LINGUIST List 28.3551
Tue Aug 29 2017
Review: Forensic Linguistics; Pragmatics; Sociolinguistics: Capone, Poggi (2017)
Editor for this issue: Clare Harshey <clarelinguistlist.org>
Lelija Socanac <lelijasocanac
Pragmatics and Law E-mail this message to a friend Discuss this message
Book announced at http://linguistlist.org/issues/27/27-5242.html
EDITOR: Francesca Poggi
EDITOR: Alessandro Capone
TITLE: Pragmatics and Law
SUBTITLE: Practical and Theoretical Perspectives
SERIES TITLE: Perspectives in Pragmatics, Philosophy & Psychology
REVIEWER: Lelija Socanac, University of Zagreb
REVIEWS EDITOR: Robert A. Coté
The book “Pragmatics and Law: Practical and Theoretical Perspectives” edited by Francesca Poggi and Alessandro Capone, presents results of a project which involved the inter- disciplinary studies concerning both legal theory and philosophy of language. The project consisted of two parts: the first part was devoted to the analysis of how pragmatics can solve problems related to legal theory, focusing on questions of the relationship of law and morality, while the second part focuses on pragmatic aspects of adjudication. The book presents results of the second part of the project, where a group of experts in pragmatics, sociolinguistics, cognitive sciences, artificial intelligence and legal theory discuss problems concerning the relationship between language and law to highlight the salient features of both phenomena. Thus, legal theorists engage with linguistic issues to solve practical legal problems (e.g. how to interpret legal texts, or to value the reliability of a testimony). The first issue that the book deals with is how to use methods belonging to pragmatics, sociolinguistics, cognitive sciences and philosophy of language to solve legal problems concerning the theory and practice of law.
The volume is divided into three parts. The first part, which includes seven chapters, is devoted to the problems of interpretation, i.e. the identification and understanding of the meaning of legal texts. The second part includes five chapters that deal with pragmatic methods as incorporated into legal theory. The third part consists of six essays devoted to various aspects of adjudication and its pragmatic analysis.
In Chapter 1, “Slippery Meaning and Accountability”, Kasia M. Jaszczolt addresses the question of what should count as meaning for the purpose of theoretical inquiry, and what should count as the intended message of a legislative act. She points out that truth-conditional analysis of meaning increasingly makes use of pragmatically derived interpretations in radical versions of contextualism. The core question concerns the kinds of contributions that the context makes to truth-conditional representation. Three levels of meaning are singled out as candidates for the primary meaning: 1) minimal sentence meaning, 2) expanded/modulated sentence meaning, and 3) implicatures. The author admits the sentence meaning, the pragmatically modified sentence meaning, and the indirect meaning as equally legitimate objects of the truth-conditional analysis. If the primary meaning can be implicit, context-driven and multidimensional, the question arises regarding the speaker’s accountability for the intended meaning. To answer this question, the author proposes a version of salience-based contextualism and shows how it applies to represent the primary legal meaning in an important court case.
In Chapter 2, “Implicitness in Normative Texts”, Marina Sbisà claims that the retrieval of implicit meaning is indispensable for the understanding both of normative and informative texts. The reliability of expectation practices relies, however, upon the normativity of implicitness, without which we could not distinguish between correct understanding and failure to understand. The implications of the claim that implicitness is normative are examined and the explication of presuppositions and implicatures of normative texts is exemplified by reference to passages drawn from regulations of a condominium on the one hand, and a bill proposed by the Italian Parliament, on the other. Explication practices are shown to yield information about the normative background and motivations for the norm at hand and to contribute to the content of the norm as well as to its possible applications.
In Chapter 3, “What Inferentialism Tells Us About Combinatory Vagueness in Law”, Damiano Canale addresses the problem of combinatory vagueness in adjudication. According to a view widely held by philosophers of language, courts must make reference to what the legislature intended to say. Intentional content makes up for the lack of determinacy of meaning and contextual content, and can be used to reduce combinatory vagueness in borderline cases. The author argues that this view does not provide a convincing explanation of how legal language works because it does not take into account the specific characteristics of legislative intention and the institutional dimension of communication in law. He puts forward a different explanation of combinatory vagueness based on Brandom’s inferentialist approach to semantics and pragmatics (Brandon 1994, 2000, 2008). In this account, vagueness is a feature of language which depends on a specific form of disagreement between the participants in an exchange of reasons. By looking at the linguistic interplay among the parties and the judge in a dispute, the author shows how combinatory vagueness arises and how it is reduced by courts to settle borderline cases.
In Chapter 4, “On the Possibility of Non-Literal Legislative Speech”, Hrafn Asgeirsson discusses the problem of the relevance of a legislator’s intention in understanding legal meaning through the perspective of non-literal speech in law. Since legislative contexts provide little unequivocal information about legislative intent, interpreters are usually not warranted in assuming that the legislature intended to communicate something non-literal. Thus, the audience should withhold belief regarding the speaker’s communicative intentions; the primary content of the relevant utterance is indeterminate between the literal content of the sentence uttered and some pragmatic enrichment thereof. This has important implications for the analysis of a number of controversial legal cases, which the author discusses in detail. The author concludes that although the law is often to some extent indeterminate, due to the fact that the common ground between the legislature and its audience rarely contains sufficiently specific information about legislative intent, this will not necessarily prevent it from functioning reasonably well. As long as a rational hearer is able to extract sufficient information from the speaker’s utterance, the relevant speech act counts as reasonably successful.
In Chapter 5, “The Pragmatics of Scepticism”, Pierluigi Chiassoni argues for interpretive scepticism from a pragmatics point of view. He discusses three alternative views about the nature of judicial interpretation: 1) formalism, which considers judicial interpretation to be an activity of knowing the legally correct meaning of source-sentences, 2) scepticism, which considers judicial interpretation to be an activity that always involves some practical evaluation and decision about the legally correct meaning of source-sentences, and 3) mixed or intermediate theory, which considers judicial interpretation to be something of a hybrid nature: sometimes it is just knowledge (law-finding), sometimes it is practical evaluation and decision (law-creation). He defends interpretive legal scepticism as the proper account of judicial interpretation through pragmatic arguments. He shows that philosophy of language and pragmatics, far from providing support for some form of cognitivism, suggest that it should be abandoned.
Chapter 6: “Doubting Legal Language: Interpretive Scepticism and Legal Practice” deals with the same topic, but the author, Nicola Muffato, focuses on the philosophical and rhetorical contact points between general communicational scepticism and interpretive legal scepticism. He reconstructs one central tenet of interpretive legal scepticism, which he labels the “equivocity thesis”. According to this thesis, each statutory provision and judicial opinion can be interpreted in many ways, due to the plurality of the admissible hermeneutic techniques, methods, doctrines, and normative theories (“plurality thesis”) and their equal legal value (“parity thesis”): this leaves the interpreter with the discretional power to choose the legal solution he considers to be correct (“normative unbendingness thesis”). The main purpose of this essay is to investigate the scope of these theses and their philosophical and rhetorical/strategic relations with a more general semiotic scepticism, according to which the belief that communication requires both mutual understanding and shared linguistic meanings is unjustified. He explores how interpretive legal scepticism can be grounded on Quine’s and Davidson’s indeterminist conclusions (Davidson 1973; Quine 1987) and on deconstructionism (Derrida 1988). His criticism of interpretive scepticism is based on Wittgensteinian arguments (Wittgenstein 1958) and developed along the lines of ‘practice-based” conceptions of meaning.
In Chapter 7, “Legal Text and Pragmatics: Semantic Battles or the Power of the Declarative in Specialized Discourse”, Ekkehard Felder shows that dominance and power are exercised through semantics. When viewing language as a means for asserting certain views on controversial topics in intellectual domains, debates arise among professionals regarding the appropriate terminologies and definitions, i.e. “semantic battles” take place. The contribution examines the forms and functions of the discourse of professionals in various scientific fields. The declarative speech acts of law, therefore, consist of assertive speech acts of scientists from various fields. This form of exercise of power through language must be made transparent as a precondition for the state of law (“Rechtsstaat”) to demand loyalty from its citizens.
In Chapter 8, “A Puzzle About Hart’s Theory of Internal Legal Statements”, Michael S. Green discusses the requirement for an adequate theory of law that should explain the role of legal norms in practical reasoning. The question is discussed of why participants in legal practices should justify their decisions by appeal to legal norms rather than by pointing to how practice-independent norms, such as morality and prudence, are triggered by the existence of legal practices as social facts. Theories of law that are dissimilar in other respects - such as Scott Shapiro’s planning theory, Ronald Dworkin’s interpretive theory, and Hans Kelsen’s pure theory - all satisfy the requirement. The American legal realists predication theory of law does not. Hart argues that law cannot exist unless officials justify their decisions through internal legal statements (ILS). In an ILS, the existence of legal practices and moral or prudential judgments about the appropriateness of following the standards used in those practices are presupposed. An official justifying his decisions only be examining legal practices in the light of moral or prudential norms is not making an ILS. This is an important reason why Hart rejects prediction theories of law. According to the author, Hart’s theory of law fails to satisfy the requirement. Hart provides account of why officials should justify their decisions through ILSs rather than only on moral and prudential grounds. As a result, Hart fails to explain why law vanishes when officials stop making ILSs and begin justifying their decisions solely by reference to morality and prudence.
In Chapter 9, “Can Metalinguistic Negotiations and ‘Conceptual Ethics’ rescue legal positivism?”, Teresa Marques argues that metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level but do not eliminate the appeal to moral or other normative reasons. In fact, metalinguistic negotiations and conceptual ethics are an integral part of disagreement and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law.
In Chapter 10, “The Dark Side of Imperatives”, Alessio Sardo discusses the relation between semantic meaning and illocutionary force. He provides a broad survey of the main solutions offered both in philosophy of language and in legal theory. His analysis also takes into account some of the most recent theories and suggests that an integrated approach would be the best solution.
In Chapter 11, “Disputable Means: Pragmatic Knowledge Practices in Sovereign Debt Agreements. Reflections on the Argentinian Case”, Leticia Barrera engages in a context-based analysis of the technical knowledge embedded in the constitution of legal and financial instruments. The study draws on the case of sovereign debt litigation in US courts: “NML Capital, Ltd. v. Republic of Argentina”. The study moves beyond the question of judicial interpretation of contractual terms to look at the function that legal devices are thought to perform in the contexts in which they are placed, represented, appropriated, negotiated, and even anticipated by the agents. By unpacking the pragmatic knowledge practices embedded in the constitution of legal forms, the author seeks to foreground the technical character of law as a site of creation, dispute, validation and circulation of knowledge, as well as the instantiation of relations, subjectivities and power.
In Chapter 12, “The Role of Pragmatics in the Web of Data”, Pompeu Casanovas, Victor Rodríguez-Doncel, and Jorge González-Conejero explore the new boundaries at the intersection between pragmatics and artificial intelligence, focusing on the Semantic Web, the Web of Data, regulatory models, and the law. What links the information flow, social intelligence, rights management and modelling in the Web of Data is the pragmatic approach – the “pragmatic turn” – the representation of users’ needs and contexts to facilitate the automated interactive and collective management of knowledge. The Web of Data brings about new challenges in agency, knowledge, communication and the coordination of actions; it also calls for a new regulatory and institutional design.
In Chapter 13, “Pragmatics of Adjudication. In the Footsteps of Alf Ross”, Mauro Barberis challenges some common views about legal sources. He lays the foundations of a realistic, pragmatic and inferentialist theory of law in which common law precedents and civil law jurisprudence play an important role as self-restraining devices emerging from the working of adjudication itself. Historically, legislation was designed to remedy arbitrariness in adjudication. Today, statutes are less a restraint than a tool for judicial interpretation and the latter, paradoxically enough, is converted into the last remedy to the opaqueness of legislation.
In Chapter 14, “Pragmatic Disorders in Forensic Settings”, Louise Cummings shows that there is a sizeable burden of pragmatic disorder in the prison population and inquires what implications this has for those pragmatically impaired individuals who find themselves in the criminal justice system. Through a careful analysis of some of the interactions such as police interviews, courtroom examinations and prison rehabilitation programs, Cummings demonstrates that they exceed the pragmatic language capacities of prisoners. She argues that much more attention should be paid to the assessment and treatment of pragmatic disorders in forensic settings.
In Chapter 15, “The Pragmatics of Stereotypes in Legal Decision-Making”, Federico José Arena analyses stereotypes as social categories which are closely related to sensitive issues such as individual self-perception, identity construction, and discrimination. It is often claimed that judges should avoid the negative effects of social categorizations. It is not easy to specify on which basis a stereotype is legally relevant and, as a consequence, it is not easy to determine the scope of the requirement. Arena shows that the term stereotype has heterogenic uses. On the one hand, some stereotypes purport to offer information about the characteristics of a group and of each of its members (descriptive stereotypes). On the other hand, some stereotypes define and constitute the roles that members of a category or social group should assume (normative stereotypes). The author claims that given this distinction it is necessary to fine-tune the criteria of relevance. In particular, normative stereotypes play a fundamental role in the construction of identities and that is the reason why it is not justified to embrace a thesis rejecting them in general. In this sense the author proposes to distinguish between internally and externally conventional normative stereotypes.
In Chapter 16, “Epistemic Stance in Courtroom Interaction”, Sune Sønderberg Mortensen and Janus Mortensen discuss the linguistic expressions of certainty and uncertainty, the so-called epistemic stance markers and their features and roles in communicative interactions, focusing on the ways in which they are used by participants during examinations in a recent Danish criminal trial. The study combines a quantitative and a qualitative approach. In the first part of the study, the authors develop a method that allows them to compare the epistemic expressions used by the three trial participants and the frequency with which the expressions are employed. In the second part, they build on the quantitative findings by characterising and comparing the contextualised pragmatic functions of typical epistemic stances taken by two of the participants. Based on the analyses, they argue that the trial participants may be said to adopt different epistemic stance styles, and they suggest that these styles may be motivated by pragmatic and rhetorical aims related to the individuals’ roles in the case.
In Chapter 17, “Assessing Testimony and Other Evidential Sources in Law: An Epistemological Approach”, Florencia Rimoldi and Hernán G. Bouvier address some platitudes surrounding the epistemic weight of testimony in legal domain by taking into account how epistemology explains the phenomenon of forming belief based on the words of others. They propose a way of approaching the legal decision-maker in terms of a rational believer. In this light, they analyse the pragmatic implications of legal platitudes and the conceptual possibility to hold them together, as well as the singularity of testimony in an institutional domain such as the law.
The contributions in the book discuss highly complex questions at the interface between the philosophy of law, philosophy of language, and pragmatics. In providing an overview of the field and expanding research in new directions, the editors have met the aims of this edited volume, for it both provides an extensive overview of previous work and expands the field in new directions. An additional value is provided by including contributions that analyze the same or similar legal-linguistic problems from a variety of different theoretical and methodological perspectives. Overall, this is a well-edited book which will hopefully inspire future research. It represents an important contribution to the understanding of the pragmatic aspects of the relationship between language and law, and it is a valuable resource for scholars interested in legal theory, philosophy of law, philosophy of language, semantics, pragmatics, and legal linguistics.
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ABOUT THE REVIEWER
Lelija Socanac is professor at the Language Department, Faculty of Law, University of Zagreb. Her research interests include contact linguistics, multilingualism, language policy, (historical) sociolinguistics and legal linguistics.
Page Updated: 29-Aug-2017