Sunday, December 16, 2012

Implicature and the Interpretation of the Law (Part One)

Paul Grice, originator of the theory of conversational implicature

Consider the following example (lifted unashamedly from Steven Pinker’s book The Stuff of Thought):

A gangster walks into a local restaurant. The restaurant has been doing well recently, and the local criminal gangs are aware of this fact. The gangster walks over to the restaurant owner, stares conspicuously around the room, and says “This is real nice place you got here. It would be a shame if something happened to it.”

Ostensibly, the gangster’s statement is one of fact: depending on what the “something” in question is, it may indeed be a shame if it happened to the restaurant. But of course no one reading the statement really thinks it is as innocuous as that. Everyone knows that it constitutes a thinly-veiled threat. Why is this?

The answer lies in something known as conversational implicature, which is the fancy label given to the mundane phenomenon that the semantic content of a particular utterance or sentence is not exhausted by the meaning of the words that make up that utterance. Which is to say: it is possible for an utterance to have an implied meaning, which is just as important and just as readily understood as that of its explicit meaning. Indeed, sometimes it is more important than the explicit meaning, as in the case of the gangster’s veiled threat: If the restaurant owner didn’t pick up on the implied meaning, he could create problems for himself.

While the phenomenon of implicature is mundane, it can lead to problems in particular contexts. One of those contexts is the law. In a certain sense, laws are created through speech acts. Legislatures and legal officials “speak” the law in the form of both written and oral utterances. Is it possible for those utterances to imply more than they explicitly say? And if so, is it acceptable for judges to appeal to those implied meanings when interpreting and applying the law?

Over the next two posts I want to look at these questions, and I do so with the help of Francesca Poggi’s article “Law and Conversational Implicatures” (which appears in the impressively obscure International Journal of Semiotics and Law). In this post, I kick things off by outlining Grice’s classic theory of conversational implicature, before then considering the distinction between generalised and particularised implicatures. In the next post, I’ll address the application of these concepts to the law. As we’ll see, Poggi thinks that implicature has a limited role to play in the interpretation of statutes and other “authoritative legal acts”, but it could have a more expansive role to play in the interpretation of contracts and other “private acts of autonomy”.

1. Grice on Conversational Implicature
The classic model for understanding how conversational implicature works was developed by the philosopher Paul Grice (pictured above). His model is built around something he calls the cooperative principle. This principle allegedly governs most ordinary conversational exchanges, and is constituted by a number of maxims. Let’s work our way through Grice’s account in a bit more detail.

Let’s start with a model utterance which will illustrate the phenomenon of implicature:

(a) “I am reading John’s book.

Although perfectly natural as a linguistic construct, this utterance is ambiguous. If we focused purely on the semantic content of the words that it contains, we would be left with at least two plausible interpretations. Either I am saying that I am reading a book that was written by John, or I am saying that I am reading a book that is owned or possessed by John. Nothing in the words tells us which of the two meanings should apply.

If the utterance really is ambiguous in this manner, then one is left with the burning question: why say things this way? Why is an utterance like this perfectly natural even though it has two possible meanings? The answer lies in the cooperative principle. According to Grice, in ordinary conversational exchanges, we all tend to adhere to the following principle:

Cooperative Principle (CP): 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.

In essence, the cooperative principle holds that whenever you make a contribution to a conversation, you should say whatever is required to convey your intended meaning, but no more than is required. In other words, if the context in which the conversation takes place makes it clear that utterance (a) is a reference to a book that John has written, then utterance (a) is the acceptable way in which to convey that meaning, despite the latent linguistic ambiguity. The participants in the conversation will be able to work out the implication for themselves; no more needs to be said. For example, suppose we are attending a book launch, to celebrate John’s recently published book. You find me thumbing through the pages of a book, and ask me what I am reading. I reply by saying “I am reading John’s book”. In this context, it’s perfectly clear which of the two possible meanings applies.

Grice unpacks the cooperative principle by breaking it down into a series of maxims. They are as follows:

Maxims of Quantity:
Be as informative as is required. But be no more informative than is required.
Maxims of Quality:
Do not say what you believe to be false. Do not say that for which you lack evidence.
Maxim of Relation:
Be relevant.
Maxims of Manner:
Be clear, avoid obscurity and ambiguity. Be brief and be orderly.

Now some of these maxims seem a little unhelpful, particularly those counseling against ambiguity, since the phenomenon of implicature, at least as illustrated by the example of utterance (a), seems arise even though they are violated. But in many ways that’s the whole point. As Poggi notes, implicature depends both on the meaning of the words used and on the maxims that apply to the particular conversational context. But which maxims apply in which context is variable. Thus, in some contexts the avoidance of ambiguity is trumped by the efficiency and brevity of communication.

A good example of this is sarcasm. If I say to you “that was a real funny joke”, it’s likely that I’m being sarcastic. This will usually be obvious, thanks to both the context (no one laughed) and the manner of speech (inflection and tone). This is a classic example of implicature, since the implied meaning of what I say diverges considerably (indeed, orthogonally) from the linguistic meaning of what I say. But this is made possible by the deliberate and obvious violation of the first maxim of quality: do not say what you believe to be false. We both know that this maxim usually applies to our conversations, but in this context its deliberate violation creates a dramatic effect without leading to any confusion about the intended meaning.

All of which leaves us wondering about the precise the status of the cooperative principle and the associated maxims. Are they prescriptive? In other words, should we follow them? Or are they descriptive? Do they merely describe what is typically happening when people communicate successfully?

Poggi opts for a quasi-prescriptive interpretation of the principle and the maxims. She views them as “customary hermeneutical technical rules”, which means:

Poggi’s Rule: If you follow the CP and its associated maxims then you will (in general) cooperate, understand what others are saying, and be understood.

The “in general” clause is key here (and is my addition) since, as we have just seen, it is possible to be understood even when you do violate the maxims. But that is only because (and if) the context makes clear what the implicature really is. If I send you a text message saying “I am reading John’s book”, and there is no preceding context in which my utterance is situated, then ambiguity becomes a problem. It’s highly likely that you’ll need to ask me to clarify the intended meaning. All of which brings us to the next issue: the distinction between particularised and generalised implicatures.

2. General and Particularised Implicatures
The basic idea of implicature is straightforward: utterances can often mean more than what they say. But its manifestations are many and complex. One of the complexities arises from the fact that there can be generalised and particularised implicatures. That is to say: implicatures that hold true across all contexts, and implicatures that only arise in specific contexts. Here’s an example of the former:

(b) “I went into a house”

This carries the general implicature that the house was not mine. Thus, the utterance could be construed as “I went into a house and the house was not mine”, but the italicised portion is left unsaid. The reason being that referring to the house using the indefinite article is generally understood as being the way to refer to a house that is not yours. The normal way of referring to one’s own house would be to say “I went into my house”.

According to Poggi, generalised implicatures are made possible by the maxim of quantity — one says no more than needs to be said — and are partially (if not entirely) independent of the speaker’s intentions. In other words, the implicature arises even if the speaker did not directly intend it. This could actually be a problem in some instances, for a sentence could carry a generalised implicature that actually defeats the speaker’s intentions. For example, I could say “I went into a house” and intend for it to be understood that the house was mine, but unfortunately listeners would not pick up on this due to the generalised implicature. This, however, would be my fault since I chose an inappropriate string of words to convey my intended meaning.

The situation is very different when it comes to particularised implicatures. These only arise in a specific context, and they only work when that context is shared by both the speaker and the listener. Consider the following conversation in a restaurant after the bill has been paid:

(c) Andy: “I’m sorry I made Paul pay the bill.” 
     Barry: “Paul owns four houses.”

Here, the implied meaning of Barry’s utterance is that Andy should not feel sorry for Paul, since Paul owns four houses and is thus wealthy enough to pay for the meal. The implied meaning is understood by both the speaker and the listener in the specific context. But if we detached Barry’s utterance from the specific context, no such implicature would arise.

Furthermore, Barry’s implied meaning might not be appreciated by Andy if the background context of the conversation is not fully shared. For instance, Andy might know that Paul is in a lot of financial trouble because of his properties, but Barry might not. Thus, Andy might think that Barry is merely emphasising his own remorse by highlighting the financial troubles. But Barry might intend the exact opposite because he knows nothing of the financial troubles. In this instance, there is a communication failure, and it is attributable to the lack of a shared context. This is a significant point, and one we shall return to in part two when discussing implicature in the law.

All of which brings us back to the example at the start of this blog post. As we saw, when the gangster says to the restaurant owner “this is a real nice place, it would be a shame if something happened to it”, the implication is that this is a threat. But is this implication generalised or particularised? The obvious answer is to say that it is particularised. After all, detached from the story of the gangster and the restaurant owner, that string of words carries with it no obvious implication.

Or does it? This is an interesting case. If I saw those words strung together in that particular order, but detached from a specific conversational context, I would still be inclined to think they contained an implied threat. This is because this linguistic form of the implied threat is so common in popular culture. Thus, it might be that the gangster’s utterance has a generalised implicature. Pinker points to a similar phenomenon in relation to the request “Would you like to come up and see my etchings?”, which, in our culture, is almost always understood to imply an invitation to sexual congress. These examples suggest that the line between the particularised and the generalised implicature might be a fuzzy and somewhat fluid one. Something could start out life as a particularised implicature, but if it becomes widely known, it may end up a generalised implicature.

Anyway, we shall leave it there for now. As we have seen, utterances often contain implicatures. That is: they imply more than they actually say. This is made possible, according to Grice, by the cooperative principle of ordinary conversation, and its associated maxims, although the applicability of these maxims may vary depending on the context. Furthermore, implicatures can be generalised or particularised. If generalised, they always arise whenever the relevant utterance is made. If particularised, they only arise in a specific context, provided that the context is shared by both the speaker and the listener. This raises all sorts of interesting questions for the law. We’ll look at these in part two.

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