Legal Meanings

The Making and Use of Meaning in Legal Reasoning

Janet Giltrow, Frances Olsen, Donato Mancini, Janet Giltrow, Frances Olsen, Donato Mancini

• Publisher: De Gruyter Mouton
• Year: 2021
• ISBN:
  9783110721003
• Edition: 1
• Topic: Filología
• Subtopic: Lingüística

This collection is about how law makes meaning and how meaning makes law. Through clear methodology and substantial findings, chapters expose the deficits of 'literal' meaning and the difficulties in 'ordinary' meaning, in international legal contexts and in more immediate social ones, as well as in courtrooms. Further, chapters in this volume see the challenges to national and international commitments to all speakers sharing a common meaning.

Pragmatics and the interpretation of international law: Two Relevance Theory-based approaches

Jennifer Smolka

University of Fribourg

Benedikt Pirker

University of Fribourg

Acknowledgements: Jennifer Smolka is a PhD Candidate at the Chair for English Linguistics, University of Fribourg. Benedikt Pirker is a Senior Lecturer at the Chair of European, International and Public Law, University of Fribourg. The authors thank Ziv Bohrer, Lando Kirchmair, Laurence Horn, Dieter Stein and Izabela Skoczeń, the participants in the 2019 International Language and Law Association Conference at UCLA and in the 2019 16th International Pragmatics Conference at Hong Kong Polytechnic University, for valuable comments on earlier versions of this article. Comments are welcome at [email protected] and [email protected]. Most of Section 3 of the present chapter is the combined product of both authors and based strongly on another forthcoming legal publication (Pirker and Smolka, A linguistic-pragmatic approach to treaty silence and interpretation, paper currently under review). Jennifer Smolka is the sole author of sections 3.1 and 4 of the present chapter.

Introduction

In recent years, researchers in various areas of law have begun to develop an interest in pragmatics. The present chapter focuses on international law and the interpretation of international treaties. We do not suggest that our findings apply exclusively to international law. We simply restrict ourselves in the following discussion for the sake of clarity, as there are differences in the terminology used in other fields of law – such as legal theory or specific domestic laws (common law vs. civil law systems, for example) – and between the different canons, rules and principles of interpretation that apply in various fields of law. There are certain very specific lessons that can be taken from pragmatics, in particular from Relevance Theory, as a cognitive-pragmatic approach. For this purpose, we first present certain features of interpretation in international law. We then turn to a brief presentation of Relevance Theory, and add the first useful application that can – and in our view should – be taken up by international lawyers, namely: typologies of inferred meaning. We mainly rely here on Ariel’s (2016) work. Second, based on comments received at the International Language and Law Association Conference of 2019, we examine the notion of explicature in legal interpretation, from a neo-Gricean and a post-Gricean – that is, relevance-theoretic – perspective. In the final section, we discuss our conclusions and point out possible directions for future research.

1 Interpretation in international law and linguistics

Interpretation is omnipresent in law. It is regulated in law by special norms, referred to – depending on the field of law – as maxims, principles, rules or canons. In international law,¹ for example, the cardinal rule of interpretation according to Article 31 (1) of the Vienna Convention on the Law of Treaties,² requires that “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” There are numerous legal debates over this cardinal rule. International lawyers argue over how this rule relates to other rules of that Convention (Regan 2017), and to what extent canons and principles of interpretation continue to exist beyond the system of the Convention (Klingler et al. 2019), although the latter is recognised as customary international law binding on all interpreting agents³ in international law.⁴ For the present purposes, it is most important to note that these are binding rules that interpreting agents need to follow. For example, an interpreting agent must take some documents or treaties into account as context, but not others (Dörr 2018: 590). The question arises as to what extent this system of binding rules relies on everyday language comprehension. If it does, we can rely on linguistic findings and transplant them to the context of the interpretation of international treaties. In the following subsections, we first identify the semantic and pragmatic principles we want to apply. Second, we examine the legal context of treaty interpretation to ensure that these principles “fit” that context. On this basis, we can then turn to two practical applications of pragmatics to legal interpretation, namely: pragmatic typologies of inferred meaning, and neo- and post-Gricean perspectives on explicit meaning.

1.1 Approaches to language meaning in linguistics: Semantics, pragmatics and Relevance Theory

To date, scholarship in international law has rarely relied in-depth on linguistics. If authors refer to anything linguistic at all when discussing interpretation, they typically cite Wittgenstein’s idea of a language game and of language meaning as based on use (e.g. Klabbers 2017: 56). Only recently have a few scholars started to examine the semantics-pragmatics distinction, to see if findings in pragmatics can be made fruitful in the context of international law (Linderfalk 2007, 2013; Smolka & Pirker 2016; Pirker & Smolka 2017).

The two directions of research in semantics and pragmatics can be differentiated as being essentially about two different models for how communication works. Put very simply, semantics relies on a code model, which suggests that communication is encoded directly or indirectly in language. Pragmatics relies instead on an inferential model, according to which a communicator provides evidence of her intention in order to convey a meaning, and the audience infers this meaning on the basis of the evidence provided, on the contextual information and on their own prior knowledge (Wilson & Sperber 2006: 607; Zufferey & Moeschler 2012: 88). Whereas linguists do not agree to what extent communication can be explained by semantics or pragmatics (Horn 2006; Börjesson 2014), it is a fairly representative position to accept that both aforementioned models operate simultaneously and do not exclude one another. Verbal comprehension thus consists of the decoding of linguistic information as one input, but it does so in an inference process yielding an interpretation of a speaker’s meaning (Moeschler 2009: 452). Take the example of the utterance “Can you pass me the salt?” Only part of the meaning can be arrived at by decoding. Without the situational context and a certain prior knowledge, it remains unclear for an addressee whether the interrogative sentence ought to be interpreted as a request or as a question, namely whether the addressee is physically able to pass the salt to the speaker.

A second important distinction – this time within pragmatics – also needs to be recalled, as it will play a major role in the following two applications of pragmatics to legal interpretation. This distinction opposes conventionalist to intentionalist approaches to language meaning. Its origins lie in Speech Act Theory (cf. Reboul & Moeschler 1998: 30).⁵ The study of speech acts has shown that there is a significant gap between meaning as it is encoded in a linguistic form and the interpretation a speaker intends to convey to an addressee. While speech acts may go wrong – and in fact sometimes do go wrong – addressees are typically able to fill the gap in a seemingly effortless way. Therefore, scholars like Searle (1969) and Austin (1962) have suggested that there have to be systematic principles governing linguistic interaction. Grice (1975) developed the idea of a cooperative principle in this context. While they were interested in speakers’ intentions in communication, “conventionalist” approaches in pragmatics rely on such principles – or “conventions” – as the basis of communication.⁶ Current influential approaches that take up Gricean conventionalist concepts are often labelled as “neo-Gricean” (specifically, Hornian) approaches (Carston 2005: 307). While Grice and Horn are interested in speaker intentions, they do not focus on the actual processes of interpretation or the mental representations that a hearer or addressee forms of a speaker’s or communicator’s intention (Carston 2013: 9). Their goal is not to provide an account of “the processes of on-line utterance comprehension”; instead, they offer principles or maxims to account for utterance comprehension (Carston 2005: 305).⁷

“Post-Gricean” accounts, which are dominated by Relevance Theory (Sbisà 2006: 2223), argue that reliance on maxims or conventions is unconvincing. Namely, for communication to succeed under such an account, a speaker and an ...

Table of contents

• Title Page
• Copyright
• Contents
• Legal meanings: Introduction
• Freedom of art in French legal proceedings: A discourse analysis perspective
• “What else can you do to pass … ?”: A pragmatics-based approach to quid pro quo sexual harassment
• Hostility to religion or protection against discrimination? Evaluation and argument in a case of conflicting principles
• Heller (2008) and the language of the Second Amendment: Grammar, meaning, and canonical conventions
• Experimental legal linguistics: A research agenda
• Pragmatics and the interpretation of international law: Two Relevance Theory-based approaches
• Temporal meanings in legal translation: English-Russian lacunas and associated semantic uncertainties
• Subject index