Law and Language, Misc

The very idea of promulgation has been given little to no treatment in the philosophy of law. In this exploratory essay, I introduce three possible theories of promulgation: the ‘no-theory theory’ (which treats promulgation as a matter of particular contexts), the ‘conveyance theory’ (which treats promulgation as a function of intellectual good faith interpreters), and ‘agonistic theory’ (which treats promulgation as indistinguishable from propaganda). I suggest that (at least) three kinds of models are consistent with the theories, and can potentially (...) help us understand when law is successfully promulgated in particular legal contexts: the spread model, the chain model, and the memetic model. I end the paper by comparing the two theories with respect to a case study. Throughout I will show that the conveyance and agonistic theories have a serious advantage over the no-theory theory, in that they allow us to comparatively examine the epistemic weaknesses of diverse theories about the grounding of law on the basis of their contents. (shrink)

(Under contract with Oxford University Press, Oxford Legal Philosophy series.) -/- This book is a legal and ethical study of state entrapment: that is, entrapment by law-enforcement agents or their deputies. -/- It approaches entrapment via three questions: definition (What makes an act one of entrapment?), permissibility (Under what conditions, if any, is entrapment permissible?), and implications (When someone has been entrapped, what remedy, if any, is appropriate? More broadly, how should the law respond?). It explains these questions, looks at (...) how the law and scholars have answered them, gives our answers to them, and is structured according to them. It treats these questions as distinct, and that of definition as prior (in a sense that it clarifies) to the others. -/- The methodology deployed combines applied analytical philosophy with approaches to comparative legal studies that are predominantly analytical and historical. The main focus, in terms of scope, is upon common-law jurisdictions in the Anglophone world. (shrink)

Searle claims that his theory of institutional reality is particularly suitable as a theoretical scheme of individuation for work in the social sciences. We argue that this is not the case. The first problem with regulatory individuation is due to the familiar fact that institutional judgments have constrained revisability criteria. The second problem with regulatory individuation is due to the fact that institutions amend their declarative judgments based on the inferential (syntactic) properties of the judgments and in response to regulatory (...) pressure, and not based on descriptive (semantic) properties and in response to matters of descriptive adequacy. These two problems imply that ‘regulatory kinds' (countries, borders, kings) will almost inevitably be disjunctive kinds that are ill-suited for scientific theorizing. This also explains why the law often makes odd pronouncements, e.g. calling ketchup a vegetable, considering an arm bent fifteen degrees to be straight, and not admitting that Somaliland is a country. (shrink)

This paper elucidates some features of law that generally go overlooked in collective bargaining. Using examples from collective bargaining agreements at universities in Florida, we unearth how assumptions about the nature of law (championed by the conservative legal movement) may undermine the ability for unions to influence the material working conditions at their universities. We believe negotiators need to reject these assumptions, and embrace an approach to ‘bargaining as pedagogy,’ which emphasizes the need for faculty and administrators alike to arrive (...) at shared understandings of what the law means (be it the collective bargaining agreement, university policy, or state statute). (shrink)

El discurso sobre los nuevos derechos humanos se ha asentado como un elemento característico de la práctica política y jurídica contemporánea. Son muy diversos los colectivos que presentan sus reivindicaciones políticas con el lenguaje de los derechos humanos con la finalidad de incrementar el apoyo a dichas reivindicaciones y de dotar a dichas reivindicaciones de la protección privilegiada de los derechos humanos. Pese a ello, las constantes referencias a nuevos derechos no han venido acompañadas de una reflexión teórica adecuada. ¿Cómo (...) se relacionan los nuevos derechos con los derechos clásicos?, ¿ponen en entredicho los nuevos derechos el paradigma de derechos humanos dominante en la actualidad?, ¿cómo afectaría su reconocimiento a la configuración de los sistemas jurídicos contemporáneos?, ¿qué reivindicaciones de nuevos derechos están verdaderamente justificadas? Los nuevos derechos humanos: teoría jurídica y praxis política reúne a una serie de trabajos que tratan de dar respuesta a estos interrogantes, tanto a partir de la discusión general de la teoría de los derechos humanos como a partir de la discusión de derechos específicos, como los neuroderechos, los derechos digitales, derechos relacionados con el inicio o final de la vida, los derechos de la naturaleza, el derecho al deporte o los derechos de asistencia sexual. (shrink)

Franz Kafka (1883-1924) e Albert Camus (1913-1960) publicaram suas obras em épocas que, embora distintas, enfrentavam desafios semelhantes do século XX, como as Guerras Mundiais e a crescente alienação diante de estruturas opressivas. O tcheco Kafka escreveu “O Processo” entre os anos de 1914 e 1915, publicando-o postumamente em 1925, em um período marcado pela Primeira Guerra Mundial e pelo surgimento de regimes autoritários. Já o franco-argelino Camus teceu “O Estrangeiro” em 1940 e o publicou em 1942, em meio à (...) Segunda Guerra Mundial e a ascensão do existencialismo como vigorosa corrente filosófica. (shrink)

At a House hearing on December 5, 2023, the presidents of three universities—Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both of them were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many (...) private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by aggressive, threatening, or violent conduct. -/- These “demotions” augur even worse consequences, including termination, for less powerful faculty who say the “wrong” thing, in particular statements in support of Trumpism, an increasingly mainstream ideology that stitches together white supremacy, misogyny, a preference for autocracy over democracy, and several phobias—homophobia, Islamophobia, transphobia, and xenophobia. The question I address in this paper is whether these consequences are constitutional at public schools. Whose right is stronger—a public-school teacher’s First Amendment right to express pro-Trumpist sentiments or a public school’s right to maintain a fair, inclusive, and welcoming learning environment? In this article, I argue that the public school has the upper hand here, that it is indeed constitutionally permitted to prohibit political hate speech that contributes to a hostile learning environment. Still, I narrowly limit this prohibition to dehumanizing speech—that is, speech explicitly suggesting that some human beings are “lesser”, intrinsically less valuable, than other human beings. -/- One objection to this position is that public schools may not prohibit any speech, no matter how dehumanizing, because such prohibition amounts to constitutionally impermissible viewpoint discrimination. I argue, however, that viewpoint discrimination is an integral part of education and therefore constitutionally permissible. Education necessarily involves promoting some values over others. These values fall into seven categories: constitutional principles, the humanist virtues, successful character traits and behaviors, knowledge and truth, art and beauty, health (both mental and physical), and social goods (such as justice, peace, and rule of law). (shrink)

This paper attempts to answer whether the property of “efficacy” can be attributed to constitutive rules. In particular, according to Di Lucia, I will point out some problems that the “semantic conception of efficacy” has concerning constitutive and regulative rules. Then, the main goal of the paper will be to reflect on the possibility of the efficacy of constitutive rules by means of a complex case that the semantic conception seems to disregard: The case of the cheater. Does the action (...) of the cheater show the inefficacy of constitutive rules? Does she play the game while breaking the rule? Can the semantic conception of efficacy explain this situation, or do we need a more flexible concept of efficacy that takes nomotropism into account? These are some of the questions I will try to answer. (shrink)

This a review of Max Waltman's _Pornography: The Politics of Legal Challenges_.

A growing body of work in free speech theory is interested in the nature of counterspeech, i.e. speech that aims to counteract the effects of harmful speech. Counterspeech is usually defined in opposition to legal responses to harmful speech, which try to prevent such speech from occurring in the first place. In this paper we challenge this way of carving up the conceptual terrain. Instead, we argue that our main classificatory division, in theorising responses to harmful speech, should be between (...) pro-discursive and anti-discursive responses. Some legal responses to harmful speech, so we argue, make a positive discursive contribution in their own right. That is, legal restrictions on harmful speech can have a function that is importantly similar to speech that aims at countering the effects of harmful speech. (shrink)

Whether Social Media Companies (hereafter, SMCs) such as Twitter and Facebook limit speech is an empirical question. No one disputes that they do. Whether they “censor” speech is a conceptual question, the answer to which is a matter of dispute. Whether they may do so is a moral question, also a matter of dispute. We address both of these latter questions and hope to illuminate whether it is morally permissible for SMCs to restrict speech on their platforms. This could be (...) part of a larger argument, when we do not explicitly offer here, that states ought not to forbid SMCs from censoring. We do not focus on legal statutes or precedent. We argue that nonstate actors can (as a conceptual matter) and may (as a moral matter) impede the freedoms of others to express themselves. That is, barring rare emergencies, nonstate actors may censor individuals even when states may not. (shrink)

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light (...) on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation. (shrink)

The thesis that law necessarily claims authority is popular amongst legal philosophers. Some distinguished legal philosophers, including the late John Gardner, Joseph Raz and Scott Shapiro, have suggested that support for this thesis is found in legal officials’ use of deontic language. This article begins by considering the merits of this suggestion. I discuss two unpromising arguments for the claim thesis based on the use of deontic language in law. I then suggest that a more plausible basis for the claim (...) thesis lies in the felicity conditions of the speech acts that legal officials perform. In the absence of an explicit claim to authority, legal officials make a presupposition to authority over their subjects. The presupposition arises from interaction between the felicity conditions of legal speech acts and basic norms of cooperative communication. I consider some implications of this conclusion for our understanding of legal authority. (shrink)

"Dignity as a Quality of Person: Types of Dignity – a Proposed Systematisation" This study aims to identify various meanings of the expression (name) “dignity”, with particular emphasis on the meanings of the expression as it appears in the text of the Constitution of the Republic of Poland. The meaning of the name “dignity” is the concept of dignity; in turn, the concept of dignity encompasses dignity of particular types. Twelve different meanings of the expression “dignity” are indicated – twelve (...) different concepts of dignity, and thus twelve types of dignity. Half of them are meanings (concepts) that recognize dignity as something belonging to a human being as a subject of law, and this essay is devoted to this group of meanings. This group of meanings includes three concepts of dignity which encompass dignity as something constitutive of being a person: (1) inherent dignity of the person, (2) dignity established by qualities specific to a thinking being, and (3) dignity as a historically emergent social status of all human beings. Only the first of these three concepts of dignity is adequate to the interpretation of the preamble and art. 30 of the Polish Constitution. The second group of meanings, treating dignity as something with which the human being is endowed, includes concepts which encompass (4) personal dignity (honour and good reputation), (5) dignity as moral excellence, and (6) dignity as appropriateness of attitude or behaviour. The other half of the meanings take dignity as something that belongs to something. These meanings will be considered in the forthcoming essay Godność jako cecha podmiotów zbiorowych i godność jako cecha ugruntowana instytucjonalnie. Typy godności – propozycja systematyzacji [Dignity as an Attribute of Collective Entities and Dignity as an Institutionally Grounded Attribute: Types of Dignity – a Proposed Systematisation]. The Constitution of the Republic of Poland speaks of (1) the dignity of the Nation, (2) the dignity of office or function, and (3) public dignity. The expression “dignity” when designating something belonging to something can also designate (4) the dignity of social status based on belonging to a social group, (5) the dignity of a profession, and – specifically to the Polish language – (6) dignity meaning a surname. The author argues that it is unacceptable to ascribe different concepts of dignity to the expression “dignity” appearing in a specific legal provision. STRESZCZENIE Opracowanie zmierza do identyfikacji różnych znaczeń wyrażenia (nazwy) „godność”, ze szczególnym uwzględnieniem znaczeń tego wyrażenia występującego w tekście Konstytucji RP. Znaczeniem nazwy „godność” jest pojęcie godności; z kolei pojęcie godności ujmuje samą godność danego typu. Wskazanych zostaje dwanaście różnych znaczeń wyrażenia „godność” – dwanaście różnych pojęć godności, zatem i dwanaście jej typów. Połowa z nich to znaczenia (pojęcia), które ujmują godność jako coś przynależnego człowiekowi jako podmiotowi i tym znaczeniom (i odpowiadającym im typom godności) poświęcone jest niniejsze opracowanie. W tej grupie znaczeń odróżnione zostają trzy pojęcia godności, które ujmują godność jako coś konstytutywnego dla bycia osobą – (1) przyrodzoną i niezbywalną godność osobową, (2) godność opartą na obserwowalnych i zmiennych cechach specyficznych dla istoty rozumnej i (3) godność opartą na historycznie ukształtowanym statusie społecznym przypisanym wszystkim ludziom. Jedynie pierwsze z tych pojęć jest adekwatne do interpretacji preambuły i art. 30 Konstytucji RP. W drugiej grupie znaczeń ujmujących godność jako coś przysługującego człowiekowi są pojęcia ujmujące godność jako cechę osoby – (4) godność osobistą (cześć i dobre imię), (5) godność osobowościową (poziom moralny) oraz (6) godność jako dyspozycja do stosownego sposobu bycia. Druga połowa znaczeń ujmuje godność jako coś przynależnego czemuś lub jako coś o charakterze konwencjonalnym, instytucjonalnym. Te znaczenia będą omawiane w kolejnym opracowaniu Godność jako cecha podmiotów zbiorowych lub cecha ugruntowana instytucjonalnie. Typy godności – Propozycja systematyzacji – Część 2. Konstytucja RP mówi o (1) godności Narodu, (2) godności urzędu lub funkcji, oraz o (3) godności publicznej (godnościach publicznych. Wyrażenie „godność” jako desygnujące coś przynależnego czemuś może także desygnować (4) godność statusu społecznego opartego na przynależności do jakiejś grupy społecznej, (5) godność zawodu oraz – co specyficzne dla języka polskiego – (6) godność jako nazwisko. Autor argumentuje, że niedopuszczalne jest przypisywanie wyrażeniu „dignity” występującym w danym przepisie prawnym, różnych pojęć godności. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

In an ideal democracy, people from all walks of life would come together to talk meaningfully and respectfully about politics. But we do not live in an ideal democracy. In contemporary democracies, which are marked by deep social divisions, different groups for the most part avoid talking to each other. And when they do talk to each other, their speech often seems to be little more than a vehicle for rage, hatred, and deception. -/- Democratic Speech in Divided Times argues (...) that we should nevertheless not give up on the ideal of democratic public speech. Drawing on the resources of political theory, epistemology, and philosophy of language, this book develops a sustained account of the norms that should govern public discourse in deeply divided circumstances. Should we try to find common ground when we talk to our political opponents, even though they seem unreasonable? Should we refrain from expressing anger, if we want to get things done? How can we use our speech to fight hate speech and disinformation? And is it even possible to speak to 'the other side,' in settings where different groups dislike one another, live apart from one another, and don't know much about one another? By tackling these questions, Lepoutre demonstrates that, when governed by the right set of norms, public speech can be a powerful force for good even amidst profound social divisions. (shrink)

ABSTRACT This paper argues for a hidden way in which speech constitutes harm by enacting harmful norms. The paper then explores the potential legal consequences of uncovering such instances of harm constitution. In particular, the paper argues that some public racist speech constitutes harm and is thus harmful enough to warrant legal remedy. Such utterances are actionable, it is contended, because they enact discriminatory norms in public spaces.

The verb to legitimate is often used in political discourse in a way that is prima facie perplexing. To wit, it is often said that an actor legitimates a practice which is officially prohibited in the relevant context – for example, that a worker telling sexist jokes legitimates sex discrimination in the workplace. In order to clarify the meaning of statements like this, and show how they can sometimes be true and informative, we need an explanation of how something that (...) is officially illegitimate can have a kind of ersatz legitimacy conferred on it, and how this can occur even when the actor ‘doing the legitimating’ lacks formal authority. I examine one putative explanation centred around the phenomenon of normalization, and I highlight some advantages that this account has in comparison to an alternative explanation, one that makes reference to the phenomenon of licensed authority. (shrink)

Review of Hrafn Asgeirsson's The Nature and Value of Vagueness in Law (2020).

Appropriation art involves the use of pre-existing works of art with little to no transformation. Works of AA fail to satisfy established criteria for originality, such as creative labour and transformative use. As such, appropriation artists are often subject to copyright lawsuits and defend their work under the fair use doctrine of US copyright law. In legal cases regarding AA and fair use, judges lack a general principle whereby they can determine whether or not the offending party has ‘transformed’ the (...) original work. Further, it is not the case that there is some antecedent fact that could determine the outcome one way or another. I diagnose debates surrounding the transformative nature of works of AA as cases of ‘metalinguistic negotiation’ over what concepts we should attach to terms like ‘copy’, ‘transformative’, and ‘work of art’. (shrink)

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can (...) see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society. (shrink)

I approach the identification of the principles of legal interpretation through a discussion of an important but largely forgotten strand in our legal heritage: the idea (and at some points in English law, the rule) that the interpretation of legislation is to be done by the law maker. The idea that authentic interpretation is interpretation by the law maker united the Roman Emperors Constantine and Justinian with Bracton, Aquinas, King James I of England, Hobbes, and Bentham. Already in the early (...) 17th century, a new modern approach was emerging in England. The modern approach separates the interpretive power from the legislative power, and allocates the interpretive power to an independent court. I will argue that there are some cogent, general considerations in favour of the modern approach. But it is worth identifying the elements of good sense that made it seem that the interpretive power ought to be reserved for the law maker. And it is worth identifying the drawbacks in the modern approach; they are relevant to the complex question of how judges ought to interpret. (shrink)

ABSTRACT Many prominent legal philosophers believe that law makes some type of moral claim in virtue of its nature. Although the law is not an intelligent agent, the attribution of a claim to law does not need to be as mysterious as some theorists believe. It means that law-making and law- applying acts are intelligible only in the light of a certain presupposition, even if a lawmaker or a law-applier subjectively disbelieves the content of that presupposition. In this paper, I (...) aim to clarify what type of moral claim would be suitable for law if law were to make a claim to be morally justified. I then argue that legal practice is perfectly intelligible without moral presuppositions - that is, that the law does not necessarily make moral claims. RESUMO Muitos filósofos do direito proeminentes acreditam que o direito levanta algum tipo de pretensão moral em virtude de sua natureza. Embora o direito não seja um agente inteligente, a atribuição de uma pretensão ao direito não precisa ser tão misteriosa como alguns teóricos acreditam que seja. Significa que atos pelos quais fazemos e aplicamos leis são inteligíveis apenas à luz de uma certa pressuposição, mesmo se um legislador ou um aplicador do direito não acreditar subjetivamente no conteúdo dessa pressuposição. Neste artigo, eu busco esclarecer que tipo de pretensão moral seria adequada ao direito se o direito levantasse a pretensão de ser moralmente justificado. Eu então argumento que a prática jurídica é perfeitamente inteligível sem pressuposições morais - isto é, que não é necessário que o direito levante pretensões morais. (shrink)

The present paper—taking the example of the English translation of the Hungarian Civil Code of 2013—aims to give an overview on the legal and terminology-related challenges and pitfalls that might occur during the process of translating a civil code with civil law traditions into the language of the common law world. An attempt is made to categorise terminology-related conceptual problems and elaborate how the different types of translation methods could be applied; moreover, how a kind of legal-linguistic checks-and-balances can be (...) achieved through the well-dosed combination, having also the ratio of similarities to differences of legal concepts behind the respective terms in mind. Legal translators must act beyond the role of a simple translator: they must be comparatists, being aware of the legal origin of the relevant concepts and using the methods of comparative private law and translation studies at the same time, since both law and language are system-bound and are heavily influenced by the cultural and social environment. The authors strive to identify the significance of those problems from the perspective of how language-related aspects can perform some fine-tuning on the comparative methodology and findings, whether they are barriers only or provide also an opportunity to verify or refute prima facie comparative results. Comparative law—no doubt—supports legal translation, but their relationship is reciprocal: legal-linguistic subjects and problems emerging in the course of legal translation supply valuable feedback and further sources of inspiration. (shrink)

This essay offers an exegesis and critique of the moment of community formation in Agamben’s Homo Sacer Project. In The Sacrament of Language, Agamben searches for the site of a non-sovereign community founded upon the oath [horkos, sacramentum]: an ancient institution of language that produces and guarantees the connection between speech and the order of things by calling the god as a witness to the speaker’s fidelity. I argue that Agamben’s account ultimately falls short of subverting sovereignty, however, because the (...) sacramentum derives its power, at a fundamental level, from the ‘monothetic’ structure of truth—what Agamben calls ‘the name of God’ [il nome di Dio]. I propose we may yet salvage the oath as a means of subverting sovereignty, however, if we reconsider it in the context of polytheism, where the names of the gods [i nomi degli dei] can be many, while remaining powerful. First, through a reading of Aeschylus’ Eumenides, I argue that the Greeks understood the oath to function even where truth and falsity were inherently undecidable. Second, I argue that if we separate the truth and power functions interwoven in the sacramentum, we find a second formula, the decisory oath, which can be taken in order to produce a community even in the absence of one sovereign truth. As a kind of magical speech, the decisory oath provides the limit conditions for the possibility of distinguishing true from false in the sacramentum, and thus founds it. (shrink)

In this article, we suggest an alternate approach to interpreting the US Constitution, using founding-era translations. We demonstrate how both symmetries and asymmetries in structure and vocabulary of the languages involved can help in deciding nowadays’ problems of constitutional interpretation. We select seven controversial passages of the US constitution to illustrate our approach: Art. I, § 8, cl. 3 ; Art. II, § 1, cl. 5 ; Art. II, § 2, cl. 3 ; Art. I, § 6, cl. 1/Art. I, (...) § 8, cl. 10/Art. IV, § 2 ; and Art. IV, § 2, cl. 1. Since these passages have recently been debated by constitutional scholars, reassessing them using our method can establish the additional value of our approach to constitutional practice. We presume that our approach is not limited to interpreting the US constitution, but suggest that constitutional hermeneutics in general could profit from adding a translation approach to the toolkit. (shrink)

The relationship between legal interpretation and ordinary understanding has raised growing interest among legal scholars. According to the mainstream view, law is a communicative phenomenon and, therefore, the best theory of ordinary communication should also explain and guide legal interpretation. Certainly, it is very controversial which theory is the best one, but, even if there are many candidates, Grice’s conversation model has attracted a lot of attention. Some legal scholars claim that Grice’s theory of conversational maxims should be applied in (...) legal domain, while others dispute this claim. Izabela Skoczeń’s book, Implicatures within legal language provides an original contribution to this ongoing debate. Through an interdisciplinary approach that engages with the most recent advances in Pragmatics as well as with the most popular legal approaches, Skoczeń recasts Grice’s theory of conversational implicatures in order to explain the mechanisms behind court decisions. This review article provides a critical examination of Skoczeń’s book, highlighting its strengths as well as its problems. (shrink)

How can the law be characterized in a theory of collective intentionality that treats collective intentionality as essentially layered and tries to understand these layers in terms of the structure and the format of the representations involved? And can such a theory of collective intentionality open up new perspectives on the law and shed new light on traditional questions of legal philosophy? As a philosopher of collective intentionality who is new to legal philosophy, I want to begin exploring these questions (...) in this paper. I will try to characterize the law in terms of the layered account of collective intentionality that I have introduced in some earlier writings (Schmitz 2013; 2018). In the light of this account I will then discuss a traditional question in the philosophy of law: the relation between law and morality. I begin by giving a brief sketch of the layered account in the next section. Collective intentionality should be understood in terms of experiencing and representing others as co-subjects, rather than as objects, of intentional states and acts on different layers or levels. I distinguish the nonconceptual layer of the joint sensory-motor-emotional intentionality of joint attention and joint bodily action, the conceptual level of shared we-mode beliefs, intentions, obligations, values, and so on, and the institutional level characterized through role differentiation, positions taken in role-mode, e.g. as a judge or attorney, and writing and other forms of documentation. In the third section I introduce a set of parameters for representations such as their degree of richness, of context-dependence, of density and differentiation of representational role and of durability and stability, which can be used to more precisely distinguish different layers. I also put forward the hypothesis that these properties are connected and tend to cluster, and that higher levels can only function and determine conditions of satisfaction against lower level ones. In the fourth and final section I critically discuss the sharp positivistic separation of morality and the law according to which whether something is a law is completely independent of its moral merits. I argue that this only seems plausible if we take an observational stance towards the law, but not towards morality. When we treat them the same way, it rather appears that the moral attitudes of the co-subjects of a society will determine whether and to what extent they will accept its legal order. I conclude by proposing to think of the law as being itself an institutionalized form of morality. (shrink)

What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of (...) the representational practice within which the thought or utterance is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin's goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation. But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged. (shrink)

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool in legal interpretation. Its legitimacy stems from the fact that courts routinely state that statutory terms, when not defined as a matter of law, are (...) to be given their ordinary meaning. Judges have responded to this challenge, with the assistance of the linguistics community, by using corpora to determine which meanings are ordinary. However, legal analysts have not determined exactly what makes one meaning ordinary and another not ordinary. This gap has led to a level of disagreement in the field. Moreover, while linguists who engage in corpus linguistic analysis typically emphasize the importance of context, the legal application is peculiarly context-free, in keeping with legal philosophies that eschew reliance on reference to a law’s purpose and the intent of the legislature that enacted it. This move adds a political dimension to corpus analysis as a means of legal interpretation. Yet, the article concludes that by relying on a blend of general and specialized corpora, the legal system can substantially reduce the problem of contextualization, as some linguists and practitioners have already recognized. (shrink)

Context is a notion that is commonly invoked in many linguistic studies, either with very general reference or, more specifically, in the light of one of a number of research approaches which assign distinct definitions to context, ranging from factors that can be recovered from a text, through social parameters serving as an index for the appropriation of discursive performance, to factors that bring texts into being and give them meaning. This exploratory and descriptive research problematises the notion of context (...) specifically on the grounds of English/Polish translation of corporate documentation processed in company registration proceedings, touching upon factors that are presumed to be discursively relevant in this communicative situation. The study is conducted from the perspective of the sociocultural approach and it adopts the parallel corpus methodology. The author discusses the concept of context on the ground of legal communication and secondarily presents a corpus-based description of the context categories that are idiosyncratic and potentially discursively relevant for the said communicative situation in the cross-linguistic perspective. The contextual variation is tested for its capacity to affect translation performance. The results reveal specific tendencies as regards the distribution patterns in the values corresponding to the investigated context categories. They point to some divergencies in translation output caused by the source text variantivity and they pave the way and directions for further research. Already at this stage the findings may have significant pedagogical value and they constitute a solid starting point for sociolinguistic research on discourse variantivity. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

We discuss the 1818 case in which the jury sided with inspector J. Maurice, who had demanded payment for inspecting casks of whale oil. The verdict is arguably incorrect: as several experts argued,...

All observers of our legal system recognize that criminal statutes can be complex and obscure. But statutory obscurity often takes a particular form that most observers have overlooked: uncertainty about the identity of the wrong a statute aims to punish. It is not uncommon for parties to disagree about the identity of the underlying wrong even as they agree on the statute's elements. Hidden in plain sight, these unexamined disagreements underlie or exacerbate an assortment of familiar disputes—about venue, vagueness, and (...) mens rea; about DUI and statutory rape; about hate crimes, child pornography, and counterterrorism laws; about proportionality in punishment; and about the proper ambit of the criminal law. Each of these disputes may hinge on deeper disagreements about the identity of the wrong a statute aims to punish, and these deeper disagreements can be surprisingly hard to resolve, fueled as they are by the complex inner structure of our penal laws and the discretionary mechanisms of their administration. (shrink)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written (...) and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics. Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the (...) question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making. (shrink)

This paper explores communicative punishment from a non-idealized perspective. I argue that, given the specific racial dynamics involved, and given the broader social and historical context in which they are embedded, American policing and punishment function as a form of racially derogatory discourse. Understood as communicative behavior, criminal justice activities express a commitment to a broader ideology. Given the facts about how the American justice system actually operates, and given its broader socio-political context, American carceral behaviors express a commitment to (...) the same types of derogatory, subordinating anti-minority ideologies that are paradigmatically conveyed through racial slurs and similar forms of derogatory speech. Moreover, I argue, this derogatory meaning presents a significant obstacle to adequate criminal justice reform. (shrink)

This article examines the distinction between judicial reasoning flawed by errors on questions of law, properly addressed on appeal, and errors that constitute judicial misconduct and are grounds for removal from the bench. Examples analysed are from the transcripts and reasons for decision in R v George SKQB (2015), appealed to the Saskatchewan Court of Appeal (2016) and the Supreme Court of Canada (2017), and from the sentencing decision rendered by the same judge more than a decade earlier in R (...) v Edmondson SKQB (2003). Both were sexual assault cases. In George a thirty-five year old woman with five children was tried and ultimately acquitted of sexual assault and sexual interference after she was assaulted in her home by a fourteen year old male. Striking similarities between the reasoning and language in the trial decision in George and the sentencing decision in Edmondson demonstrate entrenched antipathy for sexual assault law and the fundamental principles of justice, equality, and impartiality. This is arguably judicial misconduct, persisting despite access in the interim to many years of judicial education programming, not merely legal error. The problem does not lie with the judge alone, however. A toxic mix of misogyny and blindly zealous enforcement of the law appears to have undermined the administration of justice in George from the outset at all levels. The problems are systemic. Were this not the case, it is likely that Barbara George would not have been charged. (shrink)

[ENG] The aim of this paper is to analyze the „possibility puzzle” presented by Shapiro (2011) in the context of the debate between conventionalism and non-conventionalism in speech act theory. Conventionalism claims that for every speech act there is a pattern (convention) which determines its illocutionary force. To perform a felicitous speech act is to fulfil necessary and sufficient conditions for this particular speech act. Non-conventionalism criticizes the view that for every speech act there is a conventional pattern and hidden (...) conditions, which are to be fulfilled. This view maintains the conventional thesis for the so-called strict conventional speech acts (e.g. performatives), but negates using universal quantifier for so-called communicative speech acts whose aim is, in short, to express an intention and force someone to act by virtue of this intention. As in (Shapiro 2011), Phil said: in order for someone to have the power to make, change and apply rules, there has to be a rule that empowers someone to do so. This objection concerned „The First Legis- lator” only from the conventional perspective on speech acts. If it can be maintained that The First Legislator’s speech acts may be non-conventional, then Phil’s argument misses the point. Finally, I will emphasize that only lawyers analyze „the very first speech acts” whereas for philosophers, the problem of e.g. „the very first question” is less absorbing. -/- [PL] Celem niniejszego artykułu jest przedstawienie tak zwanej Aporii Phila (possibility puz- zle) przedstawionej przez Shapiro (2011) w kontekście sporu konwencjonalizm–nonkon- wencjonalizm w teorii aktów mowy. Konwencjonalizm utrzymuje, że dla każdego aktu mowy istnieje konwencja, która determinuje moc illokucyjną aktu. Wykonać w pełni for- tunny akt mowy to spełnić wystarczające i konieczne warunki określone dla danego aktu mowy. Nonkonwencjonalizm krytykuje pogląd, że dla każdego aktu mowy istnieje okre- ślona konwencja oraz ukryte warunki, które należy spełnić. Ten pogląd utrzymuje kon- wencjonalną tezę dla tak zwanych stricte konwencjonalnych aktów mowy (na przykład performatywów), ale neguje użycie dużego kwantyfikatora dla tak zwanych komunika- cyjnych aktów mowy, których celem jest, w skrócie, wyrażenie pewnej intencji i zmusze- nie kogoś poprzez jej wyrażenie do określonego postępowania. Phil, bohater historii z książki Shapiro (2011), podkreślił, iż zawsze musi istnieć reguła upoważniająca do two- rzenia prawa. Ten zarzut dotyczący „Pierwszego Legislatora” jest zasadny tylko z per- spektywy konwencjonalizmu. Jeżeli można utrzymywać, że akt mowy Pierwszego Legislatora może być nonkonwencjonalny, wtedy argument Phila jest nietrafny. Na końcu scharakteryzowany jest następujący fenomen: tylko prawnicy analizują „pierwsze akty mowy”, natomiast dla filozofów problem „pierwszego pytania” nie jest tak absorbujący. (shrink)

We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse (...) as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse. (shrink)

We explore two ways of distinguishing the semantic operation of kind terms. First, we focus on a distinction between terms with a flexible versus terms with an inflexible semantics. Flexibility depends on whether some changes in the domain of application are taken to be possible while being consistent with past usage and what is intuitively the same meaning. On the other hand we discuss terms whose mode of operation is tolerant, in that the cohabitation in the speakers’ community of more (...) than one use or practice of use of the term in question is accepted. Those terms contrast with terms that operate in a strict way restricting severely the legitimacy of different uses that cut the domain of application in different ways. Among the latter we include terms with an ethical component and terms whose correct application involves high stakes. These distinctions are not new, since the phenomena that we identify as flexibility and tolerance have been observed, although in our view they have not been properly systematized and assessed. We argue that the two distinctions throw light on the bases of some disputes and on some legal disagreements. (shrink)

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading it is not. Moreover, breaking (...) the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations. (shrink)

The existing literature on indeterminacy in the law focuses mostly on the use of vague terms in legislation – terms the use of which makes the content of the relevant utterance to some extent indeterminate. As I aim to show, however, not only is the content of a legislative utterance often indeterminate, it is often indeterminate what the content of such an utterance is. In the first two sections of the paper, I discuss in some detail the conditions for successful (...) non-literal speech and address the question whether these conditions are satisfied in the legal context. I argue that due to the fact that legislative contexts generally contain little unequivocal information about legislative intent, interpreters are typically not warranted in taking the legislature to have intended to communicate something non-literal. In the third section, I consider what I take to be the strongest case against my argument: the wealth of actual cases in which the courts have taken the content of the law to be something other than its literal content, seemingly based on relatively straightforward inferences about the legislature’s communicative intentions. As I hope to show, however, very few of these cases are as straightforward as they appear to be. In the fourth, and final section, I argue that the argument from the first two sections has important consequences for the extent to which we should take the content of the law to be determinate. This has significant implications for the analysis of a number of important but controversial legal cases, which I discuss in some detail. (shrink)

Legal texts are in the focus of both lawyers and translators. This paper discusses the binary opposition of these two views especially in the light of contract law. There is one crucial epistemic difference between the point of view of the translator and the lawyer when it comes to the interpretation of legal texts. In the translator’s view legal text is traditionally conceived as static as to its nature; something that already exists in the form of text. Traditionally, the translator (...) is interested in the text itself as it was written down in a document, i.e. the translator needs to go back to the frozen moment when a legal document was constructed and finalised. The lawyer, in contrast, is very much interested not only in the text of the legal document but also in the contextual surroundings of the text. In fact, for legal interpretation, sometimes the key-elements for the interpretation come from outside of the text itself. This paper concludes that legal translation is in many cases closer to transcreation than it is to traditionally understood translation. (shrink)

Jellinek define “estatus” como la “relación con el Estado que califica al individuo”. Su teoría distingue cuatro tipos: pasivo o subiectionis, negativo o libertatis, positivo o civitatis y activo o de la ciudadanía activa. Al margen de las polémicas sobre su vigencia, se pretende relacionar la aportación de Jellinek con la concepción del consentimiento informado del Tribunal Constitucional español, quien lo ha definido como deber de abstención de los profesionales sanitarios (STC 37/2011, de 28 de marzo, entre otras), es decir, (...) como una negación de su competencia en la terminología de Hohfeld, o como un derecho de defensa. Debido a la adecuación de su estructura al contenido del consentimiento informado, el análisis se centrará en los estatus negativo y positivo. La cuestión versa sobre la posición de los derechos de defensa en la tesis de Jellinek y si es viable su empleo en la conceptualización de los actuales derechos fundamentales. (shrink)

Статтю присвячено проблемі аналізу сучасної мовної ситуації в Україні. Дослідження здійснено на основі найновішого соціолінгвістичного опитування ТОВ «Перша рейтингова система», яке проводено в лютому 2017 року. Проаналізовано мовну поведінку мешканців різних міст України для виявлення їхнього ставлення до мовних проблем, а також схарактеризовано їхні погляди на використання української та російської мов сьогодні та у перспективі.