On the Possibility of Non-Literal Legislative Speech
Forthcoming in A. Capone & F. Poggi (eds.), Pragmatics and Law: Theoretical and Practical Perspectives (Springer Verlag)
42 Pages Posted: 20 Nov 2012 Last revised: 25 Nov 2015
Date Written: September 1, 2015
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.
Keywords: philosophy of law, legislation, statute, communication, statutory interpretation, Grice, pragmatics, legal content, legislative intent, language, linguistic communication, language and law, philosophy of language
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