Pragmatics and Law: Philosophical Perspectives (Perspectives in Pragmatics, Philosophy & Psychology, 7)

This volume highlights important aspects of the complex relationship between common language and legal practice. It hosts an interdisciplinary discussion between cognitive science, philosophy of language and philosophy of law, in which an international group of authors aims to promote, enrich and refine this new debate. Philosophers of law have always shown a keen interest in cognitive science and philosophy of language in order to find tools to solve their problems: recently this interest was reciprocated and scholars from cognitive science and philosophy of language now look to the law as a testing ground for their theses. Using the most sophisticated tools available to pragmatics, sociolinguistics, cognitive sciences and legal theory, an interdisciplinary, international group of authors address questions like: Does legal interpretation differ from ordinary understanding? Is the common pragmatic apparatus appropriate to legal practice? What can pragmatics teach about the concept of law and pervasive legal phenomena such as testimony or legal disagreements? Preface 6 Contents 14 Contributors 16 Law and the Primacy of Pragmatics 18 1 Introduction 19 2 Two Rival Conceptions of Pragmatics 20 3 Conception One: The Primacy of Semantics and Syntax 20 4 Conception Two: The Primacy of Pragmatics 22 5 Behavioral Pragmatics and Law 24 6 Conclusion 29 References 30 Defeasibility and Pragmatic Indeterminacy in Law 31 1 Defeasibility: An Introduction 31 2 Pragmatic Defeasibility 33 3 Forms of Defeasibility in Law 38 4 Conflicting Defeats in Law 43 References 48 Legal Pragmatics 49 1 General and Legal Pragmatics 50 2 The Borrowing of Semiotic Elements 58 3 The Opposition Between Langue and Parole; Natural and Artificial Languages 60 4 Legal Languages as an Intermediate Case 66 5 Conclusion: Legal Language as an Administered Language 72 References 75 The Semantics and Pragmatics of According to the Law 77 1 Introduction 77 2 Law and Fiction 78 3 Law-Making and Fiction-Making as Illocutionary Acts 80 3.1 Lawmaking 80 3.2 Fiction-Making 83 4 Truth in Fiction 84 4.1 Semantic Preamble 85 4.2 Analyses −1 and 0 88 4.3 Implicit Content: Analyses 1 and 2 90 4.4 Impossible Fictions 92 5 Legal Provisions 93 5.1 Deontic Sentences 93 5.2 Legal Fictions 94 5.2.1 Pure Fictions 95 5.2.2 Presumptions 96 5.3 Definitions 96 6 ‘According to the Law’ 97 6.1 Legal Statements 97 6.2 Semantic Features 98 6.2.1 Stipulations 99 6.2.2 Presumptions 99 6.2.3 Impossible Worlds 100 6.3 Pragmatic Aspects 101 References 103 Deep Interpretive Disagreements and Theory of Legal Interpretation 105 1 Sources of Deep Interpretive Disagreements 105 1.1 The Main Theses of the Paper 108 2 A Taxonomy of Legal Disagreements 109 2.1 A Definition of DID 111 2.2 DID and Theory of Meaning 112 2.3 The Objects of DID 114 2.4 DID as Real, Faultless and Unsolvable Disagreements 115 2.5 The Interpreter’s and Legal Philosopher’s Points of View 117 3 Two Paradigmatic Instances of DID 118 3.1 The “Englaro case” 118 3.2 The “Welby case” 120 4 DID Between Ethical Objectivism and Ethical Relativism. The “two baskets theory” 121 4.1 The Expressivist Metaethics 123 4.2 The Objectivist Metaethics 124 4.3 The Relativist Metaethics 126 4.4 Relativism as a “middle way” Between Objectivism and Subjectivism 128 5 The Pragmatically Oriented Theory of Legal Interpretation 129 5.1 Theory of Interpretation Between Contextualism and Relativism 131 References 133 Legal Disagreements and Theories of Reference 136 1 Introduction 137 2 Two Approaches to Reference 138 3 Disagreements and Legal Disagreements 142 4 Disagreements and the New Theory of Reference 145 5 Indeterminacy 150 6 To Conclude 153 References 153 The Role of Pragmatics in (Re)Constructing the Rational Law-Maker 155 1 Introduction 156 2 Pragmatics and Rationality 156 3 Dascal and Wróblewski on the Rational Law-Maker 160 4 Working Out How the Rational Law-Maker Would Decide a Certain Case 166 5 Conclusion: The Rational Law-Maker as a Synthesis of Textualism and Contextualism 168 References 170 Legal Positivism and the Pragmatics of Meaning and Morality 172 1 Introduction 172 2 The Pragmatics of Morality 174 2.1 Ethical Particularism 175 2.2 Moral Particularism and the Law 177 2.3 Dworkinian Principles 179 3 The Pragmatics of Linguistic Meaning 182 3.1 Pragmatic Implicature 183 3.2 Compositionality and Atomist Understanding 186 3.3 The Contextualist Alternative 189 4 Conclusion: Rule-Scepticism and Impressions of Judicial Constraint 191 References 195 Case References 196 What Did You (Legally) Say? Cooperative and Strategic Interactions 198 1 Introduction 198 2 Conversation as a Cooperative Interaction 199 3 Legal Conversation as a Strategic Interaction 201 4 Cooperative Interactions 202 4.1 Cooperative Interactions: Grice 202 4.2 Cooperative Interactions: Neo-Griceans 203 4.3 Cooperative Interactions: Relevance Theory 204 5 Strategic Interactions 206 5.1 Three Strategies 206 5.2 The Legal Domain 208 6 Conclusion 210 References 211 Widening the Gricean Picture to Strategic Exchanges 213 1 Rationally Approaching Implicit Information Embedded in Normative Texts 214 1.1 Applying Pragmatic Tools to Normative Texts: An Example 214 1.2 Discussion of the Example 223 2 Contextualism Without Textualism: Indeterminacy of the Implicated Content 225 3 Defeating Textualism Without Dismissing Gricean Approaches 228 4 The Meaning of ‘Cooperative’ in the Gricean Theory 229 5 Instances of the Cooperative Principles in Collaborative and Strategic Conversations 234 6 General Features of Cooperative Principles Holding in Conversations Between Legislatures and Courts 236 References 240 Grice, the Law and the Linguistic Special Case Thesis 242 1 Grice’s Theory of Conversational Implicatures in a Nutshell 243 2 The Conversational Maxims of Normative Discourse 247 3 Conversational Implicatures and the Speaker’s Intention 249 4 The Nature of the Cooperative Principle 251 5 On the Nature of Legal Practices and the Special Case (Linguistic) Thesis 255 References 257 Materialization in Legal Communication in the Transfering Process 260 1 Defining “Materialization” 260 1.1 Instrumentalization of Law as a Socially Constituted Sign-System 261 1.2 Re-inventing Legal Translation 262 2 Legal Language as a Complex Melting Pot of Intrinsic and Extrinsic Influences 263 2.1 Historical and Social Dimensions 263 2.2 Emergence of the Concepts ‘Law Latin’ and ‘Law French’ 264 3 Ethno-Semantics or Cognitive Legal Anthropology 266 3.1 Cognitive Foundations of Linguistic Space-Time Mapping 266 3.1.1 Anglo-Norman, Old English, Middle English Words 266 3.1.2 Latin Borrowings 267 3.1.3 French Terms 267 3.2 Terminological Case Studies 267 3.2.1 Situational Shifts of the Meaning of the Word “woman” 268 3.2.2 Situational Shifts of the Meaning of the Word “Parliament” 269 4 Legal Translatability as Encompassing Life of History 270 References 272 About the Authors 274 "This volume highlights important aspects of the complex relationship between common language and legal practice. It hosts an interdisciplinary discussion between cognitive science, philosophy of language and philosophy of law, in which an international group of authors aim to promote, enrich and refine this new debate. Philosophers of law have always shown a keen interest in cognitive science and philosophy of language in order to find tools to solve their problems: recently this interest was reciprocated and scholars from cognitive science and philosophy of language now look to the law as a testing ground for their theses. Using the most sophisticated tools available to pragmatics, sociolinguistics, cognitive sciences and legal theory, an interdisciplinary, international group of authors address questions like: Does legal interpretation differ from ordinary understanding? Is the common pragmatic apparatus appropriate to legal practice? What can pragmatics teach about the concept of law and pervasive legal phenomena such as legal indeterminacy or legal disagreements?"- - Springer Front Matter....Pages i-xvi Law and the Primacy of Pragmatics....Pages 1-13 Defeasibility and Pragmatic Indeterminacy in Law....Pages 15-32 Legal Pragmatics....Pages 33-60 The Semantics and Pragmatics of According to the Law ....Pages 61-88 Deep Interpretive Disagreements and Theory of Legal Interpretation....Pages 89-119 Legal Disagreements and Theories of Reference....Pages 121-139 The Role of Pragmatics in (Re)Constructing the Rational Law-Maker....Pages 141-157 Legal Positivism and the Pragmatics of Meaning and Morality....Pages 159-184 What Did You (Legally) Say? Cooperative and Strategic Interactions....Pages 185-199 Widening the Gricean Picture to Strategic Exchanges....Pages 201-229 Grice, the Law and the Linguistic Special Case Thesis....Pages 231-248 Materialization in Legal Communication in the Transfering Process....Pages 249-262 Back Matter....Pages 263-267