Abstract
This paper aims to investigate the applicability of Grice’s theory of conversational implicatures to legal statutes and other general heteronomous legal acts (while acts of private autonomy are excluded from the scope of the present investigation). After a brief presentation of Grice’s theory Sect. 1 and an attempt to adapt conversational maxims to normative discourse – which is assumed to be neither true nor false Sect. 2 – I will survey one of the most convincing arguments against the applicability of conversational maxims to the legal domain, the one based on the (absence of a precise, real) legislative intention Sect. 3. I will argue that this argument is not decisive, but that, however, conversational maxims do not apply to legislation: as a matter of fact, legal practice does not include Grice’s conversational maxims among its conventions Sect. 4. This inapplicability, which derives from the very nature of the cooperative principles and the maxims, fits other peculiarities of legal practice: perhaps the most relevant is what we may call the contextual indeterminacy of legal discourse, a characteristic that is rigidly coupled to its conflicting nature. I will claim that all these features explain why legislation and other general heteronomous legal acts are not special cases of ordinary conversations Sect. 5.
An earlier version of this paper was presented on March 30th 2015 at the Université Paris Ouest, Nanterre La Défense. I thank all the participants, and, in particular, Pierre Brunet, Carlos Bernal Pulido, and Alessio Sardo for their helpful comments and criticisms.
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Notes
- 1.
Instead I am not concerned with autonomous legal acts such as contracts (on this kind of acts see Poggi 2011). Moreover, I do not intend my thesis as applying to constitutional interpretation.
- 2.
The clarification “at least to a certain extent” is indispensable when taking account of cases of the so-called exploitation or flouting of the maxims: cases in which a maxim is overtly violated, in order to intentionally exploit the evidence of violation and convey a certain message. In Grice’s opinion, irony, metaphors, meiosis and hyperbole fall into this category: c.f., e.g., Grice (1967, 1989b) and Levinson (1983).
- 3.
Although this is not Grice’s opinion: “When I speak of the assumptions required in order to maintain the supposition that the Cooperative Principle and maxims are being observed on a given occasion, I am thinking of assumptions that are nontrivially required; I do not intend to include, for example, assumption to the effect that some particular maxim is being observed, or is thought of by the speaker as being observed. This seemingly natural restriction has an interesting consequence with regards Moore’s “paradox”. On my account, it will not be true that when I say that p, I conversationally implicate that I believe that p; for to suppose that I believe that p […] is just to suppose that I am observing the first maxim of Quality on this occasion” (Grice 1989b: 41–42). However, this point is questionable: even if it is true that the first Maxim of Quality is very important because “the other Maxims come into operation only on the assumption that this maxim of Quality is satisfied” (Grice 1989a: 27), it is true as well that – with the exception of the inference from “p” to “I believe that p” – this maxim does not seem to hold any specific implicature, so, pace Grice (Grice 1967), it would play a role which is completely different from the one of the other maxims. Moreover, sometimes the implicatures which are governed by the other maxims seem to be nothing else than the assumption to the effect that some particular maxim has been observed: see, e.g., the example (j) in the text.
- 4.
- 5.
Consider the following example proposed by Grice himself: “A: Where does C live? B: Somewhere in the South of France”. In this case there is “no reason to suppose that B is opting out, but his answer is, as he well knows, less informative than is required to meet A’s needs. This infringement of the first maxim of Quantity can be explained only by the supposition that B is aware that to be more informative would be to say something that infringed the second maxim of Quality” (Grice 1967 in 1989a: 32–33). For a critical discussion see Atlas (2005: 71ff).
- 6.
Actually the implicature from “and” to “and then” is debated: in particular it is disputed whether it is really a standard Gricean implicature (i.e. whether the conjunction “and” has got an unique meaning equivalent to the logical operator “&”) and/or what are the conditions under which this implicature stands. I will not consider these difficulties here: see, e.g., Blakemore (1992: 80), Carston (1993, 1995), Davis (1998: 46ff.), and (Levinson 2000: 122ff).
- 7.
I agree with the authors who claim that the maxims are also necessary to conclude that the speaker said what she said without implying anything.: “For even if what the speaker means is exactly what he/she says, the hearer must recognize this, even though that (that the speaker means is exactly what he/she says) is not something that is explicitly communicated. And here too the CP plays a role: if the speaker is taken to be speaking literally, it is because that preserves the assumption that the speaker is observing CP” (Rysiew 2007: 293. C.f. also Strawson 1973; Bach 1997).
- 8.
The violation of a maxim can be justified by the respect of a different conflicting maxim, as in Grice’s example reported in footnote 5 above.
- 9.
- 10.
Actually, while, as far as I know, nobody neglects the fact that imperatives, and especially singular norms, such as “Alex close the door!”, are neither true nor false, the point is highly problematic as far as value judgements are concerned. These difficulties will be not considered here.
- 11.
Defeasibility means that, given some set of conditions A, something else B will hold, unless or until defeating conditions C apply. A defeasible norm is, therefore, a norm that is subjected to implicit exceptions.
- 12.
By “linguistic scale” it is meant a set of linguistic expressions of the same grammatical category (so-called scalar predicates) arranged according to a linear order of informativeness or semantic force. Given a scale of this kind, the first maxim of Quantity makes it possible to formulate a general predictive rule according to which, if a speaker states something that refers to a weaker point on the scale, it is implicated that the same does not hold with respect to a higher point on the scale. See: Horn (1972), Gazdar (1979), Soames (1982), Horn (1989), Atlas (1993), and Levinson (2000: 79).
- 13.
This interpretative canon is the core of the attitude that Bobbio called “legal positivism as theory” and that has characterized the European jurisprudence of the eighteenth and nineteenth centuries. See Bobbio (1961).
- 14.
- 15.
- 16.
So I adhere to what Greenberg termed “objective notion of communicative content” (see Greenberg 2011: 231). A similar (but not identical) opinion to that supported in the text has been sustained by Sbisà (2007), Green (2002, 2007), and, to some extent at least, Saul (2002a, b). Contra cf. instead Bianchi (2011). So, e.g., according to Sbisà, the conversational implicatures are implicitly made available by the text that can be ascribed to the speaker (to the speaker’s intention) iff ascribing them is reasonable (Sbisà 2007: 125ff.). By contrast, in my reading, the reason why the listener can ascribe an implicature to me the speaker is simply that the maxims allow that ascription (the maxims and the context, the maxims in that context).
- 17.
Although, the dialogues (q) and (r) concern generalized implicatures (i.e. implicatures that are always produced, but that cannot be produced in special contexts), in my opinion, something similar is true also in the case of particularized implicatures (i.e. implicatures which require particular contexts): also particularized implicatures are partially independent of the speaker’s intention. See Poggi (2011).
- 18.
An exception is the violation of the first maxim of Quality: aside from the hypothesis of exploitation, someone who deviates from this maxim is telling lies and lying is, obviously, a behaviour that produces general criticism, hostile reactions and penalties. With regard to this, however, as well as the conversational maxims there can also be social norms that prescribe their content.
- 19.
Within Gricean literature, the exact content of the CP is controversial: see Thomas (1998) and Ladegaard (2009). In this paper, as clarified by the above formula, cooperation is intended exclusively as communicative cooperation, as direct cooperation from the common goal of understanding and making oneself understood and not as a sharing of further non-linguistic goals or interests.
- 20.
Chiassoni points out that many gricean maxims correspond (more or less) to traditional legal canons of construction: Chiassoni (1999, 92ff).
- 21.
I think that the lack of expectations really makes the difference. In fact, some philosophers of language (like Morra 2015) that there is not a sizable difference between legal interpretation and everyday conversations, because also in the ordinary communication conversational maxims are sometimes violated or at least not followed. However, I think that there is a considerable difference because in everyday interactions there is a general expectation that everybody follows the maxims – an expectation that makes it possible to lie or to be ironic. Nothing like this happens in legal interpretation.
- 22.
Actually I cannot understand the second hypothesis and what differs from the first: I wonder whether the uncertainty about “how seriously parties to conversation are presumed to adhere to the relevant maxims” (Marmor 2011: 94) is equivalent to the doubt that one or both parties are violating the maxims.
- 23.
Chiassoni (1999) seems to think that in legal interpretation (he does not distinguish between heteronomous legal acts and acts of private autonomy) conversational maxims do not hold because it is a different linguistic game from ordinary conversation, and he does not explain (why it is so and) what such difference consists in. I prefer to think that legal interpretation is a different game (also) because CP and conversational maxims do not hold.
- 24.
- 25.
More exactly, as we will soon see, in a sense here there is nothing to understand.
- 26.
- 27.
Invoking a fictitious intention of a rational, counterfactual, ideal, lawmaker it is not a solution, for at least three reasons. First, because this intention can be constructed in several different ways (as one likes). Second because it seems to me that (neo-)Gricean account is incompatible with a fictitious intention – if we assume so, all the difference between natural and non-natural meaning vanishes. Third, because it would make a distorted imagine of legal practice.
- 28.
I deal with this topic in Poggi (2013).
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Poggi, F. (2016). Grice, the Law and the Linguistic Special Case Thesis. In: Capone, A., Poggi, F. (eds) Pragmatics and Law. Perspectives in Pragmatics, Philosophy & Psychology, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-30385-7_11
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