Legal Speech and Implicit Content in the Law

• Published date: 01 March 2016
• DOI: http://doi.org/10.1111/raju.12113
• Date: 01 March 2016
• Author: Luke William Hunt

Legal Speech and Implicit Content

in the Law

LUKE WILLIAM HUNT*

Abstract. Interpreting the content of the law is not limited to what a relevant law-

maker utters. This paper examines the extent to which implied and implicit content

is part of the law, and specifically whether the Gricean concept of conversational

implicature is relevant in determining the content of law. Recent work has focused

on how this question relates to acts of legislation. This paper extends the analysis to

case law and departsfrom the literature on several key issues. The paper’s argument

is based upon two points: (1) Precedent-setting judicial opinions may consist of mul-

tiple conversations, of which some entail opposing implicata, and (2) if a particular

precedent-setting judicial opinion consists of multiple conversations, of which some

entail opposing implicata, then no meaningful conversational implicatum is part of

the content of that particular precedent-setting opinion. Nevertheless, the paper’s

conclusion leaves open the prospect of gleaning something in between conversa-

tional implicatureand what is literally said, namely, conversational impliciture.

Does a law prohibiting vehicles in a public park apply to a military truck mounted

on a pedestal, intended to serve as a war memorial? H. L. A. Hart’s well-known

hypothetical demonstrates a telling point about what Hart called the “penumbra” of

a law’s meaning: Interpreting the content ofthe law is not limited to what a relevant

lawmaker utters (Hart 1958, 606–15).

1

The literal meaning of utterances made by leg-

islative, administrative, judicial, and other appropriate bodies is an uncontroversial

feature of the rules of a particular language. From this perspective, interpreting the

content of the law requires only an understanding of the appropriate syntactical

structure and semantic content that produce a meaningful sentence, traditionally

referred to as an act of speech or a locutionary act. Much more problematic is inter-

preting the content of a law when the law is viewedas a speech act or an illocutionary

* For their helpful comments on this paper, I thankMitch Green, the participants in the “Ethics

and Tea” readinggroup at the University of Virginia,and an anonymous referee at RatioJuris.

1

See Schauer 2008,1109–34, for a thorough analysis of Hart’shypothetical and the responses to

the hypothetical, including Lon Fuller’s vehicle-on-a-pedestal counterexample. By penumbra,

Hart meant thevague area around a law’s edge.So while we might be certain thatthe law’s core

meaning is that standard automobiles are clearly vehicles and a man jogging in the park is

clearly not a vehicle, it is less clear how the law’s penumbra relates to things like toy vehicles,

bicycles,and so on.

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Ratio Juris. Vol. 29 No. 1 March 2016 (3–22)

act (Austin 1962).

2

From this perspective, the content of the law includes the actual

performance of an act, such as commanding one not to harm another, granting one

the right to vote, and so on. The illocutionary force within thecontent of the law may

be clear in many cases, but the content of statutes and precedent-setting opinions

(case law) are not always obvious.

3

When a lawmaking body is unclear, we often

hear asked what the relevantlegislative or judicial body intended in a particular stat-

ute or opinion. I will examine a slightly different issue in this paper, namely, the

extent to which implicated and implicit content is part of the law itself.

4

I will focus specifically on whether Paul Grice’s notion of conversational implica-

ture is relevant in determining the content of law. Marmor (2011) has conducted a

recent examination of this question as it relates to acts of legislation. In what fol-

lows I will build upon Marmor’s analysis of the role (or lack thereof) of conversa-

tional implicature in determining the content of law, but I will part ways with his

analysis on two fronts: First, I suggest that the content of law may include some-

thing in between conversational implicature and what is literally said, namely, con-

versational impliciture (Bach 1994) and, second, the primary focus of my

investigation of the content of law will be in the context of case law.

5

As with acts

of legislation, precedent-setting opinions by the U.S. Supreme Court, for instance,

account for far-reaching proscriptions of conduct.

6

After discussing various differ-

ences between these two sources of law, I will address what I take to be a paradig-

matic case of proscriptive legal speech, Miranda v. Arizona, in which the U.S.

Supreme Court asserted that law enforcement officers must advise persons of vari-

ous rights before engaging in custodial interrogation.

7

Recent commentators (Davis

and Leo 2012) have argued that conversational implicature may be used to violate

2

The literature is notconsistent in the use of this terminology,and I use Austin’s terms—locu-

tionary and illocutionary acts—simplyto note a general distinction. This distinction and termi-

nology are not of primary concern, and they will not be discussed further—aside from the

following example for clarification: When one says, “I bet,” in the appropriate context, one is

doing more than describing an act of betting or uttering a string of noises with a particular

meaning (locutionary act). By utteringthese words, one is also doing the thing,namely, one is bet-

ting (illocutionaryact).

3

I use the term case law in the standard way: the compilation of reported cases that forms the

body of law in a particularjurisdiction.

4

See Soames 2011,for a general theory of legal interpretation. However,this paper is not about

theories of judicialinterpretation—strict constructionism versus judicialactivism, for instance—

and my argumentwill not address the various philosophies to which courtsadhere when inter-

preting the law. The issue in which I am interested is whether case law contains content that

may be derived from conversational implicature.My use of the word content may be misleading

because implicature does not typically refer to literal content, but rather to something that is

implied. However,for the purposes of this paper, asking whetherimplicature is part of the con-

tent of case law seems appropriate because I am interested in whether case law contains—as a

matter of fact, so to speak—certain implied content that may be derived from the discourse that

constitutesthe case law.

5

I will address impliciture more fully in Sections 1.3and 2.2, and, henceforward, I will italicize

impliciture so that it is distinguished more clearly from implicature. It should be noted that the

theoretical framework of impliciture has several points in common with what Robyn Carston

and others havecalled “explicature” (see Bach 2006).

6

I will confine my analysisto the U.S. judiciary, though my argumentwould be relevant to any

similar judicialsystem.

7

See Miranda v. Arizona,384 U.S. 436 (1966).

4Luke William Hunt

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C2016 The Author. Ratio Juris V

C2016 John Wiley & Sons Ltd. Ratio Juris, Vol. 29, No. 1