Law and Language

La literatura de Kafka no es ciertamente complaciente, obliga al lector a releer una y otra vez. El sentido no está dado allí en el texto sino desplazado, porque la única manera que tiene de acontecer es en lo ausente, en lo inacabado. En diálogo con V. Karam, el presente artículo pretende recorrer parte de esa huella, intentando repensar allí la inasibilidad del tiempo, de la ley y de la interpretación.

The literature of Kafka is certainly not complacent, and forces the reader to reread again and again. The sense is not given there in the text but shifted, because the only way that has happened is in what is missing, in the unfinished. In dialogue with V. Karam, the present article aims to go part of that footprint, trying to rethink there ethereality of time, law and interpretation.

Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequate opportunity for dissent. In his influential defence of hate speech bans, Jeremy Waldron addresses these objections. Dworkin’s concern with political legitimacy is misplaced, he argues, given the provision speech bans make for substituting permissible modes of expression for impermissible ones. I argue that this defence of speech bans misidentifies (...) the “hate” in hate speech with the “hate” in hate crime. In contesting Dworkin, Waldron fails to contend with the necessarily entangled criminalisation of manner and viewpoint entailed in hate speech bans. By failing to grapple with the way in which every linguistic sign is constituted by both manner and viewpoint, Waldron sidesteps the ways in which hate speech bans undermine political legitimacy within liberal democracies. (shrink)

The nature of legislative intent remains a subject of vigorous debate. Its many participants perceive the intent in different ways. In this paper, I identify the reason for such diverse perceptions: three intentions are involved in lawmaking, not one. The three intentions correspond to the three aspects of a speech act: locutionary, illocutionary and perlocutionary. The dominant approach in legal theory holds that legislative intent is a semantic one. A closer examination shows that it is, in fact, an illocutionary one. (...) In the paper, I draw the consequences for legal interpretation of this more theorized model of legislative intent. (shrink)

Both the phenomenon of presupposition and that of vagueness have motivated the use of one form or another of trivalent logic, in which a declarative sentence can not only receive the standard values true and false , but also a third, non-standard truth-value which is usually understood as ‘undefined’ . The goal of this paper is to propose a multivalent framework which can deal simultaneously with presupposition and vagueness, and, more specifically, capture their projection properties as well as their different (...) roles in language. Now, there is a prima facie simple way of doing this, which simply consists in assimilating the two phenomena, and using an appropriate type of trivalent logic. On this view, we just need a compositional system that deals with the ‘undefined’ truth-value, and does not care about whether the source of undefinedness is ‘presuppositional’ or related to vagueness. I will argue that such a simple solution cannot succeed, and point out a number of desiderata that any successful approach must meet. I will then present and discuss two seven-valued semantics, inspired, respectively, by the Strong Kleene semantics and by supervaluationism, which meet these desiderata. (shrink)

The process of elaborating EU legislation includes the activity of translation. Drafting and translation cannot be considered separately but are rather two complementary activities whose aim is the quality of legislation. In order to achieve the required quality of legislation, one guiding principle is consistency of terminology. This study examines the particular case of two terms in German that appeared in the EC Treaty: Entscheidung and Beschluss. The inconsistent use of the two terms was the source of interpretative problems, as (...) observed in Case C-370/07 Commission v Council. A comparison of the contested provisions in the EC Treaty and the provisions in the Treaty on the Functioning of the European Union shows that the terminological inconsistency has been corrected. After the examination of this case, we elaborate on the impact of terminological consistency on interpretation as reflected in requests for preliminary rulings. (shrink)

The aim of this paper is to retrace the history of genetic patents, analyzing the metaphors used in the public debate, in patent offices, and in courtrooms. I have identified three frames with corresponding metaphor clusters: the first is the industrial frame, built around the idea that DNA is a chemical; the second is the informational frame, assembled around the concept of genetic information; last is the soul frame, based on the idea that DNA is or contains the essence of (...) the individual. (shrink)

Name der Zeitschrift: Studies in Logic, Grammar and Rhetoric Jahrgang: 45 Heft: 1 Seiten: 69-86.

¿Qué relación hay entre derecho y lenguaje? Y ¿entre lenguaje y ley? ¿Cómo se inicia la serie de la juridicidad? ¿Qué la posibilita? Una característica hace de lo humano algo aparte de lo vivo: la palabra. El presente trabajo pretende recorrer parte de esta huella, intentando repensar allí la centralidad del lenguaje en la estructuración misma de la juridicidad. Volverse al lenguaje es, en definitiva –como señala P. Sneh– un gesto político.

The aim of this essay is to argue that, if a robust form of moral realism is true, then moral vagueness is ontic vagueness. The argument is by elimination: I show that neither semantic nor epistemic approaches to moral vagueness are satisfactory.

The distinction between a concept and its different conceptions plays a prominent role in debates about constitutional interpretation. Proponents of a dynamic reading of the Constitution-espousing interpretation of constitutional concepts according to their contemporary understandings typically rely on the idea that the Constitution entrenches only the general concepts it deploys, without authoritatively favoring any particular conception of them-specifically, without favoring the particular conception of the relevant concept that the framers of the Constitution may have had in mind. Originalists argue, to (...) the contrary, that fidelity to the Constitution requires an understanding of its provisions according to the particular conception of the abstract concepts prevalent at the time of enactment, and not those we may now favor. My main purpose in this essay is to put some pressure on the linguistic considerations that are presented in this debate, arguing that they are much more problematic than the proponents of both positions assume. I will try to show that the debate here is actually a moral-political one, mostly about the main rationale of a constitutional regime and the conditions of its legitimacy. It is, primarily, a debate about what constitutions are for, and what makes them legitimate. But I will only get to this moral issue at the end. The main part of the essay will strive to show that the semantic considerations employed in this debate are inconclusive; the way concepts are used in a given context depends on various pragmatic determinants, and those, in turn, depend on the nature of the conversation in question. The moral disagreement is, ultimately, about the kind of conversation that constitutional regimes are taken to establish. (shrink)

It is natural to think that law ought not to be vague. After all, law is supposed to guide conduct, and vague law seems poorly suited to do that. Contrary to this common impression, however, a number of authors have argued that vagueness in the law is sometimes a good thing, because it is a means to achieving certain valuable legislative ends. In this article, I argue that many authors—including Timothy Endicott and Jeremy Waldron—wrongly associate vagueness with instrumental roles that (...) are really played by a closely related semantic phenomenon. (shrink)

This study aims at investigating vagueness in Security Council Resolutions by focussing on a selection of nouns and phrases used as the main casus belli for the Second Gulf War. Analysing a corpus of Security Council Resolutions relating to the conflict, the study leads a qualitative and quantitative analysis drawing upon Mellinkoff’s theories on “weasel words”, which are “words and expressions with a very flexible meaning, strictly dependent on context and interpretation”. Special attention is devoted to the historical/political consequences of (...) such vague and indeterminate expressions. The findings indicate that excessive vagueness might have led to biased or even strategically-motivated interpretations of the Resolutions, triggering the Iraqi conflict instead of a diplomatic solution. The analysis of the “weasel words” used in the Resolutions suggests the double-faced strength of such expressions: though they can guaranteed a wide degree of applicability of the Resolutions, their subjective interpretability might become a source of manipulation and elusiveness, with the overall legislative intent of using intentional vagueness as a political strategy. (shrink)

_Interpretation and Construction_ examines the interpretation and products of intentional human behavior, focusing primarily on issues in art, law, and everyday speech. Focuses on artistic interpretation, but also includes extended discussion of interpretation of the law and everyday speech and communication. Written by one of the leading theorists of interpretation. Theoretical discussions are consistently centered around examples for ease of comprehension.

The book builds on recent work in pragmatics and speech-act theory to explain how, and to what extent, legal content is determined by linguistic considerations. At the same time, the analysis shows that some of the unique features of communication in the legal domain - in particular, its strategic nature - can be employed to put pressure on certain assumptions in philosophy of language. This enables a more nuanced picture of how semantic and pragmatic determinants of communication work in complex (...) and large-scale systems such as law. (shrink)

Vagueness in law leads to indeterminacies in legal rights and obligations in many cases. The book defends that claim and explains its implications for legal theory. Vague language is the book's focus, but vagueness is not merely a linguistic feature of law. Law is necessarily vague. That fact seems to threaten the coherence of the ideal of the rule of law. The book defends a new, coherent articulation of that ideal.

Legal philosophers distinguish between a static and a dynamic interpretation of law. The former assumes that the meaning of the words used in a legal text is set at the moment of its enactment and does not change with time. The latter allows the interpreters to update the meaning and apply a contemporary understanding to the text. The dispute between these competing theories has significant ramifications for social and political life. To take an example, depending on the approach, the term (...) “cruel punishment” used in the US Constitution will be given an 18th century meaning or a contemporary one. -/- The philosophy of language seems to provide greater support to the static approach to legal interpretation. Within this approach the lawmaker is perceived as a speaker and legal texts are interpreted as utterances. As a consequence, interpretation is a quest for the speaker/lawmaker’s intention or the public meaning that prevailed at the time of enactment. Neither the intention nor the public meaning are considered to have changed in time. -/- In this paper I argue that the philosophy of language provides the dynamic approach with an equally robust support as the static one. This support comes from an externalist perspective in semantics, rooted in philosophical pragmatism and supported by Ruth Millikan’s concept of meaning as proper function. Grounding the dynamic approach in a well-founded linguistic philosophy rises to the challenge presented by the originalists’ declaration that “it takes a theory to beat a theory”. (shrink)

The article investigates the use of the term “Law” in Richard Rorty and suggests an alternative use of the word. Although Rorty’s anti-foundationalism and antirepresentationalism are well known specially in relation to the metaphysical grounds of the human sciences, I argue that he would employ the term “law” in important rhetorical contexts. The text proposes to identify some aspects of the Rortyan Approach to “law” and, at the same time, focuses on the environment and the professional activity of the jurists (...) in this context. At the end, I suggest a different use of the term, in the sense of a literary and conversational art (an artistic ability). This use of the term shall be understood as a provisional suggestion for narrative purposes and seems to partly escape a rigorous Rortyan view. If the practice of law was for the romans not only a “science”, but also an “art” (ars), so it can be for those that act in the juridical practice today a practice of prudence qua art. (shrink)

In "The Value of Vagueness," Timothy Endicott argues that vague law can be better than precise law. I think he is in many respects correct, but will suggest that we modify and supplement his framework in order to get a firmer grip on what I call the Lawmakers' Challenge: the scenario in which lawmakers find themselves when they must determine whether the consequences of precision are worse than the consequences of vagueness. This will allow us to identify several points of (...) actual and possible disagreement regarding the value of vagueness for law, each of which could affect Endicott's claim that vagueness is sometimes preferable to precision. The framework will also allow us to compare positions that seem - on the face of it - hard to compare, due to the fact that they rest on different theories of value and/or different theories of law. (shrink)

There is at least one immediate sense in which legal discourse is perspectival: it qualifies acts and facts in the world on the basis of rules. Legal concepts are for the most part constituted by rules, both in the sense that rules define these concepts’ semantic content and that, in order to engage with legal practice, we must act according to those rules, not necessarily complying with them but at least having them in mind. This is the distinctive perspective of (...) law: however, it would be misleading to think that this is the only perspective we can have in legal discourse. That of rule-constituted legal concepts is the fundamental perspective -- the inevitable presupposition of most legal assertions -- but other perspectives are possible on top of this fundamental background: perspectives on law, stemming from the basic perspective of law. -/- In this paper, I will try to argue that some different perspectives regarding law can be accounted for by analyzing different kinds of concepts that emerge in connection with legal institutions. My argument will consist of three steps as follows. First, I will explain how legal concepts are constituted by rules, referring in this regard to John Searle’s analysis of institutional concepts as it emerges in his Making the Social World, of 2010, and amending this analysis according to some criticisms that in 1986 Neil MacCormick had raised against Searle with specific reference to the legal domain. -/- Second, I will show that there are some kinds of concepts relevant for an institution which are not captured by Searle’s analysis in terms of constitutive rules, even if this is amended according to MacCormick’s criticisms. This I will do by considering the game of chess as a simple system of rule-constituted concepts (concepts such as 'checkmate,' 'bishop,' 'king'). I will consider four examples of perfectly legitimate assertions regarding a match of chess -- these being (1) ‘I won’; (2) 'you made a good attack'; (3) 'you are cheating'; (4) 'you made good use of the first-move advantage,' and I will show that, while the first three assertions can be analyzed in terms of concepts (those of 'victory,' 'attack,' and 'cheating') which are not constituted by the rules of chess but are rather common to several different competitive games, being typical of the broader practice of competitive game-playing of which chess is an instance, the fourth assertion includes a concept (that of 'first-move advantage') which is peculiar to chess, just like a rule-constituted element, but is not constituted by the rules of chess. This analysis will lead to a new categorization of institutional concepts. Apart from rule-constituted institutional concepts, which are the only ones recognized by Searle, in order to account for cases (1), (2), and (3) I will distinguish between three kinds of meta-institutional concepts, namely, goal-oriented, mode-oriented, and value-oriented meta-institutional concepts, and then I will introduce the category of para-institutional concepts to account for case (4). -/- Finally -- and this is the third step of my argument -- I will explain how these different kinds of institutional concepts appear when we adopt different perspectives on the institutional frameworks we deal with. This will lead us to a categorization of possible perspectives regarding law that corresponds to the previous one regarding concepts. There is first a structural perspective regarding the instantiation of institutional elements which clearly involves rule-constituted institutional concepts -- as when we say 'I am making a will.' There is then a teleological perspective regarding the goal of our institutional acts which calls into question goal-oriented meta-institutional concepts -- as when we say 'I wrote that will in order for you to have a distinctive right to my property.' Then, we can adopt a strategical perspective regarding some peculiar ways in which institutional acts can be performed, and this has often to do with mode-oriented meta-institutional concepts -- as when we say 'the Labour Party is making parliamentary obstructionism so that the Government will fall before the enactment of the labour reform,' or 'workers start today a work-to-rule action.' Clearly, we can also adopt an evaluative perspective over institutional facts or acts, and here typically value oriented meta-institutional concepts emerge -- as when we say 'that rule is clearly unjust' or 'that contract is unfair.' Finally, we can limit ourselves to a descriptive perspective on phenomena which are peculiar to a given institutional setting, and here para-institutional concepts are often useful -- as when we say 'the Italian electoral system before 1990 led to a sort of reform paralysis' or 'a strict use of the criterion requiring proof beyond any reasonable doubt can be expected to entail a low conviction rate.'. (shrink)

Social conventions are those arbitrary rules and norms governing the countless behaviors all of us engage in every day without necessarily thinking about them, from shaking hands when greeting someone to driving on the right side of the road. In this book, Andrei Marmor offers a pathbreaking and comprehensive philosophical analysis of conventions and the roles they play in social life and practical reason, and in doing so challenges the dominant view of social conventions first laid out by David Lewis. (...) Marmor begins by giving a general account of the nature of conventions, explaining the differences between coordinative and constitutive conventions and between deep and surface conventions. He then applies this analysis to explain how conventions work in language, morality, and law. Marmor clearly demonstrates that many important semantic and pragmatic aspects of language assumed by many theorists to be conventional are in fact not, and that the role of conventions in the moral domain is surprisingly complex, playing mostly an auxiliary and supportive role. Importantly, he casts new light on the conventional foundations of law, arguing that the distinction between deep and surface conventions can be used to answer the prevalent objections to legal conventionalism. Social Conventions is a much-needed reappraisal of the nature of the rules that regulate virtually every aspect of human conduct. (shrink)

This review article examines Richard Ekins’ attempt to defend the concept of legislative intention from influential criticism, and to demonstrate its indispensable and central role in statutory interpretation. He rejects accounts of legislative intention in terms of the aggregation of the intentions of individual legislators, and instead, draws on recent philosophical work on the nature of group agency to propose a unitary model, in which the relevant intention is that of the legislature itself, although it is supported by the ‘interlocking’ (...) of the intentions of all its members. The legislature has two relevant intentions: a secondary or standing intention to operate by way of agreed procedures to develop and enact particular proposals for legislation to enhance the welfare of the community; and primary intentions that consist of the content of those proposals once the legislature has enacted them. Ekins restricts the evidence that is relevant and admissible in order to determine the content of such proposals; because they must be ‘open’ to all legislators, and transparent to the community, the evidence must be publicly available. This article summarizes the main theses of the book, and subjects them to critical examination. It concludes that the book adds considerable depth, rigour and theoretical insight to our understanding of these issues. But it also suggests that his argument is vulnerable to criticism at a few points, at least one of which is crucial. The argument needs a better account of what it is that constitutes the content of particular proposals when they are put to the legislature for enactment. (shrink)

The idea of legislative intent plays a central role in legal interpretation and constitutional theory, yet is repeatedly challenged as being an illusion. Refuting these challenges, this book develops a robust account of how and why legislatures form intentions, and the importance of these intentions to understanding law and parliamentary democracy.

It is widely accepted that vagueness in law calls for a specific interpretation of the law—interpretation that changes the meaning of the law and makes it more precise. According to this view, vagueness causes gaps in the law, and the role of legal interpretation in the case of vagueness is to fill such gaps. I argue that this view is mistaken and defend the thesis that vagueness in law calls only for an application of the law to the case at (...) hand, leaving the meaning of the law intact. (shrink)

Think of the color spectrum, spread out before you. You can identify the different colors with ease. But if you are asked to indicate the point at which one color ends and the next begins, you are at a loss. "There is no such point", is a natural thought: one color just shades gradually into the next.

Preface to a Symposium on Vagueness and Law at Columbia University Law School on September 24 and 25, 1999. The purpose of the seminar was to provide an opportunity for philosophers of law, philosophers of language, and philosophers of logic to discuss problems about vagueness that are currently under debate in all three areas.

Legal scholars talk and write about interpretation in terms of the meaningof words, and for many legal philosophers legal interpretation involvessubsuming particular situations under general rules. However, the more youexamine legal interpretation the more confusing the whole idea ofinterpretation becomes. The aim of this paper is to use Bernard Lonergan'sdiscussion of functional specialization to make sense of this disorderlystate of affairs.

There is much in the paper that I agree with, much that I do not understand and am probably not competent to understand, and some which I am puzzled by. I will concentrate on the last. Both regarding puzzles, and regarding points of agreement and incomprehension, I will be selective and touch on only a few.

When I was invited to participate in this symposium, I welcomed what I thought would be the opportunity to apply my views about the semantics and logic of vague language to the real-life problems of vagueness legal theorists worry about. I confess to having formed my ambition without a very clear sense of what jurisprudential problems might be illuminated by general theories of vagueness. To be sure, I was able to guess that a symposium on Vagueness and Law must have (...) something to do with the dilemmas courts face when it is indeterminate how a legal dispute should be resolved. What I had not thought through was how philosophers like myself might help to illuminate those dilemmas by bringing to bear on them their own logico-semantical theories of vagueness. This was unfortunate because, having done a bit of homework, I have reached the conclusion that philosophical theories of vagueness, even if true, have nothing to offer jurisprudential concerns about vagueness. Once she is reminded of certain platitudes about vagueness, the legal theorist needs no further help from philosophers of language and logic. Let’s see why this is so. (shrink)

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal (...) rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses) -/- To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent. (shrink)

The paper goes into the intricate logical relation between imperatives, precepts and norms. It shows that there need not be two senses of "ought", the one descriptive and the other prescriptive, since when the law-giver enacts a fresh statute he is hereby making a tru statement, whose truth is grounded on the statement itself.

Throughout his many writings Charles Sanders Peirce occasionally presented examples of how to use the pragmatist method of defining one’s terms, having insisted that pragmatism is just that: a methodological stance concerning how best to clarify one’s terminology. One of the more remarkable examples is his definition of the word ‘reality’ with the corollary definition of the word ‘truth’. It is argued here that this definition also supplies for free a corollary definition of the word ‘knowledge’. Moreover, the same type (...) of definition (involving long-run perfectionist ideals of some sort) can be given for the words ‘democracy’ and ‘justice’. (shrink)

This volume puts leading pragmatists in the philosophy of language, including Robert Brandom, in contact with scholars concerned with what pragmatism has come to mean for the law. Each contribution uses the resources of pragmatism to tackle fundamental problems in the philosophy of language, the philosophy of law, and social and political philosophy. In many chapters, the version of pragmatism deployed proves a fruitful approach to its subject matter; in others, shortcomings of the specific brand of pragmatism are revealed. The (...) result is a clearer understanding of what pragmatism has meant and can mean across these tightly related philosophical areas. The book, then, is itself pragmatism in action: it seeks to clarify its unifying concept by examining the practices that centrally involve it. (shrink)

This paper deals with the particularities of vagueness in law. Thereby the question of the law’s capacity for vagueness is closely related to the question of the impact of vagueness in law, since exaggerated vagueness combined with the elasticity of legal interpretation methodology may affect the constitutional principles of legal certainty, the division of powers, and the binding force of statute. To represent vagueness and the instability of legal concepts and rules, a Hyperbola of Meaning is introduced, opposing Heck’s metaphor (...) of a core and a periphery of meaning. Furthermore, evidence is provided that the use of vague legal concepts and the capability of legal methodology to affect the specific meaning of those concepts, may give rise to astonishing and irrational changes of meaning of the law. Finally the paper sets out in search of an added value of vagueness in law, and weighs several stated pros and contras of vagueness. The paper is written against a background of the German speaking realm. (shrink)