the stage for contestation over the meaning of woman in both ordinary language and in law. A technical definition was beginning to become necessary.

By 1975, there was a technical definition of ‘woman’ in UK law, although this was not the result of what Magnus Hirschfeld described as “the transsexual phenomenon”. Rather, it was to do more mundane technical work. Section 5(2) of the Sex Discrimination Act 1975 states that “’woman’ includes a female of any age.” The use of the word ‘includes’ here connotes the technical expansion of the ordinary meaning of the word woman – an adult human female – to include human females who are not adults. The purpose of this technical meaning is to ensure that drafters did not need to insert “and girl” after every provision dealing with sex discrimination in order to ensure that such provisions included protection for minors as well as adults.

In contrast, the definition of ‘woman’ in the UK Equality Act 2010 is subtly different. Section 212 states that woman “means a female of any age”. Here the replacement of ‘includes’ with ‘means’ can only have the legal effect of confining the legal meaning of woman to females of any age. This would appear to help clarify disagreement over the meaning of woman in law. But things are more complicated given that there is now contestation over the ordinary and technical meaning of the word female as well.

Dangerous though definition may be, it is sometimes necessary and often useful. Knowing when a definition is needed in law is a work of practical art; it is rarely the case that a term will be defined unless its ordinary meaning has become contested or its legal meaning diverges in important ways from how the term would ordinarily be understood. Definition becomes particularly important when the law begins to use both an ordinary meaning and a technical meaning of a term in different contexts.

The purpose of this short post is not to resolve these disputes over legal interpretation but rather to note how the origins of such disputes often lie in contestation over the ordinary meaning of a word in everyday language. Without a shared framework of communal understanding, legal regulation becomes much more difficult, to say nothing of the resolution of general social and political disagreements.

This is not to say that disagreement can ever be totally eradicated or that the presence of disagreement inevitably leads to some form of legal positivism. Interpretation is necessary, whether a term corresponds with its ordinary meaning or with a technical meaning. The act of interpretation will draw upon background legal principles and presumptions in addition to common understanding. None of this collapses interpretation of ordinary meaning into conventionalism. Shared understanding is a floor not a ceiling: it is the foundation of legal order directed towards the common good both at the level of language but also at the level of custom.

Lon Fuller famously said that a system cannot lift itself unaided into legality. This is just as true for legal drafting and statutory construction. There will always be a degree of indeterminacy in law. But without a common core of agreed understanding, the task of lawmakers becomes increasingly difficult. The less and less that we can agree as a community on the meaning of terms, the more and more necessary definition becomes in law.