Abstract
In this chapter I provide an outline of the classical Gricean theory of implicatures, outlining the points in which it is not applicable to the legal realm. Next, I give an account of theories that have tried to modify the Gricean picture to fit it to the legal realm. The most important of them is Andrei Marmor’s account of ‘strategic speech’. I try to illustrate how Marmor’s account could profit from some modification so as to form an even broader explanatory theory of the legal discourse. Finally, I propose a second-order, strategic framework that explains linguistic exchanges in the realm of law.
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Notes
- 1.
Suppose someone uttered the sentence He is in the grip of a vice. Given knowledge of the English language, but no knowledge of the circumstances of the utterance, one would know something about what the speaker has said on the assumption that he was speaking standard English and speaking literally. One would know that he had talked about some particular male person or animal x, that at the time of the utterance (whenever that was), either (1) x was unable to rid himself of a certain kind of a bad character trait or (2) some part of x’s person was caught in a certain kind of tool or instrument (approximate account, of course). However, for a full identification of what the speaker said, one would need to know (a) the identity of x, (b) the time of the utterance, and (c) the meaning, on the particular occasion of utterance, of the phrase ‘in the grip of a vice’ [a decision between (1) and (2)] (Grice 1975).
- 2.
Grice concludes that disobeying this maxim would result in wasting time. However, in the legal realm the consequences could be worse. Consider situations in which you must adopt a strategy in the sense that you cannot reveal some information that could for instance incriminate your client. Moreover, if you are part of an institution that drafts a statute, you cannot be overspecific or casuistic in the statute. You need to formulate more general indications.
- 3.
Kent Bach criticized this view. According to him, a separate category such as conventional implicatures is not worth distinguishing because some of them are parts of what is said and some of them are second-order speech acts. This criticism relies on the observation that we can convey several truth-apt propositions with only one utterance (Bach 1999). Whatever their exact nature, they are closely related to what we call the semantics of language. Nevertheless, let me repeat that this issue is irrelevant for the considerations carried in the present study.
- 4.
According to Grice, there are two kinds of conversational implicatures: generalized and particularized. The latter require context to occur. Since a computer generates text out of context, it cannot generate a particularized implicature. Whether a computer could generate a generalized conversational implicature remains an open question.
- 5.
I believe Searle’s Chinese room argument illustrates this point neatly: ‘Imagine a native English speaker who knows no Chinese locked in a room full of boxes of Chinese symbols (a database) together with a book of instructions for manipulating the symbols (a program). Imagine that people outside the room send in other Chinese symbols, which, unknown to the person in the room, are questions in Chinese (the input). And imagine that by following the instructions in the program the man in the room is able to pass out Chinese symbols, which are correct answers to the questions (the output). The program enables the person in the room to pass the Turing Test for understanding Chinese but he does not understand a word of Chinese.’ (Searle 1999a).
- 6.
Unless you adopt a behavioral theory that treats intention and meaning as unnecessary.
- 7.
- 8.
With some exceptions, such as the common law doctrine of ‘legislative illicit motive’. For more on ‘legislative illicit motive’ see Sadurski (2014).
- 9.
Note that this passes all three tests for implicature: cancelability, reinforceability and calculability. This is because it is possible to cancel the implicature by saying, ‘use a firearm, but not only as a weapon’. It is possible to reinforce the implicature by saying, ‘use a firearm only as a weapon’. Finally, reasoning on the basis of the maxims in the text is proof of the calculability requirement being satisfied.
- 10.
This shows that the implicature passes the test of calculability. Yet it also passes two further tests of cancelability and reinforceability. This is because you can cancel the implicature by saying ‘use a firearm yet only as a weapon’. Moreover, you can reinforce the implicature by saying ‘use a firearm but not only as a weapon’.
- 11.
An anonymous reviewer suggested that ‘a legal system is in a pathological state and has to some extent abandoned the rule of law if the courts do not cooperate with the legislature.’ However, I believe that in extreme cases when the legislature deviates from democratic behavior or neglects the rule of law, it is precisely the role of the judiciary to stick to the rule of law even if this means less cooperation with the legislature.
- 12.
I thank Francesca Poggi for this remark.
- 13.
It is true that the in concreto interpretation is rather one-sided. However, if we take a broader view, we can notice that the interaction between the legislature and courts is more complex. Namely, the way judges interpret the law does influence the legal texts enacted, and vice versa. Judges can prompt the legislator to amend a rule or enact a new statute. Moreover, judges are directly influenced by legislators through the texts they enact.
- 14.
I thank Marcin Matczak for a helpful discussion on this point.
- 15.
- 16.
Take another example: a legislature enacts the provision ‘No vehicles in the park’. Imagine, the legislature wants this to implicate that ABSOLUTELY and without exception no vehicle can enter the park. In other words, the legislature believes that ecology is the implicated value. The enactment of the statute is accompanied by a huge ecological campaign by the ‘green’ party. However, the judicial powers are faced with the decision whether or not to convict an ambulance driver for breaching the statute. Imagine that the court’s goal is to promote human health. The court believes that the value of saving someone’s life should prevail over ecology, yet the court is faced with the following legislative implicature: since the legislator is truthful (maxim of quality), according to the second sub-maxim of quantity, ‘say no more than you must’, combined with the huge ecological social campaign, the legislator wants me to understand that the aim of the provision is to protect ecology rather than any other value. This is backed by the sub-maxim of manner: be brief. This reasoning need to assume a form of hybrid expressivism about values because this stance allows values to be conversationally implicated (see Barker 2000; Finlay 2005; Fletcher 2014). Thus, the court will have to ignore the legislative implicature and will state that this statute implicates that an ambulance can enter the park if someone’s life is endangered. This usually takes the form of the following reasoning: had the legislators been in the judicial shoes (or in the context of the case) they simply could not have wanted to imply that ecology is more important than human life or health! Thus, they must have implied that human life or health is more important than ecology. The reasoning would take the following form: since the legislator must be truthful (maxim of quality), according to the second sub-maxim of quantity (say as much as you can) she must have been unable to say more on the values she wished to promote. Since the sub-maxim of manner (avoid obscurity) has not been respected, then there may be exceptions to the promotion of ecological values. A very similar selection situation can occur within a legislative body. Some members of parliament (MPs) might wish that a discussed statute implicates one thing, while others might wish that it implicates quite another. This often results in what Marmor calls legislative compromises. The legislative body votes on and enacts a statute, but without indicating whether by provision X it wants to implicate that Y or that Z (Marmor 2014). For more examples see Skoczeń (2015b, 2016).
- 17.
In light of neo-Gricean theories this would be seen as a pragmatic enrichment rather than an implicature. However, since I have adopted a chronological order in the present study, I treat as implicature in the present chapter anything that Grice would have labeled an implicature, since Grice did not dispose of the notion of pragmatic enrichment.
- 18.
Par. 12 disp. prel. c.c. (Statutory Interpretation):
- 19.
I believe that this clarifies F. Poggi’s observation: ‘the jurist’s common experience shows that, in legal interpretation, not everybody is willing to follow the maxims, and, above all, there is not a general expectation that everyone follows them. This is a fact, simply a fact: and this is how things work’. I think that while observing legal practice one can have the impression that the maxims are not followed because of the selectivity of pragmatic phenomena due to a choice of phenomena conforming to one’s goal.
- 20.
B. Slocum seems to claim that the canons expressio unius est exclusio alterius and eiusdem generis are applicable only to lists (Slocum 2016). However, the canons ubi lex voluit dixit, ubi noluit tacuit and lex minus dixit quam voluit have almost identical purposes and were not created to explain the interpretation of enumerations. Moreover, expressio… and eiusdem… seem to create coherent interpretations of rules that do not contain enumerations. Thus, the burden of showing the problem is on those that question their applicability to rules that do not contain an enumeration. Recently, in a conference discussion, Marcin Matczak applied the eiusdem generis canon to a rule that did not contain an enumeration. The rule states in the first sentence that some X represents Poland. In the second sentence, it states that this representation does not encompass the representation in the UN Security Council. Since the legislator usually speaks about a uniform subject, the general rule from the first sentence needs to be of the same kind as the exception. This means that the first sentence cannot be read as allowing X to represent Poland in a football match, since this would be absurd.
- 21.
See rozporządzenie Prezesa Rady Ministrów z dnia 20 czerwca 2002r., w sprawie zasad techniki prawodawczej Dz.U. Nr 100 poz. 908.
- 22.
In the next chapter I will argue why the content of maxims mirrors the content of certain canons of construction.
- 23.
Defeasibility and cancelability are only analogous; they are not synonyms since Grice wished that the implicature were calculable—he wanted this to be a quasi-inferential process. The cancelation is an additional premise to a quasi-syllogism that defeats the conclusion. By contrast, defeasibility involves a fully fledged syllogism. I thank Francesca Poggi for her comments on this point.
- 24.
The fact that strategic behavior is ubiquitous in natural language and the strategic super-maxim of selectivity is often used compels me to disagree with F. Poggi. She claims that the Gricean theory cannot be applied to authoritative speech such as legislation (because it is conflictual in its very nature), while it can be applied to the interpretation of acts of private autonomy. Moreover, she claims that it can be applied to acts of private autonomy because of the bona fides (good faith) principle, which is an interpretive principle of contracts (Poggi 2011). In my framework, the issues are slightly different. I believe legislation is just as strategic as contractual negotiations. In both situations the strategic super-maxim of selectivity is widespread. However, because this strategic nature of discourse can pose threats to democracy and its basic assumptions (such as just laws) there are mechanisms that are supposed to mitigate these threats. I think the bona fides principle is just such an interpretive idea that is supposed to mitigate potential injustice such as the potential inequality of the parties.
- 25.
As previously mentioned, in terms of the classical Gricean theory, the pragmatic mechanisms at stake would be labeled implicatures because Grice distinguished only implicatures versus disambiguation and reference assignment as pragmatic mechanisms influencing what is being said. However, in terms of neo-Gricean approaches, the pragmatic mechanisms discussed in this book that pertain to the Smith versus United States case are examples of pragmatic enrichments of what is said. I will elaborate on this technical difference in the next chapters.
References
Antas J (2008) O kłamstwie i kłamaniu [On lies and lying]. Towarzystwo Autorów i Wydawców Prac Naukowych UNIVERSITAS, Kraków
Austin JL (1962) How to do things with words: [the William James lectures delivered at Harvard University in 1955], 2nd edn. [repr.]. Harvard University Press, Cambridge
Bach K (1999) The myth of conventional implicature. Linguis Philos 22:327–366
Barker S (2000) Is value content a component of conventional implicature? Analysis 60:268–279. https://doi.org/10.1093/analys/60.3.268
Brożek B (2008) Revisability versus defeasibility. Northern Ireland Leg Q 59:139–147
Carston R (2013) Legal texts and canons of construction: a view from current pragmatic theory. In: Freeman MDA, Smith F (eds) Law and language, 1st edn. Oxford University Press, Oxford
Clark RL (2012) Meaningful games: exploring language with game theory. MIT Press, Cambridge
Dworkin R (1978) Taking rights seriously. Harvard University Press, Cambridge
Finlay S (2005) Value and implicature. Ann Arbor MI Mich Publ Univ Mich Libr 5:1–20
Fletcher G (2014) Pure versus hybrid expressivism and the Enigma of conventional implicature. In: Fletcher G, Ridge M (eds) Having it both ways: hybrid theories and modern metaethics. Oxford University Press
Gizbert-Studnicki T (1983) O sposobach formułowania dyrektyw [A few remarks on the ways of formulating norms]. Stud Semiotyczne XIII:91–109
Goldsworthy J (1994) Implications in language, law and the constitution. In: Lindell G, Zines L (eds) Future directions in Australian constitutional law: essays in honour of Professor Leslie Zines. Federation Press in association with the centre for international and public law and the law faculty. Australian National University, Sydney
Goltzberg S (2016) Cooperation in legal discourse. In: Mohammed D, Lewiński M (eds) Argumentation and reasoned action: Proceedings of the 1rst European Conference on Argumentation, Lisbon, 2015. College Publications, Londres, pp 113–128
Grice HP (1989) Studies in the way of words. Harvard University Press, Cambridge
Grice P (1975) Logic and conversation. In: Cole P, Morgan J (eds) Syntax and semantics. Academic Press, New York
Habermas J (1979) Communication and the evolution of society. Beacon Press, Boston
Hart HLA (1948) The ascription of responsibility and rights. Proc Aristot Soc 49:171–194
Leech GN (1983) Principles of pragmatics. Longman, New York
Levinson SC (1983) Pragmatics, nineteenth printing 2008. Cambridge University Press
Levinson SC (2000) Presumptive meanings: the theory of generalized conversational implicature. MIT Press, Cambridge
Longworth G (2017) John Langshaw Austin. In: Zalta EN (ed) The Stanford Encyclopedia of Philosophy (Spring 2017 Edition)
Marmor A (2014) The language of law, 1st edn. Oxford University Press, Oxford
Marmor A (2016) Defeasibility and pragmatic indeterminacy in law. In: Capone A, Poggi F (eds) Pragmatics and law. Perspectives in pragmatics, philosophy & psychology, vol 7. Springer, Cham
Matczak M (2016) Does legal interpretation need Paul Grice? Reflections on Lepore and Stone’s imagination and convention. Polish J Philos 10(1):67–87. https://doi.org/10.5840/pjphil20161014
Matczak M (2017) Poland’s Constitutional Tribunal under PiS control descends into legal chaos. 11 January 2017. https://verfassungsblog.de/polands-constitutional-tribunal-under-pis-control-descends-into-legal-chaos/
Poggi F (2011) Law and conversational implicatures. Int J Semiotics Law - Revue Intertnationale pour la Sémiotique Juridique 24:21–40. https://doi.org/10.1007/s11196-010-9201-x
Poggi F (2016) Grice, the law and the linguistic special case thesis. In: Capone A, Poggi F (eds) Pragmatics and law: philosophical perspectives
Recanati F (2002) Unarticulated constituents. Linguist Philos 25:299–345
Sadurski W (2014) Searching for Illicit motives: constitutional theory of freedom of speech, equal protection, and separation of state and religion. Sydndy Law School Legal Studies Research Paper 61
Sbisà M (2017) Implicitness in normative texts. In: Poggi F, Capone A (eds) Pragmatics and law. Springer, Cham, pp 23–42
Searle J (1999a) The Chinese room. In: Wilson RA, Keil FC (eds) The MIT encyclopedia of the cognitive sciences. MIT Press, Cambridge
Searle JR (1978) Literal meaning. Erkenntnis 13:207–224. https://doi.org/10.1007/BF00160894
Searle JR (1999b) Mind, language, and society: philosophy in the real world, 1st edn. Basic Books, New York
Skoczeń I (2011) Law, language and their influence on cognition. In: Argumentation 2011: International Conference on Alternative Methods of Argumentation in Law: Conference Proceedings
Skoczeń I (2012) How to reach a compromise on compromise? In: Argumentation 2012: International Conference on Alternative Methods of Argumentation in Law: Conference Proceedings
Skoczeń I (2013) Why do pragmatics matter in the legal framework? In: Argumentation 2013: International Conference on Alternative Methods of Argumentation in Law: Conference Proceedings
Skoczeń I (2015a) Implicatures within the legal context: a rule-based analysis of the possible content of conversational maxims in law. In: Araszkiewicz M, Banaś P, Gizbert-Studnicki T, Płeszka K (eds) Problems of normativity, rules and rule-following. Springer, Cham, pp 351–362
Skoczeń I (2015b) Thick concepts, implicatures and the nature of law. In: Argumentation 2015: International Conference on Alternative Methods of Argumentation in Law
Skoczeń I (2016) Czy modny i sprawiedliwy mogą mieć ze sobą coś wspólnego? – czyli kilka słów o thick terms, thick concepts oraz thick properties [Do the fashionable and the just have anything in common? a few words on thick terms, thick concepts and thick properties]. Archiwum Filozofii Prawa oraz Filozofii Społecznej 12
Slocum BG (2016) Conversational implicatures and legal texts: conversational implicatures and legal texts. Ratio Juris 29:23–43. https://doi.org/10.1111/raju.12114
Smolak M (2012) Wykładnia celowościowa z perspektywy pragmatycznej [Teleological interpretation from a pragmatic perspective]. Wolters Kluwer Polska, Warszawa
Sperber D, Wilson D (2006) Relevance theory. In: Horn LR, Ward GL (eds) The handbook of pragmatics. Blackwell, Malden
Sternau M, Ariel M, Giora R, Fein O (2015) Levels of interpretation: new tools for characterizing intended meanings. J Pragmat 84:86–101. https://doi.org/10.1016/j.pragma.2015.05.002
Wronkowska S (2012) Komentarz do zasad techniki prawodawczej: z dnia 20 czerwca 2002 r [Commentary to the rules on legislative text drafting]. Wydawnictwo Sejmowe, Warszawa
Wronkowska S, Zieliński M (1985) O korespondencji dyrektyw redagowania i interpretowania tekstu prawnego [On the correspondence of directives on drafting and interpreting legal text]. Studia Prawnicze, pp 301–327
Załuski W (2013) Game theory in jurisprudence. Copernicus Center Press, Kraków
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Skoczeń, I. (2019). The Strategic Principle and the Maxim of Selectivity. In: Implicatures within Legal Language. Law and Philosophy Library, vol 127. Springer, Cham. https://doi.org/10.1007/978-3-030-12532-5_2
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