How to Do Legal Things with Words: The Contracts Scholarship of Peter Tiersma
How to Do Legal Things with Words
THE CONTRACTS SCHOLARSHIP OF PETER TIERSMA
Sidney W. DeLong
Law is a system of speech acts. Legally operative communications are not just bits of information. They are actions that have immediate legal effects. Because people use speech acts to create private legal relations, any comprehensive theory of private law requires an account of how legal speech acts succeed or fail. Speech act theory provides such an account of the conditions under which speech acts are performed in natural language (Austin 1962; Searle 1969, 1979; Grice 1999). Peter Tiersma’s scholarship demonstrates both the theoretical and practical value of speech act theory to an understanding of the relationship between natural language and the law.
Speech act theory distinguishes among three dimensions of every utterance (Searle 1969, 23–26; Searle 1979). As a “locution,” a speech act conveys a semantic meaning. As an “illocution,” a speech act affects the world as an action in its own right, such as asserting or promising. Successful interpretation (or “uptake”) of a speech act requires a correct interpretation by its recipient of both its semantic meaning and its illocutionary force. Finally, every speech act will have numerous personal and institutional effects—in speech act theory terminology, its perlocutionary effects—on its hearer and on third parties. Speech act theory describes the conditions that are necessary to the successful (or “felicitous”) performance of each kind of illocution and the essential point or force of the act.
Tiersma’s “The Language of Offer and Acceptance: Speech Acts and the Question of Intent” was the first sustained application of speech act theory in American legal scholarship. His work demonstrated the analytic value of speech act theory in dealing with a persistent problem of contracts jurisprudence—the interpretation of whether a sequence of communications should count as offers and acceptances. Classifying communications in this way requires courts to correctly interpret the illocutionary point as well as the semantic content of both express and indirect speech acts.
One of the first puzzles addressed by speech act theory was how to explain the phenomenon of indirect speech acts, in which we can say one thing and yet be correctly understood to be saying something else with a different illocutionary force (Searle 1979: 30–58). Paul Grice accounted for our ability to understand indirect speech acts by positing that in conversation we follow a Cooperative Principle (Grice 1999: 22–41). We understand apparently irrelevant things said by our conversational partners by making a very strong assumption that everything they say is helpful and relevant to our shared purpose in the conversation. Indirect speech acts succeed because that assumption is usually correct.