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

See all articles by Hrafn Asgeirsson

Hrafn Asgeirsson

University of Surrey - School of Law

Date Written: September 1, 2015

Abstract

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

Suggested Citation

Asgeirsson, Hrafn, On the Possibility of Non-Literal Legislative Speech (September 1, 2015). Forthcoming in A. Capone & F. Poggi (eds.), Pragmatics and Law: Theoretical and Practical Perspectives (Springer Verlag). Available at SSRN: https://ssrn.com/abstract=2177743 or http://dx.doi.org/10.2139/ssrn.2177743

Hrafn Asgeirsson (Contact Author)

University of Surrey - School of Law ( email )

United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
108
Abstract Views
1,027
rank
248,437
PlumX Metrics