Abstract
In the present chapter I outline the general structure of this book as well as the theoretical and philosophical backbone of the study of legal language in context. First, I proceed with an outline of Herbert Hart’s and Ronald Dworkin’s views on whether the linguistic exchange between legislatures and courts can be considered a form of communication. Second, I provide an overview of the history of the field of linguistic pragmatics, a field that sets ground for the analysis performed in the present book. Third, I discuss current interdisciplinary approaches to philosophy of language, law and mind. I conclude that although approaches to language which aim to discover the functioning of the brain are slowly coming to dominate scientific inquiry, there still remains a place for pragmatic-style analysis in fields such as the legal communicative realm.
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Notes
- 1.
I purposefully refrain from using the word ‘descriptive’ since I want to avoid associations with the descriptive-normative opposition. This is because I am tackling issues related to linguistic meaning in the book and I want to avoid questions raised in the debate of whether meaning is normative as this would require a separate book. I thank an anonymous reviewer for pointing this out to me.
- 2.
Note that this is neo-Gricean terminology, since Grice himself would have called any pragmatic effect different from disambiguation and reference assignment a conversational implicature.
- 3.
The example originally comes from ‘Positivism and the Separation of Law and Morals’ (Hart 1958).
- 4.
Another extremely interesting solution that falls between the Hartian and Dworkinian claims was provided by Scott Shapiro in his book entitled ‘Legality’. This scholar builds a theory of interpretation as creation, choice of, or fulfillment of plans that can also be created in a bottom-up manner. The level of discretion granted to an agent in the system depends on the allocation of trust in the system (Shapiro 2011).
- 5.
An anonymous reviewer objected that Dworkin would reject the strategic maxim formulated in the present study as a maxim for judges. However, I am proposing a ‘third way’ that need not be in line with the classical Hartian or Dworkinian ideas. Through the expression ‘Dworkinian flavor’ I meant only that Dworkin’s judge Hercules always knows what is just and what fulfills the public good. For this reason, in this limited sense, Hercules always has a strategic goal to pursue.
- 6.
Generative semantics must not be confused with the generative grammar project developed by Noam Chomsky. His principal claim was ‘nativism’—the idea that children dispose of an innate module that enables them to easily grasp and use complicated linguistic structures at an early stage of development. It was grounded on observations that relatively scarce linguistic input (the very limited number of utterances that children hear from adults) enabled them to generate sentences which they had never heard before (Cowie 2017).
- 7.
There also exists an externalist tradition of reading Austin, presented among others by Sbisa (2012).
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Skoczeń, I. (2019). Introduction. In: Implicatures within Legal Language. Law and Philosophy Library, vol 127. Springer, Cham. https://doi.org/10.1007/978-3-030-12532-5_1
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