Conclusion
In this article, I have argued against an intentionalistic theory of promises, such as the theory of Searle, and of others inspired by him. Such a theory leads to a one sided approach, and is unable to account for all the phenomena that count as promises. I have argued that in contract law both the promissor and the promissee play a role of importance, but also that the influence of their intentions is rather limited. I have then extrapolated my argument to extralegal promises.
In the last section, I have offered some conjectures as to what may have contributed to the intentionalistic aspect of Searle's theory. My last conjecture was that the ambiguity of the word “meaning” may play a role. Let me end, in all modesty, by offering a suggestion that might help English philosophers in solving the problems of linguistics, and their translators in interpreting their solutions: the introduction of the word “speaning” for “speaker's meaning”!
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References
In addition to the authors quoted in the text, noteworthy for present purposes are N. MacCormick and O. Weinberger,An Institutional Theory of Law (Dordrecht: D. Reidel Publishing Company, 1986); J. Broekman, “Recht en taal”, in G.C.J.J. van den Bergh and J. Broekman, eds.,Recht en taal (Deventer:Kluwer, 1979); M.A. Loth,Recht en taal (Arnhem: Gouda Quint BV, 1984); and J.H. Nieuwenhuis,Drie beginselen van contractenrecht (Deventer, Kluwer, 1979).
This article is a revised version of my paperMeaning in a Judicial Context, presented at the IV Colloquium on Law and Semiotics, at Pennsylvania State University, Reading, PA, May 1988. My thanks to the participants of the colloquium who, by their stimulating remarks, have contributed to the final text.
J.R. Searle,Speech Acts (New York and London: Cambridge University Press, 1969), 60.
An authoritative Continental proponent of this doctrine was the German scholar F. von Savigny,System des heutigen Römischen Rechts (Berlin, 1840).
Grant Gilmore,The Death of Contract (Columbus: Ohio State University Press, 1974), 36.
E.A. Farnsworth, “‘Meaning’ in the Law of Contracts”,The Yale Law Journal 76 (1967), 939–965 defends this view only for the interpretation of contracts (p. 951). I don't see why it should not also hold for questions of existence.
Gilmore,supra n.6, at 77.
P. Meijes Tiersma, “The Language of Offer and Acceptance: Speech Acts and the Question of Intent”,California Law Review 74 (1986), 189–232.
Clearly, Searle is referring here to the cooperative principle developed by Grice see H.P. Grice, “Logic and Conversation”, in P. Cole and J.L. Morgan, eds.,Speech Acts (London: Academic Press, 1975).
Searle,supra n.3, at 16.
P.S. Atiyah,Promises, Morals and Law (Oxford: Clarendon Press, 1981), 127.
Searle,supra n.3, at 17.
J.I. Biro, “Meaning and What is Said”, in O. Neumaier, ed.,Mind, Language and Society (Wien: VWGÖ, 1984), 105.
On Human Communication (1957), 112, quoted by Farnsworth,supra n.8, at 940. This particular ambiguity of the English wordmeaning does not exist in many other languages. It may well be that modern linguistic philosophy would look different, had it not been developed primarily by Englishspeaking philosophers.
“Indirect Speech Acts”, in P. Cole and J.L. Morgan, eds.,Speech Acts (London: Academic Press, 1975), 59–82.
J.R. Searle, “Indirecte taalhandelingen”, in F.H. Eemeren and W.K.B. Koning, eds.,Studies over taalhandelingen (Meppel/Amsterdam: Boom, 1981), 207 – Dutch translation of Searle,supra n.15, by A.F. Snoeck Henkemans & E.J. van der Spek.
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Henket, M. Contracts, promises and meaning the question of intent. Int J Semiot Law 2, 129–148 (1989). https://doi.org/10.1007/BF02053530
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DOI: https://doi.org/10.1007/BF02053530