Abstract
It is a fundamental axiom of legal positivism that what the law is and what the law should be are two different questions. However, this ‘separability thesis’ gives rise to two obvious objections. First, the two questions are inextricably intertwined. What the law is may seem to be purely a matter of interpretation. However, judicial interpretation is necessarily justified by extra-linguistic considerations, to the extent that the term ‘interpretation’ is often (misleadingly) used to refer to “legal reasoning”. Secondly, where the judge feels obliged to depart from the letter of the law for whatever reason, his decision is usually justified by reference to an alternative available understanding of the text. Finally, if recently developed theories of semantics and of ethics are valid, there can be no definitive, generally applicable, answer to either question. This excludes the most extreme versions of legal positivism, in favour of a more flexible approach. Given that the claims made in contextualist semantics and in particularist ethics are based on similar assumptions and follow from closely parallel arguments, and that both semantic interpretation and ethics are directly relevant to legal theory, it is unfortunate that these different fields are so rarely discussed together.
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Notes
- 1.
“The existence of law is one thing; its merit or demerit is another” (Austin 1832, V: 184–5).
- 2.
“It is not that which ought to be but that which is” (Gray 1909: s 213).
- 3.
In spite of the fact that modern businessmen have little or no interest in or understanding of economic theory, this approach is often abusively referred to as “law and economics”.
- 4.
One solution to this problem, often canvassed by jurists, is to give the word ‘separability’ a strange new meaning carrying no implication of any actual separation, perhaps referring instead to a state of permanent immanence. Linguists are unlikely to find this approach convincing.
- 5.
“[E]ven here we fhall occafionally find room to remark fome particulars, that feem to want revifion and amendment. Thefe have chiefly arifen from too fcrupulous an adherence to fome rules of the antient common law, when the reafons have ceafed upon which thofe rules were founded.” (Blackstone, Bk4 Ch 1) This suggests that, like the particularists, the first professor of law would have been in favour of greater judicial discretion, and more case-by-case adjudication.
- 6.
In his “Discours préliminaire” to the French Code Civil (1804), Portalis admits that there will always be some cases which are “rares et extraordinaires”, and which cannot be provided for in advance.
- 7.
According to this rule, the contract was formed when the letter of acceptance was posted, even where the acceptance was never delivered, in some cases because the envelope had been wrongly addressed. (Full case references are given at the end of the article).
- 8.
“No universal rule can cover all such cases; they must be resolved by reference to the intentions of the parties, by sound business practice and in some cases by a judgement where the risks should lie” (Brinkibon v Stahag Stahl 1983, per Lord Wilberforce).
- 9.
The suggested “independent rule of law” regarding fundamental breach was defined (in non-technical terms) by Viscount Dilhorne as one which would be “imposed by the court on the parties willy-nilly in disregard of their contractual intention.”
- 10.
“It is usually more important that a rule of law be settled than that it be settled right. Even where the error in declaring the rule is a matter of serious concern, it is ordinarily better to seek correction by legislation. Often this is true although the question is a constitutional one. The human experience embodied in the doctrine of stare decisis teaches us also that often it is better to follow a precedent, although it does not involve the declaration of a rule.” (Di Santo v Pennsylvania (1927, per Justice Brandeis, dissenting)
- 11.
On this definition, US Constitutional amendments may be seen as no more than legal principles. (Hart 1961 261).
- 12.
In “Elmer’s case”, the principle on which the majority decision was based was indeed contrary to the established law.
- 13.
See his polemic reply to Blackburn (Dworkin 1997). Both there and elsewhere, Dworkin fails to mention that, up to and beyond the time of the American Civil war, at least half the US population did disagree with his current view, and that this moral conviction in favour of slavery was faithfully reflected in the contemporary law.
- 14.
“The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question ‘Who is my neighbour?’ receives a restricted reply.” (Donoghue v Stevenson 1932, per Lord Atkin).
- 15.
In his judgment, Lord Macmillan presciently pointed out that no such rule can ever be satisfactorily stated independently of the particular circumstances of the case: “The categories of negligence are never closed”. This is so close to the particularist view as to be, as they say in Parisian literary circles, a case of “plagiarism by anticipation”.
- 16.
The Forfeiture act (1982) c 34, for example, may have solved the problem presented in Riggs v Palmer (1889). However, it continues to raise new questions.
- 17.
This case involved the linguistic definition of a “prostitute”, and whether the word could be used where the lady providing the service was not even expected to be in the same room as her client.
- 18.
“In the comparatively few cases where the words of a statutory provision are only capable of having one meaning, that is an end of the matter and no further enquiry is permissible.” (Black-Clawson v Papierwerke 1975, per Lord Reid).
- 19.
According to Lord Blackburn in 1877, the explicit purpose of the rule was to allow the courts to avoid inconsistent, absurd, or (quaintly) “inconvenient” results, by interpreting words, not with their “ordinary signification”, but by giving them “some other signification”.
- 20.
While “TST” is here taken as corresponding to a classic model of semantics, based on fixed criteria, this has not always been the dominant model in the philosophy of language. Indeed, the Gricean model of conversational implicature may have been introduced, on purely methodological grounds, as an alternative to the then dominant model of contextualism defended by Wittgenstein and Austin, based on ordinary language and the idea of “meaning is use”.
- 21.
This machinery depends on a Co-operative Principle, which in turn depends on an indefinite subclass of non-conventional maxims. These include the maxim of Quantity (be as informative as required); Quality (say what is true); Relation (be relevant) and Manner (be perspicuous). Other conversational maxims (for example, Politeness) may be added as necessary to ensure the maximally effective exchange of information. In later research, attempts have been made to rationalise the Gricean conversational maxims, most notably in the theory of Relevance (Sperber and Wilson 1986), according to which all the various maxims may be derived from that fundamental principle.
- 22.
This problem is paralleled in the American law of perjury, as may be observed in Bronston v US (1973), in which a deliberately misleading answer, by the accused under interrogation during his trial, was held to be literally true.
- 23.
This is in direct contradiction with Frege’s (1884) semantic principle, in which the overall sense of the sentence, rather than the meanings of the individual words, is primary. ‘In the enquiry that follows, I have kept to three fundamental principles: … [b] never to ask for the meaning of a word in isolation, but always in the context of a proposition.’ (Frege 1884: xii)
- 24.
These were: “(1) The seriousness of the allegation; (2) The nature of the information, and the extent to which the subject-matter is a matter of public concern; (3) The source of the information; (4) The steps taken to verify the information; (5) The status of the information; (6) The urgency of the matter; (7) Whether comment was sought from the plaintiff; (8) Whether the article contained the gist of the plaintiff’s side of the story; (9) The tone of the article; (10) The circumstances of the publication, including the timing” (Reynolds v Times 1999, per Lord Nichols).
- 25.
“If you take the scripture to pieces you will make all the penmen of the scripture blasphemous; you may accuse David of saying there is no God; and accuse the Evangelists of saying, Christ was a blasphemer and a seducer; and of the Apostles, that they were drunk.” (R v Sidney 1683)
- 26.
“Lord Nichols listed certain matters which might be taken into account in deciding whether the test of responsible journalism was satisfied. He intended these as pointers which might be more or less indicative, depending on the circumstances of a particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.” (Jameel v Wall Street Journal 2006, per Lord Hoffmann)
- 27.
Yet, in District of Columbia v Heller (2008), the same Justice Scalia obstinately refused to accept that what he called the ‘prefatory clause’ to the 2nd Amendment USC (“A well regulated Militia, being necessary to the security of a free State …”) could possible affect the legal understanding of the ‘operative clause’ (“the right of the people to keep and bear Arms, shall not be infringed”). The cogent arguments presented in that case in the “Brief for Professors of Linguistics and English”, were said to “border on the frivolous”.
- 28.
For a discussion of Hart’s model of “open texture”, as opposed to Waismann’s original presentation of the theory as ‘Porosität der Begriffe’, see Charnock (2013a).
- 29.
“Finally, I think this is a typical case for the application of the “rule” that a court, in doubt between two constructions of a statutory provision, should lean towards that construction which involves the least alteration of the common law.” (Maunsell v Olins 1975, per Lord Reid).
- 30.
The confusion between legal reasoning and linguistic interpretation may, however, suggest a possible explanation for the strange Kelsenian slogan adopted by a number of French legal commentators, according to which “interpretation is an act of will” (e.g. Brunet 2011: 1). Yet, once the appropriate context is established, there is rarely any choice involved in understanding “what is said”. Similarly, apart from specially constructed cases like Wittgenstein’s ‘duck-rabbit’, no ‘act of will’ is involved in deciding what one sees (even though cognitive scientists tell us that vision is only possible because the brain is “interpreting” the available sense-data). The confusion is probably due to a divergence between the French and English texts; the English translation presents the ‘meaning’ of a norm as an “act of will” (Kelsen 1987), while in the French version (Kelsen 1962) the “acte de volonté” concerns instead its ‘interprétation’. It would have been simpler to state that legislation involves deliberate choice on the part of the law-makers. This formulation corresponds well to the etymology of the word, but would make for a much less memorable slogan.
- 31.
- 32.
For a more detailed defence of the contextualist view see Travis (1991).
- 33.
A more pessimistic, though perhaps more realistic, conclusion would be that understanding should be seen, in the words of the French linguist, Culioli, as a particular case within the much larger category of misunderstanding. The problem is that, from the point of view of the hearer, there is indeed no qualitative difference between the two.
- 34.
Also cited by Blackburn J in Brogden v Metropolitan Ry 1872, himself citing Brett CJ from memory, referring this time to “the thought of man”. Similarly, Justice Douglas dissenting in Scales v US 367 US 203 on the interpretation of the Smith Act 1961. The original statement by Brian CJ in Anon 1478 YB 17 Ed IV Pasch, in a case concerning punishment for thoughts (of treason) rather than for words and deeds, was cited in extenso by Cecil H. S. Fifoot 1949 History and sources of the common law”, Steven: London p. 252–4.
- 35.
The term ‘sexual intercourse’ is defined in section 384.24(2) of the Florida Statutes (2011) as referring exclusively to “contact between the genitals of a man and a woman”, thus apparently excluding homosexual activity.
- 36.
“For else, by the craft of an interpreter, the law may be made to bear a sense contrary to that of the sovereign, by which means the interpreter becomes the legislator.” (Hobbes 1651, Chap 26 – Of civil law).
- 37.
In 1873, the two systems were unified, so that equitable claims can now be pursued in the common law courts.
- 38.
They are rarely believed by their students.
- 39.
The promises on which they were elected included taxation of the leafy suburbs in order to fund a substantial reduction of the cost of public transport in central London. Not one of the judges hearing the case was regular user of public transport. However, they were mostly suburban residents.
- 40.
In Airedale NHS Trust v Bland (1993), Lord Hoffmann considered his own judgment irrational: “Finally, the conclusion I have reached will appear to some to be almost irrational. […] But it is undoubtedly the law and nothing I have said casts doubt on the proposition that the doing of a positive act with the intention of ending life is and remains murder.” In the divorce case Charman v Charman (2007), concerning the application of S. 25 of the Matrimonial Proceedings and Property Act (1984). the judge included in his judgment a long Postscriptum entitled “Changing the law”, in which he described London as the divorce capital of the world.
- 41.
“I feel constrained to add that the law is every bit as offensive to me as it is to my Brethren of the majority” (Griswold v Connecticut 1965, per Justice Black).
- 42.
“This was our paradox: no course of action could be determined by a rule, because every course of action can be made to accord with the rule” (Wittgenstein 1953: §201).
- 43.
“It is one thing to say that the ordinary meaning of ‘uses a firearm’ includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of ‘use’ that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow from the phrase ‘uses a firearm’ itself. As the dictionary definitions and experience make clear, one can use a firearm in a number of ways. That one example of ‘use’ is the first to come to mind when the phrase ‘uses a firearm’ is uttered does not preclude us from recognizing that there are other ‘uses’ that qualify as well (Smith v US 1993, per Justice O’Connor).
- 44.
In this sense, consensualist semantics may seem unexceptional, yet it has an important theoretical cost. The linguistic intuitions of informants can no longer be seen, as depending on their individual dispositions. On the contrary, judgements of grammaticality, for example, depend not on introspection but rather on what the individual assumes other people would say. This makes theories of language as a cognitive system appear decidedly solipsist.
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Charnock, R. (2016). Legal Positivism and the Pragmatics of Meaning and Morality. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_8
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