Abstract
In this text we will point out that the traditional static conception of meaning is not the best possible approach and introduce competing conceptions of meaning. In this conception, then, meanings or concepts are not static entities but dynamic ones. Their dynamism is determined by the practice of language users. Following this, we will introduce the sources of vagueness and indeterminacy, which, according to the author, are much more fundamental to the law than the sorites paradoxes, to which too much space is devoted. These are multi-dimensional polysemy, open texture and family resemblances. We will not only define these theoretically, but also demonstrate them with practical examples from legal texts or legal practice. In the last section, we will focus on Ludlow's concept of lexical wars, which we will link to Brandom's notion of meaning. We will show that within our use of language we play 'language games' which require rules in order to be played. These rules may not always be explicitly stated, but can be inferred from the practices and critical stances of other players. We then bring these theoretical insights from philosophy and linguistics into the legal context in the last section, where they are used to analyse and explain what actually happens in the interpretation of law.
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Notes
(…) words have meanings that are underdetermined, and we adjust or modulate their meanings on a conversation-by-conversation basis. Their meanings are dynamic. [7, p. 2].
Speakers incur the commitment to vindicate what they say should they be appropriately challenged. [8, p. 5].
As Brandom puts it:
In offering a rationale, a justification for a decision, the judge presents what is in effect a rationale reconstruction of the tradition that makes it visible as authoritative insofar as, so presented, the tradition at once determines the conceptual content one is adjudicating the application of and reveals what the content is, and so how the current question of applicability ought to be decided. It is a reconstruction because some prior decisions are treated practically as irrelevant, (…) or incorrect. It is a rational reconstruction insofar as there is a standing obligation that the prior applications that are embraced by a rational as precedential and salient must fit together with the new commitment that is the decision being made. [10, p. 59]
For example, the word "tall" where the dimension of tallness is addressed.
For example, if we had a billion grains of sand spread evenly over the surface of the playground, then we probably wouldn't label these as a heap, but if we had a billion grains of sand deposited from a truck in one place, then we would label it as a heap.
"The received wisdom seems to be that semantics demands precision and fully determinate meanings. Whatever the merits of precision and fully determinate meanings, semantics has no need for them.
(…) we will see that the static view has inflicted analytic philosophy, with the result that philosophy has accumulated a number of intractable puzzles that, I believe, all have their roots in these two errors—the assumption that the lexicon is static and the meanings are fully determined. [7, p. 7].
If we look at it, this Ludlow's conception of dynamic meaning goes against the way Frege, on the other hand, saw concepts: "A definition of a concept (of a possible predicate) must be complete; it must unambiguously determine, as regards any object, whether or not it falls under the concept […]. If we represent concepts in extension by regions on a plane, this is admittedly a picture that may be used only with caution, but here it can do us good service. To a concept without sharp boundary there would correspond a region that had not a sharp boundary-line all round, but in places just vaguely faded away into the background. This would not really be a region at all; and likewise a concept that is not sharply defined is wrongly termed a concept. (Frege, 1903, §56; translation based on Frege, 1960, 159)" [17, p. 410].
This holistic interconnectedness has already been pointed out, for example, by Wilfrid Sellars when he pointed out that "One can have the concept of green only by having a whole battery of concepts of which this is an element. (…) While the process of acquiring the concept green may—indeed does—involve a long history of acquiring piecemeal habits of response to various objects in various circumstances, there is an important sense in which one has no concept pertaining to the observable properties of physical objects in Space and Time unless one has them all—and, indeed, a great deal more besides." [22, pp. 44–45].
"We are individual organisms who also participate in a larger pattern that constitutes that way of living as human (…)." [23, p. 77].
"Language and its factual functioning is (…)—unlike thinking—something inherently easy to grasp intersubjectively (…): so that it is much more appropriate not to explain language by thinking, but thinking by language." [24, p. 38].
He then thought similarly, for example Quine:
Meanings are primarily meanings of language. Language is a social skill that we all acquire solely from knowledge of other people's overt behaviour in publicly recognizable circumstances. [25, p. 49] The reference to intersubjectivity can also be seen, for example, in the following:
"After all, one can only say something if one has learned to speak. Whoever wants to say something, therefore, must also have learned to master a certain speech in order to do so; and it is clear, however, that he may have wanted to speak, and therefore may not yet have actually spoken. Just as one does not dance by wanting to dance."
[4, § 74].
"Let us think of the cases in which we say that a game is played according to a certain rule!
The rule (in fact) can be an aid in teaching that game. He who learns it learns and practises it.—Or it is a tool of the game itself.—Or: The rule is neither used in the teaching nor in the game itself, but is listed in their list of rules. One learns the game by watching others play it. We say, however, that it is played according to such and “such rules, because the observer can read them from the practice of the game,—as a law of nature which governs the play.—But how does the observer in this case distinguish the mistake of the player from the correct playing?—For this, clues can be found in the behaviour of the players. Let us think of the characteristic behaviour of those who correct oversights. It would be possible to recognize that someone is doing this even if we did not understand their language."[4, § 54].
"A certain rule is there as a kind of signpost.—It leaves no room for doubt as to which way to go? […] I may say, then, that the signpost does leave some room for doubt. Or rather: sometimes it leaves room for doubt, sometimes not. (…)" [4, p. 55].
"The issue of verbal disputes can be glossed as follows. Suppose that different philosophers mean different things by important (…) terms. (…) suppose that this involves them expressing different concepts by those terms (…)".
If we look beyond the borders in this context, we can note that, for example, the European Court of Human Rights also leans towards this more traditional concept, stating that "taking into account that marriage has deeply rooted social and cultural connotations which may differ fundamentally from one society to another, the Court has found that Art. 12 and Article 14 of the Convention, read in conjunction with Article 8 thereof, do not oblige Contracting States to grant same-sex couples access to the institution of marriage (see Schalk and Kopf v. Austria, cited above, §§ 62–63 and 101)." The European Court of Human Rights thus preferred not to intervene in the lexical wars waged at the national level and left the decision to the individual legislators.
"(2) A continuing partnership prevents either partner from becoming the adoptive parent of a child."
"I don't know what you mean by fame," said Alice.
Humpty Dumpty smiled contemptuously. "Of course you don't until I tell you. I meant 'there's a nice knock-down argument for you!'".
"But 'fame' doesn't mean 'a nice knock-down argument'," Alice objected.
"When I use a word," said Humpty Dumpty, in a rather contemptuous tone, "it means just what I have decided it means-neither more nor less." Lewis Carrol, “Through the Looking Glass “, cited according to [16, foreword].
"For the current judge actually to exercise the authority the decision implicitly petitions for recognition of, it must be recognised by future judges. And if that precedential authority is recognised by the later judges, then it is real (a normative status has been instituted by those attitudes), (…)" [10, p. 60]
With language games, we mentioned that we can tell if we are playing the game correctly through the critical attitudes of other players.
For the sake of simplicity and clarity, we will discuss only civil remedies in the following text, so that we do not have to constantly refer to their counterparts in administrative and criminal proceedings.
"But most legal reasoning (…) is probative rather than dispositive. This need not mean that it has the right shape to be properly understood in terms of the weights of various evidential considerations. Rather it means that almost all the reasons considered are defeasible. The fact that p might provide very good reason for the conclusion that q. It need not follow that if in addition r is true, then p and r provides a good reason to conclude that q. (…) The defeasibility means that material inferences, including the inferences that articulate legal concepts, unlike logical ones, are in general non-monotonic: a good inference can be turned into a bad one by adding further premises." [10, p. 41]
In this case 'the prior commitments' can be understood as an established decision-making practice.
"Because the future stands to the present as the present does to the past, and there is no final authority, every judge is symmetrically recognised and recognising." [10, p. 60]
"So, each judge is recognised (implicitly) as authoritative both by prior judges (…) and (explicitly) by future judges (…)." [10, p. 60]
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Funding
This text was written within the project “Vágnost v právu”, MUNI/A/1590/2020. I am grateful to Masaryk University for its support.
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Tvrdíková, L. Vagueness and Indeterminateness in Law: Are Judges Humpties Dumpties?. Int J Semiot Law 36, 679–700 (2023). https://doi.org/10.1007/s11196-022-09935-0
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DOI: https://doi.org/10.1007/s11196-022-09935-0