Some spontaneous commentary, more philosophical than legal, of course, on
McEvoy's post.
In a message dated 12/3/2015 7:22:48 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx presents in a post he entitled, "Law and
implicature": an
interesting case that should not have escaped H. L. A. Hart.
McEvoy writes: "R v Kearley [(1992) 2 AC 228] is [a] Supreme Court/House
of Lords case that bears on ‘problem-solving’ vs. ‘conceptual analysis’ as
the proper understanding of the processes of legal decision-making (and of
human thought and knowledge more generally). Kearley revolves around
implied or implicit meanings – or what might be termed “implicature”."
By whom I wonder. Answer: Sidonius. He COINED 'inplicatura' [sic]. Later
on I propose why GRICE thought he was coining 'implicature' in the context
of problem-solving. He thought (and rightly, too) that 'implicatura' solved
a problem posed by Strawson. This problem-solving strategy (that McEvoy
keeps contrasting to 'conceptual analysis') is indeed at the backbone of what
he calls the 'hoax' of 'conceptual analysis'. Grice's analysis of 'mean' is
a case in point. B. J. Harrison called Grice's analysis as 'perhaps second
to rule-utilitarianism in the case of counterexamples it has generated'.
Now, each counterexample, beginning with the one by Strawson in 'Intention
and Convention in speech acts', surely was a PROBLEM for Grice that he felt
the need to solve!
In what follows I will use PHILOSOPHICALESE (I hope not too confusingly) to
some of what I detect as LEGALESE in McEvoy (he is reporting a few cases,
where such LEGALESE was used).
McEvoy:
"The underlying question might be put as ‘What [is THE CONTENT] of the
language used?’"
Here I prefer to use 'utterance', and speak of the 'utterer' (as in "Have
you got any charley?")
It surely may not need what I think the LEGALESE is "regular assertion" for
surely, "Have you got any charley?" is not an assertion unless expanded as
"I want to know if you've got some charley"). If utterance sounds too
specific or context-dependent, "EXPRESSION" might do. Of course, the focus is
in the EXPLICIT utterance or EXPLICIT expression, or rather, on the
EXPLICITLY COMMUNICATED CONTENT of an utterance. I think the legalese is
"EXPLICITLY", which is contrasted with "IMPLIEDLY".
I also prefer to stick with the singular, "content". Later on McEvoy
refers to the truth -- or truth-conditions -- of an utterance, and, when
referring to this concoction, 'implied assertion', the content of the
assertion's
truth. So one has to be careful.
But why do I prefer 'content' in the singular? Because, never mind a
laywer, but if you think of a philosopher, if you have a telephone caller,
"Have you got any charley?"
and the idea is that this is evidence of a BELIEF on the part of the
relevant utterer, it may be well to follow Russell and Grice in speaking of
'psychological attitude': the 'content' of the belief or psychological attitude
(it may be a desire) behind the utterance. There does not seem a need to
pluralise this content.
McEvoy:
"In Kearley ["content" was] taken to go beyond stated or express
[EXPLICIT] content[...] and this opens the door to determining what implied or
implicit content... [is] part of [EXPLICIT utterance or expression]"
While I will try to use double squares in my paraphrases, the comparisons
can be easily made, I hope.
Indeed. In general, everybody agrees that content should 'go' (to use the
verb figuratively) BEYOND what is EX-plicit-ly communicated. Of course,
this relies on the fact that, in principle, this should not be so. When Tarski
said,
ii. Snow is white.
Davidson stuck with the explicit content ('snow is white') to provide what
he called a T schema:
iii. "Snow is white" is true if snow is white.
But after Witters, and his forms of life, one may need to know why the
Eskimo would utter such an otiosity.
McEvoy:
"The underlying question ‘What [is the content of the word] used?’ [or
what is the explicit content of a given utterance or expression] is not
stated in terms in Kearley but is my attempt to reduce its problematique to a
simple question. This simple question gives rise to complex issues and its
answer is best seen as an attempt to best solve these complex problems. In
Kearley these problems are connected to the operation of [a] specific rule –
the hearsay rule as it governs criminal cases. It would be a colossal
mistake to treat Kearley as if it were the product of a disquisition generally
on the line between implied hearsay and non-hearsay, undertaken without any
reference to any more specific ‘problem-situation’ or background, and then
with the results of this disquisition being applied to the specific
operation of the hearsay rule as it governs criminal cases."
Colossal mistakes call for Homeric heros, though, because later on McEv
oy's wording suggests a problem-solving approach that dismisses the way a
later case proved to 're-define' a concept of 'hearsay' -- i.e. where we would
have CA1 (initial conceptual analysis of 'hearsay' as INCLUDING 'implicit'
content of an utterance, intended or not, i.e. intentionally communicated
or not) and CA2 (a refined conceptual analysis of 'hearsay' that explicitly
EXCLUDES that monstrosity of the initial 'implied assertion').
McEvoy:
"This would be a mistake because it would overlook the problem-solving
character of the courts’ endeavours. As argued in other posts, this ‘
problem-solving character’ cannot convincingly be replaced by, or made
consistent
with, any view that takes the character of the courts’ endeavours to be ‘
conceptual analysis’."
In this case, we seem to have one conceptual analysis of 'hearsay', as
included in the phrase, 'hearsay' rule, and what it applies to; and we may see
legal progress as involving the refinement of this or that conceptual
analysis as it solves this or that problem (e.g. the alleged fact that an
'implied assertion' is "less easy to fabricate" that a regular one: "It is
easier to say a lie than to act one.").
McEvoy:
"On close examination, Kearley is an object-lesson in how ‘problem-solving’
trumps ‘conceptual analysis’ even when we are concerned very directly
with the analysis of language and its import. At the time of Kearley, a
useful legal definition"
or conceptual analysis -- as the later literature on these cases seems to
have been.
"of hearsay would be"
"x" is hearsay iff x is
‘an out-of-court [utterance or expression, which may be alethic or
assertoric, or a 'statement' -- cfr. Dummett on 'conditional asseertion' --
adduced to prove the truth of its contents.’
Grice here seems to have been wedded metaphorically to the Kiparskys use of
'factive', and this may do. G. N. Leech later refined this: there's
factivity (as in the case of 'see'); there's counterfactuality, and there's
non-factivity. In the legal scenarios, the situation has to take into account
what McEvoy later refers to as the 'assertoric intention', or more generally,
the INTENTION _to communicate_, I expect, content C. An utterance or
expression may lead someone (not necessarily the utterance's addressee) to
belief that p, when it is NOT part of the utterer to have the addressee
believe
that p. So one has to be careful here, as McEvoy is.
In any case, the passage provided by McEvoy, in spite of its simplicity,
seems to presupposes that we are endowed with a conceptual analysis of
a. statement.
b. truth.
c. content
d. proof
inter alia! I was mentioning Dummett, because his games on 'conditional
assertion' gave rise to a lot of polemic in philosophy. Ramsey's redundance
theory of truth (later taken up by Strawson) has been found (by Grice) to
fail in cases when we don't specify the content -- "What the policeman heard
at the apartment was true". "Proving" is a beast, as Toulmin's "The use of
argument" -- based on legalese -- shows!
McEvoy goes on:
"Thus any [expression or utterance, or assertoric or alethic utterance]
used as evidence of the truth of its contents is hearsay with the exception
of testimony itself."
This of course yields a conceptual analysis of 'testimony' ("cognate with
'testicle'," Geary reminds us), or rather, goes hand in hand,
metaphorically, with a conceptual analysis of testimony as "any statement used
as
evidence of its contents that is not hearsay." Is this circular? As Geary
again
would say, "It ain't necessarily so."
McEvoy goes on to provide different scenarios for illustration. The first,
SCENARIO A, illustrates the legalese for testimony:
"If, in court, Walter testifies that he saw Donal drown a turtle [dove]
(to the bottom of the well, all the way down) ... that testimony is *not*
hearsay even though it is offered as proof of the truth of its contents i.e.
that Donal did drown the turtle."
McEvoy's gloss uses 'tell', and we should note of course that 'tell' is
NOT a factive ("The Witch told Snowhite that the apple was a good one." It
wasn't. It was poisoned. -- The complexity of regular tellings -- but there
are fortunately, no implied tellings -- may be a problem that the courts
want to solve.
McEvoy: "But it IS hearsay for Walter to testify to the fact he TOLD Robert
about Donal’s conduct immediately after witnessing it – i.e. hearsay, if
Walter’s TELLING Robert that Donal drowned a turtle dove is being adduced
as evidence that what Walter told Robert was true."
This requires a non-Ramsey or non-redundance or non-Strawson account of
'true' (Grice's example, "What the policeman said was true"). I don't think
lawyers are concerned with, to use one philosopher's happy phrase, the
'taming of the true'. They seem to work with a correspondence theory of truth,
and what they are after are the _facts_ of the matter.
McEvoy:
"Thus the legal definition of "hearsay" does not merely exclude
tittle-tattle or rumour or second-hand accounts: hearsay prevents even the
witness
with first-hand knowledge from backing up the truth of their TESTIMONY by
referring to what they TOLD others."
In a SCENARIO B, McEvoy notes that legalese can lead to some uses which an
ordinary-language philosopher (as representing the layman of common sense)
may have a problem with:
"The "hearsay" rule means that each of us, strictly speaking, cannot
_testify_ to our own date of birth for we don’t know this from ‘personal
knowledge’ but only from being told by others or from seeing our birth
certificate (the latter being admissible hearsay of the date of birth)."
But McEvoy is careful to use 'strictly speaking': only ordinary language is
hardly strict, even though it SHOULD be strict. More than strict, ordinary
language is CLEVER. As Warnock said, "Once Grice said, "How clever
language is!" for we found that it made the proper distinctions where we
needed.
This incidentally was not on a Saturday morning." (Warnock is reporting the
fact that Grice and Warnock noted that ordinary language does not have
'visum' as in "I saw a visum of a cow", because 'visum' would be otiose).
McEvoy: "Kearley belongs to a traditional framework pertaining to the
"hearsay" rule that has now been replaced by subsequent legislation." McEvoy
quotes from Rose L.J, R v Sukadeve Singh: "The view of the majority in
Kearley, in relation to "hearsay", has been SET ASIDE by [section 114 and
section
118 of the Criminal Justice Act 2003]."
McEvoy elaborates: "In this way Kearley has been supplanted. But Kearley
has not been overthrown in a way that shows it was wrongly decided within
the legal framework of its time."
This is why Grice called H. L. A. Hart a 'relativist', as most legal
positivists are. Grice himself looked for definite foundations in _morality_,
not law! -- On the other hand, the way CA2 is meant to refine CA1 may be seen
as a landmark in legalese progress, and Popper should like that! Because
CA2 is meant to solve the problem that the majority that endorsed CA1 were
found themselves facing! And that's how the progress of the common law goes!
McEvoy:
"The new legal framework seeks to remove the “implicature” problems in
Kearley by defining [the concept of] "hearsay" as being limited only to
stated [OR EXPLICITLY COMMUNICATED] "content", so that unstated or implied [OR
IMPLICATED, as opposed to, say "ENTAILED"] ‘content’ now fall OUTSIDE the
"hearsay" rule – though it remains to be seen how sustainable this [new
conceptual analysis] will prove in the long term and the way the new
legislation supplants Kearley has only been endorsed at the level of the Court
of
Appeal and has not yet been endorsed by the Supreme Court itself."
Loved that! Only, to echo Henninge, I would use one of McEvoy's favourite
adverbs: the new legislation -- now endowed with CA2 to replace or refine
the previous CA1 -- has MERELY been endorsed at the level of the Court of
Appeal.
McEvoy: "Be all that as it may, the way Kearley has been supplanted merely
reinforces that subsequent legislation did not replace one ‘conceptual
analysis’ with another but replaced one solution (to a problem, or set of
problems) with another."
Well, two different conceptual analyses of 'hearsay' have been provided,
so this 'depends on your point of view'. In CA1, hearsay INCLUDES
implicature; in CA2 it excludes it. For the record, I'm not sure about
Sidonius, but
when GRICE _thought_ he was 'coining' "implicature" as a 'term of art', he
was TRYING TO SOLVE A PROBLEM.
------- INTERLUDE: the problem-solving nature of 'implicature' as a case of
the more general problem-solving nature of 'conceptual analysis' per se
The problem of 'if'. Hence the title of his lectures, "Logic and
Conversation" and the key lecture being IV, "Indicative Conditionals". For
Strawson
had stated that the 'sense' of "if" includes inferrability; but surely the
horseshoe, as used by logicians, does not include the concept of
inferrability. Inferrability is a mere conversational IMPLICATUM. As Grice
notes,
Strawson was adamant: he thought that 'if' and the horseshoe had DIFFERENT
SENSES. L. J. Cohen, who somewhat followed Strawson, would say that 'if' has
sometimes the sense of the logician's horseshoe, and sometimes not.
But on grounds of PARSIMONY ("Do not multiply senses beyond necessity; but
feel free to proliferate implicatures at your heart's delight!"), Grice
prefers to use 'implicature' to SOLVE Strawson's problem of how symbolic logic
can still be usable for the analysis of ordinary language.
In this case, the conceptual analysis refers to 'if'. When Grice, in 1948,
provided a conceptual analysis of 'mean', he found that YEARS later,
Strawson was refuting it: he was providing a counterexample or an alleged
counterexample to it (in "Intention and convention in speech acts"). The later
William James lectures by Grice may be seen as prompted by Strawson's
counterexample (directed towards the 'sufficiency' of the analysis -- 'the
three-prong analysis too weak', as Grice has it. In any case, it is obvious
that
this was a PROBLEM for Grice and he was seeking a solution.
My favourite uses of 'problem' by Grice come from "Meaning Revisited": he
speaks of a major problem and a minor problem for 'mean'. The minor problem
is Schiffer's counterexamples that followed Strawson's -- Schiffer
submitted his Oxon DPhil under Strawson --. The major problem is how to see
'mean'
as a 'value-oriented' concept. So, while it is VERY EASY to see 'conceptual
analysis' as deriving from problem-solving scenarios, the reverse may not
be so clear, but surely 'problem-solving' DEPENDS on how we analyse both
'problem' and 'solution', and the complex phrase, 'problem-solving'. A case
in point is Grice on 'reason'. He thinks that to say that "A has reasoned
from premise P to conclusion C", A must be trying to solve a problem. The
Oxford dictionary provides examples of 'reason' which is trivial in this
respect, "He did it because he did it", "I like it because I like it". These
cases -- and others cited by Grice, involving otiose algebraic operations --
do not seem to count as fully-fledged (metaphorical) reasoning in that it
cannot be seen as solving a problem even if the reasoning is valid, etc. --.
So the directions for the philosopher are twofold: to see the
conceptual-analytic side to problem-solving, and to see the problem-solving
aspects of
conceptual analysis.
-------END OF INTERLUDE OF "IMPLICATURE" as solving, for Grice, a minor
problem.
McEvoy: "As mentioned, Kearley may be viewed as a case concerned with “
implicature” i.e. with the unstated implications of what has been said or with
what is implicit in a statement."
Yes, this is clear. Philosophers have never been to sure what term to use.
Grice and I of course use 'implicature. But Kent Bach uses 'implicIture'.
The gist seems to be INTENTIONALLY communicated aspect. If you utter "p"
but IMPLY q, or rather IMPLICATE q, there is, as per conceptual analysis, an
intention on the utterer to IMPLICATE q. Thus, if the addresee (or anybody
else) comes to think 'q' regardless, that's not part of the implicature or
the impliciture. An unwanted implicature (unlke an unwated baby, that is
still a baby) is NO implicature. Part of the problem with the legalese
monstrosity of the 'implied assertion' has to do with how refine our analysis
is
as far as accounting for this 'assertoric intention', as McEvoy later calls
it.
McEvoy: "The case tries to draw the line between "hearsay" evidence and
circumstantial NON-hearsay evidence of a purely factual kind. This line
becomes blurry because we can draw conclusions from ‘words used’ by two routes"
I prefer to use 'expression', rather than words -- vide Searle's title of
his collection of essays, "Meaning and Expression", or "Expression and
Meaning". Or we can use 'utterance' that goes nicely with 'utterer' and
'addresee'. The legal cases cited by McEvoy do refer to 'words' (that one of
the
letter, 1837, for example) but in other cases, we may just have behaviour
(as his example of the inspection of the boat). These behaviours may give
rise to inference and do not involve words. I think it's because of cases like
that that Grice (in "Meaning", 1948), introduced 'utter' as a neutral term
to incude communicative behaviour that may not be verbal in nature, but
still _mean_, and from which we may infer this or that.
McEvoy: " – (a) from the truth of their explicit and implicit “contents”
or (b) from inferences from the fact that such words were used
(irrespective of their “truth”)."
This seems fair.
McEvoy:
"Here (a) is a "hearsay"-type route whereas (b) is using the words as
circumstantial NON-hearsay evidence of a purely factual kind."
-- and it all boils down to how we provide a conceptual analysis of the
'hearsay', then, that will be relevant for the case in point.
McEvoy:
"But on WHAT basis do we ultimately separate cases of type (a) from type
(b)? The problem becomes acute in relation to separating out cases where we
are relying on implicit “content” (in a way that falls within the
"hearsay" rule)"
-- NOT in the new conceptual analysis CA2, which denies IMPLICITURES (or
something like that) as defining the concept of "hearsay". CA2 in fact seems
to dismiss the idea or concept of 'implied assertion' as ill-formed. CA2
also gave rise to literature focusing on 'intention', and 'intention to
communicate'. So, CA2 seems a better analysis. That's how legal progress
proceeds: by refining a conceptual analysis in the face of alleged potential
counterexamples, even if the bigger scenario has to do with practical court
decisions, and court policies, e.g. to the effect that an implied assertion is
'less easy to fabricate' than a regular one ("It is easier to say a lie
than to act one.").
McEvoy: "from cases where we are relying on inferences from explicit “
content” (in a way that falls outside the "hearsay" rule). Is there anything
like a criterion for making such a separation?"
The criterion seems to be the conceptual analysis itself of "hearsay".
According to CA1, "hearsay" displays as a necessary if not sufficient
condition that IMPLICITURES be included; CA2 does not.
McEvoy: "We might start by giving clear-cut examples of (a) and (b)."
Four dramatis personae are referred to:
John
Jeremy
James
Joseph
SCENARIO C: "A clear-cut (a) would be where JOHN TESTIFIES that he (John)
was TOLD by Jeremy:
iv. I (Jeremy) saw JAMES strangle Joseph.
where [this utterance or expression is] being relied on as evidence that
James did strangle Joseph, i.e. as evidence of the truth of their contents."
SCENARIO D:
"A clear-cut (b) would be where JOHN TESTIFIES that he (John) was told by
Jeremy,
v. I saw James strangle Joseph.
where [this utterance or expression is] being relied on as evidence, NOT
that James strangled Joseph, but, e.g.
-- that Jeremy can speak some English or to prove the fact of what Jeremy
TOLD John (but not the truth of its contents)."
For John might be lying, and as one famous lawyer once said, "A lie is
easy to say, but not so easy to act."
McEvoy:
"There is a further case (c) that might be mentioned – where ‘words used’
are ‘original evidence’. The case (c) differs from (b) because the law
views the ‘words used’ as constitutive of what they prove rather than ‘facts’
from which inferences may be drawn. Case (c) is important to proof of
entering into agreements, including the marriage contract: the words “I do”
are not hearsay of agreeing to marry but constitutive of that agreement, and
so testimony to the fact a person said “I do” is not adducing their “I do”
as hearsay. Nor is it using the fact they said “I do” as a basis for
inferring their agreement: the act of saying “I do” constitutes their
agreement rather than being words that are evidence from which their agreement
can
be inferred."
McEvoy includes here an intereseting interlude on Austin we may consider
further:
McEvoy:
"Case (c) was taken up by J.L. Austin in his notion of “performative
utterances”; but there are some Popperian words to be said against Austin’s
underlying philosophical framework from a ‘problem-solving’ POV. Austin’s ‘
How To Do Things With Words’ was echoed in the legal field by Twinings’s ‘
How To Do Things With Rules’, against which some critical words may also be
aimed from a ‘problem-solving’ POV.".
I think Austin was using 'performative' to translate 'operational' which IS
used in Scots law, but to echo E. M. Forster on the past, that is a furrin
country. He thought that Englishmen would find 'performative' easier to
digest than 'operational'. The sad thing is they didn't. Performative is a
hybrid! In any case, it provoked Warnock to refute Austin's theory:
performatives, in spite of all that Austin said, ARE true (vide Warnock,
"Language
and morality").
------ END OF AUSTINIAN 'performative' interlude.
McEvoy: "The framework for the ‘separation’ debate can be drawn in terms
of two contrasting thoughts. First, if we TESTIFY that we frequently observe
X say to Y
vi. Good morning, Mr. Smith!
as evidence that the addressee of (iii) is called Mr. Smith, that is NOT
"hearsay" because (iii) does not ASSERT [OR STATE -- cfr. Horn on
'assertoric intertia] that the addressee is Mr. Smith."
McEvoy:
"Rather, we may infer, from the fact it is said rather than the truth of
its contents, that the person to whom it is directed is Smith."
UNLESS of course, we expand (iii) to mean, via implicature:
vii. I wish you, Mr. Smith, a good morning.
in which case there is an assertion:
viii. The utterer is STATING ('impliedly') that he is wishing Mr. Smith a
good morning.
But that's starting to sound LEGALESE, and Geary advises to use
PHILOSOPHICALESE (he admires Heidegger's PHILOSOPHICALESE especially).
McEvoy: "Second, if a man carries out a wordless inspection of a boat and
then agrees to hire the boat, his wordless inspection must be "hearsay" by
conduct of the fact that the boat is seaworthy – just as much as if he had
uttered expressly
ix. I find the boat seaworthy.
at the conclusion of his inspection."
I use this example above to stick with 'utterance' and 'expression', rather
than 'words' or 'words used', since any 'x' can be vehicle to mean this or
that. And 'mean' has two uses. If there's intention to communicate, it's
non-natural; if there isn't, it's natural. Thus, spots (who don't 'speak',
literally) mean-n that the child has measles (to the doctor -- "the spots
didn't mean anything to me," Grice confessed).
McEvoy: "There is an apparent tension, perhaps irreconcilable, between
these two contrasting thoughts."
I don't think so. One is alethic-focused; the other ain't. Truth is not
the only aspect utterances are judged by! Otiosity is Geary's favoured
criterion, for example!
McEvoy: "Other kinds of case could be multiplied which might put us in
two minds as to whether the purpose for which the evidence is adduced means
it constitutes (a) "hearsay" by virtue relying on the truth of its implicit “
content” or (b) NON-hearsay circumstantial evidence by virtue of relying
only on an inference from the fact certain utterance was used."
To complicate things, the dichotomy is not complete: since, implicature is
some sort of inference. Most usage handbooks do note that one should NOT
use 'infer' to mean 'imply' or vice versa, but in Grice's account, if you
IMPLICATE, you reason, and you expect your addressee to reason. Hence there
is an inference on the part of the utterer and an inference on the part of
the addressee. Misunderstanding at the level of implicature results, for
example, when no such reasoning takes part on the part of the utterer, but the
addressee assumes it does!
McEvoy:
"The problem came before the Supreme Court in Kearley in this form."
SCENARIO -- "Police raided a flat on the basis it was a drug den. During
their occupation of the flat, its phone rang and there were visitors – with
callers asking things like
i. Have you got any charlie?
-- which depends on a conceptual analysis of 'charley' by the layman ('
charley', n. the choice of this hypochoristic form of "Charles" to refer to
the denotatum has been speculated by etymologists for ages. The fact that the
use might be Cockney is now found obsolete, since 'charley' is also found
in Brighton).
McEvoy: "Were these inquiries "hearsay" of the alleged fact that the
premises were being used to supply drugs? Or are they merely NON-hearsay
queries
from the fact of which we might INFER that the premises were being used to
supply drugs? We might begin by asking whether and how this issue can be
resolved by ‘conceptual analysis’."
Indeed. I'm never sure 'charley' has been provided a proper conceptual
analysis, too. And in any case, a telephone conversation is by necessity
ambiguous, since another transcription could well be:
x. Have you got any Charley?
A person is looking at a woman with some fifteen children next to her, whom
he assumes to be the woman's sons. He asks (x) meaning, "Is any of these
children called, perchance, Charles and hypochoristically referred to as
"Charley"?
xi. Why do you ask?
McEvoy: "My suggestion is that it cannot be resolved by ‘conceptual
analysis’ and, if so, this is a telling argument against the claim that ‘
conceptual analysis’ plays a vital role in legal decision-making. Kearley split
the Supreme Court – decided by a majority of 3 to 2 Law Lords, whose three
judgments also over-ruled a three-judge Court of Appeal. The 3-5 split reveals
differences in the approaches of the most senior British judges to the
underlying question of “implicature”."
Indeed. Loved McEvoy's way of putting it! Even if I am always reminded
that while an unwanted baby is still a baby (as Reisman put it), an unwanted
implicature ain't one. The key element in the conceptual analysis of
'implicature' is INTENTION. Why? This is evident in Grice's later William
James
lectures. He notes that he wants to expand on his initial 1948 conceptual
analysis of 'mean'. He now wants to refine that and say that there is
something like this:
---------------------------------------- TO MEAN
----- subdivided into
---- by providing an utterance with explicit content
---- (which means)
------------- and which carries implicit content (which also mean)
----------- He goes on to classify types of implicature as being
-------------------(a) conventional (non-detachable and non-cancellable)
------------------(b) non-conventional.
--------------------- b1. These latter include 'conversational' (when
arising from the flouting
-----------------------------of conversational maxims that define 'rational
conversationa
behaviour'
-------------------- b2. There are non-conventional implicatures which
are not
conversational since they rely on maxims
other than
the rational conversational maxims. Grice
gives one
example: the maxim 'be polite' generates an
implicature
(via euphemism) that is nonconventional yet
not
conversatiional
(And the geniality is that he arrived at all that via 'mere' conceptual
analysis! -- even if prompted by this or that problem that neeed this or that
solution -- "If conceptual analysis generated no new problems it would be
dead").
McEvoy: "Though the majority view may be preferable because it offers a
better solution to the problem(s) than that of the minority, opinions on this
are secondary to examining whether these differences are best explained in
terms of problem-solving or conceptual analysis. A general characterisation
of these differences is that judicial opinion in Kearley divides into two
schools of thought. One might be called the ‘functional-pragmatic’ school
represented by the majority, the other the ‘assertoric-intention’ school
represented by the minority."
-- where I would place Grice, since count him to rally to the defense of
the underdogma! G. P. Baker called him the 'heterodox par excellence'.
McEvoy: "The majority view is that the 'content' is to be determined by
the purpose (or function) for which they are adduced in court [i.e. what they
are being used to prove in court], whereas the minority view is that the “
content” isdetermined by the intended assertoric purposes [or Griceian
M-intention] of their source [i.e. what their source intended to assert]."
McEvoy's contention is threefold; for each point I will provide a minor
problem, I hope.
"First, ‘conceptual analysis’ cannot convincingly explain these
differences in judicial opinion and the adequacy of their rationales (both
views are
‘conceptually’ sound enough)."
Yet, to be conceptually sound does not falsify the utility of conceptual
analysis. I think the 'assertoric-intention' school is philosophically more
sound.
"Second, as per previous posts concerning other legal cases, the ‘
problem-solving’ analysis of Kearley is superior to any alternative ‘conceptual
analysis’."
But, as law went, it was a CA2 that superseded an old CA1 on which Kearley
rested.
"Third, this superiority is fundamentally a superiority of explanation and
this is significant when assessing the competing claims of a ‘
problem-solving’ approach vs. ‘conceptual analysis’."
This begs the question of what we are explaining. Hart always begged this
question, until Grice told him, "It isn't respectable to beg." One can try
to explain the psychological factors that were behind one particular legal
decision.
One can try to explain the VALIDITY of the decision, _sans_ psychology. Or
other!
Cheers,
Speranza
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