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)

On Pragmatics, Exercitive Speech Acts and Pornography Suppose that a suspect being questioned by the police says, "I think I'd better talk to a lawyer." Whether that suspect has invoked her right to an attorney depends on which particular speech act her utterance is. If she is merely thinking aloud about what she ought to do, then she has not invoked that right. If, on the other hand, she has thereby requested a lawyer, she has. Similarly, suppose that an unhappily (...) married man says "I want my wife dead." Whether he has thereby solicited his wife's murder depends on which particular speech act his utterance is. If he is merely describing his desires, he has committed no crime. If, by contrast, he has thereby hired an assassin, he has. As one can see, experts on speech acts have a lot to say about various issues in the law.I believe that expertise in speech act theory also illuminates various issues regarding free speech. In what follows, we consider how speech act theory may apply to certain arguments regarding the free speech status of pornography. In particular, we consider several speech act accounts of MacKinnon's claim that pornography subordinates women, but, before turning to such accounts, some background is offered. (shrink)

The object of this paper is to throw light on the reciprocal exchanges between legal philosophy and the theory of speech acts (as developed by Austin and Searle). The first part concerns the contributions to legal philosophy made by the theory of speech acts with a view to developing new perspectives. The second part deals with the contributions of legal philosophy to speech act theory.

The aim of this paper is to evaluate which context determines the illocutionary force of written or recorded utterances—those involved in written texts, films and images, conceived as recordings that can be seen or heard in different occasions. More precisely, my paper deals with the “metaphysical” or constitutive role of context—as opposed to its epistemic or evidential role: my goal is to determine which context is semantically relevant in order to fix the illocutionary force of a speech act, as distinct (...) from the information the addressee uses to ascertain the semantically relevant context. In particular I will try to assess two different perspectives on this problem, a Conventionalist Perspective and an Intentionalist Perspective. Drawing on the literature on indexicals in written texts and recorded messages, I will argue in favor of the Intentionalist Perspective: the relevant context is the one intended by the speaker. Bringing intentions into the picture, however, requires qualification; in particular, I will distinguish my Weak Intentionalist proposal from a Strong Intentionalist one. I will show that the Weak Intentionalist Perspective is flexible enough to deal with cases of delayed communication, but not so unrestricted as to yield counter-intuitive consequences. (shrink)