Abstract
This essay investigates the applicability of Grice’s theory of conversational implicatures to legal interpretation, in order to highlight some of its characteristics. After introducing the notions of language and discourse, and briefly explaining the most salient aspects of Grice’s theory, I will analyse the interpretation of two types of legal acts; authoritative legal acts and acts of private autonomy. Regarding the first class, exemplified by statutes, I will argue against the applicability of Gricean theory due to the conflictual behaviour of the addressees and, above all, to the insurmountable indeterminacy of the contextual elements. As far as acts of private autonomy are concerned, exemplified by contracts, I will argue that the cooperative principle is applicable, at least in those legal systems that include the principle of bona fides among the interpretative regulations of such acts.
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Notes
The term “utterance” suffers from a typical process-product ambiguity, in that it can indicate both the act of stating a linguistic expression, and the product of that act (and in this case the term “token-sentence” is often used). In this paper, when a distinction is needed, I will use “utterance” in the latter sense, whereas when referring to the act of enunciating I will use the expression “act of uttering”. In particular, I intend by “utterance” the determined spatiotemporal occurrence of a sentence; by “sentence” I mean a grammatically complete linguistic expression. In brief, a sentence is a fragment of language, whilst an utterance is a fragment of discourse.
By “anaphora” I mean an expression whose meaning and reference is determined by another preceding expression. Personal pronouns (“he”, “she”, “it”, “her”, etc.) are all anaphoric expressions.
Deixis concerns the ways in which languages codify and translate the context of the utterance and the communicative event into grammar: deictic reference is reference to an aspect of the context of utterance or speech event. The terms “Indexicals” and “Deixis” are often used as synonyms, although not always. For example, Crystal [10] distinguishes between different meanings of “indexical”: “1. (ling) Said of features of speech or writing (esp. + voice quality) that reveal the personal characteristics of the speaker, e.g., age, sex … 2. (sem) see ‘deixis’”.
According to many authors, sentences like “I will arrive late” or “You will not die” are incomplete, being able to mean “I will arrive late at any time in the future”, “I will arrive late this evening (this afternoon, this week, etc.)”, “You will not die ever”, “You will not die from this small injury”, etc. See Recanati [26, pp. 8ff.]; Bach [7].
The fact that the speakers are aware of the contextual elements and use them as a means of communication does not mean they perform any conscious or deliberate reasoning; comprehension of the discourses is, mostly, automatic. With regard to this, as Rysiew [28, p. 289] observes “‘the immediacy of understanding’, as we might call it, is just as illusory as ‘the immediacy of vision’; while there is typically no conscious interpretation (etc.) involved in utterance comprehension, some interpretative activity or processing must occur in some form”.
According to Schiffer [30, p. 34] “two people may mutually know* that p even though they are not directly acquainted with one another and even though they each have entirely different grounds for thinking that p. Thus, two people who have never met but who know of each other may reasonably assume that they mutually know* that London is a city in England”.
The clarification “at least to a certain degree” is indispensable to take account of cases of so-called exploitation or flouting of the maxims: cases in which a maxim is openly violated, not with a view to not cooperating, but with a view to exploiting the evidence of the violation to convey a given message. In Grice’s opinion irony, metaphors, meiosis and hyperbole fall into this category: c.f. Grice [14, 15]; Levinson [22].
Conversational implicatures are not to be confused with conventional implicatures: the latter are inferences (not truth-functional) that do not derive from maxims, but are connected by convention to particular expressions or lexical elements: see Grice [13, 14]; Levinson [22]; Bach [5, 6], Carston [8]. In the present paper, conventional implicatures will not be investigated and the term “implicature” will be used to refer exclusively to conversational implicatures.
The violation of a maxim can, in fact, derive from the need to follow a different maxim, in conflict with it. Consider the following example formulated by Grice: “A: Where does C live? B: Somewhere in the South of France”. In this case there is “no reason to suppose that B is opting out, but his answer is, as he well knows, less informative than is required to meet A’s needs. This infringement of the first maxim of Quantity can be explained only by the supposition that B is aware that to be more informative would be to say something that infringed the second maxim of Quality” [14, pp. 32–33]. For a critical discussion see Atlas [1, pp. 71ff.] .
According to most authors the meaning of what is said does not correspond to the meaning of the sentence, but it includes also other elements, specified by the context: it is “equivalent to the proposition expressed by the use of a sentence or the truth-conditional content of the utterance, and is in turn dependent on reference resolution, indexical fixing and disambiguation”, Levinson [23, p. 171]. See also Grice [14, p. 31]; Atlas, [1, p. 63].
Levinson [23, pp. 37ff., and pp. 114ff.].
A considerable exception is represented by the violation of the first maxim of Quality: aside from the hypothesis of exploitation, someone who deviates from this maxim is telling lies and lying is, obviously, a behaviour that produces general criticism, hostile reactions and penalties. With regard to this, however, as well as the conversational maxims there can also be social norms that prescribe their content.
Within Gricean literature, the exact content of the CP is controversial: see Ladegaard [21]; Thomas [36]. In this paper, as clarified by the above formula, cooperation is intended exclusively as communicative cooperation, as direct cooperation from the common goal of understanding and making oneself understood and not as a sharing of further non-linguistic goals or interests.
Not “effective” in the sense of effectively followed, but “effective” in the sense that, if the receivers carry out what is laid down by the apodosis, then they reach the goals indicated in the protasis.
For more examples, see Atlas [1], Bach [3], Gazdar [12], Grice [14], Levinson [22], Levinson [23] (as well as the next sections). Of course there can be exceptions: there can be cases in which the communication is successful although the CP is violated. I think that these cases are extremely rare for two reasons at least. Firstly, it is necessary that both the speaker and the listener don’t follow the maxims. Secondly, they must share some other (private) rules. For the communication to succeed, it is not sufficient that both the parties are not cooperative: If I know that you are not truthful, informative, relevant, perspicuous, and so on, I still don’t know what you are trying to tell me, if something.
As Levinson [23, p. 28] states, cognitive sciences have demonstrated the asymmetry between the slowness of human discourse, of the emission of acoustic signals, and the apparently greater speed of human thought. The CP and the maxims allow this asymmetry to be compensated for. However, this only proves that following the maxims is rational, but it does not explain the reason or the motivation for everyone to follow the maxims.
It is debatable whether from the utterance of a weaker assertion one can implicate that the speaker knows that the stronger assertion is false, or that the speaker believes it is false, or even that the speaker does not know whether the stronger assertion is true. See Gazdar [12]; Atlas and Levinson [2]; Levinson [22].
For a critical review of this idea and a similar example from Levinson c.f. Atlas [1, pp. 210ff.].
One might argue that the speaker should always speak clearly. That would be correct, but the clarity is always relative to the context and maxims. The speaker is clear when his utterance is clear once it is interpreted according to the CP, in that particular context as mutually known. The speaker might think to be clear, and he might also have good reasons for thinking so, but he could be wrong (because the listener actually doesn’t know or doesn’t remember some contextual elements, or because, although he knows them, he omits to take them into account, or, as we will see, because the context is, in some respects, opaque). Causing a communication failure is very different from being responsible for it, from being at fault.
A corollary of the principle of cooperation is that if the speaker does not want to cooperate, but does not want to be misunderstood either, then she must clearly indicate her intention not to involve herself in the communicative exchange.
According to Bach [6], denying the intentional character is one of the ten (main) mistakes linked to implicatures, as it leads to thinking of them as properties of the sentences, it does not explain cancellability and the fact that a (non-ambiguous) sentence can produce different implicatures in different contexts. We are not saying that implicatures are properties of the sentences, however: implicatures arise from certain sentences according to context sensitive maxims and this explains why the same sentence can produce different implicatures depending on the different situations in which it is uttered. In particular, generalized implicatures are implicatures that in certain contexts may not be produced and are certainly cancellable (“Some of the guests have already left, actually, they have all left”), but, if not cancelled, they are produced regardless of the speaker’s intention.
For issues regarding the concept of source of law, see Guastini [16].
Frequently members of parliament vote for laws that they do not even know, just by following the indications of the party to which they belong to. This aspect becomes more serious in the case of extremely technical legislation, the text of which is generally written by experts who are not members of parliament.
Unlike Marmor’s claim [25], the difficulty of attributing communicative intentions to a collective agency is not deemed important in this paper in that it concerns the intention to follow Grice’s maxims. As we saw in Sect. 2.1, implicatures are, in fact, independent of the effective intention of the speaker. Instead it is claimed in this text that the opinions, beliefs and goals of the members of parliament (that is the elements that the doctrine normally refers to under the heading “intention of the legislator”) are important in that they constitute elements of the context of utterance and therefore influence the identification of the communicative content.
As an anonymous referee noted, my utterance is unintelligible also if we mutually know that you don’t smoke. This case is quite different from the one considered in the text: here the communication failure depends on the fact that the speaker doesn’t take into account a contextual element which, in fact, is mutually known. It seems to me that, in statutory interpretation, a similar situation takes place when the legislator enacts provisions that are clearly inconsistent with constitutional principles (or, better, with their strengthened interpretation), especially if we consider the judges, not the common citizens, as receivers. Other cases are represented by some (scholastic) examples of absurd provisions: e.g., a statute that forbids fishing in a State that doesn’t border on sea. Generally speaking, in statutory interpretation the assumptions relative to the receivers that do not concern the knowledge of contextual elements, but, e.g., who the receivers are, how their relation with the speakers is, are not important: normally statutory addressees are (and they are mutually known to be) indeterminate.
For this reason, the role of judge doesn’t gel exactly with the role of listener. Judges are peculiar listeners in the sense that they reconstruct the context of communication, irrespective of what the speaker (legislator) actually knows and believes, authoritatively fixing the very meaning of legal texts.
The conversational maxims formulated by Grice mainly regard informative discourse, that is discourse aimed at providing information; nevertheless Grice himself [14, pp. 28–29] claims that the theory can be extended, with appropriate adaptations, also to other forms of communication and provides some examples relative also to normative discourse, i.e. discourse aiming to direct others’ behaviour.
Given that effective knowledge is difficult to prove, the law often accepts its knowability.
The applicability of the CP to contractual interpretation is also claimed by Frade [11] and, with regard to Roman law, by Mantovani [24]. Whereas Frade seems to claim that this applicability derives from the nature of the contract as a “promise or set of promises constituting an agreement between the parties” [11, p. 337], according to Mantovani, on the other hand, it derives from the principle of bona fides which is equivalent to the CP. With regard to this I prefer to argue that the legal principle of bona fides is not equivalent to, but requires respect of the CP: in that, unlike ordinary discourse, in contractual interpretation the maxims constitute hermeneutic rules which are not spontaneously followed, but rather required.
Regarding unilateral acts things are actually simpler: here it is a question of exclusively interpreting the declaration of a subject. With regard to these acts however, legal controversies can also arise as to their interpretation secundum bonam fidem that is, in our terms, as to what the implicatures of certain utterances are, and, also in this case, this will depend to a large extent on the reconstruction of the context.
In some legal systems even interpretation of the Constitution, which is itself an authoritative legal act, could present characteristics making a separate analysis necessary.
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I want to thank Prof. Mario Jori and Prof. Riccardo Guastini for their helpful comments and suggestions.
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Poggi, F. Law and Conversational Implicatures. Int J Semiot Law 24, 21–40 (2011). https://doi.org/10.1007/s11196-010-9201-x
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DOI: https://doi.org/10.1007/s11196-010-9201-x