Cæteris Paribus Grice

By J. L. Speranza
for the Grice Club.

THIS IS A COMMENTARY ON KRAMER'S "1aiA" model -- and attending commentary with the deiure-defacto distintion which appeals to me.

Kramer, like Grice (b. 1913) and Hart (b. 1914) has a thing for cæteris paribus. As he notess, "exceptions to exceptions" are the thing. (I mention Grice's and Hart's birth dates, because I'm a closet historian of philosophy at heart and think that many things are easily explained generationally. As my Irish friend Brendan Ward once remarked to me when I asked him if he had read anything by Neil Bartlett, "I never read anything by anyone who is my junior" -- and so due credit should be given to the fact that Grice, like Hart, were the closest to the seniority of J. L. Austin, b. 1911, who led the Play Group -- and recall that nobody Austin's senior WAS allowed).

Anyway, Hart was obsessed with cæteris paribus. He was perhaps a lawyer more than he was a philosopher? (Is that logical or possible? -- in any case, there is the early Hart that was a full-time philosopher and the middle and later Hart that became more 'legalistic', due to his having been appointed the Professor of Jurisprudence at Oxford. Oddly, Hart never belonged to Grice's group (if he had any, Grice) before the war. Vice versa, before the war (the second world war that is), Grice never belonged to Hart's group -- Hart was a snob, upper-class one, and Grice was just middle-class ("I had been brought on the wrong side of the tracks", Grice -- archival material). Hart mixed with Austin and Berlin and Hamsphire -- among some 7 more at All Souls -- Grice, meanwhile, was playing football for Corpus.

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In any case, Hart became so obsessed with cæteris paribus that when Gordon P. Baker (the American philosopher who succeeded Grice at St. John's) was asked to contribute with an essay to the Hart festschrift (he also contributed to the Grice festschrift) he did with a paper on "Defeasibility and meaning", for defeasibility is Hart's word.

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This so far as preamble to the clauses themselves. I love them!

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Kramer expresses them as:

"1. Speech is protected.
1.a. Unless its performative effect can be prohibited.
1.a.i. Unless prohibiting its performative effect imposes a burden on speech lacking a performative effect that can be prohibited.
1.a.i.A Unless the burden is outweighed by importance of prohibiting the performative effect of the regulated speech."

In a later commentary, he adds:

"I will call my two types de jure and de facto performatives. "De jure" performative refers to such things as christenings, namings, contractual moves, oaths, etc., where a legal consequence flows from the words themselves and the legal power of the speaker to do the act that the speech act does. By De facto performative, I mean an utterance that is the physical implementation of a logically non-speech act, such as defaming someone or provoking a fight or inciting armed revolution."

I was wondering if the distinction, de iure-de facto should not be made explicit in one of the four clauses above. But I'll think about it.

Kramer illustrates the distinction with the case which IS TOTALLY related to 'fighting words': porn.

"In many First Amendment cases, the question before the court is whether the government is seeking to prohibit speech because of its obnoxious perlocutionary effect (not allowed) or its harmful performative nature (allowed). ... Butler/McKinnon, i think, are on the wrong side of this line as to pornography generally, but not, I think, as to certain live-action porn where non-speech crimes are committed in the production process. Merely depicting the subjugation of women does not seem to me qualititavely different from depicting any other crime in terms of whether its perlocutionary effect rises to the leevy of de facto performative speech."

I will have to elaborate on that.

Kramer:

""De jure" performative refers to such things as christenings, namings, contractual moves, oaths, etc., where a legal consequence flows from the words themselves and the legal power of the speaker to do the act that the speech act does."

I like that. I would even go and generalise to 'utterer', rather than speaker. In that it may be all written, say? --.

In fact, if Austin is right that his 'performative' echoes, strictly, the 'operative' (rather than 'operational', sorry about that!) then it is ALL about 'contractual' -- for an expression becomes 'operative' by a sort of 'implicit' definition in a contract and a contract only.

I like the idea of a 'consequence' here. In a way, it supersedes, in an abstract way, that perhaps we may not want, the rougher 'effect' and 'response' that I favour. It seems that 'consequence' has been -- as 'consequentia' was in Roman -- used and overused by arithmeticians, and we don't want THAT! -- Grice, for example, thinks that ultimately, "x means y" means "x is a consequence of y" (WoW:Meaning Revisited).

vis a vis the second conjunct:

"and the legal power of the speaker to do the act that the speech act does", I wonder if one needs it. Or rather, the first conjunct then. I would just stick with utterer's authority -- rather than power. It seems we all have the power (if not the 'glory'). "Power", in the Romance languages, is JUST the modal verb, 'can' -- cfr. 'might', 'mighty'). So everything can. But not everything has auctoritas. But do consider that.

"the authority of the utterer to do the act that the uttering does" does not have your force, and I should stop rewriting what you write, but you get my drift, if not my draft.

Kramer:

""De jure" performative refers to such things as christenings, namings, contractual moves, oaths, etc., where a legal consequence flows from the words themselves and the legal power of the speaker to do the act that the speech act does."

Recall, too, that for the record, Austin thought that 'perlocutionary' SUPERSEEDED his 'performative'. He became so obsessed with 'state' (which is, after all, the speech act philosophers should be most concerned with -- cfr. 'assert' -- if only to see what things are NOT assertions or statements -- what Austin calls the 'descriptive fallacy') that he disowned his previous too legalistic view of things. Grice followed suit and if he uses legalistic shades of meaning (like 'central speech act' if not performative) he means, centrally, things like 'stating' and 'asserting'. This would NOT be 'de jure' in your taxonomy, I gather. But surely there is a consequence, effect, response, I intend when I assert that it is raining, or that my addressee is a "god-damned fascist" (as was the case in the first case that promoted the 'fighting words' clause).

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When it comes to the second term in the distinction, Kramer writes:

"By De facto performative, I mean an utterance that is the physical implementation of a logically non-speech act, such as defaming someone or provoking a fight or inciting armed revolution."

I see. One may want to illustrate this with the case of "assert" or "state". The point about the effect or response of consequence is interesting here vis a vis what philosophers (such as Austin and Grice, but also, say, Hare) contrast with 'assert': to 'direct'. Not turnstile-moves (where turnstile is the Fregean ASSERTION sign, but !-moves, like "Close the door!", or "Stop being a god-damned fascist!". For 'directive' moves occur. So we may need to generalise the point about consequences at this level.

If in the case of an assertoric move the effect is the belief on the part of the utterer, in a directive move it is the DESIRE on the part of the utterer. Here we are close to provoking things.

To this, to add injury to insult, as it were, Grice adds the brilliant, if slightly confusing, I find, distinction between the protreptic and the exhibitive. Or rather the exhibitive-protreptic distinction. He wants to say that

"Thou shalt stop being a god-damned fascist"

is exhibitive of the utterer's belief and desire. But it is also protreptic. His example is something like "Trespassers shall be prosecuted" (WoW:V and also VI). The point of such a directive move is that the ADDRESSEE forms the desire himself NOT to trespass, I think is Grice's point. I should revise this. So, this is INDEED provocative. For in being protreptic, the utterer is PROVOKING the addressee and the addressee knows it!

Grice is enough of a liberal or libertarian to allow that a protrepsis only takes place via exhibition. All moves ARE exhibitive (of the utterer's beliefs and desires). Some are ALSO protreptic: their point is to produce a belief or a desire in the addressee. I don't know because I'm NEVER protreptic, on principle!

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Kramer:

"By De facto performative, I mean an utterance that is the physical implementation of a logically non-speech act, such as defaming someone or provoking a fight or inciting armed revolution."

I wonder if this is not ambiguous. It seems to want to say that defaming someone or provoking a fight or inciting armed revolution is, typically, produced by logically non-speech acts. But what about:

I hereby defame you.
I hereby provoke a fight
I hereby incite armed revolution.

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This may NOT be 'performative' VERBS, but they seem verbal enough! I'm sure Kramer does not mean that -- but I was wondering about the need to distinguish between the speech act and the non-speech act. After all, from his previous commentaries, I thought he was arguing, as _I_ would, that 'fighting', for example, applies to more things than words!?

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Kramer:

"In many First Amendment cases, the question before the court is whether the government is seeking to prohibit speech because of its obnoxious perlocutionary effect (not allowed) or its harmful performative nature (allowed)."

I see. In other words, perhaps vaguer words, the distinction between content ('harmful performative nature, allowed') versus non-content ('obnoxious perlocutionary effect, not allowed'). But does the distinction run along THOSE lines. It seems that obnoxious is obnoxious is obnoxious and harmful is harmful is harmful. I can't (or rather Kant) see how one can a priori regulate those things: this belong to the content, and it's harmful but allowed; whereas this does NOT belong to the content -- it's a mere contingent effect, and it's obnoxious, and it's not allowed.

Kramer:

"Butler/McKinnon, i think, are on the wrong side of this line as to pornography generally, but not, I think, as to certain live-action porn where non-speech crimes are committed in the production process. Merely depicting the subjugation of women does not seem to me qualititavely different from depicting any other crime in terms of whether its perlocutionary effect rises to the leevy of de facto performative speech."

I see. I think you are convincing me to use 'hate speech', since you are using 'crime' so often! Or punishment, or protection from punishment. It becomes pretty confusing who is protecting who! For we have two rational agents here -- at most -- minors bring an extra problem --.

So, A offends B. And B feels offended. And A offends B criminally. And so A's offense is punished. But if A does not offend B criminally -- but otherwise --, the consequences are other.

I will have to elaborate on 'subjugation of women'. I hope you don't mean self-subjugation of x, regardless. When it comes to porn it can be all so fictitious (if not legally fictitious), and with so much S and M, as it is called, which is ALL about subjugation, I'm never sure. Then there's also the subjugation of males, by the lady with the whip, most likely!

Or not. (I will be sort of busy the rest of today, so I'm not sure I should be able to reply today to any excellent comment that may point to some stupidity in it. Or not!). Etc.