Monday, July 21, 2014

Does the Irish constitution imply the existence of unenumerated rights? (Part One)

I haven’t done a post on legal theory in a while. This post is an attempt to rectify that. It’s going to look at the philosophy of legal interpretation. It does so by honing in on a very specific issue: the implied existence (or non-existence, as the case may be) of unenumerated rights in the Irish constitutional text. The issue arises because of the wording of Article 40.3 of the Irish constitution. The offending provisions are (in their English language versions, and with emphasis added):

Article 40.3.1: The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.

In an influential decision back in the 1960s, an Irish High Court judge (Kenny J) held that these two provisions, when read together, implied that the Irish constitution recognised and protected a class of unenumerated personal rights. His argument for this conclusion was described by John Kelly — a famous Irish constitutional scholar — as “logically faultless”. The courts then took the idea and ran with it, identifying a whole of raft of unenumerated rights in subsequent case law.

But was the argument really logically faultless? In a short piece, the philosopher Gerard Casey claimed that it was not. Far from it, in fact. He argued that if you read the two provisions correctly, Kenny J’s case for the existence of unenumerated rights is borderline absurd.

Over the next two posts, I want to take a look at this debate, focusing specifically on Kenny J’s original argument and Casey’s rebuttal. Along the way, I want to highlight some important concepts from linguistic philosophy and show how these concepts can help us to understand the arguments on display. I’ll start, today, with a basic primer on the concepts of implicature and enrichment. I’ll look at the actual arguments about the interpretation of Article 40.3 in subsequent posts.

1. Implicature and the Cancellability Test
To start, we must have some general sense of the distinction between semantics and pragmatics. This is a standard distinction in linguistic theory, but it is not widely-known. Semantics refers to the meaning of the words used in a particular utterance. That is to say: the meaning that is encoded into the linguistic signs and symbols used by the speaker. The semantic meaning of an utterance is general and not context dependent. Pragmatics, on the other hand, refers to the token-specific meaning of an utterance. That is to say: the meaning that is communicated by a given speaker, in a particular time and place. It is specific and highly context-dependent.

It is important to be aware of these distinctions because the debate about the interpretation of Article 40.3 sometimes slides back and forth between both domains.

Anyway, with that general distinction in mind, we can turn to the distinction between implicature and enrichment. Both concepts cover the ways in which the communicated meaning of an utterance can extend beyond the words used in the utterance, but they do so in different ways. We’ll start by looking at implicature.

Implicature covers the phenomenon whereby the words used in an utterance can imply something beyond what is said. For example, if I say “I am going to wash my car”, I imply that I own or have use of a car. Or, if I am a member of a criminal gang, and I say to a local business owner “It’s a nice place you got here, it would be a shame if something happened to it”, I imply that if the owner doesn’t pay us some protection money, we will destroy his place of business. Both cases involve implicature, but they are rather different in nature. In the first case, the implied ownership or use of the car is semantic (i.e. it is implied by the actual words used). In the second case, the implied threat is pragmatic (i.e. it is a feature of the particular context in which the words are used).

The legal philosopher Andrei Marmor has helpfully identified three classes of implicature, each of which can feature in different legal contexts

Conversational Implicature: This is probably the most widely discussed form of implicature. It was first identified by the linguistic philosopher Grice. It arises frequently in everyday conversations and its occurrence is linked to certain norms of everyday conversation. This kind of implicature is highly context-sensitive and is firmly within the pragmatic branch of analysis. If you’re interested, I wrote about the legal implications of this before.
Semantically-encoded implicature: This is a distinct form of implicature, one which should not to be confused with the conversational form. As Marmor puts it, it arises when “the speaker is committed to a certain content simply by virtue of the words she has uttered…regardless of the specific context of conversation”. This is not context-sensitive and belongs more properly within the semantic branch of analysis.
Utterance Presupposition: This is where an utterance presupposes something not explicitly mentioned or stated in the utterance itself. In other words, it arises when an utterance would not make sense without us presupposing some unmentioned entity, activity or state of affairs. Utterance presuppositions occupy a somewhat uncertain territory.

The reason for the uncertain position of utterance presuppositions has to do with the test that is used to determine whether implicature is semantically-encoded into the words of an utterance. This is the cancellability test. According to this test, an implicature is semantically-encoded if it is not possible for the speaker, using those words, to cancel the implied meaning. Conversely, if it is possible to cancel the meaning, then the implicature is conversational and contextual in nature. The problem with utterance presuppositions is that they are sometimes uncancellable, sometimes cancellable. Thus, depending on the form of words used, they can be either context-dependent or non-context dependent.

Marmor gives us some examples of this. Consider the following two utterances and their presuppositions:

  • (A) “It was Jane who broke the vase” → presupposes that someone broke the vase 

  • (B) “The Republicans and Senator Joe voted for the bill” → presupposes Joe is not a Republican

Marmor’s argument is that the presupposition in A is not cancellable, whereas the presupposition in B is. This argument is supported by a new test, the negation test. This is an add-on to the cancellability test. It works like this: if we add propositions A and B together with the negation of their presuppositions, do we get an outright contradiction, or do we just get an awkward but not inconsistent turn of phrase?

If we take “Jane broke the vase” and add it to “no one broke the vase”, we get a contradiction. This suggests that the presupposition in this instance is not cancellable and is hence semantically-encoded into the utterance. Contrast that with proposition B. If we add that together with “Joe is a Republican”, we don’t quite get a contradiction. We just get an awkward form of expression. This suggests that the presupposition is cancellable in this instance, though the context may dictate otherwise. So an utterance presupposition could be highly context-specific, but might also not be.

This is all pretty technical stuff, but if you can wrap your head around it, it really does help to make sense of some of the arguments about the meaning of Article 40.3. As we shall see, one of the crucial issues there is whether Article 40.3 implies the existence of unenumerated rights in a semantic or pragmatic way. And one way in which to test for this is to apply the cancellability test to the wording of the article.

2. Enrichment and the class of rights
Okay, so that’s everything we need to know about implicature. What about enrichment? This is less important for present purposes, so we can go over it in less detail. Enrichment is the phenomenon whereby the meaning of particular phrases is enriched by the pragmatic context in which they are uttered. It arises because in most everyday speech contexts we compress what we want to say into fewer words than are strictly needed. Most commonly, enrichment serves to restrict the class of objects or actions to which a given utterance is intended to refer.

Here’s an example. Suppose you and I are roommates moving into a new apartment together. We are busy installing our furniture and putting up pictures and ornaments. At one point, clutching a painting beneath my arm and eyeing an appropriate spot on the wall, I tell you: “I am going to use the hammer”. Presumably, what I mean in this context is that “I am going to use the hammer, to put a nail in the wall upon which I can hang this picture”. Note, however, that the original wording was, strictly speaking, vague as to the precise way in which the hammer was going to be used. A hammer could, in fact, be used in many ways (e.g. as a paper weight or as a weapon). But the restrictive meaning of “to use” was implied by the context in which the utterance was made and is part of the enriched meaning of what was said. The same enriched restriction of meaning frequently arises with noun classes.

Enrichment can have an important role to play in debates about the meaning of a legal text. Indeed, the vagueness of the verb “to use” has occasionally caused headaches for courts. Suppose there is a statute saying that if you “use” a firearm during the commission of a drugs offence, you add five years to the jail sentence. Now, imagine that you and I are involved in a drug deal. I am selling you cocaine. I do so in my office, where there is a firearm resting on a stack of papers on my desk throughout the sale. Have I used the firearm during the drugs offence? That depends on whether the verb “to use” has a restricted enriched meaning or not. (This is based on a real case, but I can’t remember the name or the outcome right now).

Enrichment also has a role to play in the interpretation of unenumerated rights provisions. Assume, for sake of argument, that the Irish constitution does imply the recognition and protection of a class of unenumerated personal rights. Is that an unrestricted or restricted class of rights? Some irish judges have suggested that the class is restricted by the “Christian and democratic” nature of the Irish state, suggesting a degree of enriched meaning. This may nor may not be plausible. Similar arguments have been made about the class of unenumerated rights recognised by the US constitution. Randy Barnett — a prominent libertarian legal scholar — has argued that the unenumerated rights clause in the 9th Amendment is restricted to “liberty rights”. He does on the grounds that, in the pragmatic context in which the US constitution was drafted and ratified, that restricted meaning would have understood. It would be interesting to see whether analogous arguments could be made in the Irish context about the "Christian and democratic" nature of the rights. I won’t, however, pursue the matter any further in this series of posts.

So that’s it for part one. Hopefully this conceptual overview has been somewhat illuminating. We’ll look at the actual arguments about Article 40.3 in part two.

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