The Role of Pragmatics in (Re)Constructing the Rational Law-Maker

Capone, Alessandro

doi:10.1007/978-3-319-30385-7_7

Cited by 5 publications

(2 citation statements)

References 18 publications

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“…Against this objection, some authors have replied by appealing to a counterfactual legislative intention (Marmor 2005 ) or to the intention of a rational lawmaker (Dascal and Wróblewski 1991 ;Capone 2013 ). These moves are certainly questionable: within the jurisprudence (especially the continental jurisprudence) the interpretative cannon which appeals to an ideal (coherent, rational, exhaustive, etc.)…”

Section: Conversational Implicatures and The Speaker's Intentionmentioning

confidence: 90%

Grice, the Law and the Linguistic Special Case Thesis

Poggi

2016

Pragmatics and Law

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This paper aims to investigate the applicability of Grice's theory of conversational implicatures to legal statutes and other general heteronomous legal acts (while acts of private autonomy are excluded from the scope of the present investigation). After a brief presentation of Grice's theory Sect. 1 and an attempt to adapt conversational maxims to normative discourse -which is assumed to be neither true nor false Sect. 2 -I will survey one of the most convincing arguments against the applicability of conversational maxims to the legal domain, the one based on the (absence of a precise, real) legislative intention Sect. 3 . I will argue that this argument is not decisive, but that, however, conversational maxims do not apply to legislation: as a matter of fact, legal practice does not include Grice's conversational maxims among its conventions Sect. 4 . This inapplicability, which derives from the very nature of the cooperative principles and the maxims, fi ts other peculiarities of legal practice: perhaps the most relevant is what we may call the contextual indeterminacy of legal discourse, a characteristic that is rigidly coupled to its confl icting nature. I will claim that all these features explain why legislation and other general heteronomous legal acts are not special cases of ordinary conversations Sect. 5 .

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Section: Conversational Implicatures and The Speaker's Intentionmentioning

confidence: 90%

Grice, the Law and the Linguistic Special Case Thesis

Poggi

2016

Pragmatics and Law

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“… 6 See especially Marmor (2008), (2009) 106–30, (2014) 35–59. For a range of critical responses to Marmor’s approach, see the other contributions (besides Marmor’s own) in Capone and Poggi (2016). …”

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confidence: 99%

Regulating free speech in a democracy: Lysias 10Against Theomnestosand the law on slander

Livingstone

2023

J. Hell. Stud.

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Lysias 10 Against Theomnestos is the only surviving example of a classical Greek speech on a charge of slander (dikē kakēgorias). The case turns on establishing communal consensus in evaluation of meta-discursive claims: assertions as to what the law says about what citizens can say about their fellow citizens. I adapt Marmor’s account of the pragmatics of legal discourse to illuminate the litigants’ strategies as they seek to control interpretation of the legal question in this much-discussed case from 380s BC Athens. We see how each party used different assumptions about the law’s implicatures as well as its declarative meaning and presented these assumptions as grounded in common sense. The persuasive methods used by Lysias’ client are illuminated by means of cognitive narratology’s application of Lewisian possible-world logic to the creation of story-worlds and the relationships they generate between narrator and reader/audience. So understood, Lysias’ speech helps answer questions about the role and limits of free/frank speech (parrhēsia) in democratic Athens and about the relationship between individual agency and the collective agency of the dēmos, questions crucial to an understanding of the place of legal discourse and legal conflict in the ideology and day-to-day praxis of the democratic city.

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Interpretative Disputes, Explicatures, and Argumentative Reasoning

Macagno

Capone

2015

Argumentation

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The problem of establishing the best interpretation of a speech act is of fundamental importance in argumentation and communication in general. A party in a dialogue can interpret another's or his own speech acts in the most convenient ways to achieve his dialogical goals. In defamation law this phenomenon becomes particularly important, as the dialogical effects of a communicative move may result in legal consequences. The purpose of this paper is to combine the instruments provided by argumentation theory with the advances in pragmatics in order to propose an argumentative approach to meaning reconstruction. This theoretical proposal will be applied to and tested against defamation cases at common law. Interpretation is represented as based on a hierarchy of interpretative presumptions. On this view, the development of the logical form of an utterance is regarded as the result of an abductive pattern of reasoning in which various types of presumptions are confronted and the weakest ones are excluded. Conflicts of interpretations and equivocation become essentially interwoven with the dialectical problem of fulfilling the burden of defeating a presumption. The interpreter has a burden of explaining why a given presumption is subject to default, assuming that the speaker is reasonable and acting based on a set of shared expectations.

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The Role of Pragmatics in (Re)Constructing the Rational Law-Maker

Cited by 5 publications

References 18 publications

Grice, the Law and the Linguistic Special Case Thesis

Grice, the Law and the Linguistic Special Case Thesis

Regulating free speech in a democracy: Lysias 10Against Theomnestosand the law on slander

Interpretative Disputes, Explicatures, and Argumentative Reasoning

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