Law and Language

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.

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)

Two principal sources of imprecision in legal drafting (vagueness and ambiguity) are identified and illustrated. Virtually all of the ambiguity imprecision encountered in legal discourse is ambiguity in the language used to express logical structure, and virtually all of the imprecision resulting is inadvertent. On the other hand, the imprecision encountered in legal writing that results from vagueness is frequently, if not most often, included there deliberately; the drafter has considered it and decided that the vague language best accomplishes the (...) purpose at hand. This paper focuses on the use of some defined terminology for minimizing inadvertent ambiguity in the logical structure of legal discourse, where desired by the drafter. The current set of signaled structural definitions that are included in the A-Hohfeld language are first set forth and their use is illustrated in an extensive example from the treaty establishing the European Economic Community. The use of definitions in legal writing is widespread, butaddressed almost exclusively to controlling the vagueness of substantive legal terms; they are seldom used for structural purposes. Furthermore, their use in American legislative drafting is unsignaled. Here, attention is devoted to the relatively-neglected domain in legal discourse of imprecisely expressed logical structure, and the remedy offered, where desired by the drafter, is a set of signaled structuraldefinitions for use in controlling such imprecision. (shrink)

This paper contains an analysis of performatives with special attention to performatives in the law. It deals with the possibility to recognise performativity by means of a grammatical-syntactic criterion, the self-verifying and norm-promulgating character of legal performatives, an analysis of the effects of performatives by means of causal logic, the different forms of performativity and a theory of promise-performatives.

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)

Roy Sorensen has argued that vagueness in the law cannot be justified by appeal to the value of power-delegation, and thereby threatens to take away one of the main reasons for thinking that vagueness can be valuable to law. Delegation of power to officials is justified, he thinks, only if these officials are in a better position to discover whether a particular x is F, a condition not satisfied in cases of vagueness. I argue that Sorensen’s argument is unsound: delegation (...) of power can be valuable even if the delegates are not in a better position to answer that question. (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)

In this article I discuss one of the linguistic means which enables speakers to represent content in their utterances without expressing it explicitly. I will argue, in line with Wilson and Sperber, that the logical form of the argument encoded by an utterance (however fragmentarily or incompletely) is sufficient as a cue directing the hearers to the implicit content of the speaker's meaning. I will suggest that the logical form of the encoded argument enables the speaker to represent in the (...) utterance certain contextual implicatures as a hidden layer of the text. I will illustrate this by showing how these means are used for embedding contextual implicatures by analyzing a text of an Israeli court file. This analysis can be easily generalized to other legal systems and argumentative texts. (shrink)

More than half a century ago, the Supreme Court held that the free speech protection of the First Amendment is not limited to verbal communication, but also applies to such expressive conduct as saluting a flag or burning a flag. Even though the Supreme Court has decided a number of important cases involving expressive conduct, the Court has never announced any standards for distinguishing such conduct from conduct without communicative value. The aim of this paper is to examine which conceptions (...) of nonverbal expression underlie judicial decisions on expressive conduct, and to offer an account of expressive conduct grounded in contemporary semantic theory. The central hypothesis of this paper is that significance of expressive conduct can be explained by principles that explain important features of linguistic meaning. I propose an analysis of expressive conduct that takes the meaningfulness of conduct as a function of the action and its consequences in context. I develop a theory of expressive conduct whose underlying conception of expression is based on a number of ideas from speech act theory. These are Grice's account of nonnatural meaning, Austin's theory of illocutionary force, and Grice's work on conversational implicature. My analysis understands the meaningfulness of conduct in terms of its relational properties and relevant features of the context upon which illocutionary force, perlocutionary properties and implicature are predicated. The natural and conventional properties of types of conduct, features of the context, and underlying social and cultural presumptions and expectations about human conduct thus play a role in the constitution of symbolic speech. (shrink)

Our world is full of fictional devices that let people feel better about their situation - through deception and self-deception. The legal realist, Felix Cohen, argued that law and legal reasoning is full of similarly dubious labels and bad reasoning, though of a special kind. He argued that judges, lawyers and legal commentators allow linguistic inventions and conventions to distort their thinking. Like the ancient peoples who built idols out of stone and wood and then asked them for assistance and (...) guidance, Cohen argued that within the legal world people tend to create legal concepts and then think that these concepts do or should determine how social disputes must be The philosopher Ludwig Wittgenstein similarly spoke of the way we fool ourselves, when we use a noun for some matter, and then assume that, because nouns usually name objects, here as well there must be some entity that exists out in the world, whose nature can be discovered. Our grammar misleads us. This article explores some of the ways, particularly in contract law and family law, that we have been led astray by our legal language. Because we only rarely have an Oliver Wendell Holmes, Jr., or a Felix Cohen to keep us in line, we need to learn to do the important work ourselves. The great danger is the way that inaccurate language can so easily change our substantive views about what is natural or what is right. If transparency is difficult in legal language, much of the fault may lie with lawyers and judges who want to make their conclusions sound more reasonable, less controversial, and more appealing: so we call it "consent" and "waiver" and "meeting of the minds" and "best interests of the child," when it is in fact something quite different. And at least in the common law systems the process of reasoning and law-making is tied strongly to the past. The new case has to fit into the categories and concepts that we created for a prior case - fitting cases that came up hundreds of years before, in a different society, with different technology, facing a different set of problems. So judges often end up stretching the meaning of concepts, or using legal fictions to bridge the old rule with the new equities. We may never entirely escape the tendency of our own language to mislead us, but clarity in thought and analysis is something towards which we should struggle constantly, and with determination. (shrink)

This article is based on a Lecture given as part of the Franklin J. Matchette Foundation Lecture Series on Truth at the Catholic University of America, School of Philosophy, in 2002. It explores what theorists in the natural law tradition and modern legal theorists have argued about what makes propositions of morality and law true, focusing on the rubric of "reason" as opposed to "will." It seems probable, and perhaps inevitable, that theorists about the nature of truth in morality must (...) choose between reason and will - that morality, at its core, is either one or the other. What makes law distinctive is that it is, as a practical matter if not by conceptual necessity, a mixture of both. And it is this intertwining of reason and will, of normative system and practical reasoning, which makes assertions about the nature of legal truth, and theories about the nature of law, so difficult. The arguments about truth in law are as much disagreements about what it means to say that a legal proposition is truth as they are about what makes legal propositions true. Are declarations of truth in law statements about legal norms and legal sources, or are they statements about the results of particular disputes or particularized inquiries? There are obvious complilcations in speaking of truth in a context like law, where there is simultaneously an effort to create a coherent normative system and a decision-making procedure that can modify that system in the course of resolving disputes. (shrink)

This book discusses one of the central problems in the philosophy of law--the question of legal determinacy. Is the law a seamless web or are there gaps? Bix argues that the major re-thinking of the common and "common sense" views about law that have been proposed by various recent legal theories is unnecessary. He offers a reconsideration of the role of language in the law, and the way ideas about language have been used and misused in recent legal theory. He (...) explores in depth the relationship to legal theory of Hart's influential idea of "open texture," Dworkin's interpretative approach to law, and Wittgenstein's philosophy. (shrink)

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)

We argue that the dead donor rule, which states that multiple vital organs should only be taken from dead patients, is justified neither in principle nor in practice. We use a thought experiment and a guiding assumption in the literature about the justification of moral principles to undermine the theoretical justification for the rule. We then offer two real world analogues to this thought experiment, voluntary active euthanasia and capital punishment, and argue that the moral permissibility of terminating any patient (...) through the removal of vital organs cannot turn on whether or not the practice violates the dead donor rule.Next, we consider practical justifications for the dead donor rule. Specifically, we consider whether there are compelling reasons to promulgate the rule even though its corresponding moral principle is not theoretically justified. We argue that there are no such reasons. In fact, we argue that promulgating the rule may actually decrease public trust in organ procurement procedures and medical institutions generally – even in states that do not permit capital punishment or voluntary active euthanasia.Finally, we examine our case against the dead donor rule in the light of common arguments for it. We find that these arguments are often misplaced – they do not support the dead donor rule. Instead, they support the quite different rule that patients should not be killed for their vital organs. (shrink)

Truth is a complete defense to a defamation charge, but a defendant does not have to prove the literal truth of a defamatory statement to prevail. An effective defense can rely on the substantial truth doctrine. Under the substantial truth doctrine, a defamatory statement is First Amendment-protected if it is factually similar to the pleaded truth, and does not differ from the truth by more than immaterial details. This article presents and analyzes the theory, application, and constitutional foundations of the (...) substantial truth doctrine. It concludes that the doctrine promotes the values of the First Amendment by reducing the risk of self-censorship, yet preserves defamation law's reputational protection and compensatory function. (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)

Can there be a non-reductivist, source-based explanation of the use of normative language in statements describing the law and legal situations? This problem was formulated by Joseph Raz, who also claimed to have solved it. According to his well-known doctrine of ‘detached’ statements, normative legal statements can be informatively made by speakers who merely adopt, without necessarily sharing, the point of view of someone who accepts that legal norms are justified and ought to be followed. In this paper I defend (...) two theses. I argue, first, that the notion of a detached statement cannot be made to work, and that Raz’s problem is thus not thereby solved. But the problem itself, I also suggest, is a false one. (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.

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.

The author argues that philosophers' attempts to use philosophy of language to solve problems of jurisprudence have often failed- the most dramatic failure being that of Jeremy Bentham. H.L.A.Hart made some related mistakes in his creative use of philosophy of language, yet his focus on language still yields some very significant insights for jurisprudence: the context principle (that the correct application of linguistic expressions typically depends on context in ways that are important for jurisprudence), the diversity principle (that grounds of (...) correct application of legal language may be diverse), and the importance of vagueness. (shrink)

In fact, law is necessarily very vague. So if vagueness is a problem for legal theory, it is a serious problem. The problem has to do with the ideal of the rule of law and with the very idea of law: if vague standards provide no guidance in some cases, how can the life of a community be ruled by law? The problem has long concerned philosophers of law; the papers at this symposium address it afresh by asking what legal (...) theory may have to learn from (or contribute to) work on vagueness in philosophy of language and philosophy of logic. Here I will not try to state the implications of vagueness for philosophy of law; I will try to set the stage by showing that vagueness is both an important and an unavoidable feature of law. (shrink)

Vagueness in law can lead to indeterminacies in legal rights and obligations. This book responds to the challenges that those indeterminacies pose to theories of law and adjudication.

The forensic two-trace problem is a perplexing inference problem introduced by Evett (J Forensic Sci Soc 27:375–381, 1987). Different possible ways of wording the competing pair of propositions (i.e., one proposition advanced by the prosecution and one proposition advanced by the defence) led to different quantifications of the value of the evidence (Meester and Sjerps in Biometrics 59:727–732, 2003). Here, we re-examine this scenario with the aim of clarifying the interrelationships that exist between the different solutions, and in this way, (...) produce a global vision of the problem. We propose to investigate the different expressions for evaluating the value of the evidence by using a graphical approach, i.e. Bayesian networks, to model the rationale behind each of the proposed solutions and the assumptions made on the unknown parameters in this problem. (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)

¿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.

Introduction: dimensions of inquiry -- Speaker intent and convention; linguistic meaning and pragmatics; Vagueness and indeterminacy: three topics in the philosophy of language -- Literary interpretation, performance art, and related subjects -- Religious interpretation -- General theories of interpretation -- Starting from the bottom: informal instructions -- The law of agency -- Wills -- Contracts -- Judicial alterations of textual provisions: Cy Pres and relatives -- Conclusion and a comparison.

Necessitarian accounts of the laws of nature have an apparent difficulty in accounting for counterlegal conditionals because, despite appearing to be substantive, on the necessitarian thesis they are vacuous. I argue that the necessitarian may explain the apparently substantive content of such conditionals by pointing out the presuppositions of counterlegal discourse. The typical presupposition is that a certain conceptual possibility has been realized; namely, that necessitarianism is false. (The idea of conceptual possibility is explicated in terms of recent work in (...) two-dimensional modal semantics.) If this sort of presupposition is made explicit in counterlegal utterances, we obtain a sentence such as: 'If it turns out that the laws of nature are contingent, then if the laws had been otherwise, then such and such would have been the case.' Sentences of this type are non-vacuous, and very often true. I argue that this goes a long way towards resolving the difficulty for necessitarianism. (shrink)

This book examines the legal and moral theory behind the law of evidence and proof, arguing that only by exploring the nature of responsibility in fact-finding can the role and purpose of much of the law be fully understood. Ho argues that the court must not only find the truth to do justice, it must do justice in finding the truth.

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)

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)

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)

Every description contains within it a qualifier that allows us to avoid the problem of descriptive regress, and thus allows us to use the description for various purposes. Descriptive regress occurs because no one description can be understood without referring to further descriptions, which themselves require unpacking by reference to further descriptions ad infinitum. There are no fundamental descriptions no descriptions that attain and keep some privileged ontological status. The qualifier works by invoking the normal circumstances in which the description (...) obtains. It is impossible to foresee and describe in advance all the circumstances that would not be normal and that would reveal to us when the description could not obtain. It is our common sense the sense we develop as members of communities, and a sense sometimes narrowed and specialized in certain forms of life of what set of normal circumstances are implied into the description that allows us to use descriptions for various purposes (e.g. for describing circumstances in which some normative consequence should follow if the description obtains). This theory of descriptions is particularly relevant to the analysis of the role of descriptions of behavior and behavioral concepts in law. Law, in order to enable the regulation and evaluation of human behavior, cannot do without behavioral foundations criteria for evaluation of behavior are always based on certain descriptions of behavior and behavioral concepts. The theory of descriptions developed explains how descriptions of behavior function, namely, their utility relies on the legal community's common sense of the qualifiers attaching to descriptions of behavior. But that theory also has a reformative agenda: we should not think that any one description or any one behavioral concept such as that of intentionality can do all the work for us, in every area of the law, and in respect of every single social phenomenon. We need, in other words, to rethink the criteria for the evaluation of behavior on the basis of this theory of descriptions: i.e. on both the power and the limitations of descriptions of behavior. (shrink)

In this review of Brooke Harrington's edited collection of essays on deception, written by people from different disciplines and giving us a good "status report" on what various disciplines have to say about deception and lying, I reject social psychologist Mark Frank's taxonomy of passive deception, active consensual deception, and active non-consensual deception (active consensual deception is not deception), as well as his definition of deception as "anything that misleads another for some gain" ("for gain" is a reason for engaging (...) in deception, not part of its definition). I also take issue with management professor Guido Mollering's claim that all deception involves a violation of trust. (shrink)

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)

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)