Abstract
In the present chapter, I begin with an outline of the theory of meaning provided by Paul Grice. This is an inherently internalist theory, which means that meaning is determined by the speaker’s intention. I show that legal language needs an externalist theory of meaning. Thus, I argue that while the internalist may have a point in explaining what is going on in everyday linguistic exchanges, the externalist is in a better position to give a coherent account of legal language. In other words, I postulate an internalist theory of everyday language and an externalist theory of legal parlance. I also argue that the Gricean theory of implicatures can be separated from his theory of meaning.
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- 1.
Even the strong externalist, when faced with a sentence accidentally formed by the sea waves on the beach, has to claim that there is no meaning because there was no primary intention. ‘Meaninglessness is something objective, independent of the evidence we may have for ascertaining it. If marks were not produced by a purposeful intelligence intending them to mean something, then they are meaningless whatever we may justifiably believe given the evidence available to us.’ (Goldsworthy 2005).
- 2.
This is a special demonstrative that Kaplan introduces in his paper ‘Dthat’: ‘It is just according to the demonstrative analysis that the sense does not appear in the proposition. Instead the sense is used only to fix the demonstratum, which itself appears directly in the proposition. I propose now to do the same for descriptions. Instead of taking the sense of the description as the subject of the proposition, we use the sense only to fix the denotation which we then take directly as the subject component of the proposition.’ (Kaplan 1979).
- 3.
Kaplan continues and takes an externalist stance: ‘I think it would be simply wrong to argue an ambiguity in the demonstration that is so great that it can be bent toward my intended demonstratum. I have said of a picture of Spiro Agnew that it pictures one of the greatest philosophers of the twentieth century. And my speech and demonstration suggest no other natural interpretation to the linguistically competent public observer.’ (Kaplan 1979).
- 4.
Montminy has a similar reflection to Gauker’s example. Let me first quote Gauker’s example and then Montminy’s response. I owe the selection of quotes to Palle Leth: ‘Suppose that Harry and Sally are at a department store and Harry is trying on ties. Harry has wrapped a garish pink-and-green tie around his neck and is looking at himself in a mirror. Sally is standing next to the mirror gazing toward the tie around Harry’s neck and says, “That matches your new jacket”. As a matter of fact, Sally has been contemplating in thought the tie that Harry tried on two ties back. At first, she thought she did not like it, but then it occurred to her that it would look good with Harry’s new jacket. We can even suppose that in saying “that” what she intended to refer to was the tie two ties back. But under the circumstances, Harry is in no position to realize that the tie she intended to refer to was the tie two ties back and therefore is in no position to take Sally’s intention into account in identifying the reference of her demonstrative “that”. The only thing one could reasonably expect Sally’s demonstrative “that” to refer to is the pink-and-green tie around Harry’s neck. So, if we said that the referent of Sally’s demonstrative was the tie she intended to refer to, we could not maintain that the proposition her utterance expressed was a proposition that Harry could assign to it using a method of interpretation that he could reliably employ on the basis of features of the situation of which he could normally be aware. Instead, we should say that the reference of her demonstrative was the pink-and-green tie around Harry’s neck.’ (Gauker 2008) Montminy replied: ‘The intuition invoked by Gauker thus concerns the interpretation Harry may legitimately take to be the correct one rather than the correct interpretation (Åkerman, 2009 makes the same point). One may think that this debate amounts to a mere clash of intuitions. But the intentionalist position is better supported by the following scenario. Suppose that later on in the day, Sally and Harry are having this conversation: Harry: I decided to buy the pink-and-green tie because you said it matches my new jacket. Sally: I never said that. I was talking about the yellow tie, which you tried on two ties before the pink-and-green one. It would be odd for Harry to reply, “Well, I now understand that you were trying to say that the yellow tie matches my new jacket; but what you actually said was that the pink-and-green tie matches my new jacket”. In other words, it would seem unreasonable for Harry to insist that when Sally said, “That matches your new jacket”, ‘that’ actually referred to the pink-and-green tie, despite Sally’s intention to refer to the yellow one. The right thing for Harry to do is to concede that he misunderstood Sally’s assertion, even though, he may add, he was quite justified in believing that her utterance concerned the pink-and-green tie. (…) However, instead of saying that Sally’s utterance of “that” failed to refer to what she intended to refer to, we should say, more plausibly, that Sally failed to make clear what her utterance actually referred to.’ (Montminy 2010).
- 5.
Or his malapropisms.
- 6.
Objective in the sense used by practitioners. A hearer that has a personal interest in adopting one rather than another interpretation is not objective. A judge whose wife is counsel for a claimant is not objective.
- 7.
- 8.
Art. 60 [Declaration of intent] Subject to the exceptions provided for in the law, the intention of a person performing a legal act may be expressed by any behavior of that person which manifests his intention sufficiently, including the intent being expressed in electronic form (declaration of intent).
- 9.
Art. 65 [Interpretation] § 1. A declaration of intent should be interpreted in view of the circumstances in which it is made as required by principles of community life and established custom. § 2. In contracts, the common intention of the parties and the aim of the contract should be examined rather than its literal meaning.
- 10.
‘In non-standard cases, for example a discrepancy between a testament and its external manifestation, priority should be given to the manifestation of the will as the element which is subject to a standard and is an accessible source of information about the declaration of the will/intent.’ [translated by IS] (Gwiazdomorski 1974).
- 11.
‘First priority is to be given to the genuine will of the parties. If it turns out however, that the parties did not ascribe the same meaning to their declaration of intent, we should proceed to the second phase, in which in an objective manner the meaning of the declaration is established, taking under consideration how the addressee of the declaration understood its sense and how he should understand it (see. A. Szpunar, W sprawie wykładni zobowiązania wekslowego [The interpretation of obligations arising out of exchange bills], PPH 1996, nr 4, s. 10). Similarly, P. Machnikowski states that the actions of the institution that applies the law undertaken to interpret the declaration of intent consist of two stages. First, the understanding of the parties is to be established, as well as whether both parties had a similar understanding (this is called the subjective interpretation and it consists more of establishing facts than interpreting). When it is not possible to establish a shared understanding by the parties, it is necessary to resort to the second stage, namely, the objective interpretation. According to P. Machnikowskiego, it is only in the second stage that we are facing interpretation.’ (P. Machnikowski (in:) Kodeks cywilny [Civil Code]…, red. E. Gniewek, s. 155). This jurisprudence is backed by recent case law. In the ruling from the 13th of June 2012, II CSK 614/11, LEX nr 1231314, the Highest Court stated that: ‘As far as the interpretation of declarations of intent on the basis of art. 65 k.c. is concerned, a hybrid method of interpretation is to be applied, based on the subjective and objective criterion, so as to aim to discover the real will of the parties. The text of a document and the linguistic rules of meaning constitute the basis for the interpretation of the declarations contained in them. We should also take into account, when interpreting concrete expressions, the context and the content relations between the text and the goal of the declaration. If the declarations are not clear, we should take into account the circumstances.’ [translated by IS] (Robaczyński 2014).
- 12.
‘Art. 65 commits a kind of category mistake, conflating what is interpretation of linguistic utterances with the means by which it is facilitated. There is neither meaning nor interpretation without explicit or implicit reference to intentions of communicating agents. Such intentions are inferred on the basis of external evidence in which the basic role is played by the selection of precisely this or that linguistic means. The difference between more “textualist” (objective) and “intentionalist” (subjective) approaches to legal interpretation is actually in the scope in which other kinds of evidence is admissible and allowed to supplement or prevail over that basic and central piece of evidence.’ (Pietrzykowski and Tobor 2010).
- 13.
§ 133 Auslegung einer Willenserklärung: Bei der Auslegung einer Willenserklärung ist der wirkliche Wille zu erforschen und nicht an dem buchstäblichen Sinne des Ausdrucks zu haften.
- 14.
Meinung dazu, dass § 133 BGB auf dem Gebiet der empfangsbedürftigen Willenserklärung geradezu entgegen seinem Wortlaut verstanden werden muss. Grundsätzlich ist bei der Auslegung empfangsbedürftiger Willenserklärungen gerade nicht auf das subjektiv wirklich Gewollte, sondern auf die Verständnismöglichkeit des objektiven Empfängerhorizonts abzustellen. Maßgeblich ist also, wie der Empfänger die Erklärung bei objektiver Würdigung innerhalb des betroffenen Rechts- bzw. Personenkreises verstehen durfte. Dabei sind der Erklärungsakt selbst, aber auch alle weiteren Begleitumstände, wie z.B. vorangegangene Gespräche, Geschäftsbeziehungen oder Verkaufsprospekte in einem Gesamtkontext zu berücksichtigen. Source: http://bgb.kommentar.de/Buch-1/Abschnitt-3/Titel-2/Auslegung-einer-Willenserklaerung.
- 15.
Article 104 (code civil) La preuve de l’intention résultera d’une déclaration expresse, faite tant à la municipalité du lieu que l’on quittera, qu’à celle du lieu où on aura transféré son domicile. Art 105 A défaut de déclaration expresse, la preuve de l’intention dépendra des circonstances.
- 16.
‘(…) [I notice] the necessity of objectifying the notion of declaration of intent through defining it in the following way: “a declaration of intent is every behavior of a person”, instead of defining it as “undertaken to achieve a legal goal”, let’s replace it with something like the following: “which implies – in virtue of the circumstances, the social rules and settled conventions – the will to declare the intent to achieve a concrete legal effect”. In the above definition, the notion of declaration of intent is not subjective but objective because emphasis is put not on the internal will of the person making the declaration, but rather on how the behavior of this person is read “outside”, i.e. to the person to whom this declaration is addressed. Alternatively, emphasis is put on whether the audience reads the behavior as not only the will to trigger a legal effect, but also the will to externalize intent to trigger legal effects through the very behavior undertaken.’ [translated by IS] (Gwiazdomorski 1974).
- 17.
‘It is to be emphasized that when we talk about non-existent declarations, we do not have in mind the ontological meaning of the word “exist”. A contrary opinion leads to contradiction or demands ontological assumptions that are either naive and idealistic, or difficult to accept [translated by IS].’ (Gizbert-Studnicki 1975).
- 18.
Or at least, such is the communication between the parties to a dispute. The exchange between legislatures and courts is mostly strategic and probably much less deceptive and manipulative.
- 19.
I owe the selection of examples to Palle Leth, who gave a presentation on the subject at the Institut Jean Nicod in 2016.
- 20.
This has been nicely summarized by John Perry: ‘We are pretty clear about what he intended to say, and what he was understood as saying. But what did he say?’ (Perry 2009).
- 21.
Again, I owe the selection of definitions to Palle Leth.
- 22.
‘A second approach to meaning, referred to as K–P semantics (from the names of Saul Kripke and Hilary Putnam), breaks with the intentionalist concept of meaning and adopts the causal conception of reference, which assumes, as Putnam writes, that “meaning ain’t in the head”. In search for meaning, K–P semantics resort not to the intention of the speaker, but to the social practice of using concrete names, which, due to a long tradition of standard uses of certain expressions, decides to which objects and situations, in a non-linguistic reality, the words pronounced or written by a person refer.’ [translated by IS] (Matczak 2007).
- 23.
Francesca Poggi notes that: ‘(…) generalized implicatures are always produced, except in special circumstances, and they are certainly cancellable: however, if the context does not prevent them, and if the speaker does not cancel them, they are produced regardless of the speaker’s intention, that is to say that if the speaker does not intend them, nevertheless the recipient grasps them correctly (while the speaker is wrong and cause the communication failure).’ (Poggi 2016).
- 24.
Jeffrey Goldsworthy makes a similar observation: ‘People can intend to say or imply something but fail to do so, and conversely, they can say or imply something they did not intend. If we are told that we have misunderstood someone’s utterance, we often defend ourselves by replying, “I now realize what she meant to say, but it’s not what she did say”. Or “He may not have intended to say that, but he did”’ (Goldsworthy 2005).
- 25.
This view was presented by Stephen Neale during a seminar on meaning at the University of Genova in April 2016.
- 26.
The same applies for one sort of originalist view about constitutional interpretation, namely the originalist who speaks about an original intention. There is a second variety of originalists, such as justice Antonin Scalia, who speak about original public meaning (Gizbert-Studnicki 2012).
- 27.
Goldsworthy accepts a broad range of possible available evidence. In other words, the evidence is not limited to linguistic conventions: ‘what is essential to meaning are “clues” or “signals” of the speaker’s intentions, whether those clues consist of his apparent use of conventions or something else.’ (Goldsworthy 2005).
- 28.
Zygmunt Tobor claims to be a moderate intentionalist about legal interpretation, but this does not mean that he would not agree with the claim laid in this chapter. This is because he defines moderate intentionalism in a way that is defined as moderate externalism in this chapter. Thus, this is just a terminological discussion. Nevertheless, there is agreement on the fact that institutional intentions are not psychological but constructive. There is also agreement on the fact that the debates between intentionalists and textualists are debates about the scope of evidence of the legislature’s intention that can be taken into account. It is also a debate about whether we can take into account the idealized view of legislative intentions in a context (the answer to the question ‘what should be the intentions’ rather than the answer to the question ‘what were the intentions’): ‘A sensible use of the notion of ‘legislative intention’ happens when intention is understood as an institutional rather than psychological notion. The proponents of both stances consider an example in which a participant of a marriage ceremony states afterwards that his or her ‘yes’ was a joke. Both theorists are concordant that the marriage is valid, but they justify it in a different way. For the ‘moderate theorist’ this follows from the lack of evidence that it was a joke. By contrast, the ‘radical theorist’ claims that it follows from non-linguistic reasons that have nothing in common with the relation between intention and meaning.’ [translated by IS] (Tobor 2013).
- 29.
‘Claims of the form “collective k prefers alternative ai from alternative ak”, proclaimed without resorting to a concrete procedure, are elliptical claims (…) semantic rules of natural language allow the interpretation of such claims as shortcuts for claims encompassing the resorting to some not explicitly indicated procedure’ [translated by IS] (Studnicki 1971).
- 30.
F. Studnicki has the intuition that the empirical language we use to describe institutional intention is inadequate. We need a different one, which he labels ‘normative language’. This could be treated as agreement with the claim that we need a different theory of meaning for the language of the law: ‘The specific character of institutional bodies makes it impossible to characterize them with the language we use to describe empirical objects.’ [Translated by IS] (Studnicki 1971).
- 31.
‘(…) the processing of a definite set of individual decisions, especially a set, formed in the second stage of the final decision, which on the basis of a relevant procedure are ascribed to the collective body. Such processing is a formal operation without any psychological content.’ [Translated by IS] (Studnicki 1971).
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Skoczeń, I. (2019). The Meaning of Law. In: Implicatures within Legal Language. Law and Philosophy Library, vol 127. Springer, Cham. https://doi.org/10.1007/978-3-030-12532-5_5
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