To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field
© 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_20
20. To Whom Does the Law Speak? Canvassing a Neglected Picture of Law’s Interpretive Field
Department of Law, Liverpool Hope University, FML Building, Hope Park L16 9JD, Liverpool, UK
Among the most common strategies underlying the so-called indeterminacy thesis is the following two-step argument: (1) that law is an interpretive practice, and that evidently legal actors more generally hold different (and competing) theories of meaning, which lead to disagreements as to what the law says (that is, as to what the law is); (2) and that, as there is no way to establish the prevalence of one particular theory of meaning over the other, indeterminacy is pervasive in law. In this paper I offer some reflections to resist this trend. In particular I claim that a proper understanding of law as an authoritative communicative enterprise sheds new light on the relation between the functioning of the law and our theories of interpretation, leading to what can be considered a neglected conclusion: the centrality of the linguistic criterion of meaning in our juridical interpretive practices. In the first part of the chapter I discuss speech-act theory in the study of law, assessing its relevance between alternative options. Then I tackle the ‘to whom does the law speak?’ question, highlighting the centrality of lay-people for our juridical practices. Lastly, I examine the consequences of this neglected fact for our interpretive theories.
KeywordsIndeterminacy thesisLaw as communicationLegal interpretationNorm-addresseesSpeech-act theory
A growing bulk of legal scholarship, conceiving of law as a communicative phenomenon (e.g. Van Hoecke 2002),1 revolves around the question ‘what does the law say?’ On a first approximation, to ask this question is tantamount to ask ‘what is the law?’, in general or as to a specific case. This is indeed a common way in which a layperson would seek legal advice from her solicitor: ‘What does the law say on buying land estate without a written contract?’ The solicitor would then go on and explain the content of the law, that is, she would tell her client what the law is (at least from the best of her knowledge) on real estate. But on a more careful consideration, what the law says—i.e. the text of legal sources such as statutes and judicial decisions—does not always correspond with what the law is, viz with the norms (rules, standards, principles, etc.) that govern a certain activity or situation.2 Such variance depends on the role one assigns to pragmatics (and context in particular) in the determination of the content of legal utterances, and this point represents one of the most debated issues in jurisprudence nowadays (e.g. Marmor 2008; Marmor and Soames 2011), straddling the philosophies of law and language.
In this chapter I shall focus on a different, albeit clearly related, question. Operating within the same understanding of law as communication I ask, ‘to whom does the law speak?’ Such a question might sound naïve, at best, or pointless, at worse. For if we skim through law books and manuals, it seems that the law speaks only to judges, officials, lawyers and (sometimes) jurists,3 as it is only their interpretive practices which are analysed. In other words, the law addresses only those agents whose interpretation bears some authoritativeness, directly (judges, officials) or indirectly (lawyers, jurists). Hence our theories of legal interpretation are (and must be) modelled around their operations, taking into account the specificity of the resulting interpretive field and considering legal interpretation as a highly specialised practice. Now, is this picture of law’s interpretive field apt? I seriously question this contention. Of course, to deny the high degree of complexity of legal interpretation as carried out by judges and other institutional agents would be readily counter-intuitive as a descriptive claim. Rather, in this chapter I plan to suggest that this picture of law’s epistemic field is, at best, incomplete, and that a different, more comprehensive, picture of it must be canvassed. But why is this operation worth pursuing? If the arguments I put forward are sound, important consequences for our theories of legal interpretation arise, and in particular as to the so-called ‘indeterminacy problem’.
In this regard underpinning our liberal institutional paradigms is the belief that legal ‘facts’ are in some sense, and at least partially, objective and determinate Coleman and Leiter 1995). On the interpretive side, this position is usually defined as ‘mixed’ theory (see e.g. Hart 1994; Marmor 2005; Moreso 1998) precisely because it acknowledges an area of objectivity and determinacy in our adjudicative practices. And yet we see judges, lawyers and academics constantly disagreeing about what the law is, both in general and in particular cases: for legal actors interpret the (text of the) law in different ways, and thus they obtain different answers as to what the law is. Viz, they seem to disagree about the meaning of legal utterances, because they hold different theories of meaning: so that, descriptively, no one among them can be considered to be prevalent (Guastini 2011, pp. 153–154). But if this is so, legal utterances cannot be truth-apt—they do not have ‘one definitive objective meaning’ (Guastini 2011, p. 152, italics original). As such, the indeterminacy of law would follow from its interpretive nature and two seem the main strategies available to us:4 either we resort to the Dworkinian approach that might allows us to reach always a right answer (thus preserving the legitimacy of adjudication), but at the cost of embracing the idea of law as integrity all the way down (Dworkin 1986, 2011); or we are faced with the necessity to acknowledge the pervasiveness of indeterminacy in law, and to draw the ensuing implications in terms of the legitimacy of our liberal institutional practices.
My contention is that the considerations offered in what follows as to law’s interpretive field help assessing, and rebutting, the indeterminacy thesis as we have just outlined it. As such they are not sufficient to establishing the case for objectivity and determinacy in law, but they offer corroborating reasons to uphold a mixed theory of interpretation against critical and radical indeterminacy positions. The chapter breaks down like this. In Sect. 20.2 I discuss the use of speech-act theory in the analysis of law, briefly assessing the suitability of the former vis-à-vis the communicative nature of the latter. To this end, Sect. 20.3 examines the peculiar relationship between sender and receiver of legal utterances, and statutes in particular. This leads to the question of ‘who are law’s addressees?’, which I take up in Sect. 20.4. I argue that there are sound meta-theoretical reasons to consider laypeople as the first and foremost addressees of legal communication. Finally in Sect. 20.5 I deal with the consequences of this latter claim for our theories of interpretation, the most important being the need to recognise the prevalence of the linguistic criterion of interpretation amongst the ones available. This is necessary, I argue, for the existence of a legal system as such.
20.2 Preliminaries on Speech-Act Theory and The Study of Law
The use of speech-act theory to analyse law represents one of the principal waves that have swept legal philosophy over the last few decades. Beginning with the collaboration between J.L. Austin and H.L.A. Hart in Oxford, legal rules have been understood in their quality of performatives—in their being not just words (like when we describe the motion of planets), but actual actions through words (‘I hereby declare you man and wife’). Since then speech-act theory has progressively gained relevance in legal-philosophical discourse, providing it with a ‘general orientation and framework for analysis and research’ of ‘legal utterances with which it is confronted.’ (Amselek 1988, p. 199) Through speech-act theory several interpretative issues have been tackled and (purportedly) resolved (e.g. Marmor and Soames 2011). Among these, the relationship between semantics and pragmatics in legal utterances (and particularly legislative texts) has been clarified, showing the (potential) degree of difference between the communicative and the legal content of legislative utterances (e.g. Marmor and Soames 2011). But parallel to the far-reaching, mainstream popularity that speech-act theory has gained in legal discourse, a mounting sense of uneasiness with it has come to the fore in the work of several authors. This is precisely the subject of the contribution of Marcin Matczak in this volume.5 Following a certain, minority orientation in philosophy of language, he argues that speech-act theory cannot be fruitfully applied to legal utterances because it cannot explain in the first place written text. That is, the development of speech-act theory—in the seminal works of J.L. Austin, J.R. Searle, H.P. Grice, P.F. Strawson, and many others—has revolved only upon face-to-face oral interaction, and in this regard speech-act theory is plagued vis-à-vis legal utterances by what he calls (i) the fallacy of a-discursivity and (ii) the fallacy of synchronicity. That is, it is not true that legal rules can be analysed as (i) single oral utterances, to be analysed in isolation from other statements and (ii) utterances which are performed between a hearer and a speaker who share a conversational context (i.e., one in which contextual factors are directly accessible to both interlocutors, and as such can be presupposed by both parties). We shall come back to this latter fallacy shortly. For now I want to jump to Matczak’s conclusions as to the role of speech-act theory in legal scholarship. As I just said, the problem is that speech-act theory has focussed almost exclusively on the oral, face-to-face mode(l) of communication thus neglecting written—or anyway, ‘non-conversational’—ones (see e.g. Stubbs 1983).6 Hence applying the traditional model of speech-acts to the legal situation—statutes in particular, but also judicial decisions—yields ill-formed results. I have reached the same conclusion within my own line of research (Sandro 2014); and as if this was not enough, Brian Slocum’s contribution in this volume too points to the fundamental distinction between oral conversations and texts that requires a rethink of the relationship between speech-act theory and legal analysis.7 Here though it is not entirely clear to me whether Matczak argues for abandoning speech-act theory in legal philosophy altogether (as it seems from the title of his contribution, and from having read previous drafts of it), embracing alternative theoretical frameworks (‘complex text-acts’), or rather for amending speech-act theory in light of the peculiarity of legal utterances (as one could think from some passages in the text).8 Surely, most applications of speech-act theory to legal discourse have been plagued by these fallacies: but there are also a few relevant exceptions (Kurzon 1986; Duarte 2011) that Matczak overlooks and on which the next section builds upon. That is why, between abandoning speech-act theory in the study of law or amending it to such purpose, I opt for this latter possibility: for one can use the legal example to address speech-act theory general shortcomings and to begin to address satisfactorily the differences between conversational and non-conversational communicative instances. This last endeavour of course goes far beyond the scope of this chapter;9 here I am only going to focus on the relationship between sender and receiver of legal utterances.
20.3 Sender and Receivers in Law: A Peculiar Relation
In our ordinary conversations we usually have a speaker and a hearer who interact being in the same place and at the same time. They can be said to share a situational context.10 This latter often enriches the semantic content of the utterance, so that in philosophy of language, following the seminal work of Grice, we have come to distinguish consistently between sentence and speaker meaning (Korta and Perry 2012). Imagine the following situation: my friend John screams ‘We won!’ in front of the television just after the football match. The situational context of his utterance consists of, among other things, the fact that John’s favourite football team won the finals and that we just watched the match together (so that I know that he knows that, and vice versa) and thus I am able to make sense of his exclamation, i.e. I am able to understand what he means by uttering ‘We won!’11 Traditional speech-act theory builds upon these ‘ordinary conversation’ situations (Matczak, Chap. 24).
Things seem different when we consider legal utterances, and in particular those as contained in statutory instruments, whose sender is the normative authority and whose receivers are the agents within an institutional system.12 I limit my focus to statutory texts—statutes, directives, etc—and more generally to all those official normative texts which are addressed to the public in general and which contain norms that purport to regulate people’s behaviour. Such a restriction is arbitrary—legal communication is constituted by a variety of speech-acts which are different from each other, judicial decisions being a paradigmatic example of them—but justified: if law is the enterprise of ‘subjecting human conduct to the guidance of rules’ (Fuller 1969; cf Rawls 1999, pp. 208–212),13 statutory communication represents the only viable means, at least so far, to do so when to be regulated is a large society like modern ones (Hart 1994). As such, it constitutes the core of legal communication. This seems confirmed by the fact that law is, in the first place, only conceivable as such within a ‘common sense’ discourse that originates from the social practice of the society—that is the general public at large—itself (Jori 2010).14
There is a first important difference between ordinary speech-acts and legal ones, for it seems clear that legal utterances are ‘closed unilateral speech acts’ (Duarte 2011, p. 116), in the sense that they normally do not require an answer by their recipients. Rather, they require a ‘human behaviour’—which by the way is not even ‘oriented towards the normative authority’ (ibid). This is a very important qualification, as their aim as speech-acts then is not the successful exchange of information, but the successful reception of information that can, together with non-linguistic factors (Pattaro 2005), lead the receiver to act in a certain way (Marmor 2008).15 This consideration has to be taken into account when interpreting a legal utterance, for it puts already a relevant constraint not only on the illocutionary value(s) of the act itself,16 but also to the potential enrichment brought to the utterance’s meaning by the implied content, which is in this sense limited by both the strategic nature of the act performed and the ultimate aim of the communicative endeavour (Marmor 2008, p. 428).
Another significant sense in which legal utterances are different from speech acts taking place in ordinary conversation has to do with the inevitable lack of direct relation, in terms of time and space, between ‘who’ performs the speech act and who is (supposed to be) its recipient. This roughly corresponds to Matczak (Chap. 24) ‘fallacy of synchronicity’. Here though I am not referring only to the lack of a ‘situational context’, that is to the fact that sender and receiver of legal utterances are not in the same place at the same time; rather, the point is that ‘norm sentences are a kind of speech act where the connection speaker→hearer (reader) is played out on both sides by indeterminate actors’, [so that] ‘[e]ven though it is possible to connect a norm sentence with the person or group of persons that at a certain time act as the normative authority, from the speaker’s point of view, the fact is that the speaker is, precisely, the normative authority and not that person or group of persons’ (Duarte 2011, p. 117).17
The importance of this remark should not be underestimated. While Matczak (Chap. 24) deploys it to highlight the role of multi-contextuality in determining the lawmaker’s intention, and thus in order to justify the need to distinguish between the locutionary and the illocutionary intentions of lawmakers,18 I want to stress how this ‘a-synchronicity’ of legal utterances, far from being accidental, constitutes instead a distinctive and necessary feature of law as an institutional normative system (MacCormick 2007). For otherwise nothing like the rule of law, as opposed to the rule of men, can (ever) exist. That is, one of the differences between the two lies precisely in the fact that the power to rule ceases to be held by one or more individuals in their quality as such, and it is instead conferred upon an institution or officium—the ‘legislator’—that pushes into irrelevance the people temporarily exercising it. At the same time, the fact that legal utterances contained in statutory texts are not addressed to individual subjects, but to categories (types) of them, ensures the formal rationality (‘like cases should be treated alike’) of law and thus equality (of treatment and consideration) among its subjects.
The overall peculiarity of the relationship between sender and receiver of legal utterances vis-à-vis ordinary conversational situations leads us to ask: ‘Who are the addressees of legal utterances?’ At first glance, this question might seem just foolish.19 Especially if we are heavy consumers of jurisprudence books and articles, we might get the impression that legal utterances’ addressees are judges, lawyers and more generally legal officials, i.e. the agents within the system that are institutionally called to interpret (and apply) those very legal utterances (Cao 2007, p. 76). Only these agents’ interpretations ‘count’—after all, isn’t this idea that both Hart’s rule of recognition and Kelsen theory of norms presuppose, and only to name perhaps the two most prominent theorists of last century?20 And isn’t this the perspective from which radical sceptics and legal realists start off in order to criticise the traditional picture of legal interpretation (Guastini 2011)? The convergence among different authors on this point seems difficult to set aside.
And yet, isn’t something missing from this picture? Namely, where are we, the people? Aren’t we statutes’ addressees, first and foremost? This especially in light of the consideration that adjudication, as Green (2009, p. 21) reminds us, is always ‘law’s Plan B’. Law’s ‘Plan A’, as often left unspoken, is that of a successful communication, on part of the law-maker, and application, on part of the public, of legal rules that does not lead at all to adjudication; for the guidance offered by rules is effective in offering reasons for action and thus constraining behaviour.21 As such, isn’t the way in which laypeople interpret and apply the law at least as worthy of theoretical consideration as that of legal officials? And if this so, why seem theories of law and legal reasoning to be overlooking this (rather apparent) fact so often?
20.4 Laypeople as the First (and Foremost) Addressees of Legal Communication
I cannot speculate on this last question. But I readily argue that there is something wrong with our mainstream theories of interpretation when they simply remove laypeople from law’s interpretive field. I contend that this is an unwarranted move, one that yields non-negligible effects on the way in which we understand law. Before stating what are these consequences, let me make the case for the claim that laypeople are the first—and at least in one sense, the foremost—addressees of legal communication.
First, as we have briefly touched on it already, there is a flaw in all those theories that narrow down law’s interpretive field to that of institutional agents and judges in particular. For they seem to forget that adjudication is always an only merely potential ‘moment’ in juridical phenomenology (Fuller 1969, p. 55; Levenbook 2006, p. 74; Miers 1986). That is, a legal system could be said to be in place even without a system of courts or in any case without an ‘adjudicative moment’,22 provided that the (primary) communication of normative standards is successful amongst its subjects, in the sense that they comply with what the law requires.23 The fact that such scenario perhaps never historically occurred does not make the remark any less theoretically relevant.24 But the opposite does not hold, i.e. a normative system with a fully functional hierarchy of courts25 but where there is little or no compliance of primary norms (for whatever reason) is no legal system at all.26 Hence on what grounds do mainstream theories establish the exclusive relevance of institutional agents’ interpretive practices, and of courts in particular, if a (hypothetical) legal system could do without the moment in which this latter kind of interpretation takes place?