McEvoy was referring to some legal cases as involving 'implicature' --
allowing that the 'problematique' was perhaps not stated in those terms.
Indeed, while it should, it shouldn't!
Thus we find in some of the LEGALESE (if not PHILOSOPHICALESE literature)
the point the idea that one should 'strongly recommend the avoidance of the
difficult concept" (implicature: to digest) of the 'implied assertion' --
for 'implied assertion' as one way in which some of the problematique was
termed.
"Implied assertion" has been described as "a rather unfortunate
expression," as it trades on the first Grice of Grice v Grice, but not on the
second.
It is stated that, in the collocation 'implied assertion', the expression
'implied' is "used in an unusual manner", seeing that after Grice, 'implied'
is used to mean "implicate", whereas an implicature on the part of some
utterer, INTENDING by his uttering, that his recipient or addressee will
form this or that psychological attitude is not what most cases of alleged
'implied assertion' seem to cover. In most cases the 'stated matter' seems to
be something the utterer presupposes his addressee already 'knows'.
In other words, normally, 'implied' (or 'implicated' if you are Grice or a
Griceian) is used when some content is INTENDED to be understood as MEANT.
This does not seem to cover most cases of 'implied assertion': hence the
point that the 'concept' is a 'difficult' one.
Granted, "implied assertion" may have different usages (never senses!) and
we have to grant, too, that the hearsay rule usage invoking 'implied
assertion' seems to be a rather narrow (if not legalese rather than
philosophicalese) one at that!
It should be pointed out that the criminal justice act avoids, fortunately,
the use of that "rather unfortunate expression" of 'implied assertion'. So
McEvoy was wise in terming the problematique elsewise.
In fact, the criminal justice act avoids the use of the expression
'assertion' altogether (it was found to be too Strawsonian?), never mind
'implied'!
The favoured phrase now seems to be 'stated matter'.
A good Griceian account of stated matter is Redmayne, who cites Grice 1967.
We'll get back to 'stated matter', especially when 'implied assertion' has
been deemed to be a singularly inept and artificial -- anathema for an
ordinary-language philosopher like Grice -- umbrella term. The concept of
'implied assertion' requires us to understand 'imply', as we shouldn't, in a
weak manner, to mean 'suggest' or 'indicate' (as in 'the weathercock indicates
the wind is coming from the west," or "the barrel outside the building
suggests that wine is sold inside" -- example in Ockham, Summa Totius
Logicae). But LEGALESE seems to need something stronger, something Griceian:
'imply' (or 'implicate') should go beyond mere cases of 'natural' meaning
(when
'suggest' and 'indicate' can be used) and apply to non-natural meaning, when
an intention on the part of the utterer (not the weathercock) is
postulated as a necessary condition for its analysis.
In other words, 'implied assertion' has become a legalese "term of art"
(granted, Grice saw 'implicate' as a 'term of art' but of PHILOSOPHICALESE),
and a bad'un at that!
One good thing is that it has given rise to loads of legalese literature of
a Griceian nature, as when we have philosophers of law alla Hart talking
(and writing) of unintended implications and the assertive/non-assertive
distinction.
"Stated matter" may be alleged to inherit some of the 'difficult' problems
of the 'difficult concept' of 'implied assertion'. After all, to 'state',
for Strawson, is like to 'assert, like. This became evident in Jarndyce v
Jarndyce, but I disgress*.
Cheers,
Speranza
"And you shouldn't," Geary admonishes me, via explicature.
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