Abstract
The existing literature on indeterminacy in the law focuses mostly on the use of vague terms in legislation – terms the use of which makes the content of the relevant utterance to some extent indeterminate. As I aim to show, however, not only is the content of a legislative utterance often indeterminate, it is often indeterminate what the content of such an utterance is. In the second and third section of the chapter, I discuss in some detail the conditions for successful non-literal speech and address the question whether these conditions are satisfied in the legal context. I argue that due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, interpreters are typically not warranted in taking the legislature to have intended to communicate something non-literal. In the fourth section, I consider what I take to be the strongest case against my argument: the wealth of actual cases in which the courts have taken the content of the law to be something other than its literal content, seemingly based on relatively straightforward inferences about the legislature’s communicative intentions. As I hope to show, however, very few of these cases are as straightforward as they appear to be. In the fifth, and final section, I argue that the argument from sections two and three has important consequences for the extent to which we should take the content of the law to be determinate. This has significant implications for the analysis of a number of important but controversial legal cases, which I discuss in some detail.
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Notes
- 1.
- 2.
- 3.
Marmor (2008).
- 4.
The primary content of an utterance is the content that a speaker counts as having primarily communicated, as opposed to secondarily (such as by implicature). This may be the literal content of the speaker’s remark, but may also be – or may even have to be – some non-literal enrichment of that content. For a discussion, see Jaszczolt (chapter “Slippery meaning and accountability” this volume); see also Recanati (2012).
- 5.
I should note that throughout the paper, I assume that the legal content of a statute directly corresponds to its linguistic content and thereby presuppose a version of of what Mark Greenberg calls the communicative-content theory of law; see Greenberg (2011). For those who hold that there is more to the legal content of a statute than what is provided by way of legislative communication, it is worth pointing out – as Greenberg does – that it is still “uncontroversial that, on any plausible view, the meaning of a statute’s text is highly relevant to the statute’s contribution to the content of the law;” see Greenberg (2011), 219. Nevertheless, those who do not subscribe to some version of the communicative-content theory probably won’t be inclined to accept everything I say in the last section of the paper, in which I argue that, due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, the legal content of statutes is often to some extent indeterminate. The reason, of course, is that this is true only if some version of the communicative-content theory is correct.
- 6.
In this paper, I will be concerned only with statutory law. For a valuable discussion about the way in which different areas of law might be affected differently by the kinds of considerations discussed here, see Solum (2013). “For interpretation of a legal text to succeed,” Solum says, “the interpreter must … understand the distinct constraints on successful communication associated with the type of legal text” (507). He then goes on to argue that the role communicative content plays in determining legal content differs between areas of law, due crucially to these systematic differences in the various contexts of legal speech.
- 7.
28 U.S.C. 2680(c).
- 8.
Ali v. Federal Bureau of Prisons; 552 U.S. 214 (2008). I discuss this case in more detail below.
- 9.
18 U.S.C. § 922(g)(1).
- 10.
Small v. United States; 544 U.S. 385 (2005). I also discuss this case in more detail below.
- 11.
- 12.
Thanks to Jeffrey Goldsworthy and Lawrence Solum for pressing me to clarify this.
- 13.
Note that the following examples and their analyses assume that the literal content of the relevant utterances are complete propositions. This assumption is controversial, and some would be inclined to argue that the literal content is incomplete (i.e. not truth-evaluable). For a discussion, see e.g. Soames (2010), 155–156. Here, however, I will – for the sake of argument – assume that the literal content of the utterances in examples (1) and (2) are complete propositions.
- 14.
- 15.
Marmor (2008), 428; my emphasis.
- 16.
Marmor (2008), 428.
- 17.
143 U.S. 457 (1892).
- 18.
23 Stat. 332 (codified as amended at 29 U.S.C. §2164 (1901)), superceded by Act of Mar. 3, 1903, Pub. L. No. 162, 32 Stat. 1213.
- 19.
For more detailed discussion of Holy Trinity, see Sect. 5.1 below.
- 20.
It is quite possible, I think, to invent cases in which lawmakers and their audience(s) share a wealth of beliefs/knowledge and that – consequently – the law has no problem asserting something other than what it says. But this does not affect Marmor’s argument, since he is only committed to the claim that, given the way the law tends to work, such cases will be relatively rare.
- 21.
Marmor (2008), 429.
- 22.
I should note that Marmor is not alone in positing comparably strict pragmatic requirements – we have something rather similar, for example, in Paul Grice’s pragmatic framework. Assuming that Grice would have classified the examples we are concerned with as examples of conversational implicature (rather than assertion), it follows from Grice’s (1989) definition thereof that the relevant speech acts are successful only if the hearer must reinterpret the speaker’s remark in order to make it consistent with the Cooperative Principle (see Grice (1989), 30–31)). See also Bach and Harnish (1979), 12, 61.
- 23.
See e.g. Marmor (2013), 55.
- 24.
Several authors – many of whom accept the basic tenets of Grice’s framework – embrace this partly objective account of assertive/communicative content; see e.g. Goldsworthy (2005), Soames (2011), and Marmor (2013). Many devout Griceans, however, favor a subjective account, on which a speaker means, says, asserts, etc. what he intends to mean, say, assert, etc; see e.g. Schiffer (1972), Neale (2005), and Bach (2006).
- 25.
Note that, although this is one sense in which the relevant account of assertion is properly said to be normative, this is different from the normativity associated with the so-called norms of assertion. While the norms of assertions are partly constitutive of an utterance’s being an assertion, the normative considerations I am discussing in this section concern what it takes for an utterance not just to be an assertion but to be an assertion of p. That is, it concerns the content of a given utterance.
- 26.
I should note that if I am right about these cases, then Marmor’s “clarification-test” for successful non-literal assertion is too strict: a speaker successfully asserts something other than what she literally said only if it would be silly of the hearer to ask for clarification about what the speaker meant. Sometimes, as I hope to show, non-literal assertion is successful despite the fact that it would not be outright silly to ask for clarification. These are cases in which the hearer has a reason to ask the speaker for clarification only if that reason comes from the hearer’s own desire to know for certain what the speaker intended to communicate.
- 27.
For a second example, imagine that someone asks an artist how her show went and that in response she utters the following: ‘Nobody came to my show!’ In most situations, a rational hearer would infer that the artist intended to communicate that almost nobody came to her show. But it’s not outright impossible that the artist is intending to assert that zero people showed up. However, given that it is rare that absolutely nobody shows up for a show, the artist has given her interlocutor good reason to believe that she is intending to communicate that almost nobody came to the show – it is significantly more likely than not that she is so intending. Moreover, it does not matter – vis-à-vis this particular context – which proposition the artist in fact intended to communicate; either way, the artist has conveyed that the show didn’t go well, which suffices for the purposes of the conversation. As before, it may not be outright silly to ask the artist whether she meant that absolutely nobody or almost nobody showed up, but in the stipulated scenario there is – given what is “required by the accepted purpose of the conversation” – no reason to ask for clarification that is independent of the interlocutor’s desire to know for certain. This further indicates that strict warrant is false, and that successful non-literal assertion does not require obviousness – at least not across the board.
- 28.
See Ross and Schroeder (2012).
- 29.
These cases are described in Ross and Schroeder (2012), 261.
- 30.
See Ross and Schroeder (2012), 271–3.
- 31.
Ross and Schroeder (2012), 273–5.
- 32.
I should emphasize that nothing hangs on the adequacy of the Reasoning Disposition Account; for my purposes, any account that allows for pragmatic encroachment will do.
- 33.
Thanks to Dale Smith for emphasizing this point in conversation.
- 34.
Barak (2005), for example, thinks that the standard of proof for propositions of law is the preponderance of evidence, while Greenawalt (2010) believes that the standard is higher in cases of purported non-literality. And while Lawson (1992) argues that it ought – for political reasons – to be as high as obviousness, Alexander (1992) argues that there is no good reason that the standard of proof of law should mirror the standard of proof of fact, and that even in criminal law obviousness may be too strict a requirement.
- 35.
No doubt, in real-world situations similar to the one described, people frequently do share a great deal of related information (what kind of party, date and time, etc.), but the fact that people often assert something other than what they literally say in circumstances in which the conversational background is relatively rich does not entail that such a rich background is required for such assertion. I should also note that in many real-world cases in which the conversational background is relatively rich, the hearer’s warrant for concluding that the speaker is intending to assert that p is overdetermined, meaning that the context provides the hearer with multiple sufficient reasons to draw the relevant conclusion. Only one such reason, of course, is strictly required.
- 36.
143 U.S. 457 (1892) and 552 U.S. 214 (2008), respectively.
- 37.
23 Stat. 332 (codified as amended at 29 U.S.C. §2164 (1901)), superceded by Act of Mar. 3, 1903, Pub. L. No. 162, 32 Stat. 1213.
- 38.
28 U.S.C. 2680(c); my emphasis.
- 39.
Bach and Harnish (1979), 41.
- 40.
544 U.S. 385 (2005).
- 41.
18 U.S.C. § 922(g)(1).
- 42.
18 U.S.C. § 922(g)(1).
- 43.
Here, the Court is referring to Smith v. United States, 507 U.S. 197, 204, n. 5 (1993).
- 44.
See Grice (1989), 27.
- 45.
Of course, there may be some obvious facts about “the law’s preferences” that are part of the common ground, at least between the legislature and officials. In some legal systems, for example, Lex Posterior, Lex Superior, and Lex Specialis arguably each embody such a preference.
- 46.
- 47.
- 48.
Ekins (2012), 256.
- 49.
- 50.
Brett v. Brett (1826).
- 51.
Rex v. Liggetts-Findlay Drug Stores Ltd. (1919).
- 52.
Rex v. Harris (1836).
- 53.
For an interesting discussion, see e.g. Kerr (2012).
- 54.
See also Goldsworthy (2010), 234–5.
- 55.
25 Geo. 2. c. 6.
- 56.
Brett v. Brett (1826), 162 E.R. 459.
- 57.
Lees v. Summersgill (1811).
- 58.
Sir Nicholl’s judgment in Brett was followed in 1827 and 1829 in the cases of Emanuel v. Constable and Foster v. Banbury, respectively. But that was about it – less than a decade later, the Wills Act 1752 was re-enacted in amended form as section 15 of the Wills Act 1837 so as to include reference to any will (and ‘will’ was defined so as to include codicils). As a further note, it is of course very hard to say what light, if any, the 1837 Act sheds on how to understand the original Act, but it seems within reason to argue that this undermines Sir Nicholl’s reasoning to the extent that he based his interpretation on what he took to be the aims reasonably attributable to the legislature.
- 59.
Rex v. Harris (1836); 9 Geo. 4. c31. s12.
- 60.
Ekins more or less follows Bennion (1990) in presenting these examples.
- 61.
Barnard v. Gorman (1941).
- 62.
Barnard v. Gorman (1941), A.C. 391.
- 63.
Barnard v. Gorman (1941), A.C. 391.
- 64.
Barnard v. Gorman (1941), A.C. 384.
- 65.
Barnard v. Gorman (1941), A.C. 396.
- 66.
On this analysis, Barnard is analogous to the US case of Green v. Bock Laundry Machine Co. (490 U.S. 504 (1989)), a civil product liability case in which Justice Scalia argued that the term ‘defendant’ – as it occurred in Rule 609(a) of the Federal Rules of Evidence – was clearly being used to mean ‘criminal defendant’, and that therefore the trial court had not erred in denying Green’s pretrial motion of impeaching evidence. (The rule has since been amended to address the issue.)
- 67.
Although it should be noted that none of the judges wanted to read the relevant power to detain apparent offenders into the statute by implication, as Ekins’s presentation suggests. Rather, they reasoned that the term ‘offender’ ought to be taken to mean ‘apparent offender’ in the relevant context.
- 68.
Bennion (1990), 256.
- 69.
Bennion (1990), 273. Bennion classifies Wiltshire v. Barrett (1966), which relies crucially upon Barnard, the same way. In Wiltshire, the issue – like in Barnard – was whether officials had the authority to detain merely suspected drunk drivers in virtue of the Road Traffic Act 1960, which provides that officials may arrest “a person committing an offence under this section.” And as in Barnard, the court unanimously held that the statute ought to be considered as applying to persons ‘apparently committing an offense’.
- 70.
Ibid.
- 71.
On this analysis, Barnard is analogous to the US case of United States v. Marshall (908 F.2d 1312 (7th Cir. 1990)), in which the question was whether or not Mr. Marshall, who had sold around 12,000 doses of LSD, should be taken to fall under a statute triggering a mandatory minimum punishment if the sold items contain “a mixture or substance containing a detectable amount” of the relevant drug (21 U.S.C. §960). The statute has the unintended consequence that it obligates judges to impose disproportionate sentences on people who sell LSD, due to the fact that the lawmakers did not realize how the drug is sold (LSD requires a particularly heavy carrier). Because the most likely explanation of the problematic result is that it was simply not foreseen, the statute does not warrant a non-literal interpretation. As a result, the main question in Marshall is about how to appropriately react to a problematic result that follows from the content of the legislative utterance. Same goes for Barnard, on Bennion’s analysis.
- 72.
Ekins (2012), 258.
- 73.
Ekins (2012), 210.
- 74.
This reading is subscribed to, for example, by Bach and Harnish (1979).
- 75.
I want to explain briefly why I take the indeterminacy discussed in this paper to be a type of vagueness, since – on the face of it – indeterminacy about utterance content seems rather removed from, say, borderline cases of ‘blue’, ‘crowd’, ‘vehicle’, etc. I think it can be shown that it comes from the vagueness of speech act terms like ‘say’, ‘assert’, ‘command’, etc. To see this, recall that assertion was partly defined in terms of epistemic warrant: A speaker asserts p only if a rational hearer, knowing the conversational background and context, is warranted in taking her to be intending to assert p. And epistemic warrant, in this context, was defined partly in terms of a vague probabilistic concept: A rational hearer, knowing the conversational background and context, is warranted in taking a speaker to be intending to assert p only if it is significantly more likely than not that the speaker is intending to assert p. The phrase ‘it is significantly more likely than not that’ is obviously vague – it both admits of borderline cases and is Sorites-susceptible. Imagine, for example, a case in which it is clearly significantly more likely than not that S intended to assert p and let’s then say that there is a small change in the context with the result that it is now trivially less likely that S intended to assert p. Such a small change doesn’t make a difference for whether it is appropriate to say that it is significantly more likely than not that S intended to assert p. If we introduce enough minute changes into the context, however, we end up with a full-fledged Sorites-series.
- 76.
US v. Laws, 163 U.S. 258, 264. Cited by Vermeule (1998), 1842, footn. 41.
- 77.
Vermeule (1998), 1842.
- 78.
As it turns out, there was also significant debate about the issue in Congress, but since the legislative history was not part of the common ground, it did not – on my view – play a part in determining the content of the law.
- 79.
552 U.S. 214 (2008).
- 80.
465 U.S. 848, 854 (1984).
- 81.
There were of course a number of other issues that were relevant to deciding the case, but since questions about non-literal statutory content turn just on the language used and the common ground, these issues concerned the proper development of the Act, given that it was indeterminate what the exact content of it was.
- 82.
520 U.S. 1 (1997).
- 83.
520 U.S. 1 (1997).
- 84.
520 U.S. 1 (1997).
- 85.
I’m assuming in this case – safely, I think – that it has no non-instrumental value for the speaker to have her communicative intention fully recognized.
- 86.
This research was supported in part by research grants from the Australian Research Council (DP1092523) and the Icelandic Research Fund. I am grateful to Andrei Marmor, Gideon Yaffe, Jeffrey Goldsworthy, Dale Smith, Patrick Emerton, Lawrence Solum, and Nicholas Allott for valuable comments on prior versions of this paper. Also to audiences at the Center for Study of Mind in Nature (CSMN) in Oslo, the University of Antwerpen Centre for Law and Cosmopolitan Values, and the Monash Law and Language Workshop.
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Asgeirsson, H. (2017). On the Possibility of Non-literal Legislative Speech. 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_4
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