On the Possibility of Non-Literal Legislative Speech

Abstract:     
In ordinary conversation, it frequently happens that speakers assert something other than what they literally say. It makes sense, therefore, to ask whether this also happens in legislation. According to Andrei Marmor, however, non-literal legislative speech is rare. A speaker succeeds in asserting something other than what she literally says only if it is obvious that she cannot be intending to assert the literal content of her remark, and that rarely happens in law, he says. I argue that a simple version of Marmor’s argument is unsound, but that the argument can be successfully revised. If what I say is correct, then the main insights underlying the argument are preserved, but it succeeds less in virtue of general truths about language and more in virtue of particular features of the legislative context. I also argue that the revised argument has significant implications for the extent to which we should take the content of the law to be determinate and, consequently, for the analysis of a number of important but controversial legal cases, which I discuss in some detail.

Number of Pages in PDF File: 47

Keywords: philosophy of law, legislation, statute, communication, statutory interpretation, Grice, pragmatics, legal content, legislative intent, language, linguistic communication, language and law, philosophy of language

working papers series