[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 18 Mar 2015 21:31:12 -0400
In a message dated 3/18/2015 11:26:53 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes:
In the hands of "legal philosophers", 'legal philosophy' is effectively a
form of 'philosophy-lite', that takes law-related issues as its
subject-matter but then treats these in a relatively shallow and superficial
way.
... much more interest in how to make a philosophical career out of
linguistic minutiae
Must say I always loved that word, 'minutiae'.
But of course one can be as much into minutiae as one wants and I don't
think Hart was SPECIALLY into minutiae. There are grander problems of legal
philosophy that pertain to linguistic philosophy of the type Hart practised,
such as the following:
Frequently members of parliament vote for laws that they do not even know,
just by following the indications of the party to which they belong to.
This aspect becomes more serious in the case of extremely technical
legislation, the text of which is generally written by experts who are not
members of
parliament.
Opinions, beliefs, and goals of the members of parliament (that is the
elements that the doctrine normally refers to under the heading ‘‘intention of
the legislator’’) are important in that they constitute elements of
the context of utterance and therefore influence the identification of the
communicative content.
Law is an often-conflictual undertaking: it is ‘‘a game in which it is
convenient to cheat’’ -- to translate from Jori.
So minutiae and implicature will play a role in the interpretation of the
law.
Consider the Ninth Amendment to the U.S. constitution:
"The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people."
Now, the use of the phrase "others retained by the people" *seems* to
implicate that people have other rights and that the constitution can’t be used
to override them.
Indeed, much debate has ensued as to what these OTHER RIGHTS rights might
be, and how they should be used, if at all, in constitutional jurisprudence.
Originalists such as Randy Barnett (and myself on Mondays) argue that the
rights in question are natural libertarian-esque rights.
But liberal justices, such William O. Douglas (or myself on Wednesdays(,
have used the implication to support their preferred flavour of rights too.
Consider another example, this time drawn from the Irish Constitution
(Bunreacht na hEireann), articles 40.3.1 and 40.3.2 state:
40.3.1:
The State guarantees in its laws to respect,
and, as far as practicable, by its
laws to defend and vindicate *THE PERSONAL RIGHTS
OF THE CITIZEN* (emphasis Speranza's)
40.3. 2° -
The State shall, *IN PARTICULAR* (emphasis Speranza's), by
its laws protect as best it may from unjust
attack and, in the case of injustice done,
vindicate the life, person, good name,
and property rights of every citizen.
The implicature here seemssomewhat more subtle.
But the askerisked portions suggest that
(a) the constitution protects personal rights and
(b) these rights are not exhaustively listed in Article 40.3.2.
In other words, the implicature here is similar to that in the Ninth
Amendment of the U.S. Constitution.
There are more rights protected by the constitution than explicitly
mentioned.
This implicature became a cornerstone of Irish constitutional jurisprudence
in the latter half of the 20th Century when Irish courts identified and
protected a set of "unenumerated rights".
These two examples -- the American and the Irish -- have much in common.
They both involve constitutional provisions that implicate more than they
(literally) SAY.
That is: they IMPLICATE that there are more legal rights and correlative
duties than are explicitly listed in the constitutional text itself.
According to the defenders of minutiae such implicatures do play a role in
the interpretation and application of the law.
The U.S. courts DO make use of the unstated rights in the Ninth Amendment.
The Irish courts HAVE developed a doctrine of unenumerated rights.
These are significant, substantial, questions (brought by analytic legal
philosophy alla Hart) and the answers to them make a big difference to the
life of the law.
Minutiae and implicatures thus do have a lrole to play in both the
interpretation and the application of authoritative legal acts such as
constitutions and statutes.
The simplest argument in favour of implicature in law is that the
production and interpretation authoritative legal acts is directly analogous to
and
ordinary conversation.
The legislatures and drafters of legal texts are the “utterers” and the
interpreters and appliers of the law are the “addresses” (who, in turn, pass
on the message to the people affected by the law).
Thus, the Irish or American courts do appeal to IMPLICATED meaning when
interpreting their respective constitutions.
They would do so if they heard the same utterances in everyday conversation
and the law is like those conversations.
This suggests the following analogical argument:
P1: In ordinary conversations, implicature should play a significant role
in the interpretation of what has been said.
P2: The production and interpretation of authoritative legal acts is like
an ordinary conversation in all relevant respects.
----- Therefore, implicature plays a significant role in the
interpretation of authoritative legal acts.
Granted, there is some scope for "back-and-forth" in the legal
"conversation".
A court may highlight a problem with a legal text and a legislature may
respond. even if there are problems, the text still needs to be interpreted
and applied.
Even though the production and interpretation of an authoritative legal act
is not like an ordinary context because (a) the 'addressees' (judges and
litigants) are not true parties to the conversation and thus rely on
imperfect secondary information to flesh out the background context, some
knowledge of this context is needed for working out implicatures; and, this
being
so, it is reasonable for legal "utterers" to expect the "addressees" to
understand the implicatures of what they say.
This is an interesting argument, and has a lot similarities with some of
the arguments proffered by constitutional originalists in the U.S.
One superficial objection is that legal subjects don’t necessarily want to
be nice, and cooperate by following the law.
Indeed, they will often look for ways to avoid the reach of the law.
As Oliver Wendell Holmes said in his famous lecture “The Path of Law”, to
truly understand the law, we need to look at it from the perspective of the
“Bad Man”, the one wants to break the law and get away with it.
Still, the “utterers” of authoritative legal texts do rely on the good
faith of their "addressees".
If the background context is uncertain, as it typically is, we shold grant
that the utterer may even expect his addressee to twist the evidence to
support whichever version of that context that is consistent with the
addressee's interests.
Despite their best efforts of their opponents, an authoritative legal text
will implicate more than they say (as seems clear in the case of the US and
Irish constitutions). And courts cannot ignore this. A court will just
have to muddle along, figuring out the most appropriate implicatures it can,
based on relevant normative arguments and historical evidence.
And minutiae and implicature play an even more extensive role in the
interpretation of "private acts of autonomy" such as are found in contract law.
In legal interpretation both the criterion according to which "ubi lex
voluit dixit, ubi noluit tacuit" and the criterion that "lex minus dixit quam
voluit" are normally in force, the first seemingly excluding implicatures
whereas the second, in contrast, seemingly permits them.
The applicability of the something like a cooperative principle to
contractual interpretation is claimed by
Frade and, with regard to Roman law, by Mantovani. Whereas Frade seems to
claim that this applicability derives from the nature of the contract as a
‘‘promise or set of promises constituting an agreement between the parties
’’according to Mantovani, on the other hand, it derives from the principle
of "bona fides" which
is equivalent to something like the cooperative principle. With regard to
this we prefer to argue that the legal
principle of "bona fides" is not equivalent to, but requires respect of
something like the cooperative principle,
in that, unlike ordinary discourse, in contractual interpretation the
maxims constitute hermeneutic rules which are not spontaneously followed, but
rather required.
Legal controversies can also arise as to their interpretation "secundum
bonam fidem" that is, in our terms, as to what the implicatures of certain
utterances are, and, also in this case, this will depend to a large extent
on the reconstruction of the context.
So, if a constitutions or a statute IMPLICATES more than it says, more so a
private act of autonomy such as a contract.
Here, the analogy with ordinary conversations is cleaner and less
contentious.
Consider an everyday contractual agreements, such as that created when you
go into a store, pick an item off a shelf, a purchase it at the till.
Some "contract theorists" don’t even view these as contracts.
But assuming they are (and why shouldn't they be?) they seem like the
kinds of contracts in which the mechanisms of implicature would apply (if they
need to apply).
Such contracts are negotiated face to face and in conversation.
Things get trickier when contracts are put in writing.
When this happens it is typically to create greater certainty.
One might be inclined to think that this desire for certainty stems from
the realisation that something like the cooperative principle does not
always govern such relationships.
Sometimes people are trying to "pull a fast one" or take advantage of one
another.
Thus, perhaps the kinds of conversations that lead to the creation of a
contracts are more like the conversation between the "law-makers" (that Plato
adored) and their subjects, than they are like ordinary everyday
conversations.
But one key elements of the background context to the contractual
conversation is the legal system in which that conversation takes place,
especially
since Roman if not Greek times.
Many of those legal systems appeal to something they call the Roman
principle of "bona fides"
According to the Roman principle of 'bona fides', a contract is to be
interpreted on the assumption that the parties negotiated with one another in
good faith.
Thus, they are assumed NOT to be "pulling a fast one" on each other.
This principle effectively overrides any empirical concerns we may have
about the manipulation in contract negotiation, and instead demands that we
assume good faith.
This may be unrealistic, but the "norm" dominates reality, and the parties
will suffer if they try to be manipulative.
Suppose the following dialogue took place during the negotiation of a
contract for a horse:
Offeror: I would like to buy your horse, but first I want to know if there’
s anything wrong with it?
Offeree: i. Well, the horse does suffer from weak hooves.
Following the principle of good faith, we would say that the offeree’s
statement implicates that there is nothing ELSE WRONG wrong with the horse,
i.e.
ii. The horse ONLY suffers from weak hooves.
This is despite the fact that the statement is logically consistent with
there being many, many other things wrong (and even VERY wrong) with the
horse.
And despite the fact that the offeree may be deliberately using this phrase
with this in mind (cfr. suprresio veri, suggestio falsi).
The goold ol'e Roman principle of "bona fides" will override, by
definition, any "mala fides" on the part of the offeree.
If it turns out that many other things are wrong with the horse other than
the EXPLICITLY COMMUNICATED 'weak hooves',, and they can be claimed to be
*known* to the offeree, he will surely be liable for misrepresentation. The
court will assume that their statement implied that nothing else was wrong
with the horse.
That's why in legal interpretation the criterion, "ubi lex voluit dixit,
ubi noluit tacuit", seemily EXCLUDES implicatures (since they are
cancellable) while the criterion, "lex minus dixit quam voluit" PERMITS THEM.
The sad
thing is that both criteria are normally both in force.
If this is is merely minutiae about implicature, and not a substantive
contribution of analytic philosophy alla Hart, I don't know what is!
To sum up, minutiae and implicature have an important role to play in the
interpretation of legal texts.
Authoritative legal texts could be analogised to ordinary conversations,
even if the “addressees” (judges and litigants) are not true participants
in the conversation, and the “utterers” cannot reasonably expect (in this
changing world, o tempora o mores) the addresses to share the background
context needed to flesh out the relevant implicature.
When it comes to PRIVATE acts of autonomy such as a contracts, the good
ole Roman principle of good faith is certainly part of the legal context in
which the contract is negotiated. That essentially makes something
cooperative principle part of the context of contractual conversation, which in
turns facilitates implicature.
And Hart knew this.
Cheers,
Speranza
References:
Frade, C. The legal cooperative principle: an essay on the cooperative
nature of contractual transactions. Journal for the Semiotics of Law, vol.
15.
Hart, H.L.A. The concept of law. Oxford: Clarendon Press.
Jori, M. Definizioni giuridiche e pragmatica. In Analisi e diritto, ed. P.
Comanducci, and R. Guastini,
Turin: Giappichelli.
Mantovani, D. Lingua e diritto. In Il linguaggio giuridico: prospettive
interdisciplinari, ed. G. Garzone,
and F. Santulli, Milan: Giuffre
Marmor, A. The pragmatics of legal language. Ratio Juris, vol. 21.
Ross, A. Directives and norms. London: Routledge and Kegan Paul.
von Wright, G.H. Norm and action: a logical enquiry. London: Routledge and
Kegan Paul.
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