Implicatures Within the Legal Context: A Rule-Based Analysis of the Possible Content of Conversational Maxims in Law
© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_26
26. Implicatures Within the Legal Context: A Rule-Based Analysis of the Possible Content of Conversational Maxims in Law
Department of Legal Theory, Jagiellonian University, Krakow, Poland
In the present paper, I will provide an account of general-pragmatic theories, such as Grice’s theory or ‘relevance theory’. Secondly, I will detail the insufficiency of ‘relevance theory’ in defining the content of maxims within the legal context. The accounts of possible maxims’ content in law tend to treat the subject in a strictly Gricean way. They neglect other theories in modern linguistics or philosophy of language. However, it appears that neither of these theories can provide us with a sufficient vision of legal maxims. Although there exist some similarities between the ordinary and legal speech, I will provide for differences which render them two almost incompatible projects. The relevance-theoretic approach appears only fairly narrowly applicable to the realm of law, as its basic assumption of increasing effect while decreasing effort is a flawed statement in the legal domain. Legislative speech is a collective speech act, while the analytical tools developed in Sperber and Wilson’s theory are designed to explain individual speech. The fact, that an interpretation is easily accessible does not make it automatically more relevant in law. However, intentions are a central notion in the legal discourse. The communicative intention defined by Sperber and Wilson is an adequate reformulation of the legislator’s will to convey a normative content of its propositions. Nevertheless, neither the content of maxims defined by Grice, nor by Sperber and Wilson, provide a fully adequate account of what their content in law could be. There remains a need to search for a more exact theory.
KeywordsGriceImplicatureMaxim of conversationPragmatic enrichmentRelevance theory
This paper aims to provide an analysis of the possible content of conversational maxims in law, defined in Gricean terms as rule-like assumptions, in theories advanced by modern pragmatics. While noticing that contents of utterances in human languages contain more than just an amalgam of the words used, Grice provided a substantial leap in the methods of analysis of meanings. He noticed that for linguistic communication to be successful, the hearer of a proposition must make certain assumptions; that the speaker is following some rules (or maxims), which are directed at achieving the specific aim of a conversation. Grice considered conversation only in a narrow sense, that is, a conversation is aimed at an exchange of information. I will begin the analysis by providing a brief account of general-pragmatic theories that address the question of the possible content of the maxims of conversation, such as Grice’s theory or ‘relevance theory’, which was developed by Sperber and Wilson. Secondly, I will detail the inadequacy of ‘relevance theory’ in defining the content of maxims’ content within the legal context. I would like to underline the fact that the accounts of possible maxims’ content in law (such as those provided by Marmor or Poggi) tend to treat the subject in a strictly Gricean way. They omit or neglect other theories in modern linguistics or philosophy of language. However, it appears that neither of these theories can provide us with a sufficient vision of legal maxims. The issues I considered in this paper were as follows: What is the content of maxims in law? Why cannot relevance theory be straightforwardly applied to describe legal parlance? Which of its notions could provide us with a more adequate representation of communication in legal contexts than does the Gricean theory?
26.2 Gricean Account of the Maxims of Conversation
Paul Grice noticed that, together with the asserted content of the words used, we can distinguish meanings that are closely tied to the contextual embodiment of an utterance. This led him to the conclusion that human beings must make use of some tools that enable them to understand the implicated content. He created a theory that aimed to explain the formation of conversational implicatures by formulating a general cooperative principle (Grice 1975, 1989). The assumption that the parties to a conversation are cooperating in the aim of exchanging information is specified in the form of four maxims of conversation: QUALITY (try to make your contribution one that is true.), QUANTITY (make your contribution as informative as is required for the current purposes of the exchange), RELATION (be relevant), and MANNER (be perspicuous, avoid obscurity of expression, ambiguity, be brief and orderly) (Horn 2006, p. 7). Grice treated “these rules not as arbitrary conventions, but as instances of more general rules governing rational, cooperative behavior” (Davis 2013). F. Poggi proposed that maxims be defined as “formulations of customary hermeneutic, technical rules’’. According to von Wright’s classification, ‘‘technical rules (or directives) indicate a means to reach a certain goal, aiming not at directing the will of the receivers, but at indicating to them that their will is conditioned: in other words, that if they want to reach a certain goal, then they must maintain certain behavior” (Poggi 2011, p. 7). It is the purpose of the conversation that shapes the content of the maxims and not vice versa. The sole identification of the existence of implicatures, together with rules that enable us to predict their content, is insufficient to explain why and how technically implied meaning is conjured up. Therefore, we require three additional formulations:
(…) A speaker S conversationally implicates q by saying p in context C, if—
S is presumed to observe the relevant conversational maxims in C;
The assumption that S meant (or intended that) q is required in order to make sense of S’s utterance of p in context C, given the conversational maxims that apply;
S believes/assumes that his/her hearers can recognize condition b, and can recognize that S knows that. (…). (Marmor 2011, p. 152)
Conversational implicatures must also somehow be calculable by the hearer with the use of maxims (calculability assumption; Davis 2013). In fact, only the cooperative principle and the calculability assumption combined can create a successfully implicated utterance. The hearer must be capable of inferring the implicature in order for the communication to achieve its goal. A generative assumption is also identified: “Implicatures that are conversational exist because of the fact that the cooperative presumption, determinacy, and mutual knowledge conditions hold. Whereas the Calculability Assumption is epistemological, the Generative Assumption is ontological, explaining the constitution of conversational implicatures. (…)” (Davis 2013). The formation of an implicature is due to a range of factors that enable the prediction of its content. Without a speaker intention that is directed at the creation of a definite implicature, the communication could not be successful (Davis 2013). We sometimes fail to communicate (exactly) what we intend. However, it appears that the existence of an intention is not only necessary for production of an utterance, but it can also be one of the reasons why a hearer must infer the implicature from the proposition heard.
Grice noticed that speakers sometimes flout maxims. Such action appears to be even more complex than the description of a lie, because, in cases of maxim-flouting, the hearer is perfectly aware that the speaker is breaking these rules and successfully infers meanings from such utterances. Another interesting phenomenon is the case of irony. Griceans define irony as a deliberate action of conveying just the opposite of what is being said, while Sperber and Wilson provided a slightly different account of irony; they considered it as an echoic utterance that refers to some other occurrence in the past. Another often discussed example of maxim-flouting is poetry. The followers of Grice explain it by formulating an additional principle of style: “be stylish, so be beautiful, distinctive, entertaining and interesting (…)” (Davis 2013). Consequently, formal or polite utterances that involve a large dose of unnecessary statements or conventions of courtesy are explained by a principle of politeness.
In an effort to improve Grice’s theory of linguistic communication and, especially, the definitions of the content of maxims that have posed the most problems, many, including Laurence Horn and Stephen Levinson, have formulated new theories. In this paper, I will primarily consider Sperber and Wilson’s ‘relevance theory.’
26.3 Relevance Theory: An Alternative to the Gricean Account of Communication
Linguists and philosophers of language have created very different visions of the process of utterance formation. This has also triggered substantial disagreement concerning the possible content of the maxims, even within a standard day-to-day or, to put it in Gricean terms, information-oriented communication. One can imagine that the situation is even more complex when a non-standard specific form of communicating is in play. Multiple forms of communication exist within the large social phenomenon called law, for example, the communication that occurs within the legislature, or between the legislature and the judicial powers, which Andrei Marmor called ‘strategic speech.’ (Marmor 2011, p. 157). It should be emphasised that most of the debate on maxims’ content within the legal domain has been strictly dominated by Grice’s view of the cognitive processes involved in human communication. Philosophers who considered the issue straightforwardly (Marmor and Poggi) have assessed the processes described using Gricean vocabulary. Their work was mainly based on comparisons of information-oriented communication of the speech in the legal framework. This has led to interesting, but fairly one-dimensional, conclusions. The aim of this section is to combine other visions of human linguistic-cognitive processes and their possible applications within legal speech-contexts.
Let us attempt to debunk the common misconception that the Gricean framework is the best, and only possible, categorisation of notions. As relevance theory has shown, we must search for a theory that is not only adequate in the descriptive sense, but also conforms to the architecture of our minds. The work of Marmor, which considers the content of ‘legal maxims’, is based on a division of content of speech between semantic content (the literal meaning of the words used, combined with syntactical structures), assertive content (the truth-evaluable content of speech) and implicated content (that which goes beyond what is literally conveyed) (Marmor 2009, p. 3). This distinction is sufficient in a project aimed at providing a normative account of what must be the case to warrant certain inferences and conclusions. Nevertheless, while analysing the maxims issue, it is worth glancing at another project: cognitive psychology, which aims to give an account of the way in which the mind actually works. As B. Shaer noted: “(…) legal interpretation is as much cognitive as it is institutional ‘all the way down’—that it is a particular kind of linguistic activity, carried out as part of the culture of law. This indicates that a plausible account of it must ultimately meld institutional and cognitive analyses, showing how the later perspective is compatible with, and can actually elucidate, the former” (Shaer 2013