© 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_24
24. Why Legal Rules Are Not Speech Acts and What Follows from That?
University of Warsaw, Warsaw, Poland
The speech-act approach to rules is commonplace in both Anglo-American and continental traditions of legal philosophy. Despite its pervasiveness, I argue in this paper that the approach is misguided and therefore intrinsically flawed. My critique identifies how speech-act theory provides an inadequate theoretical framework for the analysis of written discourse, a case in point being legal text. Two main misconceptions resulting from this misguided approach are the fallacy of synchronicity and the fallacy of a-discursivity. The former consists of treating legal rules as if they were uttered and received in the same context, the latter consists of treating legal rules as relatively short, isolated sentences. Among the consequences of these fallacies are an excessive focus on the lawmakers’ semantic intentions and the neglect of the semantic and pragmatic complexity of rules as sets of utterances (discourses). To redress these flaws, I propose analysing legal rules through the prism of complex text-acts. My paper presents the consequences of this revised approach for legal interpretation, supporting Joseph Raz’s idea of minimal legislative intent.
KeywordsLegislative intentLegal interpretationRulesSpeech actsWrittenness in law
24.1 Aim and Structure of the Paper
The aim of this paper is to show that using speech-act theory to analyse legal rules is based on an incorrect assumption. According to this assumption, legal rules can be analysed in the same way as
single oral utterances,
utterances addressed by a speaker to a hearer where both are in the same place at the same time.
I will call assumption (i) the fallacy of a-discursivity and assumption (ii) the fallacy of synchronicity. I show below that both these fallacies arise from the nature of speech-act theory, which traditionally focuses on analysing simple oral utterances made in a face-to-face speech situation.1 Speech-act theory has never been fully elaborated to analyse complex written discourses, which are used for diachronic communication—communication involving different moments in time and different locations. Nonetheless, a version of speech-act theory which is not adjusted to written communications has gained popularity in legal philosophy. My argument is that, in order to avoid the fallacies of a-discursivity and of synchronicity, speech-act theory has to be revised and legal rules have to be treated not as simple, single speech acts, but as more akin to complex text acts. This approach acknowledges the pragmatic complexity (in linguistic terms) of the lawmaker’s intention and thereby prevents excessive focus on its semantic aspect.
In the first part of this paper I briefly discuss the role that speech-act theory plays in the analysis of legal rules. In the second part I demonstrate that speech-act theory is ill-equipped to analyse written communication and I identify areas in which its shortcomings are most apparent. The third section of the paper is dedicated to showing that legal rules can be analysed through the prism of complex text acts2 (rather than be treated as speech acts) and to identifying the main consequences that this approach has on legal text interpretation, in particular on the understanding of the lawmaker’s intention.
24.2 The Significance of Speech-Act Theory for Legal Philosophy
Legal philosophy’s interest in speech-act theory began with the co-operation between H.L.A. Hart and J. L. Austin. The most widely-known legal rule in jurisprudence, i.e. No vehicles in the park (Hart 1958), is analysed in a manner characteristic of this theory. Although Hart treats this rule as a written—not spoken—one, he treats it as a single statement made by a single author. As I will show in part 3, in reality legal rules are not single statements but are more the effect of several—sometimes many—statements.3
Concurrently with the development of linguistic analyses in legal philosophy, the application of speech-act theory to analyse legal rules has become increasingly popular. This especially concerns the concept of an illocutionary act (e.g. Visconti 2009), and the concept of illocutionary uptake (e.g. Solum 2008). The role played in legal philosophy by speech-act theory has been neatly stated by P. Amselek:
The theory of speech acts is, in my opinion, a general foundation which provides legal philosophy with an adequate method of approaching the legal utterances with which it is confronted. It also provides a general orientation and framework for analysis and research. (Amselek 1988)
Besides such explicitly expressed belief in its value, most analyses of legal rules in accordance with speech-act theory are carried out using the following implicit assumptions:
Legal rules are uttered or treated as utterances (e.g. Cyrul 2007, p. 45). Even if we agree that the term “utterance” may also refer to written communications, calling a rule an “utterance” indicates that it is a statement made at a single point in time, being one indivisible whole (as distinct from a collection of utterances (discourse)).
Legal rules are addressed by a speaker to a hearer (e.g. Cao 2007, p. 73).
Taking the recipient’s context into account when analysing rules is not deemed a linguistic analysis but an attempt to depart from one and to promote values other than fidelity to the legal text, e.g. the flexibility of law or the freedom of the interpreter (e.g. Eskridge and Frickey 1990).
The foregoing assumptions constitute the underlying structure of thinking about legal rules among legal philosophers. Uncritical acceptance of these assumptions leads to a kind of theory-induced blindness, i.e. failure to observe the differences between simple face-to-face communication and communication in which legal rules are used. The vast majority of legal rules are written rules directed at an unspecified group of addressees commonly external to the immediate context in which the legal rules are created. Among them are the legal rules that are most important for legal philosophers, i.e. those set out in statutes, constitutions and contracts.
24.3 Lacunae in Speech-Act Theory
Some authors dealing with speech-act theory show that it is not fully suitable to analyses of written communications, the communicative aim of which falls outside the face-to-face speech situation. W. Ong states that:
Speech-act theory could be developed not only to attend more to oral communication, but also to attend more reflectively to textual communication precisely as textual. (Ong 2000, p. 166)
Ong’s critique is supported by M. Stubbs:
Much of speech act theory has difficulty in freeing itself from two assumptions (…). One is the assumption that speech act theory should take, as its paradigm cases, the conveying of messages in face-to-face two-party interaction. The other is the assumption that speech act theory can be based on invented, isolated sentences (…) invented sentences are isolated and not connected discourse. (Stubbs 1983, p. 485)
The primary factor in the inadequacy of speech-act theory is the diachronic nature of written communication. This communication is employed to go beyond the face-to-face speech situation in order to communicate with persons who are beyond the reach of the human voice, in a different place and particularly at a different time. This communication covers not one but two contexts—the context of the utterer and that of the recipient.