Interpreting the content of the law is not limited to what a relevant lawmaker utters. This paper examines the extent to which implied and implicit content is part of the law, and specifically whether the Gricean concept of conversational implicature is relevant in determining the content of law. Recent work has focused on how this question relates to acts of legislation. This paper extends the analysis to case law and departs from the literature on several key issues. The paper's argument (...) is based upon two points: Precedent-setting judicial opinions may consist of multiple conversations, of which some entail opposing implicata, and if a particular precedent-setting judicial opinion consists of multiple conversations, of which some entail opposing implicata, then no meaningful conversational implicatum is part of the content of that particular precedent-setting opinion. Nevertheless, the paper's conclusion leaves open the prospect of gleaning something in between conversational implicature and what is literally said, namely, conversational impliciture. (shrink)

Scott Soames argues that consideration of the practice of legal judgement gives us good reason to favor the partial-definition/context-sensitive theory of vagueness against epistemicism. Despite the fact that the value of power-delegation through vagueness is evidenced in practice, Soames says, epistemicism cannot account for it theoretically, while the partial-definition/context-sensitive theory is capable of it. In this paper, I examine the two possible arguments against epistemicism that can be extracted from Soames’s account: (i) an argument based on unknown obligations, and (ii) (...) an argument based on power-delegation through vagueness. The first argument tries to convince us that, as based on epistemicism, the law has already decided the borderline cases, so that judges have obligatory decisions even in such cases: therefore epistemicism is inconsistent with the discretion of judges in borderline cases. I show that even if we sympathize with Soames’s intuitions concerning the legal practice, the argument he offers is not conclusive since it is either invalid, unsound, or paradoxical. The second argument holds that only the gaps which the partial-definition/context-sensitive theory predicts give judges the possibility of lawmaking in borderline cases. However, by categorizing the vague laws as imperfect laws, the judges can claim the right of lawmaking without any need to refer to gaps in the law. By neutralizing these arguments, I argue that epistemicism is able to explain the phenomena just as well as the partial-definition/context-sensitive theory. (shrink)

© The Author 2018. Published by Oxford University Press on behalf of The Analysis Trust. All rights reserved. For Permissions, please email: [email protected] article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model...Philosophy of law was until recently dominated by abstract investigation into the nature of law, a pursuit known as ‘general jurisprudence’. In this way, it resembled a branch of metaphysics or mid-twentieth century philosophy of mind, seeking to uncover the essential properties (...) of a general and multiply realizable phenomenon. Today, philosophers study law with a sharper focus, and with a more specialized lens – that of ethicists, for example, or epistemologists, or philosophers of action.That is not to say there has been a drop in groundbreaking work in general jurisprudence (see, for... (shrink)

The relationship between legal interpretation and ordinary understanding has raised growing interest among legal scholars. According to the mainstream view, law is a communicative phenomenon and, therefore, the best theory of ordinary communication should also explain and guide legal interpretation. Certainly, it is very controversial which theory is the best one, but, even if there are many candidates, Grice’s conversation model has attracted a lot of attention. Some legal scholars claim that Grice’s theory of conversational maxims should be applied in (...) legal domain, while others dispute this claim. Izabela Skoczeń’s book, Implicatures within legal language provides an original contribution to this ongoing debate. Through an interdisciplinary approach that engages with the most recent advances in Pragmatics as well as with the most popular legal approaches, Skoczeń recasts Grice’s theory of conversational implicatures in order to explain the mechanisms behind court decisions. This review article provides a critical examination of Skoczeń’s book, highlighting its strengths as well as its problems. (shrink)

Presupposition is the semantic-pragmatic phenomenon whereby a statement contains an implicit precondition that must be taken for granted for that statement to be felicitous. This article discusses the role of presupposition in legislative texts, using examples from Swiss constitutional and administrative law. It illustrates how presuppositions are triggered in these texts and what functions they come to serve, placing special emphasis on their constitutive power. It also demonstrates how legislative drafters can distinguish between “good” presuppositions and “bad” presuppositions by weighing (...) their main advantage, conciseness, against their main flaw, reduced transparency. The present study argues that, if employed carefully, presuppositions can be a useful stylistic means to keep legislative texts free from unnecessary clutter that merely elaborates on the obvious; however, it also suggests that, if applied wrongly, presuppositions can camouflage the duties and obligations placed on the subjects of a law and thus impede its accessibility and its efficient and effective implementation. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter’s analogy to Quine’s “naturalization of epistemology” does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter’s replies to my arguments fail. Most significantly, if – contrary to the genuinely naturalistic reading of Quine that I advanced – Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter’s parallel. Given Leiter’s way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists’ indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

This paper analyzes the implications that the linguistic formulation of the marriage provision of the Spanish Constitution of 1978 had for securing the passage in 2005 of Law 13/2005, which legalized same-sex marriage. By claiming that a semantic omission in the original legal text was a marker of distributiveness, SSM supporters aimed to avoid a constitutional amendment, and succeeded in doing so. This linguistic argument, based on implicitness, was instrumental as a subsidiary argument of political moral argumentation. Linguistic meaning therefore (...) contributed decisively to both the legal meaning of the marriage provision and the content of the law. I argue, against some assumptions in the literature stating otherwise, that linguistic meaning should not be dismissed in constitutional interpretation and adjudication. (shrink)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

This article models legal interpretation through argumentation and provides a logical analysis of interpretive arguments, their conflicts, and the resulting indeterminacies. Interpretive arguments are modelled as defeasible inferences, which can be challenged and defeated by counterarguments and be reinstated through further arguments. It is shown what claims are possibly (defensibly) or necessarily (justifiably) supported by the arguments constructible from a given interpretive basis, i.e., a set of interpretive canons coupled with reasons for their application. It is finally established under what (...) conditions such arguments provide single outcomes or rather support alternative interpretive conclusions, thus leading to propositions of law whose truth‐value is undetermined. (shrink)

Communication in archaeological artifacts is usually understood in terms of signs or signals, fleshed out under many guises. The notions of signs or signals that archaeologists employ often draw from Saussurean or Peircean semiotic theories from philosophy and linguistics. In this article I consider the consequences of whether we understand archaeological signals in terms of the Saussurean or Peircean framework, and highlight the fact that archaeologists have not always been precise in their use of relevant philosophical machinery. I will argue (...) further that interpretation of archaeological artifacts should be supplemented by a notion of meaning that goes beyond signals and leads us to understand meaning in terms of a specific creator’s communicative intention—which may deviate from how some signal was ordinarily used. This is what I call speaker meaning, drawing from philosophy of language. I then present specific examples from Egypt circa 1300 BC and 3500 BC and from France circa 12,000 BC that I argue are best treated with the proposed notion of speaker meaning. In the course of this discussion I consider questions that arise for current accounts of signals and metaphor in archaeology. Finally, I conclude by considering how my proposal relates to our understanding of decoration and style, humor, the advent of spoken language, and the nature of art. (shrink)

In a circulated but heretofore unpublished 2001 paper, I argued that Leiter's analogy to Quine's 'naturalization of epistemology' does not do the philosophical work Leiter suggests. I revisit the issues in this new essay. I first show that Leiter's replies to my arguments fail. Most significantly, if — contrary to the genuinely naturalistic reading of Quine that I advanced — Quine is understood as claiming that we have no vantage point from which to address whether belief in scientific theories is (...) ever justified, it would not help Leiter's parallel. Given Leiter's way of drawing the parallel, the analogous position in the legal case would be not the Legal Realists' indeterminacy thesis, but the very different position that we have no vantage point from which to address whether legal decisions can ever be justified. I then go on to address the more important question of whether the indeterminacy thesis, if true, would support any replacement of important legal philosophical questions with empirical ones. Although Ronald Dworkin has argued against the indeterminacy thesis, if he were wrong on this issue, it would not in any way suggest that the questions with which Dworkin is centrally concerned cannot fruitfully be addressed. The indeterminacy thesis is a bone of contention in an ordinary philosophical debate between its proponents and Dworkin. Of course, if the determinacy thesis were true, no one should try to show that it is false, but this triviality lends no support to the kind of replacement proposal that Leiter proposes. I conclude with some general reflections on naturalism and philosophical methodology. (shrink)

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski (1991), between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism (see Manning 2005, 2006), I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary (...) proceedings and legal texts. I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski (1991). I argue that contextualism (of the moderate kind) is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker (also see considerations by Fish 2005); (on contextualism see Dascal and Weizman 1987). I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s (1997) textualism and contextualism (see Manning 2005, 2006 on the divide between textualism and contextualism). (shrink)