28.3551, Review: Forensic Linguistics; Pragmatics; Sociolinguistics: Capone, Poggi (2017)

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Subject: 28.3551, Review: Forensic Linguistics; Pragmatics; Sociolinguistics: Capone, Poggi (2017)

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Date: Tue, 29 Aug 2017 11:31:28
From: Lelija Socanac [lelijasocanac at gmail.com]
Subject: Pragmatics and Law

 
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Book announced at http://linguistlist.org/issues/27/27-5242.html

EDITOR: Francesca  Poggi
EDITOR: Alessandro  Capone
TITLE: Pragmatics and Law
SUBTITLE: Practical and Theoretical Perspectives
SERIES TITLE: Perspectives in Pragmatics, Philosophy & Psychology
PUBLISHER: Springer
YEAR: 2017

REVIEWER: Lelija Socanac, University of Zagreb

REVIEWS EDITOR: Robert A. Coté 

SUMMARY

The book “Pragmatics and Law: Practical and Theoretical Perspectives” edited
by Francesca Poggi and Alessandro Capone, presents results of a project which
involved the inter- disciplinary studies concerning both legal theory and
philosophy of language. The project consisted of two parts: the first part was
devoted to the analysis of how pragmatics can solve problems related to legal
theory, focusing on questions of the relationship of law and morality, while
the second part focuses on pragmatic aspects of adjudication. The book
presents results of the second part of the project, where a group of experts
in pragmatics, sociolinguistics, cognitive sciences, artificial intelligence
and legal theory discuss problems concerning the relationship between language
and law to highlight the salient features of both phenomena. Thus, legal
theorists engage with linguistic issues to solve practical legal problems
(e.g. how to interpret legal texts, or to value the reliability of a
testimony). The first issue that the book deals with is how to use methods
belonging to pragmatics, sociolinguistics, cognitive sciences and philosophy
of language to solve legal problems concerning the theory and practice of law.

The volume is divided into three parts. The first part, which includes seven
chapters, is devoted to the problems of interpretation, i.e. the
identification and understanding of the meaning of legal texts. The second
part includes five chapters that deal with pragmatic methods as incorporated
into legal theory. The third part consists of six essays devoted to various
aspects of adjudication and its pragmatic analysis. 

In Chapter 1, “Slippery Meaning and Accountability”, Kasia M. Jaszczolt
addresses the question of what should count as meaning for the purpose of
theoretical inquiry, and what should count as the intended message of a
legislative act. She points out that truth-conditional analysis of meaning
increasingly makes use of pragmatically derived interpretations in radical
versions of contextualism. The core question concerns the kinds of
contributions that the context makes to truth-conditional representation.
Three levels of meaning are singled out as candidates for the primary meaning:
1) minimal sentence meaning, 2) expanded/modulated sentence meaning, and 3)
implicatures. The author admits the sentence meaning, the pragmatically
modified sentence meaning, and the indirect meaning as equally legitimate
objects of the truth-conditional analysis. If the primary meaning can be
implicit, context-driven and multidimensional, the question arises regarding
the speaker’s accountability for the intended meaning. To answer this
question, the author proposes a version of salience-based contextualism and
shows how it applies to represent the primary legal meaning in an important
court case.
 
In Chapter 2, “Implicitness in Normative Texts”, Marina Sbisà claims that the
retrieval of implicit meaning is indispensable for the understanding both of
normative and informative texts. The reliability of expectation practices
relies, however, upon the normativity of implicitness, without which we could
not distinguish between correct understanding and failure to understand. The
implications of the claim that implicitness is normative are examined and the
explication of presuppositions and implicatures of normative texts is
exemplified by reference to passages drawn from regulations of a condominium
on the one hand, and a bill proposed by the Italian Parliament, on the other.
Explication practices are shown to yield information about the normative
background and motivations for the norm at hand and to contribute to the
content of the norm as well as to its possible applications. 

In Chapter 3, “What Inferentialism Tells Us About Combinatory Vagueness in
Law”, Damiano Canale addresses the problem of combinatory vagueness in
adjudication. According to a view widely held by philosophers of language,
courts must make reference to what the legislature intended to say.
Intentional content makes up for the lack of determinacy of meaning and
contextual content, and can be used to reduce combinatory vagueness in
borderline cases. The author argues that this view does not provide a
convincing explanation of how legal language works because it does not take
into account the specific characteristics of legislative intention and the
institutional dimension of communication in law. He puts forward a different
explanation of combinatory vagueness based on Brandom’s inferentialist
approach to semantics and pragmatics (Brandon 1994, 2000, 2008). In this
account, vagueness is a feature of language which depends on a specific form
of disagreement between the participants in an exchange of reasons. By looking
at the linguistic interplay among the parties and the judge in a dispute, the
author shows how combinatory vagueness arises and how it is reduced by courts
to settle borderline cases.

In Chapter 4, “On the Possibility of Non-Literal Legislative Speech”, Hrafn
Asgeirsson discusses the problem of the relevance of a legislator’s intention
in understanding legal meaning through the perspective of non-literal speech
in law. Since legislative contexts provide little unequivocal information
about legislative intent, interpreters are usually not warranted in assuming
that the legislature intended to communicate something non-literal. Thus, the
audience should withhold belief regarding the speaker’s communicative
intentions; the primary content of the relevant utterance is indeterminate
between the literal content of the sentence uttered and some pragmatic
enrichment thereof. This has important implications for the analysis of a
number of controversial legal cases, which the author discusses in detail. The
author concludes that although the law is often to some extent indeterminate,
due to the fact that the common ground between the legislature and its
audience rarely contains sufficiently specific information about legislative
intent, this will not necessarily prevent it from functioning reasonably well.
As long as a rational hearer is able to extract sufficient information from
the speaker’s utterance, the relevant speech act counts as reasonably
successful.

In Chapter 5, “The Pragmatics of Scepticism”, Pierluigi Chiassoni argues for
interpretive scepticism from a pragmatics point of view. He discusses three
alternative views about the nature of judicial interpretation: 1) formalism,
which considers judicial interpretation to be an activity of knowing the
legally correct meaning of source-sentences, 2) scepticism, which considers
judicial interpretation to be an activity that always involves some practical
evaluation and decision about the legally correct meaning of source-sentences,
and 3) mixed or intermediate theory, which considers judicial interpretation
to be something of a hybrid nature: sometimes it is just knowledge
(law-finding), sometimes it is practical evaluation and decision
(law-creation). He defends interpretive legal scepticism as the proper account
of judicial interpretation through pragmatic arguments. He shows that
philosophy of language and pragmatics, far from providing support for some
form of cognitivism, suggest that it should be abandoned.

Chapter 6: “Doubting Legal Language: Interpretive Scepticism and Legal
Practice” deals with the same topic, but the author, Nicola Muffato, focuses
on the philosophical and rhetorical contact points between general
communicational scepticism and interpretive legal scepticism. He reconstructs
one central tenet of interpretive legal scepticism, which he labels the
“equivocity thesis”. According to this thesis, each statutory provision and
judicial opinion can be interpreted in many ways, due to the plurality of the
admissible hermeneutic techniques, methods, doctrines, and normative theories
(“plurality thesis”) and their equal legal value (“parity thesis”): this
leaves the interpreter with the discretional power to choose the legal
solution he considers to be correct (“normative unbendingness thesis”). The
main purpose of this essay is to investigate the scope of these theses and
their philosophical and rhetorical/strategic relations with a more general
semiotic scepticism, according to which the belief that communication requires
both mutual understanding and shared linguistic meanings is unjustified.  He
explores how interpretive legal scepticism can be grounded on Quine’s and
Davidson’s indeterminist conclusions (Davidson 1973; Quine 1987) and on
deconstructionism (Derrida 1988). His criticism of interpretive scepticism is
based on Wittgensteinian arguments (Wittgenstein 1958) and developed along the
lines of ‘practice-based” conceptions of meaning.

In Chapter 7, “Legal Text and Pragmatics: Semantic Battles or the Power of the
Declarative in Specialized Discourse”, Ekkehard Felder shows that dominance
and power are exercised through semantics. When viewing language as a means
for asserting certain views on controversial topics in intellectual domains,
debates arise among professionals regarding the appropriate terminologies and
definitions, i.e. “semantic battles” take place. The contribution examines the
forms and functions of the discourse of professionals in various scientific
fields. The declarative speech acts of law, therefore, consist of assertive
speech acts of scientists from various fields. This form of exercise of power
through language must be made transparent as a precondition for the state of
law (“Rechtsstaat”) to demand loyalty from its citizens.

In Chapter 8, “A Puzzle About Hart’s Theory of Internal Legal Statements”,
Michael S. Green discusses the requirement for an adequate theory of law that
should explain the role of legal norms in practical reasoning. The question is
discussed of why participants in legal practices should justify their
decisions by appeal to legal norms rather than by pointing to how
practice-independent norms, such as morality and prudence, are triggered by
the existence of legal practices as social facts. Theories of law that are
dissimilar in other respects - such as Scott Shapiro’s planning theory, Ronald
Dworkin’s interpretive theory, and Hans Kelsen’s pure theory - all satisfy the
requirement. The American legal realists predication theory of law does not. 
Hart argues that law cannot exist unless officials justify their decisions
through internal legal statements (ILS). In an ILS, the existence of legal
practices and moral or prudential judgments about the appropriateness of
following the standards used in those practices are presupposed. An official
justifying his decisions only be examining legal practices in the light of
moral or prudential norms is not making an ILS. This is an important reason
why Hart rejects prediction theories of law. According to the author, Hart’s
theory of law fails to satisfy the requirement. Hart provides account of why
officials should justify their decisions through ILSs rather than only on
moral and prudential grounds. As a result, Hart fails to explain why law
vanishes when officials stop making ILSs and begin justifying their decisions
solely by reference to morality and prudence. 

In Chapter 9, “Can Metalinguistic Negotiations and ‘Conceptual Ethics’ rescue
legal positivism?”, Teresa Marques argues that metalinguistic negotiations
displace disagreements from the semantic to the metalinguistic level but do
not eliminate the appeal to moral or other normative reasons. In fact,
metalinguistic negotiations and conceptual ethics are an integral part of
disagreement and hence are consistent with evaluative and normative facts
being essential to, and constitutive of, the law. 

In Chapter 10, “The Dark Side of Imperatives”, Alessio Sardo discusses the
relation between semantic meaning and illocutionary force. He provides a broad
survey of the main solutions offered both in philosophy of language and in
legal theory. His analysis also takes into account some of the most recent
theories and suggests that an integrated approach would be the best solution.

In Chapter 11, “Disputable Means: Pragmatic Knowledge Practices in Sovereign
Debt Agreements. Reflections on the Argentinian Case”, Leticia Barrera engages
in a context-based analysis of the technical knowledge embedded in the
constitution of legal and financial instruments. The study draws on the case
of sovereign debt litigation in US courts: “NML Capital, Ltd. v. Republic of
Argentina”. The study moves beyond the question of judicial interpretation of
contractual terms to look at the function that legal devices are thought to
perform in the contexts in which they are placed, represented, appropriated,
negotiated, and even anticipated by the agents. By unpacking the pragmatic
knowledge practices embedded in the constitution of legal forms, the author
seeks to foreground the technical character of law as a site of creation,
dispute, validation and circulation of knowledge, as well as the instantiation
of relations, subjectivities and power. 

In Chapter 12, “The Role of Pragmatics in the Web of Data”, Pompeu Casanovas,
Victor Rodríguez-Doncel, and Jorge González-Conejero explore the new
boundaries at the intersection between pragmatics and artificial intelligence,
focusing on the Semantic Web, the Web of Data, regulatory models, and the law.
What links the information flow, social intelligence, rights management and
modelling in the Web of Data is the pragmatic approach – the “pragmatic turn”
– the representation of users’ needs and contexts to facilitate the automated
interactive and collective management of knowledge. The Web of Data brings
about new challenges in agency, knowledge, communication and the coordination
of actions; it also calls for a new regulatory and institutional design.

In Chapter 13, “Pragmatics of Adjudication. In the Footsteps of Alf Ross”,
Mauro Barberis challenges some common views about legal sources. He lays the
foundations of a realistic, pragmatic and inferentialist theory of law in
which common law precedents and civil law jurisprudence play an important role
as self-restraining devices emerging from the working of adjudication itself.
Historically, legislation was designed to remedy arbitrariness in
adjudication. Today, statutes are less a restraint than a tool for judicial
interpretation and the latter, paradoxically enough, is converted into the
last remedy to the opaqueness of legislation.

In Chapter 14, “Pragmatic Disorders in Forensic Settings”, Louise Cummings
shows that there is a sizeable burden of pragmatic disorder in the prison
population and inquires what implications this has for those pragmatically
impaired individuals who find themselves in the criminal justice system.
Through a careful analysis of some of the interactions such as police
interviews, courtroom examinations and prison rehabilitation programs,
Cummings demonstrates that they exceed the pragmatic language capacities of
prisoners. She argues that much more attention should be paid to the
assessment and treatment of pragmatic disorders in forensic settings.

In Chapter 15, “The Pragmatics of Stereotypes in Legal Decision-Making”,
Federico José Arena analyses stereotypes as social categories which are
closely related to sensitive issues such as individual self-perception,
identity construction, and discrimination. It is often claimed that judges
should avoid the negative effects of social categorizations. It is not easy to
specify on which basis a stereotype is legally relevant and, as a consequence,
it is not easy to determine the scope of the requirement. Arena shows that the
term stereotype has heterogenic uses.  On the one hand, some stereotypes
purport to offer information about the characteristics of a group and of each
of its members (descriptive stereotypes). On the other hand, some stereotypes
define and constitute the roles that members of a category or social group
should assume (normative stereotypes). The author claims that given this
distinction it is necessary to fine-tune the criteria of relevance. In
particular, normative stereotypes play a fundamental role in the construction
of identities and that is the reason why it is not justified to embrace a
thesis rejecting them in general. In this sense the author proposes to
distinguish between internally and externally conventional normative
stereotypes.

In Chapter 16, “Epistemic Stance in Courtroom Interaction”, Sune Sønderberg
Mortensen and Janus Mortensen discuss the linguistic expressions of certainty
and uncertainty, the so-called epistemic stance markers and their features and
roles in communicative interactions, focusing on the ways in which they are
used by participants during examinations in a recent Danish criminal trial.
The study combines a quantitative and a qualitative approach. In the first
part of the study, the authors develop a method that allows them to compare
the epistemic expressions used by the three trial participants and the
frequency with which the expressions are employed. In the second part, they
build on the quantitative findings by characterising and comparing the
contextualised pragmatic functions of typical epistemic stances taken by two
of the participants. Based on the analyses, they argue that the trial
participants may be said to adopt different epistemic stance styles, and they
suggest that these styles may be motivated by pragmatic and rhetorical aims
related to the individuals’ roles in the case.

In Chapter 17, “Assessing Testimony and Other Evidential Sources in Law: An
Epistemological Approach”, Florencia Rimoldi and Hernán G. Bouvier address
some platitudes surrounding the epistemic weight of testimony in legal domain
by taking into account how epistemology explains the phenomenon of forming
belief based on the words of others. They propose a way of approaching the
legal decision-maker in terms of a rational believer. In this light, they
analyse the pragmatic implications of legal platitudes and the conceptual
possibility to hold them together, as well as the singularity of testimony in
an institutional domain such as the law. 

EVALUATION

The contributions in the book discuss highly complex questions at the
interface between the philosophy of law, philosophy of language, and
pragmatics. In providing an overview of the field and expanding research in
new directions, the editors have met the aims of this edited volume, for it
both provides an extensive overview of previous work and expands the field in
new directions. An additional value is provided by including contributions
that analyze the same or similar legal-linguistic problems from a variety of
different theoretical and methodological perspectives. Overall, this is a
well-edited book which will hopefully inspire future research. It represents
an important contribution to the understanding of the pragmatic aspects of the
relationship between language and law, and it is a valuable resource for
scholars interested in legal theory, philosophy of law, philosophy of
language, semantics, pragmatics, and legal linguistics.

REFERENCES

Brandom, R.B. (1994). Making it explicit. Reasoning, representing, and
discursive
commitment. Harvard/Lodon: Harvard University Press. 

Brandom, R.B. (2000). Articulating reasons. An introduction to inferentialism.
Cambridge,
MA/London: Harvard University Press. 

Brandom, R.B. (2008). Between saying and doing. Towards a analytic pragmatism.
Oxford/New York: Cambridge University Press. 

Davidson, D. (1973). Radical Interpretation. Dialectica, 27, 313-328.

Derrida, J. (1988). Limited Inc. Evanston : Northwestern University Press.

Grice, P.H. (1989). Studies in the way of word. Cambridge/London: Harvard
University
Press.

Quine, W.V.O. (1987). Indeterminacy of translation again. The Journal of
Philosophy, 84 (1),
5-10.

Wittgenstein, L. (1958). Philosophical investigations. Oxford: Blackwell.


ABOUT THE REVIEWER

Lelija Socanac is professor at the Language Department, Faculty of Law,
University of Zagreb. Her research interests include contact linguistics,
multilingualism, language policy, (historical) sociolinguistics and legal
linguistics.





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