Why Legal Rules Are Not Speech Acts and What Follows from That

11 Pages Posted: 11 May 2013

See all articles by Marcin Matczak

Marcin Matczak

Warsaw University - Faculty of Law and Public Administration

Date Written: May 10, 2013

Abstract

The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed.

My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses).

To redress these flaws, I propose treating legal rules as complex text acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz's idea of minimal legislative intent.

Keywords: lawmaker’s intention, legal interpretation, rules, speech acts, writtenness in law, Raz's minimal legislative intention

JEL Classification: K10

Suggested Citation

Matczak, Marcin, Why Legal Rules Are Not Speech Acts and What Follows from That (May 10, 2013). Available at SSRN: https://ssrn.com/abstract=2263213 or http://dx.doi.org/10.2139/ssrn.2263213

Marcin Matczak (Contact Author)

Warsaw University - Faculty of Law and Public Administration ( email )

Krakowskie Przedmiescie 26/28
Warszawa, 00-927
Poland

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