Abstract
Obligations have since millennia their legal form in the concept of contract; legal scholars have since reflected upon the issue in all social, political, and cultural circumstances and philosophers treated contract as a particular form of inter-subjectivity. The text of this chapter has it all: focusing on Ch. S. Peirce’s remarks on contract, one is confronted with in-depth philosophical considerations, whereas the dimensions of translation not only cover linguistic issues but more in general the various levels of meaning in legal discourse and in everyday language as well as their proper translatability. A contract, the chapter concludes, must be understood as a relational speech-act. A promise, in its simplest form, is an act in which a speaker manifests his or her intention, based upon his or her volition, to perform some act in the future. That would make a contract a dual promise from speaker to hearer and vice versa. But a contract is more than two promises amalgamated. Contractual acts are themselves acts in which as future exchange is foreshadowed by a present, symbolic exchange. This third element is the clue for a correct interpretation. It consists in the joint declaration’s special purpose: the legal consequences that enhance what would otherwise be a trivial and inconsequential transaction.
“… the Greeks used ‘throw together’ very frequently to signify the
making of a contract, or convention. Now, we do find symbol ({symbolon})
early and often used to mean a convention or contract”
Peirce, CP:2.297, c.1895
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Notes
- 1.
For an account of Derrida’s deconstructionist concept of translation as a contract, see van den Broeck 1988.
- 2.
- 3.
On the legal implications of this equation, see Fried 1981.
- 4.
A contract was for Peirce definitely a sign: “The dictionary is rich in words waiting to receive technical definitions as varieties of signs”, he wrote (PW:194,1905), and in his long and rather intriguing list of examples of this, Peirce included “oath, vow, promise, contract, deed” (PW:194:1905).
- 5.
Also called by Peirce a dicent symbol or dicisignificant symbol. According to the qualification rule, every symbol is a legisign. See Dinda L. Gorlée: Semiotics and the Problem of Translation, Rodopi, Amsterdam 1994, [quoted: Gorl.Semiotics] Chap. 3.
- 6.
According to the qualification rule, every argument is a symbol.
- 7.
See: Gorl.Semiotics, Chap. 3.
- 8.
By implication, they also make clear to which persons, etc. the terms and conditions of the agreement are not applicable. On text-internal referential-cohesive features (as is the use of demonstrative pronouns), see Kurzon 1986:49–56.
- 9.
See: Gorl.Semiotics, Chap. 3.
- 10.
See further Fisch’s Chapter on “Justice Holmes, the prediction theory of law, and pragmatism”, in which Fisch quotes the following pragmatically-inspired remark on contract, by the famous American legal theoretician: “You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law” (Fisch 1986:8). In a note, Fisch clarifies this sentence by saying that it is “in the astringent traditions of Hobbes, Bentham, and Austin, who were Holmes’s trinity. ‘The light of human minds is perspicuous words, but by exact definitions first snuffed and purged from ambiguity.’ Cf. Chauncey Wright’s nihilism ―’an exorcism of the vague’― and especially James’s 1898 lecture on the ‘shrinkage’ that follows application of the principle of pragmatism” (Fisch 1986:13,n.5).
- 11.
See Jakobson’s views on intersemiotic translation as seen from a Peircean viewpoint.
- 12.
- 13.
More on equivalence in Chap. 9.
- 14.
Austin dubbed this kind of infelicity a “hitch”. See Austin 1962:36–37.
- 15.
- 16.
- 17.
- 18.
Searle (1976) previously identified five basic kinds of illocutionary acts: “representatives”, “directives”, “commissives”, “expressives”, and “declarations”, besides a subclass, “representative declarations”. All of these speech-acts involve one speaker.
- 19.
Directives are, according to Searle (1976:11), attempts “by the speaker to get the hearer to do something”. This includes suggesting, proposing, ordering, and commanding to do something. Commissives are “those illocutionary acts whose point is to commit the speaker…to some future course of action” (Searle 1976:11). This includes promising, guaranteeing, and solemnly vowing to do something.
- 20.
In Jakobson’s semiotic terminology (as put forth in his famous 1960 essay), a contract would be a form of verbal communication involving an addresser and an addressee who exchange a message in which the primary functions are referential (emphasizing the cognitive, informational aspect of language) and conative (oriented toward the addressee, indicating what he or she must do).
- 21.
See notes 5 and 6 above.
- 22.
- 23.
In my project Reading the Signs: A Peirce-Based Text Semiotics (in progress) I examine the concept of text in detail.
- 24.
Every assertion includes, of course, a proposition.
- 25.
See also, e.g., the following quotation: “If a man desires to assert anything very solemnly, he takes such steps as will enable him to go before a magistrate or notary and take a binding oath to it. Taking an oath is not mainly an event of the nature of a setting forth, Vorstellung, or representing. It is not merely saying, but is doing. The law, I believe, calls it an ‘act’. At any rate, it would be followed by very real effects, in case the substance of what is asserted should be proved untrue” (CP:5.546,c.1908).
- 26.
This corresponds to Wittgenstein’s notion of “forms of life”. See for this Gorl.Semiotics, Chap. 5, especially the section on “Culture”.
- 27.
In conversation, acoustic and optic messages (such as eye contact and verbal forms of feedback) broadcast wittingly or unwittingly, allow the interlocutors to monitor whether communication is succeeding or not. In written communication such as direct clues about mutual agreement are largely absent; consequently, misunderstanding and conflicts can easily arise. Following Greimas and Courtés (1979:70; here quoted from the English translation, 1982:59) (who again apply Jakobson’s well-known 1960 notion), ‘[i]t is indeed necessary to recognize, hidden under the contract, this ‘phatic communication’ which constitutes the necessary and preliminary undergirding for any communication and which seems to involve both a tension (a well-disposed or mistrustful expectation) and a relaxing (as a kind of response to the expectation)”.
- 28.
- 29.
Gorl.Semiotics, Chap. 9, contains a more detailed account of Peirce’s view on equivalence.
- 30.
Analogously, there exists an infinite number of language-games. The three-way affinities between Wittgenstein’s doctrine of language-games, speech-act theory, and Peirce’s theory of signs can only be cursorily touched upon here. For the similarities between Peirce and Wittgenstein, see Gorl.Semiotics, Chap. 5, as well as Gorlée (1989a, b).
- 31.
See my article on degeneracy, Gorlée 1990.
- 32.
Fried states that: “It is a truism in the philosophy of language that in interpreting a person’s words we are not guessing at the hidden but determined content of some list of meanings in the speaker’s head. Rather our concerns particularize, render concrete, inchoate meanings… Similarly in contract law there is a vaguely marked boundary between interpreting what was agreed to and interpolating terms to which the parties in all probability would have agreed but did not” (Fried 1980:145,n.12). For one instance, see Wittgenstein’s remarks upon the “connexion between the act of intending and the thing intended” (PI :1:197).
- 33.
In reference to futurity, in his essay on “Practical and theoretical beliefs”, Peirce drew an interesting analogy between constitutional law, the law of contract, and the scope of human thought-action: “Now an ex post facto law is forbidden by the Constitution of the United States of America, but an ex post facto contract is forbidden by the constitution of things. A man cannot promise what the past shall have been, if he tries” (CP:5.543,c.1902).
- 34.
See Chap. 3, particularly the section on Peirce’s pragmati(ci)sm. The pragmatic maxim, in its early (1878) formulation, goes as follows: “Consider what effects that might conceivably have practical bearings, we conceive the object of our conception to have. Then, our conception of these effects is the whole of our conception of the object” (CP:5.402;W 3:266,1878).
- 35.
Compare this to: “What the world was to Adam on the day he opened his eyes to it, before he had drawn any distinctions, or had become conscious of his own existence ―that is first, present, immediate, fresh, new, initiative, original, spontaneous, free, vivid, conscious, and evanescent” (CP:1.357,18890-1891).
- 36.
On Peirce’s dialogic concept of thought and language, see, e.g., MS 1334:45,1905, MS 292:11,c.1906, MS 498:25,1906, and CP:6.338,c.1909.
- 37.
- 38.
For the “sop to Cerberus” as a sign of the general nature of Peirce’s theory of signs, see Fisch 1986:342–344.
- 39.
Despite appearances to the contrary, Peirce’s mentalistic terminology does not contradict his repeated statements that his doctrine of signs is not psychologically based; nor is it at variance with Peirce’s own early work in experimental psychology. This point is driven home by Ransdell “Peirce’s use of mentalistic terminology does not usually indicate a shift to a psychological perspective, because these terms did not bear the meaning for him that they usually bear for the contemporary reader. In his later writings, when psychology was beginning to flourish, Peirce sometimes uses such terms with the awareness that they might be misconstrued, but with the idea that others probably will grasp little of his meaning unless they first understand him psychologistically. The purpose of his special semiotic terminology was that of making it possible to break out of psychologistic stance toward meaning-phenomena. His dilemma ―on the horns of which he impaled himself repeatedly—was that if he defined his terms in a non-psychologistic way no one would understand him at all because his approach was too alien to the prevailing ways of thinking; whereas if he defined them psychologistically his readers might gain some idea, but a badly distorted one. One cannot read Peirce with any real understanding without a grasp of the desperate communicational situation he was in and the effect this had on how he expressed his ideas” (Ransdell 1980:183–184,n.12).
- 40.
Ransdell describes the role (or better, attitude) of what he calls the sign observer in semiosis thus: “… the sign-interpretant process, construed as one in which the observer is trying to observe intelligently, is one which involves strategies and techniques of observation of the signs and their sign actions, and the symbolic sign in particular has to be understood in terms of the appropriate strategy for the observation of it. In fact, it can only be differentiated from nonsymbolic signs with reference to that strategy. Thus while an iconic sign can be defined in terms of de facto qualitative likeness to its object, and an indexical sign in terms of the de facto power of presencing another phenomenal object, the symbolic sign can be defined only relative to how it is to be treated or regarded by the sign observer (interpreter, reader, audience). Its unique sign value as symbolic is wholly dependent upon its being treated in a certain way by the intelligent sign observer in the observational process. (This is a shorthand way of speaking: it does not mean that we must introduce an external mind as an independent factor; it means rather that a certain reflexive operation must be introduced into the analysis of the sign-interpretation sequence whenever a symbolic sign as such is supposed to occur” (Ransdell 1980:175),
- 41.
On the hand-written manuscript page, this is immediately followed by Peirce’s exclamation, “Enough of the italics!” (MS 318:207,1907).
- 42.
These terms are used here metaphorically, both in a temporal and a logical sense.
- 43.
The subject of translation as a perlocutionary and/or illocutionary speech-act is addressed in van den Broeck 1989.
- 44.
In actual translation practice there will be a great deal of overlapping.
- 45.
See also Gorl.Semiotics, Chap. 4, particularly its section on “Decision-tree vs. associative network”. I also address this issue in my article on “Symbolic argument and beyond: A Peircean view on structuralist thought” (Gorlée 1992b).
- 46.
This is a unilateral promise, not a unilateral contract (such as a gift or a will). While all contracts are rooted in promise, the reverse is not true. See also the interesting parallelism with Wittgenstein’s example of private experience: “Why can’t my right hand give my left hand money? ― My right hand can put it into my left hand. My right hand can write a deed of gift and my left hand a receipt. ― But the further practical consequences would not be those of a gift. When the left hand has taken the money from the right, etc., we shall ask: ‘Well, and what of it?’ ” (PI:1:268). Not coincidentally, Wittgenstein’s “further practical consequences” correspond to the “effects that might conceivably have practical bearings” (CP:5.402;W3:266,1878) in Peirce’s pragmatic maxim.
- 47.
The translational contract is as much a pseudocontract as the following: “You say to yourself with great force, feeling, and seriousness that you commit yourself to make a thousand-dollar domination to your local classical music station. Surely there is something odd in saying that you have promised to do that. To whom have you promised? Perhaps to God ―but this just makes the point that a personal promise must be posited, a promise who holds the reins of the obligation. Have you promised to yourself then? If to yourself, then you are free to release yourself in the same way that any other promise may. When it comes time for performance you may release yourself on whatever grounds would have been morally sufficient for not making a contribution at that (later) time in the absence of a promise. A promise to oneself adds nothing to the moral grounds for making the contribution absent the promise” (Fried 1981:42).
- 48.
As regards this, see Ransdell’s cautionary remark, “Do not construe the term intentional as equivalent to or as implying reflective or self-conscious” (Ransdell 1980:151).
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Gorlée, D.L. (2015). Obligations I: Quid pro quo: Contractual Semiosis and Translation. In: Broekman, J., Catá Backer, L. (eds) Signs In Law - A Source Book. Springer, Cham. https://doi.org/10.1007/978-3-319-09837-1_27
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