From Inherited Meaning to Legal Category: Language and Law

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Introduction

Recent debates before the United States Supreme Court concerning sex-segregated sports have revived a question that appears, at first glance, almost self-evident: what is a woman? The persistence of this question, however, suggests that the difficulty does not arise from everyday language suddenly failing to function. Speakers of English continue to use the term without hesitation in ordinary contexts. The problem emerges instead when an inherited word from natural language is transferred into a legal system that depends on explicit, operational categories in order to adjudicate rights and obligations.

This article approaches the controversy not from a legal or ethical standpoint, but from a linguistic and semiotic one. Drawing on Ferdinand de Saussure’s conception of language as an inherited social institution, together with Roland Barthes’s distinction between first-order and second-order semiotic systems, it argues that the current impasse reflects a mismatch between levels of meaning. What is at stake is not ignorance of language, but the conditions under which meaning must be stabilized for law to function at all.

Language as an Inherited Institution

Saussure’s account of language begins from a simple yet far-reaching observation: no speaker invents a language. Linguistic systems are transmitted collectively across generations, and individual users enter them already formed. For this reason, language presents itself as stable, even though its origins remain inaccessible to direct observation. As Saussure famously notes:

“At any given period, however far back in time we go, a language is always an inheritance from the past. The initial assignment of names to things, establishing a contract between concepts and sound patterns, is an act we can conceive in the imagination, but no one has ever observed it taking place.”

Because language is inherited rather than designed, its basic terms do not depend on formal definition to function. Words such as “woman,” “man,” or “child” are acquired through participation in a linguistic community, not through stipulation. Their meaning is anchored in shared usage, reinforced by repetition, and stabilized synchronically within a system of differences.

Saussure further emphasizes the collective dimension of this process:

“A language, as a collective phenomenon, takes the form of a totality of imprints in everyone’s brain, rather like a dictionary of which each individual has an identical copy.”

This shared structure explains why communication remains possible despite vagueness at the margins. Ordinary language tolerates indeterminacy precisely because no institutional decision hinges on exact classification.

First-Order and Second-Order Semiotic Systems

While Saussure accounts for the stability of everyday language, Barthes provides a framework for understanding what happens when signs are redeployed in institutional contexts. In his distinction between first-order and second-order semiotic systems, Barthes shows how signs that function descriptively in ordinary language can be refunctionalized within systems that assign them additional force.

At the first order, language serves to describe and differentiate within a shared social world. At the second order, the same signifiers may be mobilized within systems—such as law, politics, or ideology—that regulate conduct, allocate rights, and authorize exclusions. In such contexts, words no longer merely refer; they operate.

When a term like “woman” enters legal discourse, it does not remain a neutral descriptor. It becomes a category whose scope has concrete consequences. The transition from first-order usage to second-order function is therefore not automatic. It requires semantic recalibration.

Why Law Requires Definition

Legal systems operate under conditions fundamentally different from those of everyday speech. Courts do not merely interpret language; they rely on it to justify decisions that affect access, protection, and opportunity. For this reason, legal language routinely introduces definition clauses, not because ordinary words lack meaning, but because consequences follow from their application.

Environmental statutes, for instance, specify what counts as a “pollutant” or an “emission source” to ensure consistency in enforcement. Without such clarification, judicial reasoning becomes unpredictable. Law therefore depends on what Saussure would describe as synchronic stabilization: a temporary fixing of value within a system at a given moment.

This fixation does not deny the possibility of future change. Rather, it makes judgment possible in the present. Where everyday language can rely on shared convention, legal reasoning requires articulated boundaries.

The Supreme Court Exchange: A Question of Intelligibility

This structural requirement surfaces clearly in the recent Supreme Court arguments concerning sex-based classifications in athletics. During oral argument, Justice Alito posed a question that cuts to the core of the issue:

“How can a court determine whether there is discrimination on the basis of sex without knowing what sex means for equal protection purposes?”

The force of this question is not semantic in the dictionary sense. It does not ask how the word “sex” is ordinarily used. Instead, it targets the preconditions of adjudication. Equal protection analysis presupposes identifiable categories. Without them, courts cannot determine whether unequal treatment has occurred.

The response offered—that no definition was being proposed and that the definition itself was not under dispute—reveals a deeper difficulty. Judicial reasoning depends on stabilized terms. When those terms remain undefined, the court is no longer evaluating conduct or policy, but grappling with the semantic conditions that make evaluation possible in the first place.

What emerges is not confusion, but a refusal to perform the semantic transition required by second-order usage. A first-order sign is presumed to suffice, even as it is asked to carry legal weight.

A Semiotic Mismatch

The resulting impasse does not stem from linguistic incompetence. All participants in the debate are fluent speakers operating within the same language. The difficulty arises because an inherited term, stabilized through social practice, is being deployed within a system that cannot function without explicit articulation of scope.

In everyday discourse, “woman” functions without formal definition because shared usage provides sufficient grounding. In law, the same term becomes an operative category. Without recalculating its value within the legal system, disagreement shifts from application to intelligibility.

What often appears as a cultural or ideological conflict is, at a deeper level, a semiotic mismatch between levels of language.

Conclusion

The contemporary debate over the definition of “woman” is best understood not as a failure of language, but as a failure to distinguish between linguistic orders. Saussure helps explain why everyday meaning remains stable without formal definition. Barthes clarifies why institutional systems cannot rely on that stability alone.

Recognizing this distinction does not resolve substantive legal questions, nor does it dictate policy outcomes. It does, however, explain why the debate persists and why it repeatedly returns to the question of definition. Until the transition from inherited language to legal category is explicitly acknowledged, disagreement will continue to center not on conduct or fairness, but on the terms that make judgment possible at all.

Bibliography

Barthes, Roland. Mythologies. Paris: Seuil, 1957.
Saussure, Ferdinand de. Course in General Linguistics. Translated by Roy Harris. London: Bloomsbury, 2013.
United States Supreme Court. Oral Argument Transcripts, cases concerning sex-based classifications in athletics.