Abstract
The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses). To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz’s idea of minimal legislative intent.
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Notes
- 1.
This applies to both J. L. Austin and J. Searle, and their commentators: K. Bach, R. Harnish and P. Grice, though the latter touches upon communications directed in writing to an unspecified group (cf. e.g. P. Grice’s solution in Studies in the Way of Words devoted to signs such as ‘Keep off the grass’). This analysis is of an auxiliary nature and does not affect the nature of their conclusions. Another exception is the work of Hancher (1979) and Edmondson (1981) on co-operative speech acts, and the work of T. van Dijk on complex speech acts and pragmatic macrostructures (van Dijk 1980). None of these, however, take into account the specifics of writing.
- 2.
It is not the purpose of this paper to determine whether the rules are text acts (or acts in any sense) or if they are the outcomes of such acts.
- 3.
The criticism presented here refers to so called expressive theories of legal norm, i.e. the theories which equate legal norms with linguistic expressions. The critique does not apply to those theories defined as hyletic i.e. those which distinguish between the normative act and the norm as the outcome of this act (and not necessarily a linguistic one). The work of K. Opałek and J. Woleński, can be taken as an example of the latter. I am grateful to the reviewers of this paper for indicating the need to clarify this matter.
- 4.
Distinguishing the fallacy of a-discursivity leads to a question as to the ontological status of a legal rule. This is a version of the question about the individuation of laws (Raz 1980, p. 77).
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Matczak, M. (2015). Why Legal Rules Are Not Speech Acts and What Follows from That?. In: Araszkiewicz, M., Banaś, P., Gizbert-Studnicki, T., Płeszka, K. (eds) Problems of Normativity, Rules and Rule-Following. Law and Philosophy Library, vol 111. Springer, Cham. https://doi.org/10.1007/978-3-319-09375-8_24
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