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Why Legal Rules Are Not Speech Acts and What Follows from That?

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  Electronic copy available at: Draft for discussion purposes – to be presented at the conference RULES 2013, September 27-2 th  , !ra"o#  $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 1 %arcin %atc&a" Uni'ersit( of )arsa# marcinsmatc&a"*+maicom Why legal rules are not speech acts and what follows from that  ./SR. he speech-act approach to rues is commonpace in both .n+o-.merican and continenta traditions of e+a phiosoph( Despite its per'asi'eness,  ar+ue in this paper that the approach is mis+uided and therefore intrinsica( fa#ed %( critiue identifies ho# speech-act theor( pro'ides an inadeuate theoretica frame#or" for the ana(sis of #ritten discourse, a case in point bein+ e+a te4t #o main misconceptions resutin+ from this mis+uided approach are the faac( of s(nchronicit( and the faac( of a-discursi'it( he former consists of treatin+ e+a rues as if the( #ere uttered and recei'ed in the same conte4t, the atter consists of treatin+ e+a rues as reati'e( short, isoated sentences .mon+ the conseuences of these faacies are an e4cessi'e focus on the a#ma"ers5 semantic intentions and the ne+ect of the semantic and pra+matic compe4it( of rues as sets of utterances 6discourses o redress these fa#s,  propose treatin+ e+a rues as compe4 te4t acts %( paper presents the conseuences of this re'ised approach for e+a interpretation, supportin+ 8oseph Ra&9s idea of minima e+isati'e intent !E: );RDS< a#ma"er5s intention, e+a interpretation, rues, speech acts, #rittenness in a#=  Electronic copy available at: Draft for discussion purposes – to be presented at the conference RULES 2013, September 27-2 th  , !ra"o#  $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 2 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 (i)   single oral utterances, (ii)   utterances addressed by a speaker to a hearer where both are in the same place at the same time.  will call assumption (i) the fallacy of a-discursi!ity and assumption (ii) the fallacy of synchronicity.  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 . "peech-act theory has ne!er been fully elaborated to analyse comple# written discourses, which are used for diachronic communication - communication in!ol!ing different moments in time and different locations. $onetheless, a !ersion of speech-act theory which is not ad%usted to written communications has gained popularity in legal philosophy. &y argument is that, in order to a!oid the fallacies of a-discursi!ity and of synchronicity, speech-act theory has to be re!ised and legal rules ha!e to be treated not as simple, single speech acts, but as comple# te#t acts. This approach acknowledges the pragmatic comple#ity (in linguistic terms) of the lawmaker's intention and thereby pre!ents e#cessi!e focus on its semantic aspect. n the first part of this paper  briefly discuss the role that speech-act theory plays in the analysis of legal rules. n the second part  demonstrate that speech-act theory is ill-euipped to analyse written communication and  identify areas in which its shortcomings are most apparent. The third section of the paper is dedicated to showing that legal rules are comple# te#t acts (rather than speech acts) and to identifying the main conseuences that this approach has on legal te#t interpretation, in particular on the understanding of the lawmakers intention. 1  This applies to both *.+. Austin and *. "earle, and their commentators . ach, /. 0arnish and . rice, though the latter touches upon communications directed in writing to an unspecified group (cf. e.g. . rices solution in Studies in the )a( of )ords  de!oted to signs such as 3 !eep off the +rass5 . This analysis is of an au#iliary nature and does not affect the nature of their conclusions. Another e#ception is the work of 0ancher (1454) and 6dmonson (1471) on co-operati!e speech acts, which, howe!er, do not take into account the specifics of writing either.  Draft for discussion purposes – to be presented at the conference RULES 2013, September 27-2 th  , !ra"o#  $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 8 2.   The significance of speech-act theory for legal philosophy +egal philosophy's interest in speech-act theory began with the co-operation between 0.+.A. 0art and *. +. Austin. The most widely-known legal rule in %urisprudence, i.e. >o 'ehices in the par" (0art, 1497), is analysed in a manner characteristic of this theory. Although 0art treats this rule as a written −  not spoken −  one, he treats it as a single statement made by a single author. As  will show in part 8, in reality legal rules are not single statements but are more the effect of se!eral −  sometimes many −  statements 2 . :oncurrently with the de!elopment 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. ;isconti, 2<<4), and the concept of illocutionary uptake (e.g. "olum 2<1<). The role played in legal philosophy by speech-act theory has been neatly stated by . Amselek ?he theor( of speech acts is, in m( opinion, a +enera foundation #hich pro'ides e+a phiosoph( #ith an adeuate method of approachin+ the e+a utterances #ith #hich it is confronted t aso  pro'ides a +enera orientation and frame#or" for ana(sis and research = (Amselek 1477) esides such e#plicitly e#pressed belief in its !alue, most analyses of legal rules in accordance with speech-act theory are carried out using the following implicit assumptions (i)   +egal rules are uttered or treated as utterances (e.g. :yrul, 2<<5). 6!en 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 indi!isible whole (as distinct from a collection of utterances (discourse)). (ii)   +egal rules are addressed by a speaker to a hearer. (e.g. :ao, 2<<5). (iii)   The primary conte#t in which legal rules are sub%ect to linguistic analysis is the mental conte#t of the utterer, the key element of which is his semantic (locutionary) intent (e.g. "olum 2<<7, &armor, 2<18). 2  The criticism presented here does not concern the work of . >pa?ek and *. @oleski, in which the theory of performati!es is applied to analysing legal rules.  Draft for discussion purposes – to be presented at the conference RULES 2013, September 27-2 th  , !ra"o#  $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ B (i!)   Taking the recipient's conte#t into account when analysing rules is not deemed a linguistic analysis but an attempt to depart from one and to promote !alues other than fidelity to the legal te#t, e.g. the fle#ibility of law or the freedom of the interpreter (e.g. 6skridge, Crickey, 144<). The foregoing assumptions constitute the underlying structure of thinking about legal rules among legal philosophers. Dncritical acceptance of these assumptions leads to a kind of theory-induced blindness, i.e. failure to obser!e the differences between simple face-to-face communication and communication in which legal rules are used. The !ast ma%ority of legal rules are written rules directed at an unspecified group of addressees commonly e#ternal to the immediate conte#t 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. 3.   Lacunae in speech-act theory "ome authors dealing with speech-act theory show that it is not fully suitable to analyses of written communications, the communicati!e aim of which falls outside the face-to-face speech situation. @. >ng states that ?Speech-act theor( coud be de'eoped not on( to attend more to ora communication, but aso to attend more refecti'e( to te4tua communication  precise( as te4tua?  (>ng 2<<<, p. 1EE) >ng's critiue is supported by &. "tubbs ?%uch of speech act theor( has difficut( in freein+ itsef from t#o assumptions 6@ ;ne is the assumption that speech act theor( shoud ta"e, as its paradi+m cases, the con'e(in+ of messa+es in face-to-face t#o-part( interaction he other is the assumption that speech act theor( can be based on in'ented, isoated sentences  (F) in'ented sentences are isoated and not connected discourse .= (&. "tubbs 1478, p.   B79)   The primary factor in the inadeuacy 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 !oice, in a different  Draft for discussion purposes – to be presented at the conference RULES 2013, September 27-2 th  , !ra"o#  $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$ 9 place and particularly at a different time. This communication co!ers not one but two conte#ts G the conte#t of the utterer and that of the recipient. The second feature of written communication not acknowledged by speech-act theory is its discursi!eness, understood as in!ol!ing a number andHor !ariety of utterers and a comple#ity of communications between and among them. This discursi!eness allows written communications to be built with simpler elements, each uttered by a different person, while still remaining a single te#t. t also allows for elements to be added to or remo!ed from the srcinal te#tI in this sense, discursi!eness is not possible in oral communication, as in speech, words cannot be re-analysed at a later date and nothing can be added to or remo!ed from an oral communication that has already been made (if it was not recorded). +acunae in speech-act theory are !isible if we take a closer look at the structure of the locutionary act performed within the framework of a written communication. A locutionary act co!ers utterances of certain words with sense and reference and is composed of three sub-acts a phonetic act, which is the act of uttering certain noises, a phatic act, which is the uttering of words, and a rhetic act, which is the uttering of words with a definite sense and reference (Austin, 1451). n speech these three aspects of a speech act arise at the same time and are therefore synchronous. The case is different with written te#t. The eui!alent of a phonetic act in written communication is the physical creation of a sign, e.g. lea!ing traces of ink on a page. The eui!alent of a phatic act in writing would be lea!ing a sign that has meaning. At this point doubt arises as to the perspecti!e from which the meaning of the signs should be assessed G from the utterers perspecti!e or from that of the recipientJ s a phatic act performed effecti!ely if the signs are written, but ne!er reach the recipientJ The latter does not seem a reasonable assumption. The key differences between speech and writing can be seen in the case of a rhetic act. n certain situations, the speaker is clearly referring to his own conte#t, e.g. by using inde#icals (=here=, =now=, ==). n many other cases, howe!er, doubt could arise as to the conte#t G that of the utterer or that of the recipient G to which a te#t refers. This is the case with te#ts that constitute instructions on how to proceed in a situation that may arise, e.g. instructions on how to proceed in the e!ent of fire. The phrases and the words contained therein definitely do not refer to the conte#t of the author - we do not e#pect fire-fighting instructions to be written during a fire. +ike fire-fighting instructions, legal te#ts apply to future situations. 0ence, a doubt arises as to choice of rele!ant conte#t which constitutes the framework of reference for the language of such te#ts. This doubt may gi!e rise to the theory that a te#t recipient is necessary for a rhetic act, and therefore a locutionary act, to occur. This theory seems to go too far, particularly in the case of legal
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