Abstract
What is the best way to address the problem of combinatory vagueness in legal 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 to such an extent that it can be determined whether a combinatory vague norm applies to borderline cases. In this paper I argue that this view does not provide a convincing account of how legal language works since it does not take into consideration the specific characteristics of legislative intention and the institutional dimension of linguistic communication in law. I then put forward a different explanation of combinatory vagueness based on an inferentialist approach to semantics and pragmatics. In this account, combinatory 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 between parties and judge in a legal dispute, the paper shows how combinatory vagueness arises and how it is reduced by courts in order to settle borderline cases.
An erratum to this chapter can be found at http://dx.doi.org/10.1007/978-3-319-44601-1_18
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.
According to Stewart Shapiro, most theorists of vagueness assume that this phenomenon involves a form of ignorance. See Shapiro 2006, 2. For instance, epistemicists claim that with borderline cases we are ignorant of facts that actually we cannot know (Williamson 1994); a supervaluationist holds that we are ignorant because a vague sentence is neither true nor false (Fine 1975); an incoherentist claims that we do not know whether a vague term apply to a case because our language sometimes is incoherent (Dummett 1975); a contextualist assumes that we are (apparently) ignorant of the conditions of application of vague terms because these conditions shift with context (see Soames 1998 and Raffman 2014). For a discussion of these accounts of vagueness with regard to legal language see Endicott 2000, Jónsson 2009 and Poscher 2012.
- 2.
Cf. Poscher 2012 and Marmor 2005, 133. It has to be noted that the contemporary philosophical literature on vagueness defines vague preducates in terms of sorites-susceptibility whereas legal theory traditionally considers vagueness as a form of linguistic indeterminacy: a term is vague if there are cases in which there is no definite answer to whether the term applies to something. In this paper I take up the latter approach.
- 3.
- 4.
- 5.
Cf. Pettit 2001, 250–251.
- 6.
The problems just mentioned bears on the notions of “collective intentionality” and “plural subject” that cannot be considered here. See Bratman 1999; Gilbert 2006, 101 ff. It seems plausible to claim that a legislature acts as a body since legislatures are set up by constitutive rules that empower them to enact authoritative legal sentences.
- 7.
- 8.
- 9.
- 10.
Moreso 2005, 136 supports the following solution: if the text is detailed, an interpretive doubt must be solved at the same detailed level, looking for the precise legislative intention; if the text has an abstract formulation (as many constitutional provisions have), a doubt must be solved in the abstract, leaving room for contextual considerations from time to time. Cf. Williams 2001, 337–338.
- 11.
For these reasons, MacCormick claims that “this rather indeterminate element of interpretative argumentation is best considered as one that can range across all the other categories [i.e. interpretive methods] and their types. On that ground, it should be deemed (if rather grandly) a ‘transcategorical’ type of argument relative to other categories” (MacCormick 2009, 125).
- 12.
According to William Eskridge, for instance, “judges interpreting statutes (…) are like diplomats acting upon orders from their national foreign service. These diplomats must often apply ambiguous or out-dated communiqués to unforeseen situations, which they do in a creative way, not strictly constrained by their orders. But they are, at bottom, agents in a common enterprise, and their freedom of interpretation is bounded by the mandates of their orders, which are not necessarily consistent or coherent over time, or even at any one time” (Eskridge 1987, 1554). On the idea of courts as “faithful agents of the legislature’s intention” see also Manning 2001, 5.
- 13.
As a matter of fact, this model is mainly used by legal scholars to justify a normative standpoint: the idea that that a legal decision is in accordance with the law only if it is the expression of legislative intention. But this standpoint is theoretically troublesome and highly controversial.
- 14.
The inferential relations we are referring to here are material inferences as opposed to formal inferences: according to Brandom and Sellars, the validity of a material inference depends on the content of the non logical vocabulary used in reasoning and not on the form of reasoning. See on this Brandom 2000, 52–55; Sellars 1953.
- 15.
Discursive practices give rise to different kinds of commitments: Brandom distinguishes doxastic commitments (which correspond to beliefs) from inferential commitments (which correspond to reasons) and practical commitments (corresponding to actions). See Brandom 2000, 30–31, 69–79, 93–96.
- 16.
In the case of permissive inferential relations, if the speaker is entitled to S1, she is prima facie entitled to S2 because the latter entitlement is not immune from doubt: in the course of the exchange of reasons, the speaker could prove not to be committed to S2 and this entitlement would be discarded. See Brandom 1994, 177.
- 17.
Brandom elaborates on this theory first put forward by David Lewis. Lewis claims that the rules specifying the kinematic of the score “can be regarded as constitutive rules akin to definitions”, but “what they register depends on the history of the conversation in the way that score should according to the rules” (Lewis 1979, 345–346).
- 18.
This reconstruction of Brandom’s deontic scorekeeping is mainly based, with some variations, on Scharp 2005.
- 19.
It is obvious that some of these sub-sets will be necessarily empty for each participant. In J’s score, for instance, no point can go under {J’s entitlements acknowledged} and {J’s entitlements undertaken}, since J cannot entitle herself to her own commitments.
- 20.
In practice, however, in most adversarial procedural system judges has authority to investigate the facts on the judges’ own initiative, and to justify their decision on the basis of reasons not presented by the parties. When this occurs, however, judges’ own reasons are strictly related to the positions presented by the parties. See Landsman 1983, 715; Hazard and Taruffo 1993, 86.
- 21.
This does not means that the other commitments considered in this paper are not relevant from the legal point of view. Each of them may be disputed by Q and R, and different entitlements to these commitments could lead to a different solution of the legal dispute.
- 22.
As a consequence of R1, Q and J will obviously attribute to R commitments c1 and c2, which are scored under {R’s commitments acknowledged}. Notice that the fact that Q is entitled to e1 and e2 by R does not imply that these entitlements are acknowledged by J. On the basis of reasons not yet considered, J might take Q not entitled to e1 and e2. However, we have seen that in an adversarial system judges should decide a case on the basis of the reasons provided by the parties. So, it is plausible to believe that if one party is entitled to a certain claim by the other party, this entitlement will be recognized by the judge if no additional consideration comes into play.
- 23.
These entitlements correspond to commitments c5…c9 which are also included in {R’s commitments undertaken} in Q’s and J’s scoreboards.
- 24.
Accordingly, Brandom maintains that incompatibility relations can be seen as “semantic primitives” (Brandom 2008, 123–126). As a matter of fact, if the same incompatibility relations did not hold for both Q and J, Q’s claims could not challenge R’s claims and vice versa: an adversarial exchange of reasons could not take place. As Mark Lance has noted, “the semantic relation of incompatibility seems to rest on a pragmatic relation of challenge which holds between an agent and a speech act of another” (Lance 2001, 433).
- 25.
It is worth underlying that the legal dispute between Q and R could be focused on a different issue, such as fact finding, procedural requirements or the determination of punishment. This would change the way in which the legal dispute and J’s scoreboard evolve over time on the basis of the reasons provided by Q and R.
- 26.
See Canale and Tuzet (2007). As stated by Brandom, “for information (…) to be communicated is for the claims undertaken by one interlocutor to become available to others (who attribute them) as premise for inference. Communication is the social production and consumption of reasons” (Brandom 1994, 474).
- 27.
- 28.
An early version of this essay was presented at the conference “Pragmatist and Contextualist Approaches to Vagueness in Legal Theory and in Philosophy”, University of Freiburg, 1–3 July 2011. I am grateful to Scott Soames for his critical comments during the conference.
References
Alston, W. P. (1967). Vagueness. In P. Edwards (Ed.), The encyclopedia of philosophy (Vol. 8, pp. 218–221). New York/London: Macmillan & Free Press.
Allan, J. (2000). Constitutional interpretation v. statutory interpretation. Understanding the attractions of “original intent”. Legal Theory, 6, 109–126.
Boudreau, C., Lupia, A., McCubbins, M. D., & Rodriguez, D. B. (2007). What statutes mean: Interpretive lessons from positive theories of communication and legislation. San Diego Law Review, 44, 957–992.
Brandom, R. B. (1994). Making it explicit. Reasoning, representing, and discursive commitment. Harvard/London: Harvard University Press.
Brandom, R. B. (2000). Articulating reasons. An introduction to inferentialism. Cambridge, MA/London: Harvard University Press.
Brandom, R. B. (2008). Between saying and doing. Towards an analytic pragmatism. Oxford/New York: Cambridge University Press.
Bratman, M. E. (1999). Faces of intention. Selected essay on intention and agency. Cambridge: Cambridge University Press.
Bueno, O., & Colyvan, M. (2012). Just what is vagueness? Ratio, 25, 19–33.
Campbell, T. (2001). Legislative intent and democratic decision making. In N. Naffine, R. J. Owens, & J. Williams (Eds.), Intention in law and philosophy (pp. 291–319). Aldershot: Ashgate.
Canale, D., & Tuzet, G. (2007). On legal inferentialism. Towards a pragmatics of semantic content in legal adjudication? Ratio Juris, 20, 32–44.
Dummett, M. (1975). Wang’s paradox. Synthese, 30, 301–324.
Ekins, R. (2012). The nature of legislative intent. Oxford: Oxford University Press.
Endicott, T. (2000). Vagueness in law. Oxford: Oxford University Press.
Endicott, T. (2011). The value of vagueness. In A. Marmor & S. Soames (Eds.), Philosophical foundations of language in the law (pp. 14–30). Oxford: Oxford University Press.
Eskridge, W. N. (1987). Dynamic statutory interpretation. University of Pennsylvania Law Review, 135, 1479–1555.
Fine, K. (1975). Vagueness, truth and logic. Synthese, 30, 265–300.
Gardner, J. (2010). Ethics and law. In J. Skorupski (Ed.), The Routledge companion to ethics (pp. 420–430). London: Routledge.
Gilbert, M. (2006). A theory of political obligation. Membership, commitment, and the bonds of society. Oxford: Oxford University Press.
Goldsworthy, J. (1997). Originalism in constitutional interpretation. Federal Law Review, 25, 1–50.
Goldsworthy, J. (2005). Legislative intentions, legislative supremacy, and legal positivism. San Diego Law Review, 42, 493–518.
Greenawalt, K. (2000). Are mental states relevant for statutory and constitutional interpretation? Cornell Law Review, 85, 1609–1672.
Greenberg, M. (2011). Legislation as communication? Legal interpretation and the study of linguistic communication. In A. Marmor & S. Soames (Eds.), Philosophical foundations of language in the law (pp. 217–264). Oxford: Oxford University Press.
Grice, H. P. (1989). Studies in the way of words. Cambirdge, MA: Harvard University Press.
Gupta, A. (1999). Meaning and misconceptions. In R. Jackendoff, P. Bloom, & K. Wynn (Eds.), Language, logic, and concepts (pp. 15–41). Cambridge, MA: MIT Press.
Hart, H. L. A. (1983). Positivism and the separation of law and morals. In H. L. A. Hart (Ed.), Essays in jurisprudence and philosophy (pp. 49–87). Oxford: Clarendon.
Hart, H. L. A. (1994). The concept of law (2nd ed.). Oxford: Clarendon.
Hazard, G. C., & Taruffo, M. (1993). American civil procedure. New Haven: Yale University Press.
Hyde, D. (2011). The sorites paradox. In G. Ronzitti (Ed.), Vagueness: A guide (pp. 1–18). Dordrecht/New York: Springer.
Jónsson, O. P. (2009). Vagueness, interpretation and the law. Legal Theory, 15, 193–214.
Lance, M. (2001). The logical structure of linguistic commitment III: Brandomian scorekeeping and incompatibility. Journal of Philosophical Logic, 30, 439–464.
Landsman, S. (1983). A brief survey of the development of the adversary system. Ohio State Law Journal, 44, 713–740.
Lewis, D. (1979). Scorekeeping in a language game. Journal of Philosophical Logic, 8, 339–359.
MacCormick, N. (2009). Rhetoric and the rule of law. A theory of legal reasoning. Oxford: Oxford University Press.
MacPherson, J. A. E. (2010). Legislative intentionalism and proxy agency. Law and Philosophy, 29, 1–29.
Manning, J. F. (2001). Textualism and the equity of the statute. Columbia Law Review, 101, 1–127.
Marmor, A. (2005). Interpretation and legal theory (2nd ed.). Oxford/Portland: Hart Publishing.
Marmor, A. (2008). The pragmatics of legal language. Ratio Juris, 21, 423–452.
Moreso, J. J. (2005). Lógica, argumentación e interpretación en el derecho. Barcelona: Editorial UOC.
Neale, S. (2007). On location. In M. O’Rourke & C. Washington (Eds.), Situating semantics. Essays on the philosophy of John Perry (pp. 253–293). Cambridge, MA/London: MIT Press.
Pettit, P. (2001). Collective intentions. In N. Naffine, R. J. Owens, & J. Williams (Eds.), Intention in law and philosophy (pp. 241–254). Aldershot: Ashgate.
Poscher, R. (2012). Ambiguity and vagueness in legal interpretation. In L. Solan & P. Tiersma (Eds.), Oxford handbook on language and law. Oxford: Oxford University Press.
Radin, M. (1930). Statutory interpretation. Harvard Law Review, 43, 863–885.
Raffman, D. (2014). Unruly words. A study of vague language. Oxford/New York: Oxford University Press.
Raz, J. (2009). Between authority and interpretation. On the theory of law and practical reason. Oxford: Oxford University Press.
Recanati, F. (2002). Does linguistic communication rest on inference? Mind & Language, 17, 105–126.
Scharp, K. (2005). Scorekeeping in a defective language game. Pragmatics and Cognition, 13, 203–226.
Sellars, W. (1953). Inference and meaning. Mind, 62, 313–338.
Shapiro, S. (2006). Vagueness in context. Oxford: Oxford University Press.
Soames, S. (1998). Understanding truth. Oxford: Oxford University Press.
Soames, S. (2009). Interpreting legal texts: What is, and what is not, special about the law. In S. Soames (Ed.), Philosophical essays. Vol. 1. Natural language: What it means and how we use it (pp. 403–423). Princeton/Oxford: Princeton University Press.
Soames, S. (2012). Vagueness and the law. In A. Marmor (Ed.), The Routledge companion to philosophy of law (pp. 95–108). New York: Routledge.
Sperber, D., & Wilson, D. (1995). Relevance: Communication and cognition (2nd ed.). Oxford: Blackwell.
Stoljar, N. (1998). Counterfactuals in interpretation: The case against intentionalism. Adelaide Law Review, 20, 29–59.
Summers, R. S. (2000). Essays in legal theory. Dordrecht: Kluwer.
Weber, Z., & Colyvan, M. (2010). A topological sorites. The Journal of Philosophy, 107, 311–325.
Williams, J. (2001). Constitutional intention: The limits of originalism. In N. Naffine, R. J. Owens, & J. Williams (Eds.), Intention in law and philosophy (pp. 321–341). Aldershot: Ashgate.
Williamson, T. (1994). Vagueness. London: Routledge.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2017 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Canale, D. (2017). What Inferentialism Tells Us About Combinatory Vagueness in Law. In: Poggi, F., Capone, A. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-319-44601-1_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-44601-1_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-44599-1
Online ISBN: 978-3-319-44601-1
eBook Packages: Social SciencesSocial Sciences (R0)