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References
John C.W. Touchie, “Exit Fantasyland: On the Ontological Status of “Pure” Logic and “Pure” Semantics”,International Journal for the Semiotics of Law XI/32 (1998), 193–203.
Bernard S. Jackson, “With Reference to Touchie”,International Journal for the Semiotics of Law XI/31 (1998), 79–93.
Notably, regarding the nature of reference and the relationship between semantics and pragmatics. I proceed from a conceptual distinction between sense and reference and view the latter as belonging to pragmatics rather than semantics. Touchie sees this as outmoded (supra n.1, at 199) and adopts a referential account of the “meaning” (sense) of a legal proposition. It may be noted that MacCormick, in the original debate, accepted my account of these conceptual distinctions; indeed, we ultimately agreed (point (a) in the text below) that general legal norms (reflected in the major premise) do not “refer” at all to the facts of cases brought under them (reflected in the minor premise).
There is also a wider disagreement, on the very nature of legal justification: I adopt a semiotic rather than a normative account of justification: seeMaking Sense in Jurisprudence (Liverpool: Deborah Charles Publications, 1996), 234, 263f. However, for the purposes of the debate with MacCormick, I was prepared to accept both his normative position and his (for Touchie: “Fantasyland”) assumptions regarding the ontological status of the logic here deployed. My point was that MacCormick's argument cannot be sustained even if these traditional assumptions are accepted.
Cf. Jori, quoted by Touchie,supra n.1, at 195. In his response to Jori, at 195f., Touchie ignores another crucial (and generally agreed) aspect of the original debate deriving from MacCormick's account of legal justification, namely that the logical process of deduction comes into play (where, Jori and I would stress, the judge decides to apply it) onlyafter questions of the meaning of the norm have been settled, these latter questions not themselves being part of the logical process. That is why this process can be termed “formal”. Touchie, by contrast, appears (at 195) to view the fixation of the meaning of the norm as part of the logical process itself.
As indicated in my original response,supra n.2, at 81f. n.7, the context of the debate commences in ch.2 of myLaw, Fact and Narrative Coherence (Merseyside: Deborah Charles Publications, 1988), ch.2, where thetemporal assumptions of the use of the syllogism inthis context are attacked on the basis of a linguistic analysis of the relationship between the major and the minor.
Touchie is right,supra n.1, at 194f., in seeing this as the source of several other major differences between us. It follows, moreover, that if Touchie rejects the notion of “pure propositional logic”, our respective positions on reference and semantics/pragmatics become crucial to the issue.
Cf. Jori, quoted by Touchie,supra n.1, at 195: “one could be forgiven for thinking that Jackson's conclusions on legal justification would remain largely unchanged even if he were to concede that logic also requires choices.” Agreed. Nor do I see this position as undermining my view of semantics, despite Touchie's claim that “if such intra-systemic logical necessity does not exist, then neither does the intra-systemicsemantic that Jackson's theory presupposes to exist.” The Saussurean view of semantics, and the Greimassian view of semiotics developed from it, does not presuppose a logical bais. Indeed, the distinction between logic and semiotics is a constant theme.
Touchie,supra n.1, at 201, accuses me of ignoring this argument. I did not ignore it; rather, I argued (supra n.2, at 84f.) and here argue again, that it is irrelevant. The reason it is irrelevant to me but relevant to Touchie seems to derive from different views of what is to be included within the logical process (whatever its ontological status). On this, see n.6,supra.
For example, I have stressed that the position on reference I have taken isnot confined to structural semantics; it is shared, amongst analytical philosophers, by Strawson. When I accused Touchie of being “insensitive to the distinction between semantics and pragmatics” (a charge to which he displays some sensitivity), I meant in this context only that he adopts a position in linguistics which obscures the distinction between the sense of the major premise and the act of the judge in (deciding to) adopt that sense and apply it to the case in hand. For a fuller discussion of my position on this, in its relationship to the philosophy of language (though not Touchie's preferred version of it), see further s.V of my article in this issue: “Truth or Proof: The Criminal Verdict”,International Journal for the Semiotics of Law XI/33 (1998), 227–273, at 252–258.
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Jackson, B.S. Logic and semiotics: Ontology or linguistic structure?. Int J Semiot Law 11, 323–327 (1998). https://doi.org/10.1007/BF01110412
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DOI: https://doi.org/10.1007/BF01110412