Tolerance of Incoherence in Law, Graded Speech Acts and Illocutionary Pluralism
Legal Theory (Forthcoming)
44 Pages Posted: 9 Oct 2020
Date Written: October 9, 2020
One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.
Keywords: incoherence, speech act pluralism, vagueness, rule of law
JEL Classification: K10
Suggested Citation: Suggested Citation