A Note on the Linguistic Determinacy in the Legal Context This paper discusses linguistic vagueness in the context of a semantically restricted domain of legal language. It comments on selected aspects of vagueness found in contemporary English normative legal texts and on terminological problems related to vagueness and indeterminacy both in the legal domain and language in general. The discussion is illustrated with selected corpus examples of vagueness in English legal language and attempts to show problems of the relation between (...) vagueness and ambiguity in the context of legal institutionalised systems.The discussion also evokes theoretical issues which pertain to the relation between legal texts and their contexts, the problem of how linguistic forms acquire their contextual meaning and how linguistic expressions are disambiguated. These issues are further related to the post-Gricean theory of relevance, its inferential model of communication, and the interplay between the linguistic code and inferential processes in communication. (shrink)

The right not to be subjected to torture, cruel, inhuman or degrading treatment or punishment is invariably associated with ‘human dignity’. The idea of dignity plays some role in this right’s interpretation, although the content of the idea in this context, as in others, is unclear. Making sense of the dignity idea involves a number of challenges. These challenges give rise to the methodological-type question at the heart of this article: how should human rights lawyers go about articulating the content (...) of ‘dignity’? The article proposes, and models, a methodological approach in response. Its core argument is that human rights law needs the vocabulary provided by theorizations of dignity but that these theorizations should be anchored in authoritative human rights jurisprudence. It argues that this approach can help make sense of the dignity idea in a way that facilitates a richer understanding of its influence on interpretation. (shrink)

Argumentation schemes are forms of reasoning that are fallible but correctable within a self-correcting framework. Their use provides a basis for taking rational action or for reasonably accepting a conclusion as a tentative hypothesis, but they are not deductively valid. We argue that teleological reasoning can provide the basis for justifying the use of argument schemes both in monological and dialogical reasoning. We consider how such a teleological justification, besides being inspired by the aim of directing a bounded cognizer to (...) true belief and correct choices, needs to take into account the attitudes of dialogue partners as well as normative models of dialogue and communicative activity types, in particular social and cultural settings. (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)

A frequently discussed question in recent jurisprudential debates concerns the extent to which conversational implicatures can be conveyed reliably in legal language. Roughly, an implicature is a piece of information that a speaker communicates indirectly, that is without making the conveyed information explicit. According to the classical analysis of implicatures, their successful communication depends on a shared expectation of interlocutors to be cooperative in conversation. However, recently some legal theorists have claimed that in legal language implicatures tend to be unreliable (...) because – according to them – communicative cooperation cannot be presumed in legal discourse to the same extent as in ordinary conversations. In this article, I will focus on implicatures in a particular kind of legal discourse, namely judicial opinions, and I will discuss to what extent we should also be sceptical about implicatures in this type of legal discourse. My aim is to suggest that scepticism about the reliability of implicatures in judicial opinions appears implausible once we take evidence into account, i.e. examples of implicatures from judicial opinions. I will argue that the evidence that sceptics provide is not only scarce but inconclusive and present a wealth of implicatures from judicial opinions that are not unreliable. I will conclude that an evidence-based approach casts the sceptical view into doubt and suggest that communicative cooperation is presumed in judicial opinions, as well. (shrink)

The first part of this work analyses the universalist and the particularist conceptions of reasons. The second part projects this analysis to the legal domain. The author stresses that universalism and particularism regarding reasons are mutually exclusive theories linked to incompatible conceptions of norms, i.e. norms as strict universal conditionals and norms as defeasible conditionals. In giving an account of this tenet, different meanings of universality and defeasibility are explored. A parallel debate regarding reasons can be found in the legal (...) domain, where two contrasting categories of norms are usually distinguished: rules and principles. On this issue the author argues that the conception of legal reasons depends on the way in which this contrast between different kinds of legal norms is shaped. (shrink)

The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the principles that underlie the types of argument usually used to justify a construction. The Gricean maxims and the arguments of legal interpretation are regarded as presumptions subject (...) to default used to justify an interpretation. This approach can allow one to trace the different legal interpretive arguments back to their basic underlying presumptions, so that they can be compared, ordered, and assessed according to their defeasibility conditions. This approach allows one to understand the difference between various types of interpretive canons, and their strength in justifying an interpretation. (shrink)

This study aims at investigating vagueness in Security Council Resolutions by focussing on a selection of nouns and phrases used as the main casus belli for the Second Gulf War. Analysing a corpus of Security Council Resolutions relating to the conflict, the study leads a qualitative and quantitative analysis drawing upon Mellinkoff’s theories on “weasel words”, which are “words and expressions with a very flexible meaning, strictly dependent on context and interpretation”. Special attention is devoted to the historical/political consequences of (...) such vague and indeterminate expressions. The findings indicate that excessive vagueness might have led to biased or even strategically-motivated interpretations of the Resolutions, triggering the Iraqi conflict instead of a diplomatic solution. The analysis of the “weasel words” used in the Resolutions suggests the double-faced strength of such expressions: though they can guaranteed a wide degree of applicability of the Resolutions, their subjective interpretability might become a source of manipulation and elusiveness, with the overall legislative intent of using intentional vagueness as a political strategy. (shrink)

This essay claims that a rupture between two languages permeates human rights discourse in contemporary Anglo-American legal thought. Human rights law is no exception. The one language is written in the sense that a signifying relation inscribed by institutional authors represents concepts. Theories of law have shared such a preoccupation with concepts. Legal rules, doctrines, principles, rights and duties exemplify legal concepts. One is mindful of the dominant tradition of Anglo-American conceptual jurisprudence in this regard. Words have been thought to (...) copy ready-made concepts. Acts of intellectualisation and the accompanying analytic technique have excluded a consideration of a very different sense of legal language. The second sense of a language concentrates upon unwritten acts of meaning which lack a discrete and assignable author. This essay aims to unconceal the importance of an unauthored language. Drawing from Edmund Husserl’s early writings, particularly his Logical Investigations, I shall argue that an unwritten language embodies the written language with acts of meaning. An act of meaning confers one’s experiential body into the content of a concept signified in a written language. In order to understand the importance of such pre-legal acts of meaning in human rights laws, I begin by outlining how universal human rights have been signified as universal by virtue of their content-independence. I then raise the problem of the exclusion of social-cultural phenomena as elements of human rights laws. The clue to this exclusionary character of human rights law rests in the analytic leap from an unwritten to a written legal language. The essay then addresses the effort to link legality with the social world: namely, the effort of grounding legality in a social convention. I examine how a social convention itself is conceptualized, leaving the remainder of acts of meaning. This failure of social conventions to access social-cultural phenomena encourages me to turn to acts of meaning as such acts were understood by Edmund Husserl in his earlier works. Meaning-constituting acts exist prior to intuitions and prior to social conventions. This priority exists analytically as well as phenomenologically. In order to exemplify this prior character of acts of meaning, I retrieve Antigone’s experiential knowledge in Sophocles’ Antigone. Antigone’s unwritten laws are characterized by an absence of mediating concepts. I then identify several elements of an act of meaning in an unwritten language: the experiential body as the source of the acts of meaning, praeiudicia (prejudgements), collective memories, the act character of meaning, and the act of interpretation of social behaviour. My final section raises the prospect of whether human rights can be considered universal if acts of meaning are that important in the identity of a law. (shrink)

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski, between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism, I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary proceedings and legal texts. I (...) then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski. I argue that contextualism is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker ;. I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s textualism and contextualism. (shrink)