Abstract
In this chapter, I deal with certain influential neo-Gricean theories. These are theories that discuss Paul Grice’s idea of the maxims of conversation. I show how the four Gricean maxims can be reduced to fewer rules of this type: the Q and R principles proposed by L. Horn. I also argue that some theories that reduce the number of maxims, such as Relevance Theory, cannot be applied to the legal realm. Finally, I show that the theory I sketched in the second chapter is applicable regardless of the content or number of maxims we postulate at the ‘first’ level.
One must always take care not to clash with the subsidiary thoughts, which are however not explicitly expressed and therefore should not be reckoned in the sense.
Gottlob Frege, ‘Sense and reference’ p. 227
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Notes
- 1.
‘So there must be a place for an unsimplified, and so more or less unsystematic, logic of the natural counterparts of these devices; this logic may be aided and guided by the simplified logic of the formal devices but cannot be supplanted by it.’ (Grice 1975).
- 2.
This section aims to analyze solely the relation between claims about silence in RT and the Gricean theory. Nevertheless, legal theory has constructed all kinds of interesting distinctions concerning silence. Since Roman times, the saying ‘qui tacet consentire videtur’ has been applied to, for instance, administrative law. The application of this saying is forbidden in criminal law. For a detailed account see Dobosz (2011).
- 3.
Briefly the facts of the case were the following: ‘The issue was whether a man’s exchanging a machine gun for narcotics constituted his ‘use’ of a firearm ‘during and in relation to…a drug trafficking crime’ within the meaning of Statute 18 U.S.C. s. 924(c)(1) (hereafter referred to as Stat-18). The statute imposes an additional five-year prison term when a gun is used, and if the weapon is a machine gun, the mandatory sentence is 30 years. The defendant, John Angus Smith, offered to trade a MAC-10 machine gun with an undercover federal agent for two ounces of cocaine. He was convicted of conspiracy to possess and distribute cocaine, and of ‘using’ the machine gun in relation to the conspiracy in violation of Stat-18. On appeal, Smith argued that trading a gun was not among the ‘uses’ of a firearm defined by the statute. He lost his appeal.’ (Carston 2013).
- 4.
‘Since, to calculate a conversational implicature is to calculate what has to be supposed in order to preserve the supposition that the Cooperative Principle has been observed, and since there may be various possible specific explanations, a list of which may be open, the conversational implicatum in such cases will be a disjunction of such specific explanations; and if the list of these is open, the implicatum will have just the kind of indeterminacy that many actual implicata do in fact seem to possess.’ (Grice 1975).
- 5.
Just to remind the reader at this point: As far as the second amendment is at stake, the neo-Griceans are surely right that there is more of pragmatics in ‘what is said’ than Grice initially thought. He defines this notion in the following paragraph: ‘In the sense in which I am using the word say, I intend what someone has said to be closely related to the conventional meaning of the words (the sentence) he has uttered. Suppose someone to have uttered the sentence “He is in the grip of a vice”. Given a knowledge of the English language, but no knowledge of the circumstances of the utterance, one would know something about what the speaker had said, on the assumption that he was speaking standard English, and speaking literally. One would know that he had said, about some particular male person or animal x, that at the time of the utterance (whatever that was), either (1) x was unable to rid himself 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). But for a full identification of what the speaker has said, one would need to know (a) the identity of x, (b) the time of utterance, (c) the meaning, on the particular occasion of utterance, of the phrase in the grip of a vice, [a decision between (1) and (2)]. This brief indication of my use of say leaves it open whether a man who says (today) Harold Wilson is a great man and another who says (also today) The British Prime Minister is a great man would, if each knew that the singular terms have the same reference, have said the same thing.’ (Grice 1989) As quoted, when Grice uses the term ‘what is said’ he encompasses in this very term only three, simple, pragmatic effects. First, under the label (a) is the assignment of a referent to an indexical (here ‘he’). Note that he mentions only explicit indexicals, which are pronounced or written. There is no mention of implicit indexicals at all. Second, under the label (b) comes the time of utterance, indicated by the tense, because it is something we have to determine for practically all utterances. Grice does not mention other parameters such as the place of utterance. Finally, under the label (c) Grice mentions disambiguation. Moreover, he speaks only of classical cases where there are two distinct meanings that are only very remotely (or not at all) related to one another, i.e. homonyms. He does not include unarticulated constituents or polysemy. As a consequence of these omissions, researchers that came after Grice, RT included, noticed that ‘what is said’ needs far more pragmatics than just (a), (b) and (c). Consider the sentences: Have you had breakfast? He is tall. According to dual pragmatists these sentences contain unarticulated constituents that need a double pragmatic inference. First, we need to notice that there are some variables and then we need to assign a reference to them: Have you had breakfast [today]? He is tall [for a schoolboy]. Thus, the bracketed content is not a case of simple reference assignment, and RT is right in postulating more pragmatic processes in the decoding of explicatures. The texts enacted by legislatures as legal statutes will also be subject to such various pragmatic enrichments. To state what the legislator has said, one will need more pragmatic data than just standard disambiguation or reference assignment. I will return to this issue in more depth in the next chapter.
- 6.
It is considerably less clear how the alleged reverse pattern of bounds pans out in the R cases. What does the R Principle place an upper bound on—is it speaker effort, or information given, or (somehow) both? Consider some examples standardly cited as giving rise to R-based implicatures: (2)a. Utterance: Hannah insulted Joe and he resigned. b. Implicature: Hannah’s insulting Joe caused him to resign. (3)a. Utterance: I broke a finger yesterday. b. Implicature: The finger is mine. (4)a. Utterance: Can you reach the salt? b. Implicature: I request you pass the salt to me. In what sense are the implicatures here lower-bounding? The idea seems to be that, on the basis of the speaker having said that p, there is an R-inference to ‘more than p’ and the hearer has to go on to figure out what this more is. In the case of ‘and’- conjunctions such as (2), it is a stronger relation between the conjuncts; in (3), it is a narrowing to a specific domain of fingers; in cases of indirect speech acts such as (4), it is simply a different speech act from the (irrelevant) one directly expressed. But one could say much the same of the Q cases: something is explicitly said and what is communicated is stronger (more informative/relevant). In both kinds of case, there is a strengthening of communicated content: from ‘at least some’ to ‘just some’, from ‘a finger’ to ‘my finger’, etc. I find little support for the claim (Horn 1984) that the effects of the two principles are mirror images of each other. (For fuller discussion of this point, see Carston 1998: section 3). (Carston 2005).
- 7.
Horn’s idea is that if you tell someone that he may do something, you are not warranted to tell him that he may not do something, and this is because of pragmatic reasons. This also works the other way around, so if you tell someone that he may not do something, then you are not warranted to tell him that he may do something.
- 8.
Horn calls this the R-principle. I think Carston’s label is more intuitive because it comes from the word ‘informativeness’. This was the second Gricean sub-maxim of quantity.
- 9.
This will not work in languages in which there are no articles. For instance, if you say in Polish ‘I have found wallet’ (no article!), you can mean either your own wallet or the wallet lost by a stranger. The disambiguation will be purely contextual.
- 10.
In the Polish legal tradition, the expressio unius canon is often labeled the ‘a contrario’ reasoning or argument. The canon eiusdem generis is often labelled the ‘a simile’ or ‘a simili’ reasoning or argument (Zieliński 2012).
- 11.
Nevertheless, sometimes the eiusdem generis canon actually narrows down the scope of interpretation. Brian Slocum provides an example: ‘a law concerning the regulation of (1) gin, bourbon, vodka, rum, and other beverages would not likely (absent some unusual context) be interpreted as including Coke (the soda), even though it is a “beverage”.’ (Slocum 2016).
- 12.
In the Polish legal tradition, the rule of lenity is labelled as the rule forbidding a reasoning based on analogy to the detriment of the accused (Spyra 2006).
- 13.
‘An example of a critique of the formalistic reductionism from a utilitarian point of view is Eskridge’s and Frickey’s opinion that fully fledged legal reasoning should be based on the idea of practical reasoning, which incites disposing of the maximum amount of data and premises used in the process of taking a decision, rather than limiting it. Due to the maximum of premises, the final decision is optimal.’ [translated by IS] (Matczak 2007).
- 14.
‘As critics emphasize, the “standard meaning” approach, for which there are no criteria of being “standard”, enables a huge amount of discretion for judges which has a negative influence on the principle of the predictability of the outcome of applying the law, although this aspect is seen as an asset of the formalistic approach (…) the notion of the standard understanding of a text is dependent on many factors, in particular on the context in which this meaning is to be reconstructed. This means that searching for an objective criterion for the standard meaning of a text is not a good solution since it suffices to change the context (for example the interpreter) for the standard meaning of the text to change.’ [translated by IS] (Matczak 2007).
- 15.
‘(…) it is far from obvious that legal formalism should be supplemented by formalistic application of the law. Quite the contrary: modern legal systems have developed numerous mechanisms to avoid the flaws of a formalistic approach to the application of the law. These conceptions usually order the setting aside of formalism in the application of legal rules; instead, one should focus on the formulation of rules about the usage of other prescriptive rules as well as rules about the construction of legal declarations of intent. These rules order taking into account their aim and function, which renders the process of their application non-formalistic. If a formally applied rule leads to a state that contravenes its aim, then the metanorms, which are found in constitutions or legal codes, order a direct realization of the goal, thus leading to a modification of the initial rule. This modification negates the idea of the formal stability of rules, which is a basic precondition of formalism in the law.’ [translated by IS] (Matczak 2007).
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Skoczeń, I. (2019). Post-Gricean Implicature Theories and Their Relevance for the Legal Realm. In: Implicatures within Legal Language. Law and Philosophy Library, vol 127. Springer, Cham. https://doi.org/10.1007/978-3-030-12532-5_3
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