Abstract
This chapter considers the occurrence in statutes and codes of law of conversational implicatures, and their use in judges’ interpretation. The question is discussed after a textual analysis of some provisions from the Italian Civil Code and of a subsection of the US Code framed by their interpretations in the two legal communities. The analysis shows that statutes often suggest a disjunction of conversational implicatures from which interpreters choose the one that best suits their interests, namely, in the case of judges, the one that settles the questions at issue. Conversational implicatures in normative texts have a normative stance. They are possible nuances of meaning from which legislators, acting as a collective agency, more or less consciously authorize interpreters to choose, in order to build their interpretation. The peculiar normative status of implicatures in statutes and the possibility of exploiting them in legal interpretation rest on the fact that the legislature and judges run a particular kind of conversation extended in time and mediated by texts which they respectively produce and interpret, following minimal conversational maxims that they know their interlocutors follow as well.
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Notes
- 1.
Marmor considers legal interpreters all the addressee of the statutes, and then courts, citizens, lawyers, etc. Here, I address only the question of whether and how judges may speculate on conversational implicatures.
- 2.
For an updated synthesis of the debate prompted by Marmor, see Morra and Pasa (2015).
- 3.
These maxims are presumptions about utterances that listeners rely on and speakers exploit in communication. In cooperative exchanges of information, Grice argued, parties to conversation are guided by expectations of informativeness, truthfulness, relevance, and manner of the utterance they process. When the literal meaning of the utterance does not fulfil them, hearers are entitled to assume that the speaker intended them to inferentially enrich the meaning, relying on the presumption that she did not say what she believed to be false, that she made her contribution relevant and neither less nor more informative than was required for the purposes of the exchange, and that she avoided obscurity of expression, ambiguities, and unnecessary prolixity, and was orderly.
- 4.
In common law, it is usual to distinguish amongst textual canons of interpretation, which instruct judges to prefer certain interpretations based on the textual structure of the statute and represent everyday syntax and certain assumptions about how legislatures and legislators employ language (such as noscitur a sociis, ejusdem generis, etc.); substantive canons of interpretation, which instruct judges to prefer certain interpretations based on social and political values, namely on assumptions about the probable intent of legislators reflecting a public policy preference (rule of lenity, that directs a court faced with an ambiguous criminal statute suggesting multiple interpretations to choose the interpretation most favourable to the defendant, avoidance of abrogation of state sovereignty, etc.); deference canons, which instruct the court to defer to the interpretation of another institution; cf. Jaffe 2009, p. 306.
- 5.
Butler (2015; this volume) underlines that for Marmor, acts of legislation are a paradigmatic instance of language use in law, but judicial decision, at least in legal systems founded upon common law traditions, is a much more central example of legal speech.
- 6.
Preleggi al Codice Civile Italiano, art. 12: ‘Nell'applicare la legge non si può ad essa attribuire altro senso che quello fatto palese dal significato proprio delle parole secondo la connessione di esse, e dalla intenzione del legislatore’.
- 7.
I.C.C., art. 107: ‘Nel giorno indicato dalle parti l’ufficiale dello stato civile […] riceve da ciascuna delle parti personalmente, l'una dopo l’altra, la dichiarazione che esse si vogliono prendere rispettivamente in marito e in moglie, e di seguito dichiara che esse sono unite in matrimonio’.
- 8.
For instance, the U.S.C. Chapter 1 § 7 says ‘in determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife’.
- 9.
For further examples of conversational implicatures in statutes, see Morra (2015).
- 10.
For instance, § 924(b)(B)(ii) says that the person who sold a handgun to a juvenile knowing that he or she intended to use it in the commission of a crime of violence ‘shall be fined under this title, imprisoned not more than 10 years, or both’.
- 11.
If the phrase is paraphrased as ‘during and in relation to any crime of violence or during and in relation to any drug-trafficking crime’ (which sounds reasonable; cf. Zimmermann 2000), the ‘or’ could have two readings (either as inclusive—here, ‘during A or during B or during both’—or as exclusive—here, ‘during A or during B but not during both’), thus suggesting two different implicatures to interpreters. Adopting the first reading, defendants who in the same circumstance commit both a crime of violence and a drug-trafficking crime would deserve only one minimum mandatory sentence for the possession or use of the firearm during both crimes. This interpretation both adheres to the standard semantic meaning of ‘or’ and respects the default status interpreters in ordinary conversations seem to assign to it (Chevallier et al. 2008); furthermore, it sounds reasonable when the mere possession of a firearm is contested. On the contrary, if in accord with statutory style the disjunction is read as exclusive, our defendants would deserve no minimum mandatory sentence, a clearly absurd outcome.
- 12.
- 13.
Another instance of ‘overinformative’ wording in this statute is the clarification ‘in furtherance of such crime’ before ‘possesses a firearm’, superfluous given the previous proviso ‘during and in relation to’, that already made clear that only who possesses a firearm in relation to a crime for which she/he is indicted deserves the minimum mandatory sentence (cf. a). The text probably echoes the concern of part of the legislature that the policy of stopping the practice of having firearms while committing the crimes the statute refers to could interfere with the right protected by the Second Amendment to the US Constitution concerning possessing, keeping, or bearing a firearm unconnected to service in a militia and using it for traditionally lawful purposes, such as self-defence.
- 14.
In other words, in these contexts, Gricean maxims may be thought of as mainly aimed at understanding the intention of the speaker, because these kind of exchanges are acts of communication that succeed ‘if, and only if the hearer recognizes [the speaker’s] intention’ (Marmor 2005, p. 21).
- 15.
Even the Gricean maxims are potentially in conflict with each other and give opposite results in some cases.
- 16.
The implicature mechanism works also outside ‘a realm of speech that is largely cooperative’ (Butler, this volume).
- 17.
As Neale (2007, p. 51) says, ‘a statute is treated—not by choice, but because there is no alternative if the concept of a statute is to be intelligible—as if it were a purposive statement made by a person or a group of persons’.
- 18.
For Chiassoni (1999, p. 95), legal interpretation is ‘a standard reinterpretative game: a game where the interpretive process may be conceived as a two-stages process, characterised by interpreters’ bound inference with the outcome of the first-interpretation stage’. ‘The second stage [of interpretation] should be understood as a complex, multilayered, or multiple-stages stage, where interpreters do apply in turn to the same sentence several interpretive criteria, or the same criteria repeatedly, and resort to criteria-ordering and outcomes-ordering rules, if any, until they reach an outcome they deem, at once, viable and satisfactory’ (Chiassoni 1999, p. 91).
- 19.
This two-stage model of (legal) interpretation differs from that of Marmor, which distinguishes between an understanding stage and an interpretive stage. For Marmor, there are ‘easy cases’ where the law can be simply understood, and applied straightforwardly, and ‘hard cases’, where the issue is not determined by the existing legal standards. Understanding is considered as an unreflective process the outcome of which is determined by linguistic rules, and interpretation proves necessary only when the (simple) understanding of a sentence does not point to a determinate meaning. In the approach endorsed here, easy or clear cases are those cases for which the first interpretation proves sufficient: a second interpretation proves not necessary, since the outcome of the first one is not contested.
- 20.
As Butler (this volume) says, for Marmor, the basic idea to investigate is where and when a ‘pragmatic enrichment’ of given syntax and semantics could be taken to form, or not to form, part of what is actually determined by legal expressions. For Marmor, ‘what a speaker says on the occasion of speech is the content which is determined by the syntax and semantics of the expression uttered’ (Marmor 2008, p. 425).
References
Butler, Brian. E. 2015. Transparency and context in legal communication: Pragmatics and legal interpretation. In Interdisciplinary studies in pragmatics, culture and society, eds. Alessandro Capone and Jacob L. Mey. 517–535. Dordrecht: Springer. (this volume)
Caterina, Raffaele, and Lelio Lantella. 2011. Il diritto che non c’è. Rivista di diritto civile 57 (4): 477–489.
Chevallier, Coralie, Ira Noveck, Lewis Bott, Valentina Lanzetti, Tatiana Nazir, and Dan Sperber. 2008. Making disjunctions exclusive. Quarterly Journal of Experimental Psychology 61 (11): 1741–1760.
Chiassoni, Pierluigi. 1999. Interpretive games: Statutory construction through Gricean eyes. In Analisi e diritto 1999. Ricerche di giurisprudenza analitica, ed. Paolo Comanducci and Riccardo Guastini, 79–99. Turin: Giappichelli.
Dascal, Marcelo. 2003. Interpretation and Understanding. Amsterdam: John Benjamins.
Eskridge, William N. Jr., Philip P. Frickley, and Elizabeth Garrett. 2006. Legislation and statutory interpretation. 2nd ed. New York: Foundation Press.
Grice, Herbert Paul. 1989. Logic and conversation [1967]. In Studies in the Way of Words, 22–40. Cambridge: Harvard University Press.
Guastini, Riccardo. 2004. L’interpretazione dei documenti normativi. Milan: Giuffrè.
Jaffe, Peter. 2009. Varieties of Textualism: Unit of Analysis and Idiom in the Interpretation of 18 U.S.C. Section 924(c). Georgetown Journal of Law & Public Policy 7:305–331.
Marmor, Andrei. 2005. Interpretation and Legal Theory, (revised second edition). Oxford: Hart Publishing.
Marmor, Andrei. 2008. The pragmatics of legal language. Ratio Iuris 21 (4): 423–52.
Morra, Lucia. 2011. Implicature conversazionali nei testi di legge. Esercizi filosofici 6 (1): 214–231.
Morra, Lucia. 2010. New models for language understanding and the cognitive approach to legal metaphors. International Journal for the Semiotics of Law 23 (4): 387–405.
Morra, Lucia. 2015. Genitorialità californiana. Analisi testuale della section 7601 del Family Code della California. In Questioni di genere nel diritto: impliciti e crittotipi, eds. Lucia Morra and Barbara Pasa, 181–200. Turin: Giappichelli.Morra, Lucia, and Barbara Pasa. 2015. Diritto tacito, diritto implicito e questioni di genere nei testi normativi. In Questioni di genere nel diritto: impliciti e crittotipi, eds. Lucia Morra and Barbara Pasa, 1–11. Turin: Giappichelli.
Neale, Stephen. 2007. On location. In Situating semantics: Essays in honor of John Perry, eds. Michael O’ Rourke and Corey Washington, 251–393. Cambridge: MIT Press.
Poggi, Francesca. 2008. Semantics, pragmatics, and interpretation: a critical reading of some of Marmor’s Theses. In Analisi e diritto 2007. Ricerche di giurisprudenza analitica, ed. Paolo Comanducci and Riccardo Guastini, 159–178. Turin: Giappichelli.
Poggi, Francesca. 2011. Law and conversational implicatures. International Journal for the Semiotics of Law 24 (1): 21–40.
Soames, Scott. 2009. Interpreting legal texts: What is, and what is not, special about the law. In Philosophical Essays. 1: Natural language: What it means and how we use it, 403–424. Princeton: Princeton University Press.
Solan, Lawrence M. 2005. The new textualists’ new text. Loyola of Los Angeles Law Review 38:2027–62.
Saul, Jennifer M. 2002. Speaker meaning, what is said and what is implicated. Noûs 36 (2): 228–248.
Sbisà, Marina. 2007. Detto non detto. Le forme della comunicazione implicita. Roma & Bari: Laterza.
Zimmermann, Thomas E. 2000. Free choice disjunction and epistemic possibility. Natural Language Semantics 8:255–290.
Acknowledgment
I would like to thank Robyn Carston, Raffaele Caterina, and Francesca Poggi for their helpful comments and suggestions.
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Morra, L. (2016). Conversational Implicatures in Normative Texts. In: Capone, A., Mey, J. (eds) Interdisciplinary Studies in Pragmatics, Culture and Society. Perspectives in Pragmatics, Philosophy & Psychology, vol 4. Springer, Cham. https://doi.org/10.1007/978-3-319-12616-6_21
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