Law and Language

Reasoning by default is a relevant aspect of everyday life that has traditionally attracted the attention of many fields of research, from psychology to the philosophy of logic, from economics to artificial intelligence. Also in the field of law, default reasoning is widely used by lawyers, judges and other legal decision-makers. In this paper, a philosopher of language (Carlo Penco) and a philosopher of law (Damiano Canale) attempt to explore some uses of default reasoning that are scarcely considered by legal (...) theory. In particular, the dialogue dwells on the notion of literal meaning, witness testimony, and the problem of disagreement among experts in legal proceedings. The paper is intended as a sort of brain storming useful to identify new lines of research straddling philosophy of law, cognitive psychology and philosophy of language. (shrink)

It is commonplace to observe that digital technologies facilitate our access to information on a scale unimaginable in previous eras, leading many to call this the “Information Age.” The vaunted advantages of unprecedented data flow obscure a dark corollary: the more modes of engaging with data are available to a people, the more modes are available for manipulating them. Whether through social media, blogs, email, newspaper headlines, or doctored images and videos, the public is indeed bombarded by information, and much (...) of it is misleading or outright false. Much of it, in fact, is propaganda. As the methods for manipulating mass audiences continue to multiply, a clear understanding of the concept of propaganda has never been more relevant. -/- This Article constructs a precise, novel account of propaganda, incorporating notable scholarly insights into the concept as well as the overlooked lessons of the law’s fragmented efforts to regulate it. To bring this new theoretical framework into focus and demonstrate its importance in the Information Age, the Article connects the underlying theory to contemporary communications practices, many of which are enhanced by the availability of new technology. Notably, in doing so, the Article also develops the first systematic account of political gaslighting, which properly understood (and counterintuitively, perhaps) constitutes a form of propaganda. (shrink)

In this paper, we intend to explore the possible influences of legislative prose in the Anaximander’s cosmological prose construction, who would have been, according to Themistius, “the first Greek who dared to expose a written discourse about nature” (ἐθάρρησε πρῶτος ὧν ἴσμεν Ἑλλήνων λόγον ἐξενεγκεῖν περὶ φύσεως συγγεγραμμένον, Or. 26 p. 383 = DK12A7). Our aim is to clarify which notions of nature and justice are assumed in its emergent cosmology, considering that, at least from the lexical point of view, (...) it seems strongly suggestive to be undefined the barriers between the legal and cosmic order, between the Human and the Natural. Indeed, this is what the peripatetic tradition seems to suggest by judging Anaximander’s language extremely poetic (ποιητικωτέροις οὕτως ὀνόμασιν αὐτὰ λέγων), since he would use legal terms (διδόναι αὐτὰ δίκην καὶ τίσιν ἀλλήλοις τῆς ἀδικίας) to explain the natural processes of generation and corruption (ἡ γένεσίς ἐστι τοῖς οὖσι, καὶ τὴν φθορὰν εἰς ταῦτα γίνεσθαι, Simpl. in Phys. 24. 13–25 = DK12B1). ——— Objetivamos neste artigo explorar as possíveis influências da prosa legislativa na constituição da prosa cosmológica de Anaximandro de Mileto, que teria sido, segundo Temístio, “o primeiro grego que ousou expor um discurso escrito sobre a natureza” (ἐθάρρησε πρῶτος ὧν ἴσμεν Ἑλλήνων λόγον ἐξενεγκεῖν περὶ φύσεως συγγεγραμμένον, Or. 26 p.383 = DK12A7). Visamos aclarar que noções de natureza e de justiça estão sendo pressupostas nessa cosmologia então emergente, considerando que, ao menos do ponto de vista lexical, parece fortemente sugestivo serem indefinidas as barreiras entre a ordem jurídica e a cósmica, entre o âmbito humano e o natural. Com efeito, é o que parece já sugerir a tradição peripatética ao julgar o linguajar de Anaximandro extremamente poético (ποιητικωτέροις οὕτως ὀνόμασιν αὐτὰ λέγων) por o milésio empregar termos considerados do âmbito jurídico (διδόναι αὐτὰ δίκην καὶ τίσιν ἀλλήλοις τῆς ἀδικίας) para explicar os processos ditos naturais de geração e corrupção (ἡ γένεσίς ἐστι τοῖς οὖσι, καὶ τὴν φθορὰν εἰς ταῦτα γίνεσθαι, Simpl. in Phys. 24.13–25 = DK12B1). (shrink)

This paper is in two parts. Part 1 examines the phenomenon of making space as a process involving one or other kind of legal decision-making, for example when a state authority authorizes the creation of a new highway along a certain route or the creation of a new park in a certain location. In cases such as this a new abstract spatial entity comes into existence – the route, the area set aside for the park – followed only later by (...) concordant changes in physical reality. In Part 2 we show that features identified in studying this phenomenon of legal spacemaking can be detected in other spheres of human activity, for example in planning (where spacemaking is projected into the future), and in reasoning about history (where spacemaking is projected back through time). We shall see that these features display themselves in especially complex ways in our everyday use of language, and we conclude by examining the implications of this complexity for attempts to create an artificial intelligence that would enjoy a mastery of language that would be equivalent to that of human beings. (shrink)

This paper argues that the disagreement between positivists and nonpositivists about law is substantive rather than merely verbal, but that the depth and persistence of the disagreement about law, unlike for the case of morality, threatens skepticism about law. The range of considerations that can be brought to bear to help resolve moral disagreements is broader than is the case for law, thus improving the prospects of reconciliation in morality. But the central argument of the paper is that law, unlike (...) morality, is a concept-dependent social kind, in the sense that law cannot exist in a society without someone in that society having the concept of law. Since the existence of the social kind law is largely dependent on the existence of the corresponding concept, when different actors have different concepts, they can end up creating different kinds. Hence, the difference between positivists and nonpositivists is not just a conceptual one but is capable of giving rise to different legal norms. (shrink)

In this paper I argue that textualism is far less attractive as a theory of written law than some of its modern proponents think. For it is not usually sensible to expect the grammatical meaning of a provision to determine its appropriate legal meaning. Factors that are unrelated to grammar in the identification of law (e.g., legal theory, context) do too much of the work. **Draft -- acknowledgments welcome, but please do not cite.**.

Il settantesimo anniversario della Dichiarazione universale dei diritti umani è, senza dubbio, un’importante occasione per riflettere sui diritti umani. In questo breve intervento, propongo una riflessione sul problema concettuale relativo alle disposizioni normative che vengono utilizzate per riconoscere e/o stabilire diritti umani. La domanda può essere posta in questi termini: che tipo di norme esprimono queste disposizioni? Regole, principi, oppure entrambe, a seconda delle circostanze? La risposta a questa domanda implica la soluzione di due distinti problemi. Da un lato, un (...) problema concettuale: che tipo di teoria o di approccio può meglio render conto delle norme sui diritti umani? Quale teoria o approccio meglio si attaglia alla loro struttura, alle loro condizioni, ecc.? Da un altro, un problema assiologico: come dovremmo considerare le norme sui diritti umani, alla luce di una data dottrina o ideologia ritenuta migliore o corretta? In considerazione di ciò, la struttura di questo saggio segue il seguente andamento. Nella sezione 2, vengono effettuate in via preliminare alcune distinzioni concettuali, pregiudiziali rispetto alla tematica affrontata. La sezione 3 offre risposta alla domanda di cui sopra, sia sotto il profilo concettuale sia sotto il profilo assiologico. La sezione 4 è dedicata al possibile modo di risolvere le tensioni identificate nella sezione precedente. Infine, l’ultima sezione contiene una breve conclusione sulle riflessioni precedenti. (shrink)

In der Wissenschaft wie im alltaglichen Leben tritt oft die Frage vor uns: was ist die Bedeutung dieses oder jenes Ausdrucks? Eine erschöpfende Antwort auch nur in einem Einzelfalle ist jedoch unmöglich, ehe die dahinter verborgene allgemeinere prinzipielle Frage gelost ist: was ist überhaupt Bedeutung, was wird darunter verstanden resp. was ist darunter zu verstehen? Die Sprachphilosophie und Sprachforschung der letzten Zeit hat sich reichlich damit abgemüht, den Begriff Bedeutung in seinem Wesen zu erfassen. Jedoch sind wir der Meinung, dass (...) die Sache noch nicht in genügendem Masse allseitig geklärt worden ist. (shrink)

Hay una profundidad en la letra, entre las letras, que solo la lectura es capaz de enunciar. Enunciación que evoca la pregunta por la violencia de la palabra misma, su ambición de significar. La letra, en cambio, es un acontecer sutil. No hay escritor ni lector que pueda estrecharla, reducirla, asfixiar su siempre prosódica pulsión. Hay otros signos que la letra codicia -dice Jabes- signos borrados que el gesto reproduce en lo que nombra. El presente trabajo pretende interrogar la tradición (...) de la interpretación jurídica occidental emprendiendo la tarea de una restauración: la de la lectura midrashica como modo otro de interpretación. Como advierte Legendre, el armazón lógico de nuestros sistemas jurídicos sostenido sobre un derecho romano canónico como su representación histórica se instituyó sobre la marca de un silencio: la represión de cualquier sistema de interpretación disonante, juzgados como contrarios a la Razón por la tradición del derecho romano cristianizado. ¿Cómo leer esta censura? He ahí la pregunta fundamental que porta la institución. (shrink)

An important moral category—dishonest speech—has been overlooked in theoretical ethics despite its importance in legal, political, and everyday social exchanges. Discussion in this area has instead been fixated on a binary debate over the contrast between lying and ‘merely misleading’. Some see lying as a distinctive wrong; others see it as morally equivalent to deliberately omitting relevant truths, falsely insinuating, or any other species of attempted verbal deception. Parties to this debate have missed the relevance to their disagreement of the (...) notion of communicative dishonesty. Communicative dishonesty need not take the form of a lie, yet its wrongness does not reduce to the wrongness of seeking to deceive. This paper therefore proposes a major shift of attention away from the lying/misleading debate and towards the topic of communicative dishonesty. Dishonesty is not a simple notion to define, however. It presupposes a difficult distinction between what is and is not expressed in a given utterance. This differs from the more familiar distinction between what is and is not said, the distinction at the heart of the lying/misleading debate. This paper uses an idea central to speech act theory to characterize dishonesty in terms of the utterer’s communicative intentions, and applies the resulting definition to a variety of contexts. (shrink)

Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequ...

En “The King´s two bodies” Kantorowicz explora la ficción legal de los dos cuerpos del Rey: cuerpo mortal y cuerpo político. Ficción en la cual el rey, constituido como persona ficta, trasciende la temporalidad de cualquier cuerpo individual sobre la idea de “dignitas non moritur”. El presente trabajo pretende abordar la lectura de esa dualidad corporal encarnada en el derecho a través de un doble registro: cuerpo textual y cuerpo imaginario, explorando asimismo cómo el discurso jurídico se construye en el (...) marco de dicha simbología y legitimidad. Instituir lo vivo del texto jurídico no puede hacerse más que sobre el rastro de la semiótica misma. Como señala Legendre, la normatividad produce un “Écrit vivant” en perpetua necesidad de interpretación. Es paradójicamente la batalla por la apertura del texto lo que permite la imagen misma de su continuidad. Una crítica de los montajes vividos, de la instancia de la censura que ata y moviliza el discurso jurídico, provee el fondo de una urgencia: el de la tarea iusfilosófica por venir. (shrink)

La literatura de Kafka no es ciertamente complaciente, obliga al lector a releer una y otra vez. El sentido no está dado allí en el texto sino desplazado, porque la única manera que tiene de acontecer es en lo ausente, en lo inacabado. En diálogo con V. Karam, el presente artículo pretende recorrer parte de esa huella, intentando repensar allí la inasibilidad del tiempo, de la ley y de la interpretación.

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic one. A closer examination shows that it is, in fact, an illocutionary one. (...) In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

The aim of this paper is to retrace the history of genetic patents, analyzing the metaphors used in the public debate, in patent offices, and in courtrooms. I have identified three frames with corresponding metaphor clusters: the first is the industrial frame, built around the idea that DNA is a chemical; the second is the informational frame, assembled around the concept of genetic information; last is the soul frame, based on the idea that DNA is or contains the essence of (...) the individual. (shrink)

¿Qué relación hay entre derecho y lenguaje? Y ¿entre lenguaje y ley? ¿Cómo se inicia la serie de la juridicidad? ¿Qué la posibilita? Una característica hace de lo humano algo aparte de lo vivo: la palabra. El presente trabajo pretende recorrer parte de esta huella, intentando repensar allí la centralidad del lenguaje en la estructuración misma de la juridicidad. Volverse al lenguaje es, en definitiva –como señala P. Sneh– un gesto político.

La Botella de Klein es una figura topológica no orientable que no posee exterior ni interior. Es una superficie que implica un autoatravesamiento: la torsión que conlleva hace que los giros que la rodean se in-viertan después de dar la primera vuelta. Su construcción se gesta a partir de dos bandas de Moebius de torsión diferente pegadas en su borde. Como el sin-fin de las mil y una noches o la escena dentro de la escena, el trazado topológico de la (...) Botella de Klein reabre el enlace de una infinita interrogación: ¿Hay un afuera y un adentro en la interpretación jurídica? Si – como señala Cárcova- un razonable equilibrio permite superar la pretensión de un sentido último y definitivo en hechos y normas sin que ello importe decantar en un radical escepticismo, ¿cuál es el recorrido de esta multiplicidad? ¿Es esta errancia una migración sin orden, o por el contrario -como en los cuentos de Kafka- la apuesta por el desplazamiento del sentido nos habla de la ausencia como posibilidad? El presente trabajo pretende recorrer parte de esta huella inscribiéndose en el marco de una profunda convicción: el derecho merece la posibilidad de su resignificación. Nuevas topologías pueden ciertamente contribuir a este desafío. Desafío que nos interroga como operadores jurídicos pero fundamentalmente nos interroga como comunidad. -/- . (shrink)

The Normative Structure of Responsibility deals with responsibility in legal, moral, and linguistic contexts. The book builds on conceptual analysis and data from everyday language, ethics, and the law in order to defend the thesis that responsibility is fundamentally normative, that is, it cannot be reduced to purely descriptive factors. The book is divided in three parts: the first part draws a conceptual map of various responsibility concepts, conceptions and conditions and their interaction with different kinds of rules; the second (...) part engages with arguments in favour of a descriptive understanding of responsibility based on ethics, neuroscience, and metaphysics and argues against it; the third part investigates the language of responsibility and its use in formal and informal contexts. (shrink)

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...) law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)

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. (shrink)

In this review of Brooke Harrington's edited collection of essays on deception, written by people from different disciplines and giving us a good "status report" on what various disciplines have to say about deception and lying, I reject social psychologist Mark Frank's taxonomy of passive deception, active consensual deception, and active non-consensual deception (active consensual deception is not deception), as well as his definition of deception as "anything that misleads another for some gain" ("for gain" is a reason for engaging (...) in deception, not part of its definition). I also take issue with management professor Guido Mollering's claim that all deception involves a violation of trust. (shrink)

This book examines the legal and moral theory behind the law of evidence and proof, arguing that only by exploring the nature of responsibility in fact-finding can the role and purpose of much of the law be fully understood. Ho argues that the court must not only find the truth to do justice, it must do justice in finding the truth.

The topic of exemplarity has attracted considerable interest in philosophy, legal theory, literary studies and art recently. There is broad consensus that exemplary cases mediate between singular instances and general concepts or norms. The aim of this article is to provide an additional perspective on the logic of exemplarity. First, inspired by Jacques Derrida’s discussion of exemplarity, I shall argue that there is a kind of différance between (singular) examples and (general) exemplars. What an example exemplifies, the exemplarity of the (...) example, eludes any fixed identity and follows a logic of supplement. Second, I shall present the so-called logic of exemplarity. The received paraconsistent view has it that the exemplar of X is an X and, at the same time, is not an X. Inspired by Ludwig Wittgenstein’s discussion of the standard metre, I would like to present an alternative paracomplete view whereby we can say of an exemplar of X neither that it is an X nor that it is not an X. (shrink)

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...) and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

У статті висвітлено особливості мовного законодавства трьох пострадянських країн – України, Грузії та Молдови. Окреслено історичну перспективу мовно-політичного дискурсу з часів розпаду Радянського Союзу. Особливу увагу приділено конституційному затвердженню статусу державних мов, нещодавньо ухваленим чи напрацьованим законам та законопроектам, ролі конституційних судів у регулюванні мовного питання. На додаток, розглянуто специфіку регулювання вжитку мов національних меншин.

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words (...) and other signs in communication. -/- Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning, including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. -/- Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives. -/- Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015). -/- Keywords: Pragmatics, Semiotics, Interpretation, Textualism, Plain Meaning, King v. Burwell, Affordable Care Act, Text, Meaning, Speaker Meaning, Implicature. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

This essay claims that ‘access to justice’ has erroneously been assumed to be synonymous with invisible concepts instead of access to a lawyer’s language. The Paper outlines how a language concerns the relation between signifiers, better known as word-images, on the one hand, with signfieds, better known as concepts, on the other. The signifieds are universal, artificial and empty in content. Taking the Canadian Charter of Rights and Freedoms as an example, officials have assumed that Charter knowledge has involved signifieds (...) (such as rules, principles, doctrines and tests) as if the signifiers were transparent. But any one signifier differs from another signifier without the lawyer ever accessing the invisible signifieds. Ironically, although the lawyer, law professor or law student believes that s/he is studying legal ‘practice’ and although legal knowledge has been considered a matter of signified concepts, the knowledge has really concerned the differentiating relations of signifiers. As a consequence, the moment of accessing the concepts (signifieds) has been forever deferred. ‘Access to justice’ has become access to the special language of signifiers, a language which lawyers alone are privileged to enforce. Turning to the Charter, lawyers claiming to know the special Charter language became indispensable to social life. Even the meaning-constituting human subject became a signifier, better known as ‘the legal person’ defined by Charter rights. Charter language, however, has deferred an access to the invisible concepts such as ‘freedom’ or ‘democracy’, terms in Section of the text. Access to justice’ has become access to the language of the privileged class of lawyers. The lawyer’s language has become a theoretical language in the name of access to justice. And yet, because the theoretical language has been propagated as concerned with ‘practice’, it has been difficult to challenge the social-cultural content of the language of lawyers. (shrink)

Peter Fitzpatrick’s writings prove once and for all that it is possible for a law professor to write in beautiful English. His work also proves once and for all that the dominating tradition of Anglo-American legal philosophy and of law teaching has been barking up the wrong tree: namely, that the philosopher and professional law teachers can understand justice as nested in empty forms, better known as rules, doctrines, principles, policies, and other standards. The more rigorous our analysis or decomposition (...) of the forms, we have believed, the more closely do we access the identity of laws. Justice has been assumed to be a matter of intellectually accessing such analysed forms. Fitzpatrick’s articles and books embody an implicit critique of the analytic view of law and of justice. My entry point into this critique is his preoccupation with Jacques Derrida’s theory of laws as universals and with Derrida’s theory of justice as an inaccessible immediacy or presence in context-specific or concrete experienced events. Each event is experienced in an official’s decision. Such a decision represents what Derrida, Fitzpatrick, and Hegel call ‘individuality’. -/- Derrida’s theory of law presents a conundrum. Derrida misses the possibility that law may exist by virtue of its content rather than its form. Derrida misses this possibility because, heavily influenced by Kant (in Derrida’s theory of law), Derrida associates law with universals. This is so because Kant (and Derrida) are preoccupied with the identity of what counts as a law (lois) rather than with a law’s legitimacy. A universal cannot exist unless it is legitimate, and it is legitimate, I claim, by virtue of its content. In his association of law with universals, Derrida presupposes that legal knowledge exists with reference to a territorial-like boundary. The forms are represented or signified by signs (signifiers) within a boundary of the ultimate form (the state, the nation, or humanity). This ultimate form as a universal, like the discrete rules or forms, lacks socially contingent content. A boundary separates knowable universals from the unknowable world on the exteriority of the boundary. The unknowable world is constituted by concrete events experienced in context-specific circumstances. In his legal theory Derrida hones in upon the decision as the experienced event. In a decision, one is present or immediate with the event. Derrida considers such immediacy as justice. The immediacy, however, can only be represented as a sign (sometimes called a signifier). The sign, in turn, represents an empty signified or form, according to Derrida. Because the immediacy remains a representation rather than a presentation of the experienced event, laws as universals cannot be just. The rupture between the inaccessible immediacy of a decision on the one hand and the represented empty forms on the other is critical to Derrida’s theory of law. -/- I claim that this rupture permeates Derrida’s writings about law because Derrida possesses a territorial-like sense of legal knowledge. I shall argue to this effect as follows. In the first section I shall explain the importance of Fitzpatrick’s exposure of the vacuity of the foundation of the system or structure of universals. In the second section I shall flesh out two elements of Derrida’s legal theory: law as form and the ipseity or concrete event that the form excludes from law. This takes me to the third section, where I shall elaborate how Derrida’s legal theory presupposes knowledge as territorial. I shall argue in the final section that this very sense of territorial knowledge prevents justice from accessing law and law from accessing justice. I conclude with the hint of a very different sense of law, one that draws from experiential knowledge in contradistinction to territorial knowledge. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

What do normative terms like “obligation” mean in legal contexts? On one view, which H.L.A. Hart may have endorsed, “obligation” is ambiguous in moral and legal contexts. On another, which is dominant in jurisprudence, “obligation” has a distinctively moralized meaning in legal contexts. On a third view, which is often endorsed in philosophy of language, “obligation” has a generic meaning in moral and legal con- texts. After making the nature of and disagreements between these views precise, I show how linguistic (...) data militates against both rivals to the generic meaning view, and argue that this has significant implications for jurisprudence. (shrink)

This book shows how research in linguistic pragmatics, philosophy of language, and rhetoric can be connected through argumentation to analyze a recognizably common strategy used in political and everyday conversation, namely the distortion of another’s words in an argumentative exchange. Straw man argumentation refers to the modification of a position by misquoting, misreporting or wrenching the original speaker’s statements from their context in order to attack them more easily or more effectively. Through 63 examples taken from different contexts (including political (...) and forensic discourses and dialogs) and 20 legal cases, the book analyzes the explicit and implicit types of straw man, shows how to assess the correctness of a quote or a report, and illustrates the arguments that can be used for supporting an interpretation and defending against a distortion. The tools of argumentation theory, a discipline aimed at investigating the uses of arguments by combining insights from pragmatics, logic, and communication, are applied to provide an original account of interpretation and reporting, and to describe and illustrate tactics and procedures that can be used and implemented for practical purposes.. This book will appeal to scholars in the fields of political communication, communication in general, argumentation theory, rhetoric and pragmatics, as well as to people working in public speech, speech writing, and discourse analysis. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

By significantly diminishing the role intentions play in communication, in Imagination and Convention Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the (...) non-intentionalist camp, which makes them unique in the contemporary philosophy of language.In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, better reflects the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute; the number of contributions renders the identification of individual intentions impossible, making it badly suited to a Gricean, intention-based analysis. Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language. In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism.” In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages. (shrink)

Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.

Anscombe is usually seen as a critic of “Modern Moral Philosophy.” I attempt a systematic reconstruction and a defense of Anscombe’s positive theory. Anscombe’s metaethics is a hybrid of social constructivism and Aristotelian naturalism. Her three main claims are the following: (1) We cannot trace all duties back to one moral principle; there is more than one source of normativity. (2) Whether I have a certain duty will often be determined by the social practices of my community. For instance, duties (...) imposed by other people’s rights are socially constructed. (3) Whether something constitutes a good, however, will often be determined by human nature—which is not socially constructed. (shrink)

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, (...) held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. -/- While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. -/- My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well. (shrink)

Despite the fact that Aristotle and Frege/Russell differ in how to understand the ambiguity in the meaning of the word “is”, their theories share a common feature: “is” does not have a normative meaning. This paper, however, (I) shows (a) that there is a normative meaning of “is” (and correspondingly a constative meaning of the word “ought”) and (b) that the ambiguity of “is” is itself ambiguous. Furthermore, it proposes (c) a performative criterion for making a distinction between constative and (...) normative “is”. Thereby, (II) a new interpretation of Kant’s critique of the ontological argument (CPR A 598/B626) makes sense: The difference between being as a real predicate and being as a position depends on the difference between “is” as a descriptive and “is” as a normative predicate. (III) The criterion also makes possible a new answer to Leibniz’s and Schelling’s question, “Why is there something rather than nothing?”: The “is” in “there is something” is normative and the question means “Why shall there be something rather than nothing?”. As “there shall be nothing” is self-refuting, the question evokes an ultimate foundation in a practical sense. (shrink)

The very idea of promulgation has been given little to no treatment in the philosophy of law. In this exploratory essay, I introduce three possible theories of promulgation: the ‘no-theory theory’ (which treats promulgation as a matter of particular contexts), the ‘conveyance theory’ (which treats promulgation as a function of intellectual good faith interpreters), and ‘agonistic theory’ (which treats promulgation as indistinguishable from propaganda). I suggest that (at least) three kinds of models are consistent with the theories, and can potentially (...) help us understand when law is successfully promulgated in particular legal contexts: the spread model, the chain model, and the memetic model. I end the paper by comparing the two theories with respect to a case study. Throughout I will show that the conveyance and agonistic theories have a serious advantage over the no-theory theory, in that they allow us to comparatively examine the epistemic weaknesses of diverse theories about the grounding of law on the basis of their contents. (shrink)

In this essay, I (Hereafter: the writer) will attempt to indicate the necessity of a minimalist position on the legal language. Moreover, the writer will transfer this conservative position to legal language in a theocracy and argue that religious legal language in a theocracy is involved Legal Stammer Argument.

The verb to legitimate is often used in political discourse in a way that is prima facie perplexing. To wit, it is often said that an actor legitimates a practice which is officially prohibited in the relevant context – for example, that a worker telling sexist jokes legitimates sex discrimination in the workplace. In order to clarify the meaning of statements like this, and show how they can sometimes be true and informative, we need an explanation of how something that (...) is officially illegitimate can have a kind of ersatz legitimacy conferred on it, and how this can occur even when the actor ‘doing the legitimating’ lacks formal authority. I examine one putative explanation centred around the phenomenon of normalization, and I highlight some advantages that this account has in comparison to an alternative explanation, one that makes reference to the phenomenon of licensed authority. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

How can the law be characterized in a theory of collective intentionality that treats collective intentionality as essentially layered and tries to understand these layers in terms of the structure and the format of the representations involved? And can such a theory of collective intentionality open up new perspectives on the law and shed new light on traditional questions of legal philosophy? As a philosopher of collective intentionality who is new to legal philosophy, I want to begin exploring these questions (...) in this paper. I will try to characterize the law in terms of the layered account of collective intentionality that I have introduced in some earlier writings (Schmitz 2013; 2018). In the light of this account I will then discuss a traditional question in the philosophy of law: the relation between law and morality. I begin by giving a brief sketch of the layered account in the next section. Collective intentionality should be understood in terms of experiencing and representing others as co-subjects, rather than as objects, of intentional states and acts on different layers or levels. I distinguish the nonconceptual layer of the joint sensory-motor-emotional intentionality of joint attention and joint bodily action, the conceptual level of shared we-mode beliefs, intentions, obligations, values, and so on, and the institutional level characterized through role differentiation, positions taken in role-mode, e.g. as a judge or attorney, and writing and other forms of documentation. In the third section I introduce a set of parameters for representations such as their degree of richness, of context-dependence, of density and differentiation of representational role and of durability and stability, which can be used to more precisely distinguish different layers. I also put forward the hypothesis that these properties are connected and tend to cluster, and that higher levels can only function and determine conditions of satisfaction against lower level ones. In the fourth and final section I critically discuss the sharp positivistic separation of morality and the law according to which whether something is a law is completely independent of its moral merits. I argue that this only seems plausible if we take an observational stance towards the law, but not towards morality. When we treat them the same way, it rather appears that the moral attitudes of the co-subjects of a society will determine whether and to what extent they will accept its legal order. I conclude by proposing to think of the law as being itself an institutionalized form of morality. (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R (...) v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)