Semantics of Legal Language

The reasonable person standard is key to both Criminal Law and Torts. What does and does not count as reasonable behavior and decision-making is frequently deter- mined by lay jurors. Hence, laypeople’s understanding of the term must be considered, especially whether they use it predominately in an evaluative fashion. In this corpus study based on supervised machine learning models, we investigate whether laypeople use the expression ‘reasonable’ mainly as a descriptive, an evaluative, or merely a value-associated term. We find that (...) ‘reasonable’ is predicted to be an evaluative term in the majority of cases. This supports prescriptive accounts, and challenges descriptive and hybrid accounts of the term—at least given the way we operationalize the latter. Interestingly, other expressions often used interchangeably in jury instructions (e.g. ‘careful,’ ‘ordinary,’ ‘prudent,’ etc), however, are predicted to be descriptive. This indicates a discrepancy between the intended use of the term ‘reasonable’ and the understanding lay jurors might bring into the court room. (shrink)

The topic of exemplarity has attracted considerable interest in philosophy, legal theory, literary studies and art recently. There is broad consensus that exemplary cases mediate between singular instances and general concepts or norms. The aim of this article is to provide an additional perspective on the logic of exemplarity. First, inspired by Jacques Derrida’s discussion of exemplarity, I shall argue that there is a kind of différance between (singular) examples and (general) exemplars. What an example exemplifies, the exemplarity of the (...) example, eludes any fixed identity and follows a logic of supplement. Second, I shall present the so-called logic of exemplarity. The received paraconsistent view has it that the exemplar of X is an X and, at the same time, is not an X. Inspired by Ludwig Wittgenstein’s discussion of the standard metre, I would like to present an alternative paracomplete view whereby we can say of an exemplar of X neither that it is an X nor that it is not an X. (shrink)

Searle claims that his theory of institutional reality is particularly suitable as a theoretical scheme of individuation for work in the social sciences. We argue that this is not the case. The first problem with regulatory individuation is due to the familiar fact that institutional judgments have constrained revisability criteria. The second problem with regulatory individuation is due to the fact that institutions amend their declarative judgments based on the inferential (syntactic) properties of the judgments and in response to regulatory (...) pressure, and not based on descriptive (semantic) properties and in response to matters of descriptive adequacy. These two problems imply that ‘regulatory kinds' (countries, borders, kings) will almost inevitably be disjunctive kinds that are ill-suited for scientific theorizing. This also explains why the law often makes odd pronouncements, e.g. calling ketchup a vegetable, considering an arm bent fifteen degrees to be straight, and not admitting that Somaliland is a country. (shrink)

We study the performance of ChatGPT interpreting prompts that require legal expertise to answer. Our inputs are very close adaptations from the "Contextual Canons" section of Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts (Thomson West: 2012). We report our experiments and findings for the entire section (comprising 14 canons) of the book. We conclude that as a legal reasoner ChatGPT is exceptionally successful in taking the contextual canons into account.

O anseio deste artigo acadêmico é introduzir os conceitos gerais da teoria de sistemas de Niklas Luhmann. Para atingir seus objetivos, esta teoria é hermética e filosófica, com uma ampla gama de definições e busca apresentar um conjunto de conceitos que proporcionem um suporte adequado para a sociedade como um todo. Luhmann abordou a questão da complexidade em vários estudos e desenvolveu uma metodologia baseada em uma noção de sistemas autopoiéticos, funcionalmente fechados e distintos. A observação de segunda ordem é (...) um dos conceitos centrais da teoria de sistemas de Luhmann, assim como a comunicação é elemento importante na formação dos sistemas sociais e na sua distinção de outros sistemas existentes. O método utilizado na presente pesquisa foi uma revisão qualitativa de literatura acadêmica sobre o assunto. (shrink)

In the German legal system, the concept of race occupies an important and controversial position. The desire to eliminate it is understandable but not inherently obvious, as not all reasons for deletion are valid. One central issue with the term “race” is its ambiguity, encompassing both scientific-biological and social-constructivist categorisations of individuals. Choosing one interpretation over the other is neither meaningful nor purposeful. Instead, it is more sensible to understand how the concept of race functions and how it can be (...) legally addressed. Biological arguments for removing “race” may be able to falsify the existence of human races, but at the same time risk the loss of referentiality. To make matters worse, biological criteria for the existence of human races presuppose their existence, which conceptually legitimises naturalistic or essentialist tendencies, even if the term itself is empty. On the other hand, biologically determined characteristics that enable social classifications are relevant: Features such as skin color or body shape seem to be significant factors in the development and use of the term, especially within the legal context. Instead of just dismissing the term “race” entirely, it is important to examine how it is commonly understood, which reveals mechanisms that assign it a destructive meaning on semantic-psychological and social levels that oppose its broader use. Simultaneously, the reference to certain characteristics is not lost as it is with the biological interpretation. This allows for highlighting a feature that is superficial enough to avoid essentializing – the outward appearance itself. It is crucial to note that these reflections are not meant to provide comprehensive social remedies for combating racist discrimination but rather to expose it. (shrink)

What are rules? In this paper I develop a view of regulative rules which takes them to be a distinctive normative kind occupying a middle ground between orders and normative truths. The paradigmatic cases of regulative rules that I’m interested in are social rules like rules of etiquette and legal rules like traffic rules. On the view I’ll propose, a rule is a general normative content that is in force due to human activity: enactment by an authority or acceptance by (...) a community. Rules are unlike orders in being not necessarily communicative, not an expression’s of the giver’s will, not evaluable for sincerity, and in that they have propositional content. And they’re unlike normative truths in that they’re themselves not even truth-evaluable (though their contents are). This is because rules qua things that are in force are not like constatives which have a mind to world direction of fit, but more like performatives. Furthermore, they differ from normative truths in that their normativity is isolated from their background justification and is therefore not dependent on contributory notions like reasons coming together in a weighing explanation. As such, they occupy a middle ground between orders and normative truths, much like in H. L. A. Hart’s opinion law occupies a middle ground between “coercion” and “morality” (Hart 1961/1994). I also illustrate the virtues of this understanding of rules by showing how proper appreciation of how they differ from normative truths helps us defuse a common objection to Hart’s practice theory of rules. (shrink)

Franz Kafka (1883-1924) e Albert Camus (1913-1960) publicaram suas obras em épocas que, embora distintas, enfrentavam desafios semelhantes do século XX, como as Guerras Mundiais e a crescente alienação diante de estruturas opressivas. O tcheco Kafka escreveu “O Processo” entre os anos de 1914 e 1915, publicando-o postumamente em 1925, em um período marcado pela Primeira Guerra Mundial e pelo surgimento de regimes autoritários. Já o franco-argelino Camus teceu “O Estrangeiro” em 1940 e o publicou em 1942, em meio à (...) Segunda Guerra Mundial e a ascensão do existencialismo como vigorosa corrente filosófica. (shrink)

The aim of this paper is to critically reconsider some of the main tenets underlying Karl Olivecrona’s works. The first two sections are devoted to a brief reconstruction of his position on methodology for the study of legal phenomena, including the endorsement of philosophical realism and the enterprise of demystifying legal language through linguistic therapy (§ 2), as well as his particular conception of legal notions as hollow words (§ 3). I will then provide a brief analysis of a central (...) legal concept – that of “authority" – to show how Olivecrona’s methodological framework can be applied (§ 4). The last two sections are devoted to the analysis and evaluation of three possible criticisms of Olivecrona’s claims as a legal realist (§ 5) and some brief concluding remarks on the usefulness of Olivecrona’s approach for contemporary legal philosophy (§ 6). (shrink)

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light (...) on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation. (shrink)

In this thesis, I develop and investigate various novel semantic frameworks for deontic logic. Deontic logic concerns the logical aspects of normative reasoning. In particular, it concerns reasoning about what is required, allowed and forbidden. I focus on two main issues: free-choice reasoning and the role of norms in deontic logic. -/- Free-choice reasoning concerns permissions and obligations that offer choices between different actions. Such permissions and obligations are typically expressed by a disjunctive clause in the scope of a deontic (...) operator. For instance, the sentence "Jane may take an apple or a pear" intuitively offers Jane a choice between two permitted courses of action: she may take an apple, and she may take a pear. In the first part of the thesis, I develop semantic frameworks for deontic logic that account for free-choice reasoning. I show that the resulting logics avoid problems that arise for other logical accounts of free-choice reasoning. The main technical contributions are completeness results for axiomatizations of the different logics. -/- Semantic frameworks for deontic logic typically only talk about norms implicitly. In the second part of the thesis, I clarify the role of norms in deontic logic. I develop a formal model of normative systems where norms are represented explicitly. The model takes into account both the hierarchical structure of normative systems, and the function of norms to regulate agent behavior. I show how the model can be used to clarify issues in the study of normative systems. I also develop a norm-based semantics for deontic action logic based on the model. (shrink)

The study aims at making explicit the three spheres or planes, essential from the point of view of semiotics, on which the discourse regarding dignity takes place, and at clarifying the relations between these planes. The analysis uses the conception of Kazimierz Ajdukiewicz. There are three principal areas in which the discourse on dignity is conducted – the plane of linguistic expressions on which the name “dignity” is used; the plane of meanings on which the notion of dignity is placed; (...) and the plane of objects on which there is dignity itself. There is a relationship of meaning between the different concepts of dignity and the expression “dignity”, a relationship of signification between expression “dignity” and dignity as its referent, and a relationship of apprehension between the concepts of dignity and their referents. (shrink)

Ratio Juris, Volume 35, Issue 2, Page 191-222, June 2022.

In the present paper we argue that although the semantics of both legal and moral statements can be explained with the use of a unified framework called hybrid or quasi-expressivism (Finlay & Plunkett, 2018), there still is an important difference in the semantics of moral and legal terms. Namely, while the truth conditions of legal statements are widely intersubjectively shared, this is not the case with moral statements. We demonstrate this difference using the example of the ex aequo et bono (...) adjudication method. In the first background section we explain what is hybrid or quasi-expressivism as well as what is the standard account of the semantics of moral and legal statements. In the next section, we explain in detail how we aim to demonstrate that the semantics of legal terms and the semantics of some moral terms, such as ‘goodness’ or ‘fairness’, differ importantly. In order to illustrate the difference, we next explain the ex aequo et bono adjudication method and provide examples of cases in which this method has been employed. Crucially, this method is extremely rarely used, which highlights the difference between the semantics of legal and moral statements. Finally, we provide our interpretation of why ex aequo et bono adjudication is so seldom employed and what consequences this has for a theory of the semantics of legal and moral terms. (shrink)

In this essay, I implement an analysis of language in and of the legal process and an analysis of language as evidence in an investigation of the merits of Louisiana State Supreme Court Justice Scott J. Crichton’s opinion that Warren Demesme was requesting a “lawyer dog.” In my analysis of language in and of the legal process, I focus on case law pertaining to Miranda Warnings, wherein insights from forensic linguists researching evidence collection and speech act theory are central to (...) my methodology. Gathering insights from my analysis, I move to an examination of language as evidence in State of Louisiana v. Warren Demesme, wherein I conclude that Warren Demesme was not requesting a “lawyer dog” as Louisiana State Supreme Court Justice Scott J. Crichton suggests and that a “reasonable police officer in light of the circumstances…would have understood,” that Demesme was using an indirect impolite speech act when he said dawg and not dog in his statement. In my conclusion, I argue that Demesme’s request for an attorney was unambiguous and unequivocal. (shrink)

Conflicts between legal norms are common in reality. In many legislations, legal conflicts between norms are resolved by applying ordered principles. This work presents a formalization of the conflict resolution mechanism and introduces action legal logic (⁠ALL) to reason about the normative consequences of possibly conflicting legal systems. The semantics of ALL is explicitly based on legal systems consisting of norms and ordered principles. Legal systems specify the legal status of transitions in transition systems and the language of ALL describes (...) the legal status of paths in transition systems. The formalization is used to study abstract revisions of legal systems. The expressivity of ALL is studied and its completeness is proved. (shrink)

Em 2015 o jurista norte-americano Frederick Schauer publicou a obra The Force of Law, cujo teor não omite, desde o princípio de seu texto, que seu anseio ao escrevê-lo era opor-se à concepção proposta pelo estudioso inglês Herbert L. A. Hart no livro The Concept of Law, lançado em 2012, de que a natureza do Direito não abrange o componente coercitivo. Em The Force of Law é exposto que a coerção é o único componente do Direito usado até mesmo pelas (...) democracias mais desenvolvidas a fim de que se garanta o cumprimento de seus próprios atos normativos. Entretanto, de acordo com o raciocínio perpetrado na obra, é um fato empírico que os indivíduos muito raramente obedecem à lei meramente por deferência à sua autoridade. O presente artigo se propõe a apresentar considerações sobre o livro, tomando como referência não apenas seu texto, mas publicações científicas relacionadas. (shrink)

Review of Hrafn Asgeirsson's The Nature and Value of Vagueness in Law (2020).

Sample chapter from H. Asgeirsson, The Nature and Value of Vagueness in the Law (Hart Publishing, 2020), in which I present and partially defend a version of what has come to be called the communicative-content theory of law. Book abstract: Lawmaking is – paradigmatically – a type of speech act: people make law by saying things. It is natural to think, therefore, that the content of the law is determined by what lawmakers communicate. However, what they communicate is sometimes vague (...) and, even when it is clear, the content itself is sometimes vague. The monograph examines the nature and consequences of these two linguistic sources of indeterminacy in the law with the aim of providing plausible answers to three related questions: In virtue of what is the law vague? What might be good about vague law? How should courts resolve cases of vagueness? (shrink)

What does it take for lawyers and others to think or talk about the same legal topic—e.g., defamation, culpability? We argue that people are able to think or talk about the same topic not when they possess a matching substantive understanding of the topic, as traditional metasemantics says, but instead when their thoughts or utterances are related to each other in certain ways. And what determines the content of thoughts and utterances is what would best serve the core purposes of (...) the representational practice within which the thought or utterance is located. In thus favoring a “relational model” in metasemantics, we share Ronald Dworkin's goal of explaining fundamental legal disagreements, and also his reliance on constructive interpretation. But what we delineate is a far more general and explanatorily resourceful metasemantics than what Dworkin articulated, which also bypasses some controversial implications for the nature of law that Dworkin alleged. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

Dworkin’s famous argument from legal disagreements poses a problem for legal positivism by undermining the idea that the law can be (just) the result of the practice and attitudes of norm-applying officials. In recent work, the chapter author argued that a hybrid contextualist theory paired with a dispositional theory of value—a hybrid dispositionalism, for short—offers the resources to respond to similar disagreement- based arguments in other evaluative and normative domains. This chapter claims that the theory the author advocates can extend (...) to legal statements and disputes, and shares some important features with Toh’s (2011) idea that legal statements express shared acceptance of norms. The chapter proposes that a contextualist semantics for legal statements paired with the pragmatic communication of implicatures that express shared acceptances of norms, achieves the same goal that Toh aims at. (shrink)

This chapter develops an account of the meaning and use of various types of legal claims, and uses this account to inform debates about the nature and normativity of law. The account draws on a general framework for implementing a contextualist theory, called 'Discourse Contextualism' (Silk 2016). The aim of Discourse Contextualism is to derive the apparent normativity of claims of law from a particular contextualist interpretation of a standard semantics for modals, along with general principles of interpretation and conversation. (...) Though the semantics is descriptivist, it avoids Dworkin’s influential criticism of so-called “semantic theories of law,” and elucidates the nature of “theoretical disagreements” about the criteria of legal validity. The account sheds light on the social, interpersonal function of normative uses of language in legal discourse. It also gives precise expression to Hart’s and Raz’s intuitive distinctions among types of legal claims (internal/external, committed/detached), while giving them a uniform type of analysis. The proposed semantics and pragmatics of legal claims provides a fruitful framework for further theorizing about the nature and metaphysics of law, the relation between law and morality, and the apparent practical character of legal language and judgment. Discourse Contextualism provides a solid linguistic basis for a broader account of legal discourse and practice. (shrink)

It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed in the literature concerning (i) the value of vagueness in the law, (ii) the possibility and value of legal indeterminacy, (iii) the possibility of the rule of (...) law, and (iv) strong discretion. I conclude with some methodological remarks. Delineating questions about conventional meaning, the metaphysics/metasemantics of (legal) content determination, and norms of legal interpretation and judicial practice can motivate clearer answers and a more refined understanding of the space of overall theories of vagueness, interpretation, and law. (shrink)

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written (...) and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments. (shrink)

This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics. Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the (...) question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making. (shrink)

Speech and thought about what the law is commonly function in practical ways, to guide or assess behavior. These functions have often been seen as problematic for legal positivism in the tradition of H.L.A. Hart. One recent response is to advance an expressivist analysis of legal statements (Toh), which faces its own, familiar problems. This paper advances a rival, positivist-friendly account of legal statements which we call “quasi-expressivist”, explicitly modeled after Finlay’s metaethical theory of moral statements. This consists in a (...) descriptivist, “rule-relational” semantics combined with a pragmatic account of the expressive and practical functions of legal discourse. We argue that this approach is at least as well-equipped as expressivism to explain the motivational and prescriptive features of “internal” legal statements, as well as a fundamental kind of legal disagreement, while being better positioned to account for various “external” uses of the same language. We develop this theory in a Hartian framework, and in the final part of the paper argue (particularly against Toh’s expressivist interpretation) that Hart’s own views in The Concept of Law are best reconstructed along such quasi-expressivist lines. (shrink)

We explain three phenomena in legal discourse in terms of MacFarlane’s assessment-sensitive semantics: incompatible applications of law, assessments of statements about what is legally the case, and retrospective overruling. The claim is that assessment sensitivity fits in with the view, shared by many legal theorists at least with respect to hard cases, that the final adjudicator’s interpretation of legal sources is constitutive of the applied norm. We argue that there are strong analogies between certain kinds of statements in legal discourse (...) as understood in light of that view and discourse about matters of taste and future contingents. Thus, if assessment-sensitive semantics provides a compelling account of discourse about matters of taste and future contingents, then it likewise provides a compelling account of those statements in legal discourse. (shrink)

What do normative terms like “obligation” mean in legal contexts? On one view, which H.L.A. Hart may have endorsed, “obligation” is ambiguous in moral and legal contexts. On another, which is dominant in jurisprudence, “obligation” has a distinctively moralized meaning in legal contexts. On a third view, which is often endorsed in philosophy of language, “obligation” has a generic meaning in moral and legal con- texts. After making the nature of and disagreements between these views precise, I show how linguistic (...) data militates against both rivals to the generic meaning view, and argue that this has significant implications for jurisprudence. (shrink)

This book shows how research in linguistic pragmatics, philosophy of language, and rhetoric can be connected through argumentation to analyze a recognizably common strategy used in political and everyday conversation, namely the distortion of another’s words in an argumentative exchange. Straw man argumentation refers to the modification of a position by misquoting, misreporting or wrenching the original speaker’s statements from their context in order to attack them more easily or more effectively. Through 63 examples taken from different contexts (including political (...) and forensic discourses and dialogs) and 20 legal cases, the book analyzes the explicit and implicit types of straw man, shows how to assess the correctness of a quote or a report, and illustrates the arguments that can be used for supporting an interpretation and defending against a distortion. The tools of argumentation theory, a discipline aimed at investigating the uses of arguments by combining insights from pragmatics, logic, and communication, are applied to provide an original account of interpretation and reporting, and to describe and illustrate tactics and procedures that can be used and implemented for practical purposes.. This book will appeal to scholars in the fields of political communication, communication in general, argumentation theory, rhetoric and pragmatics, as well as to people working in public speech, speech writing, and discourse analysis. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

Anscombe is usually seen as a critic of “Modern Moral Philosophy.” I attempt a systematic reconstruction and a defense of Anscombe’s positive theory. Anscombe’s metaethics is a hybrid of social constructivism and Aristotelian naturalism. Her three main claims are the following: (1) We cannot trace all duties back to one moral principle; there is more than one source of normativity. (2) Whether I have a certain duty will often be determined by the social practices of my community. For instance, duties (...) imposed by other people’s rights are socially constructed. (3) Whether something constitutes a good, however, will often be determined by human nature—which is not socially constructed. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

In recent years, David Plunkett and Tim Sundell have published a series of interesting articles that made an original use of resources from linguistics and philosophy of language to reply to arguments for legal antipositivism, the thesis according to which moral or value facts are part of what determines what the law is in a given jurisdiction at a given time. Plunkett and Sundell’s strategy for resisting antipositivism appeals to the notion of a metalinguistic negotiation, which incorporates the notion of (...) a metalinguistic or context disagreement. Sundell 2011 had argued that metalinguistic disagreements are a possible component of disputes about evaluative matters. A further notion deployed is that of conceptual ethics, an essential component of metalinguistic negotiations. This paper approaches a crucial concern about the deployment of both notions against disagreement-based arguments for legal antipositivism. Metalinguistic negotiations displace disagreements from the semantic to the metalinguistic level, but do not eliminate the appeal to moral or other normative reasons from legal disagreements. Conceptual ethics purports to be a normative activity, engaged with prescribing ways one ought to think and talk. On a broad understanding of legal reasoning and practice, metalinguistic negotiations and conceptual ethics are an integral part of it, and hence are consistent with evaluative and normative facts being essential to, and constitutive of, the law. Or so this paper argues. (shrink)

У статті висвітлено особливості мовного законодавства трьох пострадянських країн – України, Грузії та Молдови. Окреслено історичну перспективу мовно-політичного дискурсу з часів розпаду Радянського Союзу. Особливу увагу приділено конституційному затвердженню статусу державних мов, нещодавньо ухваленим чи напрацьованим законам та законопроектам, ролі конституційних судів у регулюванні мовного питання. На додаток, розглянуто специфіку регулювання вжитку мов національних меншин.

Like others who work with language, many lawyers no doubt appreciate good kennings. However, metaphors also play a much deeper role in thought and law than style, ornament, or verbal virtuosity. As we shall see, metaphors play a necessary role in our categories of thought. As a result, metaphors are a necessary part of thought itself, including legal thought.

In this paper, I focus on the fiction of the retroaction of the condition in contracts, a very old tool of law which may be traced back to Roman antiquity. In the first part, I introduce the notion of a contract with a suspensive condition, i.e. a contract whose efficacy is subordinated to a future uncertain event. As will be addressed in the second part, this kind of contracts is often linked to the fiction of the retroaction of the condition (...) (e.g. the French Code Civile 1179 and the Italian Codice Civile 1360): When the condition of the contract is fulfilled we should do as if the condition was fulfilled at the very time of the stipulation of the contract. In the third part, I turn to an attempt by the young Gottfried Wilhelm Leibniz to rationalize this fiction: Although – as every fiction – false, the retroaction of the condition allows us to reach true conclusions with respect to a deterministic metaphysics. Eventually, after having raised some objections to the Leibnizian account, I develop an alternative rationalization of the fiction: The fiction does indeed lead us to true conclusions because the same conclusions may be reached by relying on an equity-principle or, alternatively, on a merely possible yet expedient law. (shrink)

Vague expressions are omnipresent in natural language. As such, their use in legal texts is virtually inevitable. If a law contains vague terms, the question whether it applies to a particular case often lacks a clear answer. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and places judges in the position to decide impartially. Vagueness poses a threat to these ideals. In borderline (...) cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the last two decades. Linguists and philosophers have investigated what distinguishes "soritical " vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of "vagueness ", let alone to the various theories that try to account for these phenomena. -/- The paper is an introduction to a book of the same title. Bringing together leading scholars working on the topic of vagueness in philosophy and in law, the book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. (shrink)

Vague expressions are omnipresent in natural language. Their use in legal texts is inevitable. A law phrased in vague terms will often leave it indeterminate whether it applies to a particular case. This places the law at odds with legal values. One of the fundamental pillars of the rule of law is legal certainty. The determinacy of the law enables people to use it as a guide and allows judges make impartial decisions. Vagueness poses a threat to these ideals. In (...) borderline cases, the law seems to be indeterminate and thus incapable of serving its core rule of law value. -/- In the philosophy of language, vagueness has become one of the hottest topics of the past two decades. Linguists and philosophers have investigated what distinguishes ‘soritical’ vagueness from other kinds of linguistic indeterminacy, such as ambiguity, generality, open texture, and family resemblance concepts. There is a vast literature that discusses the logical, semantic, pragmatic, and epistemic aspects of these phenomena. Legal theory has hitherto paid little attention to the differences between the various kinds of linguistic indeterminacy that are grouped under the heading of ‘vagueness’, let alone to the various theories that try to account for these phenomena. -/- Bringing together leading scholars working on the topic of vagueness in philosophy and in law, this book fosters a dialogue between philosophers and legal scholars by examining how philosophers conceive legal ambiguity from their theoretical perspective and how legal theorists make use of philosophical theories of vagueness. -/- The chapters of the book are organized into three parts. The first part addresses the import of different theories of vagueness for the law, referring to a wide range of theories from supervaluationist to contextualist and semantic realist accounts in order to address the question of whether the law can learn from engaging with philosophical discussions of vagueness. The second part of the book examines different vagueness phenomena. The contributions suggest that paying greater attention to these phenomena can make lawyers aware of specific issues and solutions as yet overlooked. The third part deals with the pragmatic aspects of vagueness in law and with the professional, political, and moral issues to which such vagueness gives rise. (shrink)

Lawyers and judges cannot adequately address the nature of text, meaning, or interpretation without reference to the insights provided by linguists and philosophers of language. Exploring some of those insights, this article focuses upon what linguists and philosophers of language call “pragmatics.” Pragmatics examines the relations between words and users rather than the relations of words to words (syntax) or the relations of words to the world (semantics). In other words, pragmatics studies how language users actually use and interpret words (...) and other signs in communication. -/- Pragmatics recognizes that speaker meaning can differ from (and even contradict) linguistic meaning, including the literal meaning of text. In its proper context, for example, “Bob is indeed a good lawyer” can ironically mean just the opposite. Pragmatics also recognizes that relevant text is not a thing-in-itself that is simply given. Good lawyers look at such things as purpose and cohesion when determining relevant text. They do not simply take their opponent’s (or even their client’s) assertions of relevance. -/- Pragmatics also provides lawyers with a number of specific concepts and tools which are helpful in determining speaker meaning. For user convenience, this article attempts to set out in one place a number of such concepts and tools. These include: (1) types of cohesion that help determine relevant text, (2) types of context that help determine meaning, (3) pragmatic principles of construction such as principles of relevance and politeness, and (4) important pragmatic notions or devices such as anaphora, cataphora, ellipsis, deixis, presupposition, unstated premises, entailment, and implementives. -/- Finally, as a recurring example (among others) of pragmatics in action, this article examines from multiple perspectives textual issues raised in King v. Burwell, 576 U.S. __ (2015). -/- Keywords: Pragmatics, Semiotics, Interpretation, Textualism, Plain Meaning, King v. Burwell, Affordable Care Act, Text, Meaning, Speaker Meaning, Implicature. (shrink)

In its January 20th, 2010 decision in Citizens United vs. Federal Election Commission, the United States Supreme Court ruled that certain restrictions on independent expenditures by corporations for political advocacy violate the First Amendment of the Constitution, which provides that “Congress shall make no law […] abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Justice Kennedy, writing for the 5-4 majority, (...) held that “[b]y suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and view-points from reaching the public and advising voters on which person or entities are hostile to their interests” (Citizens United vs. Federal Election Commission 558 U.S. 38-9 (2010); emphasis added). Much of the language of the opinion, and some of its reasoning, as this passage illustrates, presupposes that corporations are agents capable of speech, and that it is (at least in part) in the light of this that limitations on political advocacy by corporations are prohibited by the Constitution. -/- While there are other strands in the argument, they are interwoven with the conception of the corporation as agent and speaker, with its voice and its viewpoints. The dissenters on the court objected on precisely this point (among others). Justice Stevens wrote sarcastically in his dissent, joined by Justices Ginsburg, Breyer, and Sotomayor, that “[u]nder the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech” (558 U.S. 33 (2010)). Justice Sotomayor suggested in oral argument that the Court’s century-old practice of treating corporations as persons rests on a conceptual mistake. -/- My concern in this essay is not with the question whether the restrictions violate the Constitution. There are many issues that bear on this which will be outside the scope of my discussion. My concern is with the proper conceptual framework for understanding the agency of corporations and corporate speech, and the role that conceptions of these play in the background of the majority’s reasoning. The issue is legal, but it also has philosophical, conceptual and semantic aspects. It will be the latter aspects, and their potential to shed light on legal reasoning, that are my main focus. An adequate framework requires saying what properly speaking the corporation is, how agency is expressed through the corporation, whose agency it is, centrally whether the corporation is an agent or person in its own right, and in what sense it can be said to be capable of speech. I draw on recent work in collective action theory, particularly with respect to the semantics of collective action sentences (Ludwig 2007) and the analysis of the proxy agency in collective action (Ludwig 2014), to show (i) that corporations are neither genuine agents nor (therefore) capable of engaging in genuine speech, (ii) that consequently the First Amendment does not apply to corporations per se, and (iii) that a better understanding of the mechanisms of corporate agency casts doubt on more indirect arguments for extending the First Amendment to “corporate speech” as well. (shrink)

By significantly diminishing the role intentions play in communication, in Imagination and Convention Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the (...) non-intentionalist camp, which makes them unique in the contemporary philosophy of language.In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, better reflects the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute; the number of contributions renders the identification of individual intentions impossible, making it badly suited to a Gricean, intention-based analysis. Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language. In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism.” In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages. (shrink)