Abstract
Among the most common strategies underlying the so-called indeterminacy thesis is the following two-step argument: (1) that law is an interpretive practice, and that evidently legal actors more generally hold different (and competing) theories of meaning, which lead to disagreements as to what the law says (that is, as to what the law is); (2) and that, as there is no way to establish the prevalence of one particular theory of meaning over the other, indeterminacy is pervasive in law. In this paper I offer some reflections to resist this trend. In particular I claim that a proper understanding of law as an authoritative communicative enterprise sheds new light on the relation between the functioning of the law and our theories of interpretation, leading to what can be considered a neglected conclusion: the centrality of the linguistic criterion of meaning in our juridical interpretive practices. In the first part of the chapter I discuss speech-act theory in the study of law, assessing its relevance between alternative options. Then I tackle the ‘to whom does the law speak?’ question, highlighting the centrality of lay-people for our juridical practices. Lastly, I examine the consequences of this neglected fact for our interpretive theories.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
This trend is particularly evident in criminal law and criminal justice (see for an overview Stark 2013).
- 2.
This variance presupposes the distinction, still slightly underdeveloped especially in Anglo-American jurisprudence, between norm-sentences and norms tout court (e.g. Guastini 2011).
- 3.
cf Hart 1994, pp. 35–41, criticising Kelsen on the point.
- 4.
Granted, there might be even more theoretical options available to us (see e.g. Stoljar 2003); but for the sake of this chapter I group all ‘moderate’ or ‘mixed’ views about determinacy and interpretation together, hence leaving as alternatives only holistic views à-la-Dworkin and radical indeterminacy theses (as those held by most legal realists and critical legal scholars).
- 5.
This is, I believe, precisely one of the distinctive features of collected volumes, originating from conferences’ proceedings, such as this one: namely that of allowing different authors to cross-interact directly on one or more topics, enhancing not only debate but also mutual cognitive enrichment.
- 6.
Indeed, two parties could be communicating by means of written text and yet be in a conversational situation, that is in a situation in which contextual resources can be accessed by both independently of the communication itself, and such epistemic resources be presupposed by both parties. Hence the problem is not with written communication as such—but with communicative instances in which context is, or better the contexts are, epistemically inaccessible to one or both parties.
- 7.
The concurrence between Matczak, Slocum and myself on this central claim, considering that we reach it starting from different backgrounds and through autonomous theoretical routes, is quite exceptional: as such this volume could constitute the beginning of a larger ‘movement’ or ‘doctrine’ that purports to reconceive of the relationship between philosophy of language and the study of law.
- 8.
Matczak clarifies to me, in a private conversation, that it is indeed the second case: he wants to amend the theory to make it more suitable for the analysis of written utterances, that in this sense must be conceived of as ‘text-acts’ and not as ‘speech-acts’.
- 9.
But the reader might be interested to know that this is a route I have already begun to explore (Sandro 2014).
- 10.
This is the context surrounding the utterance, viz the state of the world (consisting of material and immaterial things, such as beliefs) as it exists at the timeX and spaceX of the utteranceX. This type of context must be contrasted with what, following Habermas, I call ‘lifeworld’ context, which is instead the set of cultural and linguistic conventions somehow shared between subjects of any (minimally) successful communication (Sandro 2014; cf Habermas 1989, pp. 122–123).
- 11.
In this case, I successfully understand that the indexical ‘we’ does not refer to us, me and John, as it would do literally, but to John’s football team, to which he feels some sense of belonging or membership—so that the meaning of his utterance is really ‘My football team just won the game!’
- 12.
cf the analysis in this section with the (mostly) concurring one in Slocum (Chap. 22).
- 13.
This is particularly true, again, in criminal law (see e.g. Stark 2013, p. 163). This should not surprise, being criminal law the context in which our most basic freedoms are usually at stake and thus in which the requirements of the principle of legality should be applied strictly (see Ferrajoli 1990).
- 14.
Jori purports to amend—or to reallocate—Hart’s rule of recognition and his insistence on the role of officials in determining it: in the sense that even the rule of recognition of a legal system cannot but exist on the ground of a ‘common sense’ social practice that identifies both ‘law’ (the concept of law, in general) and ‘the law’ (the law in force in a given jurisdiction, e.g. Italian law or English law).
- 15.
To be clear: successful reception of information on the part of the agent is not tantamount to compliance, nor implicates it as a matter of necessity—for compliance is always, and merely, a possibility. My point is rather the opposite: if there is no successful reception of information, how can the agent be thought of complying with, that is, of following the rule?
- 16.
- 17.
cf Hart (1994, pp. 21–22).
- 18.
Whereas Duarte (2011) shows how multi-contextuality reduces the pragmatic impact of context in determining the semantic value of the utterance.
- 19.
- 20.
Hart’s rule of recognition seems to be predominantly official-oriented despite the fact that he criticises Kelsen’s idea that (primary) norms are addressed only to officials (Hart 1994, pp. 35–42). I owe this point to Alex Latham.
- 21.
As I said already, to this end non-linguistic factors are necessary—I assume them for granted for the purposes of this chapter.
- 22.
Raz (1979, p. 105) and Waldron (2008, pp. 20–24) strongly resist such claim. Perhaps there is a way to explain such a stark opposition, which seems to leave no space for a middle position: it has to do with the dual nature of law, as an institutional and as a normative system. Hence, while it seems impossible (as Raz and Waldron hold) to conceive of law as an institutional system without a hierarchy of courts, it is instead possible to do so when law is understood in its normative sense, that is as a system of norms that purport to guide behaviour.
- 23.
Of course, this presupposes non-contradiction and completeness on part of the legal system, and this is all but self-evident—yet being only an argumentative strategy the reader can assume both conditions.
- 24.
Cf Priel 2013, pp. 8–10.
- 25.
Notwithstanding the fact that, for a hierarchy to be there, there must be some successful communication and application (at least) of primary rules.
- 26.
Cf Hart’s claim that ‘[I]f it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when the occasion arose, nothing that we now recognize as law could exist’ (Hart 1994, p. 124).
- 27.
Stark (2013, p. 163) convincingly argues that ‘[i]n planning their lives, citizens must be able to understand properly the nature of what the law declares to be a criminal offence, and it is obvious that this will usually be conducted without the benefit of legal advice.’
- 28.
That is, clearly I do not mean to claim that a particular statute regulating a specific, technical area (medical, engineering, and so forth) is addressed first and foremost to laypeople, as this would appear unsound on the descriptive level but also on the theoretical one: for likely the addressees of such norms are highly-specialised individuals who possess the skills not only to understand, but also to comply with the requirements of the law. What I do claim though is that these ‘specialised’ statutes can but only constitute a subsidiary part of statutory communication, one that necessarily presupposes the successful outcome of the non-specialised one.
- 29.
The take-home point is the overall interaction between the two systems, language Y and law X, and the fact that the rules governing meaning in Y must be considered governing the same practice in X—this without denying the possibility for X to ‘atomistically’ re-define words and concepts from the set Y (Duarte 2011, p. 115).
- 30.
US Plain Writing Act of 2010 (HR 946, Pub L 111–274).
- 31.
Here, I think, determinacy stands also for objectivity, notwithstanding the fact that Coleman and Leiter warn specifically against conflating the two concepts (Coleman and Leiter 1995, p. 600).
- 32.
Cf Guastini (2011, p. 148).
- 33.
By ‘linguistic’ criterion of interpretation I roughly mean what Asgeirsson (2012) calls ‘textualist thesis of legal content’, according to which ‘the legal content of a statute is the linguistic content that a reasonable member of the relevant audience would, knowing the context and conversational background, associate with the enactment’ (italics added). I want to stress how in such definition identifying the ‘relevant audience’ is preliminary to assessing the meaning of a given utterance—which is precisely the overall point I am trying to make in this chapter. cf also with Slocum’s (Chap. 22) very compelling defence of an objective approach to interpretation and with his concept of ‘ordinary meaning’.
- 34.
The prevalence of the linguistic criterion is positively established in some civil codes, see for instance art 12 of the Italian Civil Code.
- 35.
Cf Hart (1994, p. 39). This is what sociology of law does for instance when measuring the effectiveness or lack thereof of the law. Obviously this is but a theoretical reconstruction: many people are actually partially or completely ignorant of the text of the law.
- 36.
This is a descriptive claim that is paired, on the normative level, by claims that the law ought to be interpreted linguistically, first and foremost—see e.g. the ‘presumption of common natural language’ in Wróblewski (1992). This convergence between descriptive and normative claims, in turn, strengthens the meta-theoretical point I am defending here.
- 37.
Hence the only one that can be required by the law on their part. Two qualifications are in place here. First, this contention has to do with the epistemic, and not moral, problem of agency in a deontic system (cf Fuller 1969, pp. 162–167; Duff 2007, Chap. 2). In this regard, ascription of responsibility is premised upon so-called ‘reason-responsiveness’, that is, ‘a responsible agent is one who is capable of recognising and responding to the reasons that bear on his situation’ (Duff 2007, p. 39, italics added). But being able to recognise reasons implies, it seems to me, being able to understand the medium in which those reasons are communicated—hence, being able to understand language. As such, linguistic capacity is a necessary but not sufficient element for the ascription of any type of responsibility in our legal systems. Second, I am not claiming that laypeople are always incapable of interpreting the law according to criteria other than the linguistic one, but all these different types of interpretation (e.g. teleological) presuppose the linguistic one, viz are parasitical on it.
- 38.
Cf Stark (2013, p. 166) for the convergent claim that law must respect citizens as ‘planning agents’ (in the context of criminal law at least).
- 39.
For the origins of the distinction (tracing back to Bentham and lately Kelsen and Hart) see Dan-Cohen (1984, pp. 626–630).
- 40.
Indeed, Dan-Cohen (1984, p. 632, ft 14) explicitly supposes that decision-makers would not give reasons for their decision, thus in this way preserving the acoustic separation between themselves and the public. I hope the unacceptableness of the claim is so crystal clear that I do not need to linger at all on it.
- 41.
Contra Dan-Cohen (1984, pp. 667–677).
- 42.
- 43.
The argument proposed in this chapter can be understood as taking the cue from, and thus in some sense as supporting (but from a different angle, that of philosophy of language), the early legal positivist project that purported to vindicate law’s autonomy from morality through its scientific and technical method. This political project, which can be retrieved more clearly in the works of Friedrich Carl von Savigny, Jeremy Bentham and Gaetano Filangieri, highlighted the dangers, among other things, of interpretation when this latter carries the law too far away from the posited text of the legislation. I owe this point to Francisco Saffie.
References
Amselek, Paul. 1988. Philosophy of law and the theory of speech acts. Ratio Juris 1:187–223.
Asgeirsson, Hrafn. 2012. Textualism, pragmatic enrichment, and objective communicative content. Monash University Faculty of Law Legal Studies Research Paper No. 2012/21. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2142266. Accessed June 2013.
Bianchi, Claudia. 2013. How to do things with (recorded) words. Philosophical Studies. http://link.springer.com/article/10.1007%2Fs11098-013-0111-0. Accessed June 2013.
Cao, Deborah. 2007. Legal speech act as intersubjective communicative action. In Interpretation, law and the construction of meaning, eds. Anne Wagner, Wouter Werner, and Deborah Cao, 65–82. Berlin: Springer.
Coleman, Jules L., and Brian, Leiter. 1995. Determinacy, objectivity, and authority. In Law and interpretation: Essays in legal philosophy, ed. Andrei Marmor, 203–278. Oxford: Clarendon.
Dan-Cohen, Meir. 1984. Decision rules and conduct rules: On acoustic separation in criminal law. Harvard Law Review 97:625–677.
Duarte, David. 2011. Linguistic objectivity in norm sentences: Alternatives in literal meaning. Ratio Juris 24:112–139.
Duarte d’Almeida, Luis. 2009. Separation, but not of rules. In Criminal law conversations, eds. Paul H. Robinson, Stephen Garvey, and Kimberly Kessler Ferzan, 17–18. Oxford: Oxford University Press.
Duff, Anthony R. 2007. Answering for crime. Oxford: Hart.
Dworkin, Ronald. 1986. Law’s empire. Cambridge: Harvard University Press.
Dworkin, Ronald. 2011. Justice for hedgehogs. Cambridge: Harvard University Press.
Ferrajoli, Luigi. 2007. Principia Iuris. Teoria del Diritto e della Democrazia. Vol. 1. Teoria del Diritto. Roma-Bari: Laterza.
Ferrajoli, Luigi. 1990. Diritto e Ragione. Teoria del Garantismo Penale. Roma-Bari: Laterza.
Fuller, Lon L. 1969. The morality of law. New Haven: Yale University Press.
Green, Leslie. 2009. Law and the causes of judicial decisions. Oxford Legal Studies Research Paper No. 14/2009. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1374608. Accessed June 2013.
Guastini, Riccardo. 2011. Rule-scepticism restated. In Oxford studies in philosophy of law, Vol. 1, eds. Leslie Green and Brian Leiter, 138–161. Oxford: Oxford University Press.
Habermas Jürgen. 1989. The theory of communicative action. Vol. 2. Lifeworld and system. A critique of functionalistic reason. Cambridge: Polity
Hart, Herbert L. A. 1994. The concept of law. 2nd ed. with Postscript. eds. Penelope A. Bulloch and Joseph Raz. Oxford: Clarendon.
Jori, Mario. 2010. Del Diritto Inesistente. Saggio di Metagiurisprudenza Descrittiva. Pisa: Edizioni ETS.
Korta, Kepa, and John, Perry. 2012. Pragmatics. The Stanford encyclopedia of philosophy (Winter 2012 Edition). http://plato.stanford.edu/archives/win2012/entries/pragmatics/. Accessed April 2013.
Kramer, Matthew H. 2007. Objectivity and the rule of law. Cambridge: Cambridge University Press.
Kurzon, Dennis. 1986. It is hereby performed…: Explorations in legal speech acts. Amsterdam: John Benjamins.
Leiter, Brian. 1995. Legal indeterminacy. Legal Theory 1:481–492.
Levenbook, Barbara. 2006. How a statute applies. Legal Theory 12:71–112.
Marmor, Andrei. 2005. Interpretation and legal theory. Revised 2nd ed. Oxford: Hart
Marmor, Andrei. 2008. The pragmatics of legal language. Ratio Juris 21:423–452.
Marmor, Andrei, and Scott Soames (eds.). 2011. Philosophical foundations of language in law. Oxford: Oxford University Press.
MacCormick, Neil. 2007. Institutions of law. An essay in legal theory. Oxford: Oxford University Press.
Miers, David. 1986. Chap. 7: Legal theory and the interpretation of statutes. In Legal theory and common law, ed. William Twining. Oxford: Blackwell.
Moreso, José J. 1998. Legal indeterminacy and constitutional interpretation. Dordrecht: Kluwer.
Pattaro, Enrico. 2005. The law and the right: A reappraisal of the reality that ought to be. In A treatise of legal philosophy and general jurisprudence, Vol. I, ed. Enrico Pattaro. Dordrecht: Springer.
Priel, Dan. 2013. Fuller’s argument against legal positivism. Canadian Journal of Law and Jurisprudence 26:399.
Raz, Joseph. 1979. The authority of law: Essays on law and morality. Oxford: Clarendon.
Rawls, John. 1999. A theory of justice: Revised Edition. Cambridge: Belknap.
Sandro, Paolo. 2014. Creation and application of law: A neglected distinction. Ph. D. Thesis. Edinburgh: University of Edinburgh.
Spaak, Torben. 2007. Guidance and constraint: The action-guiding capacity of theories of legal reasoning. Uppsala: Iustus förlag.
Stark, Findlay. 2013. It’s only words: On meaning and mens rea. Cambridge Law Journal 72:155–177.
Stoljar, Natalie. 2003. Survey article: Interpretation, indeterminacy and authority: Some recent controversies in the philosophy of law. Journal of Political Philosophy 11:470–498.
Stubbs, Michael. 1983. Can i have that in writing? Some neglected topics in speech act theory. Journal of Pragmatics 41:393–400.
Surden, Harry. 2011. The variable determinacy thesis. Columbia Science & Technology Law Review 12:1–100.
Van Hoecke, Mark. 2002. Law as communication. Oxford: Hart.
Velluzzi, Vito. 2008. Interpretazione degli enunciati normativi, linguaggio giuridico, certezza del diritto. Criminalia. Annuario di scienze penalistiche 3:493–510.
von Wright, H. Georg. 1963. Norm and action. London: Routledge and Kegan Paul.
Waldron, Jeremy. 2008 The concept and the rule of law. Georgia Law Review 43:1–61.
Wittgenstein, Ludwig. 2009. Philosophical investigations. 4th ed, eds. Peter MS Hacker and Joachim Schulte. Oxford: Wiley-Blackwell.
Wróblewski, Jerzy. 1992. The judicial application of law, eds. Zenon Bańkowski and Neil MacCormick. Dordrecht: Kluwer.
Acknowledgments
My warm thanks go to Felipe Oliveira de Sousa, Martin Kelly, Alex Latham, Euan MacDonald, Marcin Matczak, Haris Psarras, Francisco Saffie, Luiz Fernando C. Silveira and Findlay Stark for valuable comments on previous drafts of this chapter, which forced me to improve it substantially; and also to the participants in the ‘Rules 2013’ conference, held at the Jagiellonian University, Krakow, 27–29 September 2013, for their observations. I remain the only person responsible for every error or omission in this piece.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2015 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Sandro, P. (2015). To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field. In: Araszkiewicz, M., Banaś, P., Gizbert-Studnicki, T., Płeszka, K. (eds) Problems of Normativity, Rules and Rule-Following. Law and Philosophy Library, vol 111. Springer, Cham. https://doi.org/10.1007/978-3-319-09375-8_20
Download citation
DOI: https://doi.org/10.1007/978-3-319-09375-8_20
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-09374-1
Online ISBN: 978-3-319-09375-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)