By J. L. Speranza
-- for the Grice Club.
THANKS TO LARRY J. KRAMER FOR BRINGING HIS EXPERTISE and wit re: ex post facto and ex ante facto. For the record, this is Grice:
From
http://legalworkshop.org/2010/02/22/2123
--
H. Smith, of the Harvard Law School, is discussing precisely the ex-ante/ex-post distinction:
"[D]etermination of similarity in central
claiming is typically left for ex post
decisionmaking, which allows for more flexibility
but at the cost (so it is conventionally thought)
of less ex ante certainty."
--- where Grice dovetails:
"Claiming intellectual property is an example of
noncooperative communication which generally cuts
in favor of formal communication."
WHY? Because the law is hardly conversational!
"In a cooperative
setting," Smith notes,
"one can assume that the [addresee] will fill
in ['information'] and draw inferences in a
charitable fashion. At the center of the study
of the “logic of conversation” is Grice’s
Cooperative Principle: “Make your conversational contribution such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged.” (note)."
"That is, the interpreter will interpret in
accordance with the assumption that the
[utterer] is trying to be helpful."
A: I’m out of gas.
B: There is a gas station around the corner.
"we and Person A can safely conclude that it is open,
because otherwise Person B would be violating the
Cooperative Principle and the maxims of conversation."
Grice adds,
"And has petrol to sell". For surely it could be around the corner, and open, but selling candy instead. (WoW:ii).
Smith:
"But legal interpretation is not like
this. Disingenuousness of [utterer] and
[addressee] is almost to be presumed. The “logic
of legal conversation”"
-- if a conversation it is! --
"diverges from the ordinary conversation studied
by Grice. Reliance on central claiming and claiming
by exemplar requires context to be filled in
and inferences to be drawn. In an adversarial context,
it is difficult to converge on the relevant context
and these pragmatic inferences, because
each party — patentee and alleged infringer, say —- has
different incentives as to how to fill these items. The
noncooperative nature of much of legal"
-- never moral!
"communication probably accounts for some of its
formality. And legal language in general often
relies on a more rigid analogue of pragmatic-style
inference. The linguistic study of pragmatics focuses on
language meaning in context, as distinct from
the study of more formal meaning in semantics. In legal
language a lot of what would be loose pragmatics is
regimented into the semantics."
-- just to make Humpty unhappy!
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I'm not happy with this treatment of "legal" language vs. "conversational" language.
ReplyDeleteIf A, explicitly or implicitly, asks B for help in the form of information, and B chooses to provide it, then, B will "cooperate" with A in the existential sense, and the impression that B is trying to help will provide a cue to A that he may infer certain additional facts about the gas station around the corner from B's response.
But if A asks B for help in the form of information, and B chooses not to provide it, B may respond "I don't care." This is certainly unhelpful, but it's terse, true, relevant, and clear. What more could a Gricean want?
If A asks B to build him a house for a price, the most helpful thing that B can do, I think, is to offer A a fully explicit contract outlining precisely what will be done, by when, with what guarantees, for what price, paid on what terms. The degree of explicitness in the response is not "uncooperative"; rather it is contextually calibrated to be maximally helpful.
I don't believe that disingenuousness is to be presumed in legal communication any more than in any other sphere of human contact. People lie all the time in all sorts of contexts. Most legal "conversation" is about contracts, between people dealing in good faith, at arms' lengths, not as adversaries. So that the parties will not later disagree on the meaning of what they have said to each other, they say it explicitly. The distinguishing feature, I think, is the need for detailed precision, not anything to do with helpfulness. If anything, the situation in which B offers free advice on finding a gas station is the anomalous model. There, B is trying offer substantive help to A, which confuses the conversational issue entirely, because the CP is about U helping A to understand U's thoughts, not U helping A to solve A's car problems.
Legal exchange is a particular kind of conversation, not a non-conversation. And there are maxims for interpreting contracts that indeed involve implicature: expression unius est exclusio alterius, noscitur a sociis and the general rule that a contract will be construed contra proferentum - against the party who wrote it (so that, for example, disingenuous will not pay).
This whole matter of truth bothers me. I don't see what "be truthful" adds to Grice's analysis. Assumed truthfulness seems to me more a prerequisite to conversation than a feature of conversation. A cannot infer anything from something U says if A does not believe U is being truthful. So, to the extent A believes that U is not speaking truthfully, A will regard U's utterance as a charade, not as part of conversation. But to the extent that A believes U, I don't see how analysis of the conversation that A thinks is happening is aided by any reference to the fact that U is lying.
I reductively return to the wisdom of Markham's circle. If "conversation" and "cooperation" are broadly (and correctly, in my view) applied, any competently-executed transmission of information, legal or otherwise, will satisfy the cooperative principle.
Thanks. Your commentary provided me occasion for some further posts! And I enjoyed your closing comment too, with the reference to Markham's circle and the 'competently-exectured transmission of information'. Indeed, Smith should not get away with his pretty silly (i.e. blessed?) legal-nonlegal distinction, like that!
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