Abstract
Recent attacks on textualism are somehow dismissive of the relevance a Gricean approach to normative texts may have. Before entering the issue, the essay sketches some insights made possible by the analysis of presuppositions and implicatures in statutes and opinions. As an example, the techniques established by Sbisà (Detto non detto. Le forme della comunicazione implicita. Roma – Bari, Laterza, 2007) for the retrieval of implicit information carried by texts are applied to a statute, to some opinions related to it, and to its final amendment. Cleared that approaching normative texts in this vein purports no theory of legal interpretation (indeterminacy being an essential feature of implicatures), the discussion focuses on the scope Andrei Marmor (The Language of Law. Oxford Univesity Press, Oxford, 2014) attributes to the Cooperative Principle of conversation. Marmor’s interpretation depends on a deviant reading of the adjective ‘cooperative’ as essentially helpful and sincere, whereas Grice meant his principle to cover both collaborative and strategic communicative exchanges, an established interpretation here confirmed by evidence suggesting that Grice’s elaboration of the Principle was partly inspired by the Hart-Rawls Principle of Fair Play, meant to cover expectations arising in both cooperative and strategic interactions. In Grice’s theory, any communicative exchange includes both a strategic and a collaborative component, their balance depending on the amount of purposes shared by the parties. The maxims in force in the conversation and the degree of collaboration the parties may mutually expect their moves to respect are shaped consequently. In conversations in which the parties pursue mostly aligned purposes, expectation of helpfulness and sincere collaboration is high; as a consequence, the moves available to the parties are different from those allowed in conversations in which the parties mutually know to be striving to reach mostly divergent purposes. Finally, the essay inquiries the general form a cooperative principle governing the textual exchange between the legislature and the courts may have, provided that its concretion in each legal community is modulated by the legal and social history of the community.
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Notes
- 1.
In the legal domain, presuppositions of a text include also specific background knowledge shared by the author and the interpreters that is not activated by lexical elements or syntactical constructions. Contracts, for instance, can presuppose facts not mentioned in the document signed by the parties that nevertheless are inferable from the context in which the contract was stipulated, so it can be argued that the parties cannot have but considered them when they signed the by the parties, but inferable from the context in which the contract was stipulated, so it can be argued that the parties cannot have but considered them when they signed the contract (for another example, Marmor 2014: 104–105, 120). This kind of information can be described as a pragmatic presupposition; more than an implicit, it is something not communicated by the text (Sbisà 2007: 40–44). Here only linguistic presuppositions will be considered, namely presuppositions inferable from the text and its utterance.
- 2.
Sbisà distinguishes between conversational implicatures those that integrate the text with information that makes it abide to the maxims and those that induce an overall change of the sense of the text in order to save its cooperativeness. Statutes may suggest the second kind of implicature when metaphors occur in them (Morra 2010).
- 3.
For a detailed analysis of the actual sec. 7601 FAM and a sketch of its legislative history (Morra 2015a).
- 4.
The sentence has two presuppositions (‘the mother-and-child relationship subsumes only one item’; ‘the father-and-child relationship subsumes only one item’): for the sake of simplicity, they are treated together.
- 5.
The Supreme Court of California attributed Elisa a generic parent-child relationship.
- 6.
In this case, the polysemy of ‘include’ turned in an ambiguity: the word could be interpreted in either one of two ways on the assumption that the speaker intended to use one of the two possible meanings (cfr. Marmor 2014: 121–124).
- 7.
“[W]hat we considered and rejected in Johnson was the argument that a child could have three parents: a father and two mothers” (Elisa B. v. Superior Court: 4).
- 8.
Sharon S. v. Superior Court (31 Cal.4th 417). The Court wrote that “if both parents of an adopted child can be women” there was “no reason why the twins in the present case cannot have two parents, both of whom are women” (Elisa B. v. Superior Court: 8). In the concurring opinion, J. Kennard wrote that the decision of the court avoided also discrimination between men and women: “if a nonbiological father can by his conduct meet the statutory definition of a presumed father [In re Nicholas H.] then by parity of reasoning a nonbiological mother can become a presumed mother” (Elisa B. v. Superior Court, concurring opinion).
- 9.
In that lapse of time, not only California ruled homosexual marriage with consequent adjustments in the FAM: several holdings recognised as natural parent of a child a man/woman of the same sex of the recognised parent.
- 10.
After Kuhn’s work (1962) some jurists consider legal communities as endorsing different legal paradigms (programs or traditions of research in Imre Lakatos’ and Larry Laudan’s terms respectively) (among others, Ziegler 1988; de Vries 2013). Kuhn described scientific paradigms as disciplinary matrix determined by beliefs, values, laws, theories, applications, techniques, tools that a scientific community has more or less consciously decided to use in order to master a given conceptual domain. The paradigm focuses the attention of the scientists to problems for which it can provide a solution and sets restrictions for further development of the science they practice.
- 11.
Namely, either as belonging to the core of the paradigm or as part of the ‘protective belt’ of auxiliary hypothesis that shield the core, and at this purpose can be dismissed, loosened or modified.
- 12.
In order to protect the best interest of the child, California (that dismissed the rule of the heterosexuality of the married couple) modified the implicit rules related to the number of parents and to the heterosexuality of parentage, but still holds as indisputable the impossibility for a child to have more than one mother and more than one father. On the contrary, the Italian legislature has not opened marriage to same-sex couples, and, while this essay undergoes the publication process, it debates the possibility of making available a new institution for them: in a recent adjudication, the best interest of the child of two lesbians married and divorced in Spain was protected ruling the transcription of the child’s birth certificate that describes it as having two mothers, a possibility that the trial court had argued was contrary to the public order (Corte d’Appello Torino, sez. famiglia, decreto 29.10.2014).
- 13.
I labelled con-textualistic this approach in (Morra 2015b), a paper I prepared in 2010 for a volume that for complicated editorial reasons was published years later. Now I think that the label can be somehow misleading.
- 14.
As regards indeterminacy of implicatures, Walton (2002: 190) wrote that it “is a vital part of the legal process of law making and law interpretation that is the basis of the most significant aspects of legal reasoning”.
- 15.
The continental legal tradition recognises four main arguments of interpretation: literal, historical, systematic, teleological. In common law systems several canons of argumentation are accepted. In the U.S. legal system, there are three main schools of thought on what criteria should be used in interpreting the Constitution (originalism, structuralism; nonoriginalist), and three main schools about statutory interpretation (textualism, intentionalism, purposivism).
- 16.
“Much legal argumentation turns on […] how words and phrases should be interpreted in relation to the specifics of a case” (Walton 2002: 2–4. 71). Marmor holds pragmatic enrichment in statutory law as an infrequent phenomenon, necessary only when the law cannot be simply understood through an unreflective process the outcome of which is determined by linguistic rules (Marmor 2014: 108–109). On the contrary, the approach here endorsed distinguishes a further phase of legal interpretation necessary when the ‘standard’ meaning of a statute is disputed and in which interpreters strive to make out of its text a different or more precise meaning, and in which distinguishing between what it says and what it implies is important to best explore limits and possibilities of pragmatic enrichment (Morra 2015b).
- 17.
“The strategic nature of legal communication” “casts some doubt about the reliability of implicated content in statutory law” (Marmor 2014: 7, 35). “If we assume that the conversation is strategic, rather than fully cooperative, then the norms that govern [it] become somewhat questionable, and, in any case, the determination of what would count as content that has been implicated by a given utterance becomes very uncertain” (ibid: 128).
- 18.
“The content that is said or asserted by a speech act partly depends on its reasonable uptake. Assertive content, on this view (that I share), must be defined objectively as the kind of content that a reasonable hearer, with full knowledge of the contextual background of speech, would understand the speaker to have intended to convey, given what the speaker expressed, the relevant contextual knowledge, and the relevant conversational norms that apply. The objective conception of assertive content points out for us that there is some normative element at work” (Marmor 2014:19–22).
- 19.
- 20.
“Potentially, [the Principle] allows the speaker to make his utterance harder, rather than easier, to interpret: we can omit information or present a non-literal utterance, and expect the Hearer to do the extra work necessary to interpret it” (Davies 2000: 3).
- 21.
Introducing the Cooperative Principle, Grice says: “Our talk exchanges do not normally consist of a succession of disconnected remarks, and would not be rational if they did. They are, characteristically, to some degree at least, cooperative efforts; and each participant recognizes in them, in some extent, a common purpose or set of purposes, or at least a mutually accepted direction. This purpose or direction may be fixed from the start […], or it may evolve during the exchange; it may be fairly definite, or it may be so indefinite as to leave very considerable latitude to the participants. […]. But at each stage, some possible conversational moves would be excluded as conversationally unsuitable. We might then formulate a rough general principle which participants will be expected (ceteris paribus) to observe.” (Grice 1967: 26). Later on, Grice considered mutual attribution of rationality as a better description of the motivation for the maxims than is ‘cooperation’. Following a set of rules of conversation in pursuit of particular communicative ends, speakers do no more than behave rationally in relations to the aims of a conversation, and cooperation (in the technical sense) is nothing more than the necessary outcome from the application of reason to the process of discursive talk (Chapman 2005: 157–184).
- 22.
Mario Ricciardi suggested me this line of research. Hart was part of the group of discussion that met once a week, from 1937 for about 2 years, in the rooms of Isaiah Berlin in All Souls College. After the war, he taught philosophy, and in 1946 Berlin left him the chair of logic, epistemology and ethics. Appointed Professor of Jurisprudence in 1952, Hart kept on attending Austin Saturday Morning meetings, of which he was one of the organizers, and, later on, the Play Group sessions organized by Grice (Ricciardi 2008: chapter 2; Chapman 2005: 42).
- 23.
In 1963 Bruce Aune attended for 2 months the Play Group sessions. He recalls that they “generally discussed recent journal articles (one was Rawls’ “Justice as Fairness”)” (Aune 2011: 41–42). In 1952/1953 Rawls attended both the lessons of Hart, Berlin and Grice and Austin’s meetings.
- 24.
In Marmor’s words, applying Gricean techniques to normative texts induces a modification of “the tools borrowed from philosophy of language” in “the light of the unique context that constitutes communication in law” (Marmor 2014: 9), a point already touched by Sinclair (1985), Miller (1990) and finally Walton (2002: 156).
- 25.
Marmor (2014:18): “when legislators vote for approving a certain resolution, they express the intention to communicate the content of the resolution as the official decision of the institution in question”.
- 26.
“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” (Neale 2007: 51).
- 27.
“The debate between various theories of interpretation is mostly about the level of cooperation that should be practiced between the legislature and the courts. Purposivism and intentionalism purport to be guided by a strong cooperative principle, whereby the role of the courts in interpreting the laws is seen as continuous with the legislative process, aiming to give effect to the policy goals that the legislature strove to achieve. Textualism rejects, on moral-political grounds, this strong collaborative principle” holding that “the role of judges is not to complete the project that the legislature has started, so to speak, but to implement what the legislature ordered” (Marmor 2014: 130).
- 28.
Legal texts have a ‘pre-operative’ content that may include arrays of implicatures narrowed down by the context of interpretation. In civil law systems, courts cannot change the pre-operative content of statutes, because their choosing one of the implicature does not impede in other adjudications the activation of the others: in the American system of law, by contrast, judicial opinions are primary sources of law and may change the pre-operative content of law until an overruling proves justified.
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Morra, L. (2016). Widening the Gricean Picture to Strategic Exchanges. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_10
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