[lit-ideas] Re: Can, logically, there be any such thing as a "performativ...
- From: Jlsperanza@xxxxxxx
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sat, 30 May 2009 23:22:06 EDT
O. K.:
>It seems to me that here there is a confusion between 'performative
contradiction' in the >Kantian sense and the illocutionary force of
performatives as used by J.L. Austin.
Good O. K. mentioned J. L. Austin. Incidentally, when I wrote about Scots
law -- that was about 'relevance'. "operative" is good old ENGLISH law.
Anyway, J. L. Austin who liked a neologism (of sorts) did acknowledge:
1962 J. L. Austin's How to do Things with Words i. 7 But ‘operative’..is
often used nowadays to mean little more than ‘important’.
----- By who? Not lawyers!
Consider the OED quotes of some relevant interest:
1425 tr. Guy de Chauliac Grande Chirurgie (N.Y. Acad. Med.) f. 3v, is
crafte [sc. surgery] is practicale & operatiue [a1500 Cambr. operatif; L.
operatiua].
This above is very good: performative is an ugly hybrid. 'operativus' seems
good Latin.
1654 J. BRAMHALL Just Vindic. Church of Eng. iii. 31
Whether the Act or Statute of Separation were operative or declarative,
creating new right, or manifesting, or restoring old right.
1793 N. CHIPMAN Rep. & Diss. II. 144
Any species of conveyance, which contains words, operative at common law to
convey, will be equally valid.
1872 in J. Russell Rep. Cases High Court of Chancery V. 344
If the operative part of a deed be doubtfully expressed, there the recital
may safely be referred to as a key to the intention of the parties; but
where the operative part of the deed uses language which admits of no doubt,
it cannot be controlled by the recital.
1925 G. C. CHESHIRE Mod. Law Real Property 601
We will now turn to the operative words of the conveyance.
1967 G. DWORKIN Colgers' Constr. Deeds & Statutes 160
After the rentals the operative part of a deed begins, generally with the
words ‘Now this deed witnesseth,’ etc.
1882 C. SWEET Dict. Eng. Law,
In a conveyance, lease or other deed dealing with property, that part which
follows the operative words is called the parcels.
Each quote needs to be studied with some care.
Austin himself abandoned his performative vs. constative theory -- when he
realised it was absurd!
J. L. Speranza
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