Brian H. Bix
Among the many important and incisive contributions Peter Tiersma has made to our understanding of law and language are two wonderful pieces on what speech act theory can teach us about offer and acceptance in contract law. (Tiersma 1986, 1992) These works and others by Tiersma raise questions that are central for theorists who wish to bring insights from philosophy of language into the study of law.
There has been growing interest among legal scholars in the way that speech act theory, and other ideas from modern philosophy of language, might assist legal practice. For example, Lawrence Solum’s influential work on originalist approaches to constitutional interpretation relies on distinctions between semantic content and legal content, and on Paul Grice’s distinction between speaker’s meaning and sentence meaning. (e.g., Solum 2009, especially 944–955) Andrei Marmor uses a different aspect of Grice’s work, on implicature, to show how and when non-textualist understandings of legal norms are appropriate, reflecting similar ways of understanding in ordinary speech.
In most cases of bringing philosophy of language to law, what the theorists are doing in their use of ideas from philosophy of language is not prescribing any radical change to legal practice, but primarily articulating a clearer understanding of what legal actors already do: that is, the work helps better to explain, rationalize, or justify our existing practices. What prescriptions there are in such works are usually on the margin, frequently the cleaning up of doctrinal uncertainties “in the corners,” as it were. I have argued elsewhere (Bix 2005) that many attempts to use Ludwig Wittgenstein’s views on rule-following as the basis for changing legal practices were based either on a misunderstanding of legal practice, a misunderstanding of Wittgenstein’s theory, or both. A proper understanding of Wittgenstein’s views, I have argued, leaves legal practice just as it was.
However, in Tiersma’s writing on unilateral contracts (Tiersma 1992