Cæteris Paribus Grice

Lawrence J. Kramer, for the Grice Club

All else being equal, I prefer threaded comments, but I think I must approach JL’s last post by interlineation in a separate post.

Kramer [offers this rule]:

"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.

I may have posted elsewhere as a comment my view that my rule applies equally to de jure and de facto performatives. As a practical matter, I cannot identify a constitutionally controversial de jure performative, but I don’t believe that changes the analysis.

…

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? –.

…..

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.

“Utterer” is fine. I use “speaker” and “utterer” interchangeably when the distinction seems to me unimportant.

On potentas vs. auctoritas, it’s been fifty years since I learned about them in Latin II, and I won’t try to make sense of them now. I am using “power” as a legal (Hohfeldian) term, somewhat broader than authority. For example, if you offer me a deal, I have the power to accept it, i.e., the words “I accept your offer to do x in exchange for y” create a contract between us only if (i) I say those words, and (ii) you have, by making an offer, empowered me to change our legal relationship by saying them. If either condition is not met, then there is no contract. ( JL would probably enjoy reading Hohfeld.)

….

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).

I referred to a “legal consequence,” by which I mean a change in some legal status. A ‘response” is a perlocutionary effect; it may or may not render the utterance performative as I am using that term for constitutional analysis.

----
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 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.
----
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!?

I should have said “a prohibitable logical act” rather than “a logically non-speech act.” Defamation, for example, is a prohibitable logical act irrespective of the physical act through which it is accomplished. If the defamation is accomplished by speech, then such speech is ipso facto de facto performative of a prohibitable logical act, and may be prohibited.

So, for example:

“John is a pedophile”

defames John if and only if John is not a pedophile. Thus, the utterance is performative of defamation, and may be prohibited, only under the same conditions. If John is in fact a pedophile, then the utterance may well have the same perlocutionary effect on those who receive it (not counting John), but, absent more, it is not performative of a prohibitable logical act, i.e., it has no legal consequence.

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.

I think I meant something different. I use “obnoxious” to mean offensive or unpleasant. I use “harmful” to mean doing legally cognizable damage to the person or the public. The distinction is not between content and non-content, but between obnoxious content and harmful content: the utterance of the latter is the physical device by which a prohibitable logical act (defamation, breach of the peace, etc.,) occurs.

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 qualitatively different from depicting any other crime in terms of whether its perlocutionary effect rises to the level 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.

Yes.