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Legal Norms: Grammatical Form and Illocutionary Force

Legal Norms: Grammatical Form and Illocutionary Force. Nicholas Allott CSMN, University of Oslo Benjamin Shaer Department of Law , Carleton University. Introduction: Illocutionary force. (1) a. Apparently, this boat is called the Mary Rose. b . Oslo is the capital of Norway.

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Legal Norms: Grammatical Form and Illocutionary Force

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  1. Legal Norms: Grammatical Form and Illocutionary Force Nicholas Allott CSMN, University of Oslo Benjamin Shaer Department of Law, Carleton University

  2. Introduction: Illocutionary force (1) a. Apparently, this boat is called the Mary Rose. b. Oslo is the capital of Norway. (2) a. Put the gun down! b. Dogs must be carried. (3) a. I name this ship the QEII. b. ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith To [name] hereby appointed an Officer in Her Majesty’s Canadian Armed Forces …

  3. Introduction: Statutes & legalnotices Q: What illocutionary forces do they have? • Every one who (a) challenges or attempts by any means to provoke another person to fight a duel, (b) attempts to provoke a person to challenge another person to fight a duel, or (c) accepts a challenge to fight a duel, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. (Criminal Code of Canada, s. 71) • Do not Feed the Birds by Order of the Wirral Borough Council • a. One way. b. No parking.

  4. Introduction:Illocutionary force(s) of statutes Dual-force claims? Searle (1979: 28): ‘Promulgating a law has both a declarational status (the propositional content becomes law) and a directive status (the law is directive in intent).’ Kurzon (1986: 5): ‘a statute will be analysed as a speech act with the illocutionary force of enacting … Moreover, many sentences within the text are speech acts with their own illocutionary force – of permitting ordering or prohibiting.’ Marmor (2011: 4): ‘Legal instructions are typically exhortatives [i.e. directives] … The enactment of a legal requirement, or the official expression of a legal ruling … are the kind of speech acts that purport to motivate conduct on part of the addressees by way of recognizing the speech act as providing them with reasons for action.’

  5. Introduction:Illocutionary force(s) of statutes Our claims: • Statutes wear their forces ‘on their sleeves’; dual-force claims are otiose. • Legal notices often do not encode force so directly.

  6. Taking forms seriously I: Effectives Exercitives: ‘the exercising of powers, rights, or influence’, e.g. ‘appointing, voting, ordering, urging, advising, warning, etc.’ (Austin, 1962: 151). Searle (1979) divides these into: • directives: ordering, urging, requesting, permitting and perhaps advising and warning; • declarations: voting, appointing, promoting, demoting, naming (e.g. a ship), awarding; ‘the speaker in authority brings about a state of affairs specified in the propositional content by saying in effect, I declare the state of affairs to exist’ (Searle, 1979: 26). • Bach and Harnish (1979: 113): ‘effectives’: ‘when issued by the right person under the right circumstances’ they ‘make it the case that such and such where ‘such and such’ is some institutional fact. These are distinguished from verdictives: (7) a. Effective: I sentence you to ten years imprisonment. b. Verdictive: I find you guilty as charged.

  7. Taking forms seriously I: Enactment formulae ‘When “laying down the law”, each statute is preceded by … an “enacting formula”’ (Trosborg, 1995: 32). • Jurisdictions have slightly different versions of these… (8) a. BE IT ENACTED by the members of the Commission as a By-law thereof as follows… (Kings County Region (N.B., Canada) Solid Waste Commission,By-law No. 1) b. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That… (USA)

  8. Taking forms seriously I: Enactment formulae

  9. Taking forms seriously I: The speech act of enacting Kurzon (1986): ‘promulgation by the legislature is a speech act with the illocutionary force of enacting’. • ‘[T]he enacting formula … is … an explicit performative, determining the type of speech act the statute constitutes’ (p. 9). • Kurzon’s claim: Each provision is an enactment; this follows from • historical evidence (“And be it further enacted That…”) • the fact that sections can be individually struck down. • Other effectives performed by statutes: declare (e.g. that the Lord Chancellor can be Catholic); repeal; amend… (p. 24). Trosborg (1995: 32): ‘the enacting formula, which is an explicit performativecontaining the performative verb to enact, establishes the illocutionary force of the whole text...’

  10. Taking forms seriously I: Provisions that are just effectives Provisions with ‘no prescriptive action-guiding content’, e.g. U.S. states ‘often legislate that X is the “state bird” … which is a symbolic act without any authoritative directive included’ (Marmor, 2012: 20).

  11. Taking forms seriously I: What about typical provisions? (9) If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude … (Perjury Act 1911, s. 1(1)) (10) If any person, in giving any testimony … otherwise than on oath, where required to do so … makes a statement (a) which he knows to be false in a material particular, or (b) which is false in a material particular and which he does not believe to be true he shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment … or a fine or both. (Evidence (Proceedings in other Jurisdictions) Act 1975 s. 1A – ‘False unsworn statement’)

  12. Taking forms seriously I: The standard form Standard form: Let it be that (behaviour x is the crime of y/is a crime, and the penalty is z.) As a conditional: If x, then crime y and penalty is z. As an implicit conditional: Everyone who xs commits crime y and penalty is z.

  13. Taking forms seriously I: The standard form Ancient formulae: (11) Naming crime: If any one buy from the son or the slave of another man, without witnesses or a contract, silver or gold, a male or female slave, an ox or a sheep, an ass or anything, or if he take it in charge, he is considered a thief and shall be put to death. (Code of Hammurabi) (12) Not naming crime:If any one be too lazy to keep his dam in proper condition, and does not so keep it; if then the dam break and all the fields be flooded, then shall he in whose dam the break occurred be sold for money, and the money shall replace the corn which he has caused to be ruined. (Code of Hammurabi)

  14. Taking forms seriously II: Imperatives and directives Imperative: a syntactic category. (13) a. Sit down! b. Take the first right, then turn left after the lights. Directive: a speech act with illocutionary forces like order, request, permit, advise: ‘attempts (of varying degrees…) by the speaker to get the hearer to do something’ (Searle, 1979: 13). Connection between directives and imperatives? • Perhaps: Paradigm uses of imperatives are directive speech acts. Laws do not contain imperatives or explicit directives.

  15. Taking forms seriously III: Direct and indirect directives • a. Turn yourself in to the police. (= imperative) (NB: All the other sentences here are indicative.) b. I order you to turn yourself in. (= explicit performative) c. You must turn yourself in. (= modal sentence that describes and endorses norm) ?? But for goodness’ sake, don’t! d. You should/ought to turn yourself in. (= modal; neutral about norm described.) But for goodness’ sake, don’t! e. The best/right thing to do is to turn yourself in. f. There’s no point running away. (= when used to implicate that speaker wants speaker to turn self in: direct statement; indirect directive)

  16. Our claim about directives (1st pass) Typical provision: Let it be that (behaviour x is the crime of y/is a crime, and the penalty is z.) Provisions in statutes are effectives, not directives. Statutes do not contain sentences used as (direct or indirect)directives.

  17. Taking forms seriously II: Forms with shall, must, may Kurzon (1986: 5): ‘many sentences within the text are speech acts with their own illocutionary force – of permitting, ordering or prohibiting, as reflected in certain features of the verbal phrase in the main clause of the sentence.’ ‘These acts are found where the finite verb in the main clause is may or shall (and its negative shall not)’; e.g. (a–c from ibid.) (15) a. The court may, if it thinks fit … b. Each representative body shall arrange for the publication of the reports supplied to them … c. … a direction shall not require or authorise any person to carry a firearm.’ d. …then shall he in whose dam the break occurred be sold for money …

  18. Taking forms seriously II: ‘Deeming’ shall forms These shade between pure effectives and directives to courts, officials etc. (16) a. If [a person behaves a certain way] he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude. b. A county court shall have jurisdiction to hear and determine… (cited in Hart, 1961: 29) c. ‘acquiring’ means hiring, accepting as a gift and borrowing and the expressions ‘acquire’ and ‘acquisition’ shallbe construed accordingly. (Internal Security (Arms and Ammunition) Act 1966) (Lesotho), s. 2(1))

  19. Our claim about directives (2nd pass) Typical provision: Let it be that (behaviour x is the crime of y/is a crime, and the penalty is z.) Provisions in statutes that set up offences are effectives, not directives. Statutes do not contain directives, except directives to officials (typically using modal indicative sentences) that provide guidance about how the law may/shall/shall not be applied.

  20. Taking forms seriously III: Shall directives to subjects of the law Non-criminal statutory provision: (17)a. No person shall manufacture, possess, handle, store, transport, import, distribute or use a pest control product that is not registered under this Act… (Pest Control Products Act (Canada), s. 6(1)) • A building to which this section applies shall not be demolished without the consent of the appropriate authority. (cited in Kurzon, 1986: 23) (NB: Kurzon doesn’t mention the difference in who this is aimed at) These shall-directives are typically regulatory.

  21. Our claim about directives (3rd and final pass) A typical provision is like this: Let behaviour x be the crime of y/be a crime, and let the penalty be z. Provisions in statutes that set up offences are typically effectives, not directives. Statutes do not contain directives, except • directives to officials that provide guidance about how the law may/shall/shall not be applied; • some shall directives that seem regulatory.

  22. Taking forms seriously IV: More indirect directives? An expression might be an exhortative even if formulated as a simple descriptive statement. Saying, for example, ‘It is very cold in here’ might well be a request from someone to close the window, depending, of course, on the conversational background and mutual knowledge of the relevant circumstances. Similarly, a legal descriptive statement such as ‘It is a misdemeanor to φ in circumstances C’ is not a description of how things are in the world, but rather, a prescription that one ought not to φ in C. (Marmor, 2011: 4)

  23. Taking forms seriously IV: No need for dual-force theory (18) I want you to do it. Cases ‘in which the utterance has two illocutionary forces, are to be sharply distinguished from the cases in which, for example, the speaker tells the hearer that he wants him to do something; and then the hearer does it because the speaker wants him to, though no request at all has been made, meant or understood’ (Searle, 1979: 31). Our claim: ‘standard form’ sentences in statutes are used with only one illocutionary force. • Effectives typically guide behaviour; e.g. once the ship is named, you should use that name, but it does not follow that the naming utterance is also an indirect directive. • Claim: the content is normative, so it is otiose to claim directive force too. • One can describe norms without communicating that the hearer should follow them; e.g. describing the rules of chess. Why should it not be possible to enact e.g. a law against perjury without intending to communicate ‘and do not do this!’ • If a directive is wanted, why not use something explicit: e.g. ‘Thou shalt not kill.’

  24. Taking forms seriously IV: Conclusions about statutes We agree with Searle that ‘[p]romulgating a law has both a declarational status (the propositional content becomes law) and a directive status (the law is directive in intent)’, BUT… we think that the directive status is purely a matter of the content: ‘The promulgation formula constitutes the performative part of the act, while the collection of rules makes up the propositional content’ (Trosborg, 1995: 32). This fits well with recent tendency to see the interpretation of what statutes communicate as sticking close what is semantically encoded and not including context-sensitive implicatures (Marmor, 2009; Soames, 2011) (NB ≠ normative legal ‘interpretation’: Soames, 2011)

  25. Taking forms seriously IV: Conclusions about statutes Effectives are socially/institutionally enabled and produce social/institutional effects, and do not require uptake to take effect: they are not purely speech acts (Bach & Harnish, Sperber & Wilson). So: • it’s not surprising that it’s hard to use them to produce indirect speech acts; • the thesis that normative force of the law derives from its illocutionary force gets things the wrong way round: the effectives get their force from social/institutional conventions. The normative force we take to apply to the content is also socially/institutionally based.

  26. Taking forms seriously V: Notices In addition to laws themselves there are legal notices: (19) Imperative notices: Do not Feed the Birds by Order of the Wirral Borough Council (20) Non-sentential notices: a. One Way Street b. School Zone c. No Smoking (21) Indicative sentential notices: It is a violation to … [m]ove between end doors of a subway car whether or not the train is in motion… (NYC Transit Authority Rules of Conduct, cited in Solan, 2010: 6)

  27. Taking forms seriously V: Notices Imperative notices wear their directive force ‘on their sleeves’, but non-sentential notices less so; e.g. • ‘No parking’ is pragmatically equivalent to ‘Don’t park here, by order’ (At least) 3 possibilities for analysing non-sentential notices: • Approach 1: They are the pronounced parts of complete but otherwise unpronounced sentences. • Approach 2: They represent some kind of ‘telegraphic’ speech. • Approach 3: They are grammatically complete but ‘bare phrases’ (= non-sentential).

  28. Taking forms seriously V: Approach 1 The most adequate version of Approach 1 (developed by Merchant, 2004) involves the claim that phrases like (22b) originally have the syntactic structure of (22c). • The nominal expression [John] moves ‘up the tree’ to a higher position (= (22d)). • The linguistic material ‘lower in the tree’ is deleted (= (22e)). (22) a. Who did she see? b. John. c. She saw [John]. d. [John]1 she saw t1 e. [John]1she saw t1

  29. Taking forms seriously V: Approach 1

  30. Taking forms seriously V: Approach 1 Advantage of Approach 1:Accounts for a range of non-sentential expressions. (23) a. [Holding up a letter:] From Spain [this letter is]. b. Who did she see? John she saw. c. Who did it? Lauren did it. Disadvantage: Cannot account for many others. (24) a. One Way Street b. [this is [a one-way street]]. c. [[a one-way street]1 this is t1] d. [[a one-way street]1this is t1] ≠ (16a)

  31. Taking forms seriously V: Approach 1 (25) a. No vehicles in the park b. [[No vehicles] are allowed in the park]. c. [[No vehicles] 1 t1 are allowed in the park]. d. [[No vehicles] 1t1 are allowed in the park]: not derivable!

  32. Taking forms seriously V: Approach 2 Approach 2: Notices like ‘One way street’ and others represent ‘telegraphic’ speech. • A reasonable possibility…

  33. Taking forms seriously V: Approach 2 Q: Do we need to say that all notices (or all notices missing articles) represent ‘telegraphic’ speech? Consider: (26) a. Warning: Dangerous dog. b. A: Spot nearly bit my hand off. B: Wow, dangerous dog! c. Damned dog, it nearly bit my hand off. • a. A: They just fired Bob. B: (*A) Poor guy!/Bob! b. Poor guy/Bob, he just got fired. c. A: Mister, this is a no smoking zone. B: No smoking zone, my eye.

  34. Taking forms seriously V: Approach 3 Legal notices are typically just ‘bare phrases’, which • are well-formed syntactic units that are not part of (syntactic) sentences; • introduce predicates that are interpreted with respect to salient discourse referents; • derive their illocutionary force through pragmatic enrichment.

  35. Taking forms seriously V: Approach 3 Advantages of Approach 3: • It is a WYSIWYG approach, which • takes overt form to be a generally good (i.e. not misleading) reflection of syntactic and logical forms; • generalizes well to the many cases where rich ‘underlying’ syntactic and logical forms are implausible, e.g. • a. Baby talk: Din-din allgone. b. Non-native speech: I go store. • Fits an account in which speakers consider form with respect to parsing/pragmatics trade-offs (i.e. how to make it easiest for the hearer to derive the appropriate interpretation).

  36. Taking forms seriously V: Approach 3 • It avoids proliferating ambiguities in order to capture different interpretations of the same phrase. Consider: • No vehicles in the park. a. Notice on a tree in the park: ‘No vehicles in the park.’ • Basic meaning: There is no vehicle such that it Ps in the park. • It is a legal notice, directed at the general public and applying now. • Laws may indicate permissible or prohibited conduct. • Parks are meant to be quiet/safe places; it is desirable for them to be quiet/safe and possible to keep them quiet/safe. • Interpretation: There is no vehicle permitted in the park.

  37. Taking forms seriously V: Approach 3 • No vehicles in the park. b. A: What do you see? B: No vehicles in the park, at least. • Basic meaning: There is no vehicle such that it Ps in the park. • Answer to a question asking about objects in the park. • Interpretation: There is no vehicle in the park.

  38. Taking forms seriously V: Approach 3 • No vehicles in the park. c. A [approaching the park]: I don’t think there’ll be any vehicles in the park. B [as A and B arrive at the park and see it full of cars]: No vehicles in the park, eh? • Basic meaning: There is no vehicle such that it Ps in the park, eh? • Response to the claim that there is unlikely to be any vehicles in the park. • Interpretation: A said that there would be no vehicle in the park; but this is clearly not the case.

  39. Conclusions Provisions in statutes are typically not directive; legal notices often are. Provisions in statutes wear their forces ‘on their sleeves’ (whether they are purely effective or include directive, usually to officials); legal notices often do not. This suggests that statutes require minimal pragmatic enrichment, whereas legal notices require far more.

  40. References Austin, J. L. (1962). How to Do Things with Words. Oxford: Clarendon Press. Bach, K., & Harnish, R. M. (1979). Linguistic Communication and Speech Acts. Cambridge, MA: MIT Press. Hart, H. L. A. (1961). The Concept of Law. Oxford: Clarendon Press. Kurzon, D. (1986). It is Hereby Performed… : Explorations in Legal Speech Acts. Amsterdam / Philadelphia: John Benjamins. Marmor, A. (2009). Can the law imply more than it says? – On some pragmatic aspects of strategic speech. University of Southern California Legal Studies Working Paper Series, 55. Marmor, A. (2011). Truth in law. University of Southern California Legal Studies Working Paper Series, 11-3. Marmor, A. (2012). Farewell to conceptual analysis (in jurisprudence). University of Southern California Legal Studies Working Paper Series, 12-2. Merchant, J. (2004). Fragments and ellipsis. Linguistics and Philosophy 27:661–738.

  41. References Searle, J. R. (1979). Expression and Meaning: Studies in the Theory of Speech Acts. Cambridge: Cambridge University Press. Soames, S. (2011). What vagueness and inconsistency tell us about interpretation. In A. Marmor & S. Soames (Eds.), Philosophical Foundations of Language in the Law (pp. 31–57). Oxford: Oxford University Press. Solan, L. (2010). The Language of Statutes. Chicago: University of Chicago Press. Sperber, D., & Wilson, D. (1986). Relevance: Communication and Cognition (2nd ed. 1995). Oxford: Blackwell. Stainton, R. (2006). Words and Thoughts. Oxford: Oxford University Press. Trosborg, A. (1995). Statutes and contracts: An analysis of legal speech acts in the English language of the law. Journal of Pragmatics, 23(1), 31-53.

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