Abstract
The present chapter purports to add a second line of argument in favour of a construction conception of legal meaning. This will be done by casting light on the shortcomings of moderate interpretive cognitivism (“semantic formalism”, “semantic quasi-cognitivism”, the “vigil orthodoxy”), on the one side, while making the case stronger for a variety of realism, “pragmatic realism” (“pragmatic non-cognitivism”), along the game-pragmatic approach put to work in the previous chapter, on the other side. The argument will proceed in three steps. The first step outlines semantic formalism and pragmatic realism. The second step offers a bird-eye account of the dispute between literalism and contextualism in contemporary philosophy of language and linguistics. The third, and last, step pauses to reflect on what instruction a jurist concerned with legal meaning and legal interpretation could get out of the dispute between literalism and contextualism. It will be claimed that the dispute provides substantive suggestions for getting rid of semantic formalism, and endorsing a (more) sophisticated, meaning construction version of pragmatic realism.
[G]etting rid of the last literalist prejudice, we must stop presupposing that there is such a thing as the minimal proposition expressed by an utterance
—F. Recanati (2003)
È il contesto che fissa il significato e quindi le condizioni di verità
—A. Varzi (2005)
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Notes
- 1.
- 2.
As you may remember (Chap. 2, Sect. 2.2.1.1), these are the data, or pieces of information, needed to apply interpretive directives. For instance, if the directive to be applied prescribes to interpret statutory provisions according to constitutional principles, interpretive resources amount to the set of constitutional principles the interpreter considers relevant to that task.
- 3.
On the cooperation and no-cooperation principles see Chap. 3, Sects. 3.5 and 3.6, above. The idea that cooperation attitudes play a paramount role in communication by means of natural languages, besides representing a central point in Paul Grice’s theory of ordinary conversation (Grice 1989), is now commonplace in contemporary pragmaticist literature. For instance, Caffi (2008), p. 85, while accounting for Grice’s pragmatics, speaks of “cooperation” as “co-construction of the meaning” of an utterance. It must be noticed, however, that, from a more general pragmatic standpoint, viz. one embracing also interpretive games that are different from ordinary conversation, the construction of utterance meaning can also be the output of a non-cooperative attitude, and such an attitude can be part of the stock-and-trade of the game. On this point, see e.g. Chiassoni (2000a), pp. 89–90, 94–97, which is an older version of the ideas I here convey in Chap. 3; Poggi (2011), pp. 21–40; Jori (2016), pp. 74–75.
- 4.
For such a vindication, see Eco (1990). The present chapter represents a thoroughly revised and expanded version of Chiassoni (2006). In recent years, a construction conception of legal meaning, as I call it, has been defended in Villa (2012), ch. V. Villa applies contextualist theory of ordinary sentences interpretation to the interpretation of legal provisions, upholding a “sameness claim”: “the expressions used in legal language (in […] the language of legal provisions) suffer from the same kind of underdeterminacy affecting ordinary language expressions, and, therefore, need context […] in order to receive a full-fledged meaning, to be transferred to the sentence in which they are included” (Villa 2012, p. 125, italics in the text).
- 5.
“Jurists are still searching for a definition of their concept of law” (Kant 1787, p. B759 A731).
- 6.
- 7.
Sometimes, normative theories of legal interpretation go undercover. They pretend to be descriptive, claiming what “interpretation” has necessarily to be like, to be really “interpretation”, or to avoid some evidently unwelcome consequence z.
- 8.
- 9.
I will analyse a third view, pragmatic formalism, which is again on the cognitivism side, in Chap. 6, Sects. 6.4 and 6.5 below. I have already considered semantic formalism, by a bird-eye view (Chap. 2, Sect. 2.5 above) and under the guises of the word-meaning theory and the sentence-meaning theory (Chap. 3, Sect. 3.2 above). The present chapter’s reconstruction is meant to go deeper and wider.
- 10.
See, e.g., Hart (1958a), p. 63; Hart (1961), p. 125 ff.; Carrió (1965), p. 49 ff., 70–72; Hart (1977), p. 123 ff.; Alchourrón and Bulygin (1971), Bulygin (1986), p. 125 ff.; Bulygin (1991), p. 257 ff.; Bulygin (1995), p. xii: “The problem of legal interpretation is dealt with […] as a semantic problem” (italics added, ndr); Bulygin (1999), pp. 156–157; Moreso (1997a), p. 218 ff.; Marmor (2005), p. 9 ff., 64, 95 ff. Marmor’s version is, in fact, a little bit different from most of the previous ones, being centred on the distinction between the “simple understanding” of a “legal rule” according to its linguistic meaning (“literal construction”), on the one side, and its “interpretation”, on the other side. “Understanding” (is all that) takes place when the language of legal provisions works smoothly in providing judges and jurists with a clear and determinate norm for the case at hand. It is basically an act of knowledge. “Interpretation”, by contrast, takes place whenever the language of legal provisions has proved indeterminate (linguistic rules have run out), and judges and jurists must make some choice to get out of the impasse. They must necessarily engage in the “creation” and/or “modification” of the existing law, according to their ideas about what the law ought to be. Furthermore, among the causes of linguistic indeterminacy, he adds family-resemblance to (ordinary) vagueness and open texture. I will analyse Marmor’s more recent pragmatic turn (Marmor 2014), always in defence of a quasi-cognitivist theory of judicial interpretation, in Chap. 6 below.
- 11.
See Waismann (1951), p. 119, 120, where he considers “a factor which, though it is very important and really quite obvious, has to my knowledge never been noticed – […] the “open texture” of most of our empirical concepts […] the fact that most of our empirical concepts are not delimited in all possible directions. Suppose I come across a being that looks like a man, speaks like a man, behaves like a man, and is only one span tall – shall I say it is a man?”. As Waismann acknowledges, it was William Kneale who suggested the expression “open texture” as a translation for the German Porosität der Begriffe. Actual or potential vagueness, as you may recall, is the main source of linguistic, and legal, indeterminacy according to the word-meaning theory (see Chap. 3, Sect. 3.2.1, above). Semantic formalism represents, accordingly, an improved variety of semantic quasi-cognitivism.
- 12.
- 13.
- 14.
As I said in footnote 10 above, Andrei Marmor emphasizes the difference between the situations of linguistic determinacy and those of linguistic indeterminacy by resorting to the distinction between “understanding” and “interpretation” (see Marmor 2005, p. 9 ff., 64, 95 ff.). I will analyse Marmor’s more recent pragmatic turn (Marmor 2014), always in defence of a quasi-cognitivist theory of judicial interpretation, in Chap. 6 below.
- 15.
Hart (1977), p. 144: “The truth, perhaps unexciting, is that sometimes the judges do one [make the law] and sometimes the other [find the law]”.
- 16.
- 17.
- 18.
This seems the answer implicit, e.g., in Hart (1961), ch. VII.
- 19.
See, e.g., Carrió (1965), pp. 49–61.
- 20.
See, e.g., Bulygin (1999), pp. 156–157.
- 21.
Semantic quasi-cognitivists—or their proxy defenders (see, e.g., Barberis 2001, pp. 1–36)—sometimes charge pragmatic non-cognitivists of being either hard-sceptics, or no-sceptics at all. But this is a story to be told elsewhere. I tried to do something like that in Chiassoni (2001), p. 365 ff.
- 22.
- 23.
- 24.
- 25.
- 26.
A paradigmatic instance of a dispute where different notions of “literal” or “ordinary” meaning” are at stake is offered in the majority and dissenting opinions of the U.S. Supreme Court’s decision Smith v. United States, 508 U.S. 223 (1993).
- 27.
See, e.g., Carrió (1965), pp. 49–61.
- 28.
- 29.
See Chap. 3 above.
- 30.
Sometimes, Grice is regarded as a representative of literalism (which embraces semantic minimalism and indexicalism), sometimes as a contextualist (see, on the point, Bianchi 2009, p. 172). Be it as it may, the Gricean argument I put forth in Chap. 3 is different, and complementary, to the contextualist argument I outline in the present chapter.
- 31.
In its more general and abstract meaning, “contextualism” refers to any intellectual position, which may be a piece of some larger view, according to which “context is relevant”: whatever one may mean by “context”, and whichever the enterprise it may be deemed “relevant” for. Thus, as soon as we consider the several fields of learning, we can speak of “contextualism”—and of a “contextual perspective”, a “contextual turn”, etc.—as regards to different subjects as artificial intelligence, epistemology, hermeneutics, linguistics, philosophy of language, theology, etc. See e.g. Penco (2002b), pp. xiii–xxxv; Stalnaker (2014). Here, as it is apparent, I will be concerned with linguistic contextualism.
- 32.
My sources for this presentation of literalism and linguistic contextualism have been primarily the following: Searle (1978,1980), Bianchi (1998), Bianchi (2001), Bianchi (2002), pp. 253–265; Recanati (2004), Bianchi (2005), pp. 50–54, 99–130; Cappelen and Lepore (2005), who aim at providing a knock down defence of semantic minimalism; Bianchi (2009), pp. 171–175, 180–193, 204–213; Recanati (2010), Wilson and Sperber (2012a); Domaneschi (2014), ch. 3. The semantics/pragmatics debate is profitably rehearsed in Penco and Domaneschi (2013).
- 33.
See, e.g., Cappelen and Lepore (2005), p. x: contextualists “inflate the role of context in semantics”.
- 34.
On the varieties of literalism and contextualism see e.g. Recanati (2003, 2004), Cappelen and Lepore (2005), pp. 5–11. It is commonplace distinguishing between “radical minimalism”, “moderate minimalism”, “radical contextualism” and “moderate contextualism” (see, e.g., Bianchi 2001, p. 279 ff., 297 ff.). Recanati, however, claims that what a supporter of literalism regards as “moderate contextualism” may look, to a supporter of contextualism, as “moderate literalism”. And what a literalist regards as “radical contextualism” looks to a contextualist just as “contextualism” in its pure (Recanati 2010, p. 5 footnote 3). Likewise, Cappelen and Lepore claim the distinction between moderate and radical contextualism is apparent, since moderate contextualism “collapses into” radical contextualism (Cappelen and Lepore 2005, p. 14).
- 35.
On the interpretation of non-declarative sentences, see e.g. Wilson and Sperber (2012c), pp. 210–229.
- 36.
The coining of the now current technical term “saturation” is due to François Recanati (see Recanati 2010, p. 4).
- 37.
Apparently, the line dividing the two varieties of literalism—“semantic minimalism” (defended, e.g., by Emma Borg, Ernst Cappelen, and Henry Lepore) and “indexicalism” (defended, e.g., by Jason Stanley and Zoltan Szabó)—passes here: semantic minimalists adopt a more restricted view about context-dependent expressions, limited to pure indexicals and broadly understood “demonstratives” (see Cappelen and Lepore 2005, pp. 1–4, 144; Bianchi 2009, pp. 172–176; Recanati 2010, p. 5; Domaneschi 2014, pp. 129–134).
- 38.
Not all literalists would agree with the idea of a “semantic context” as reported in the text. For instance, Cappelen and Lepore maintain the notion of “semantic context” to be a trick invented by contextualists to bring literalism into disrepute. They assert that, surely, also from the standpoint of the “semantic minimalism” they defend, the saturation of (genuine) context-sensitive expressions may require appealing to speaker’s intention (Cappelen and Lepore 2005, pp. 147–149). Notice, by the way, that “context” usually stands for a given set of information, or data, about time, place, persons, things, attitudes, beliefs, interpretations of previously uttered sentences, etc. Different sets of information identify different contexts. Usually, the data making up the context of an utterance are regarded as shared by the parties to a linguistic exchange. For instance, according to Robert Stalnaker, “context” is to be understood as “common ground”, i.e., as “a body of information that is presumed to be shared by the parties to a discourse. The course of the discourse and the interpretation of what is said in it are guided by that body of information and by the way that it evolves in response to what is said” (Stalnaker 2014, pp. 2–3, 13 ff.).
- 39.
For instance, “I” always refers to the person who is speaking or writing; “here” always refers to the place where the person speaking or writing is supposed to be, etc.
- 40.
In the case of demonstratives and other contextual expressions, an appeal to the speaker’s (presumed) communicative intention appears unavoidable (a point some literalists agree upon, as we have seen above, footnote 31). For instance, if Geneva says to Lancelot: “Open that window”, and the room contains two closed windows, say, a double lancet window and a triple lancet window, Lancelot cannot identify which one is to be opened by the only means of the semantic rules presiding over the use of the demonstrative “that”. Clearly, it is dubious where such an interpretation is still within the domain of semantics, or is, rather, pragmatic, provided the “pragmatic context” include “the set of hypotheses about the world made by the subjects [of a conversation], their beliefs, wishes, intentions, activities” (Bianchi 2005, p. 116, 52).
- 41.
Think at sentences, which are plenty in any language, like “Italians do not like spaghetti”, “No vehicle is allowed in any park”, “Tyranny is ever-growing”, etc.
- 42.
I borrow “signal-driven” from Recanati (2010), p. 4.
- 43.
According to the principle of “isomorph correspondence” between the (deep) syntactic structure of a sentence and its semantic interpretation (on this point, see Bianchi 2005, p. 123).
- 44.
Bianchi (2005), p. 120.
- 45.
Bianchi (2005), p. 120.
- 46.
- 47.
“No one thing is said (or asserted, or claimed, or …) by any utterance: rather, indefinitely many propositions are said, asserted, claimed, stated […] an utterance can assert propositions that are not even logical implications of the proposition semantically expressed. Nothing prevents an utterance from asserting […] propositions incompatible with the proposition semantically expressed by that utterance”: Cappelen and Lepore (2005), p. 4; see also 190–208.
- 48.
Cappelen and Lepore (2005), pp. 150, 180–181.
- 49.
- 50.
According to traditional semantic theory, as complemented by Gricean pragmatics, figurative meanings are implicit and identified as a variety of conversational implicatures. See Wilson and Sperber (2012d), pp. 123–145.
- 51.
Cappelen and Lepore (2005), pp. 144–145.
- 52.
See Bianchi (2001), p. 24 ff.
- 53.
Cappelen and Lepore (2005), p. 150, 180–181.
- 54.
Cappelen and Lepore (2005), pp. 4–5, 143–189, 190–208.
- 55.
In their defence of semantic minimalism, Cappelen and Lepore identify two varieties of contextualism: radical contextualism and moderate contextualism (Cappelen and Lepore 2005, pp. 5–11). Very roughly speaking, they characterize radical contextualism as endorsing what I call a global underdeterminacy thesis: the linguistic meaning (the semantically expressed proposition) of any token sentence whatsoever is always underdetermined; it never expresses a full-fledged, truth-apt, proposition. Contrariwise, moderate contextualism endorses what I shall call a widespread underdeterminacy thesis: the linguistic meaning of token sentences is underdetermined in a much widespread series of cases than literalism concedes. Contextualists—it must be noticed—are not crystal-clear on the point. Even John R. Searle, whom Cappelen and Lepore put in the cage of radical contextualism, seems content to claim that the phenomenon of underdeterminacy of linguistic meaning is, notice, “quite general”: that it obtains “for a large number of cases (perhaps not all)” (Searle 1980, p. 227). In my simplified account, considered the purpose of the present paper, I will identify contextualism sans phrase with upholding a general underdeterminacy thesis: meaning, by that, that underdeterminacy is a widespread, statistically significant phenomenon, that occurs very often, and goes well beyond the limited borders of literalism’s context-sensitiveness. Furthermore, I will adopt a charitable view, purporting to present its ideas as being as much sensible as possible.
- 56.
This position corresponds to the variety of contextualism Recanati calls “Wrong Format View”. According to it, “the sense expressed by an expression must always be contextually constructed on the basis of the (overly rich or overly abstract) meaning or semantic potential of the word type”. The “Wrong Format View” has a more radical relative: “Meaning Eliminativism”. According to it, “we don’t need linguistic meanings even to serve as input to the construction process. The senses that are the words’ contributions to contents are constructed, but the construction can proceed without the help of conventional, context-independent word meanings” (Recanati 2003, pp. 19–20).
- 57.
An example should convey what different contextualists have in mind when they claim sentences to be generally elliptical (as I put it), from the standpoint of their capacity of expressing a full-fledged “applicable” (truth-apt or satisfaction-apt) meaning. Suppose somebody says: “Judith is ready”. Literalists claim that such a sentence clearly expresses a truth-apt proposition: namely, the proposition that Judith is ready, which is true if, and only if, Judith is ready—and the same applies to “Hilary is tall”, “Hannibal dances”, “It rains”, “Al is short”, etc. Contextualists reply, however, that in such cases truth-aptness is apparent. If we do not know what is Judith ready for (Beheading Holophern? Going to the Great Blue Cheese Exhibition? Becoming Governor General of the country? Marrying Tom?), we are not able to verify it; the linguistic meaning (the minimal proposition) does not amounts to a definite truth-apt proposition, but to a “frame”, a “structure”, a “skeleton” allowing for several different and alternative possibilities of enrichment. The sentences, notice, are elliptical for they apparently lack a necessary semantic complement: some further expression without which the linguistic meaning of the sentence appears to be floating in the air. It is elliptical, some contextualist would say, for it requires to be complemented by some “unarticulated constituents” (Perry 2002b, pp. 248–251).
- 58.
Suppose, to rehearse a famous example from John Searle (Searle 1978, p. 127), somebody enters a diner and says: “Give me a hamburger, medium rare, with ketchup and mustard, but easy on the relish”. By staying with the sole linguistic meaning of the sentence, contextualists claim, the waiter could not satisfy the customer. That could only be done by appealing to some set of background information (“background assumptions”) concerning the quantity and quality of the meat, the way of cooking it, the way of packaging and delivering it to the customer, etc. The sentence, notice, is not elliptical in the way the sentence “Judith is ready” is assumed to be. Here, in order for it to express an applicable meaning, the interpreter must refer to information from an on-going social practice, from a “background of meaning” that can never be entirely translated into additional pieces to the proffered sentence, unless at the cost of making verbal communication very burdensome, and perhaps totally impair it. See also Searle (1980), pp. 221–232; Bianchi (2002), p. 256; Recanati (2003), pp. 15–19. I have briefly outlined Searle’s conception of literal meaning as a model for juristic reflection about the literal meaning of legal texts in Chiassoni (2000a), p. 20 ff.
- 59.
- 60.
Recanati (2008), p. 260.
- 61.
- 62.
Some contextualist claim, however, that when figurative uses of token sentences are afoot, pragmatic interpretation does not proceed, say, to the metaphorical meaning by passing first through the literal meaning, and replacing it, but directly jumps to the metaphorical meaning, on the wings of participants’ shared intuitions. See Domaneschi (2014), pp. 136–137.
- 63.
Wilson and Sperber, for instance, claim: “the literal meaning of a sentence never coincides with what the speaker explicitly communicates by uttering this sentence (except in the case of genuine “eternal sentences”, if such things exist or are ever used)” (Wilson and Sperber 2012c, p. 79).
- 64.
- 65.
See, however, Cappelen and Lepore (2005), p. 150.
- 66.
- 67.
As I have noticed (Sect. 4.3.1. above), however, semantic minimalism sets forth a typology of the meanings of an act of communication that is more on the contextualist side.
- 68.
Remember, however, the remark I made in footnote 61 about figurative speech.
- 69.
- 70.
See Sect. 4.3.1, point 3, above.
- 71.
In many cases, correction proceeds by the enrichment of the text of the legal provision /isomorphic abstract norm. There may be cases, however, where correction is performed by subtracting or replacing words in the text of the legal provision/isomorphic abstract norm.
- 72.
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Chiassoni, P. (2019). Taking Context Seriously. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_4
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