(Part One)
This series is about implicature, and the role it might play in the interpretation of the law. The necessary theoretical background was sketched in part one. In this part, I turn to consider the legal ramifications. A nice way to introduce this topic is to consider a couple of examples. So here goes.
The Ninth Amendment to the U.S. constitution says the following:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The use of the phrase “others retained by the people” seems to imply that people have other rights and that the constitution can’t be used to override them. Needless to say, much debate has ensued over the years as to what these other rights might be, and how they should be used, if at all, in constitutional jurisprudence. Originalists such as Randy Barnett argue that the rights in question are natural libertarian-esque rights; but liberal justices, such William O. Douglas, have used the implication to support their preferred flavour of rights too.
Consider another example, this time drawn from the Irish Constitution (Bunreacht na hEireann). Articles 40.3.1 and 40.3.2 state:
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.
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.
The implicature here is somewhat more subtle, but the italicised portions suggest that (a) the constitution protects personal rights and (b) these rights are not exhaustively listed in Article 40.3.2. In other words, the implication here is similar to that in the Ninth Amendment of the U.S. Constitution: there are more rights protected by the constitution than explicitly mentioned. This implication became a cornerstone of Irish constitutional jurisprudence in the latter half of the 20th Century when Irish courts identified and protected a set of “unenumerated rights”.
These two examples have much in common. They both involve constitutional provisions that imply more than they say. That is: they suggest that there are more legal rights and correlative duties than are explicitly listed in the constitutional text itself. But should such implicatures really play a role in the interpretation and application of the law? Should the U.S. courts really make use of the unstated rights in the Ninth Amendment? Should the Irish courts really have developed a doctrine of unenumerated rights? These are significant questions and the answers to them make a big difference to the life of the law.
In her article, “Law and Conversational Implicatures”, Francesca Poggi argues that implicatures have a limited role to play in the interpretation and application of authoritative legal acts such as constitutions and statutes, but that they may have a more extensive role to play in the interpretation of “private acts of autonomy” such as are found in contract law. In the remainder of this post I want to discuss her arguments.
1. Implicature and Authoritative Legal Acts
Let’s start with the ordinary conversation, something explored in more detail in part one. In the ordinary conversation, implicature is both common and necessary. We imply more than we say because we adhere (in general) to Grice’s cooperative principle: we say no more than needs to be said, in keeping with the purpose and aims of the conversation in which we are engaging. In this context, it is both right and proper for the speaker and listener to appeal to the implications of their speech when trying to figure out what is really being said.
But what about in the law? A simple argument in favour of implicature is that the production and interpretation authoritative legal acts is directly analogous to and ordinary conversation. The legislatures and drafters of legal texts are the “speakers” and the interpreters and appliers of the law are the “listeners” (who, in turn, pass on the message to the people affected by the law). Thus, why shouldn’t the Irish or American courts appeal heavily to implied meaning when interpreting their respective constitutions? They would do so if they heard the same utterances in everyday conversation and the law is like those conversations.
This suggests the following analogical argument:
- (1) In ordinary conversations, implicature should play a significant role in the interpretation of what has been said.
- (2) The production and interpretation of authoritative legal acts is like an ordinary conversation in all important respects.
- (3) Therefore, probably, implicature should play a significant role in the interpretation of authoritative legal acts.
Simple, right? Not so fast. A tsunami of objections have probably just flooded into your brain. One of them is particularly obvious. If the production of legal texts is like an ordinary conversation, it is a very unusual conversation since the “listeners” don’t seem to play any role in it. In an ordinary conversation, the listener gets to respond to the speaker, sometimes asking them follow up questions. This can be a boon when it comes to clarifying the background context and the relevant implicatures. But this is not possible in the case of legal texts, at least not directly. They are simply spoken, and the listener has to make of it what they will. Indeed, sometimes the speaker is temporally distant from the listener, typically by a measure of years, and occasionally by a measure of centuries. (Note: there may be some scope for “back-and-forth” in the legal conversation: courts may highlight problems with a legal text and legislatures may respond, but this isn’t necessarily the same thing since even if there are problems, the text still needs to be interpreted and applied).
There are ready responses to this objection. One could argue that there is no need for a listener to talk back before implicature becomes acceptable. Monologues and directives are features of ordinary conversation, and no one doubts that implicature has a role to play in their interpretation. But this is too easy. As Poggi points out, because judges and litigants are not immediate participants in the legal conversation, they must rely heavily on imperfect secondary information to work out what the background context to the legal texts is/was. But this background context is the soil in which implicatures grow. If they don’t know what that it is, then it’s not right for them to make use of implicatures.
She explains with an analogy of her own. Imagine I run up to you on the street and say “I’m really stressed out, I need to calm down”. You know nothing about me, or about what has stressed me out. But I am an inveterate smoker, everyone who knows me knows this. When I say “I need to calm down” I expect you to understand the implication: “I want a cigarette”. Surely, in this context, my expectation is unreasonable? You and I do not share the necessary background context that makes such an implicature both obvious and reasonable. Fair enough? But then isn’t the legal “conversation” basically like this? The drafters of the constitution can’t reasonably expect temporally distant listeners to know all the details of the context in which they speak. And if they can’t expect this, then they can’t expect implicature to play a significant role in how their texts are interpreted.
That gives us the following:
- (4) The production and interpretation of authoritative legal acts is not like an ordinary context because (a) the listeners (judges and litigants) are not true parties to the conversation and thus rely on imperfect secondary information to flesh out the background context; (b) knowledge of this context is needed for working out implicatures; and c) this being so, it is unreasonable for legal “speakers” to expect the “listeners” to understand the implicatures of what they say.
This is an interesting argument, and has a lot similarities with some of the arguments proffered by constitutional originalists in the U.S.. I looked at those arguments in a previous post.
Although interesting, I think Poggi has a more decisive objection to the use of implicatures in the interpretation of authoritative legal texts. This objection also relies on a disanalogy between the ordinary conversational context and the law, and to understand it properly we need to go back to Grice’s account of implicature. As noted, Grice felt that implicatures arose from the fact that the cooperative principle governed everyday conversation. The participants in those conversations want to communicate and want to be understood. Consequently, they need not always say everything they mean: they can rely on the other party to fill in the blanks. So, for example, when I say “Could you pass the salt?” you don’t, unless you want to be smarmy, reply by saying “I certainly have the physical capacity to do so”. You understand that I was not really asking about your ability to pass the salt; rather, I was making an indirect request.
But as Poggi points out, this is definitely not true of the conversations between law-makers and their subjects. That context is not a purely cooperative one, but rather a highly strategic one, one in which cooperation is just one of many strategies available to the subject. Legal subjects don’t necessarily want to be nice, and cooperate by following the law. Indeed, they will often look for ways to avoid the reach of the law. As Oliver Wendell Holmes said in his famous lecture “The Path of Law”, to truly understand the law, we need to look at it from the perspective of the “Bad Man”, the one wants to break the law and get away with it.
This being so, the “speakers” of authoritative legal texts can’t rely on the good faith of their “listeners”. If the background context is uncertain, as it typically is, they can expect their listeners to twist the evidence to support whichever version of that context that is consistent with their interests. So we have another objection to (2):
- (5) The production and interpretation of legal texts is not like an ordinary conversation because the speakers cannot rely on the good faith of their listeners: the context is a strategic one, not a purely cooperative one.
I think this an appealing argument, but it leaves me somewhat cold. Although I agree that legal subjects are often non-cooperative, and that lawyers will present evidence that supports whichever view of the context most suits their client, I’m not sure that this reduces the role for implicature. It seems to me that, despite their best efforts, authoritative legal texts will imply more than they say (as seems clear in the case of the US and Irish constitutions). Are courts simply to ignore this? Or will they just have to muddle along, figuring out the most appropriate implicatures they can, based on relevant normative arguments and historical evidence.
2. Implicature and Private Acts of Autonomy
So much for constitutions and statutes, what about private acts of autonomy such as contract? Here, the analogy with ordinary conversations is cleaner and less contentious. But there are still some difficulties that need to be worked out. Consider first simple, everyday contractual agreements, such as those created when you go into a store, pick an item off a shelf, a purchase it at the till. Some contract theorists don’t even view these as contracts, but assuming they are, they seem like the kinds of contracts in which the rules of implicature would apply (if they need to apply). Such contracts are negotiated face to face and in conversation.
Things get trickier when contracts are put in writing. When this happens it is typically to create greater certainty. One might be inclined to think that this desire for certainty stems from the realisation that the cooperative principle does not always govern such relationships. Sometimes people are trying to “pull a fast one” or take advantage of one another. Thus, perhaps the kinds of conversations that lead to the creation of contracts are more like the conversation between the law-makers and their subjects, than they are like ordinary everyday conversations.
Perhaps. But Poggi has another interesting argument to make here. As she puts it, one of key elements of the background context to the contractual conversation is the legal system in which that conversation takes place. Many of those legal systems appeal to something they call the principle of bona fides or good faith. According to this principle, which derives from Roman Law, contracts are to be interpreted on the assumption that the parties negotiated with one another in good faith. Thus, they are assumed not to be “pulling a fast one” on each other. This principle effectively overrides any empirical concerns we may have about the strategic manipulation in contract negotiation, and instead demands that we assume good faith. This may be unrealistic, but the norm dominates reality, and the parties will suffer if they try to be manipulative.
Poggi gives an example. Suppose the following dialogue took place during the negotiation of a contract for a horse:
Offeror: I would like to buy your horse, but first I want to know if there’s anything wrong with it?
Offeree: Well, the horse does suffer from weak hooves.
Following the principle of good faith, we would say that the offeree’s statement implies that there is nothing else wrong with the horse. This is despite the fact that the statement is consistent with there being many other things wrong with the horse. And despite the fact that the offeree may be deliberately using this phrase with this in mind. The principle of bona fides will override any mala fides on the part of the offeree. If it turns out that other things are wrong with the horse, and they were known to the offeree, he or she will be liable for misrepresentation. The court will assume that their statement implied that nothing else was wrong with the horse.
3. Conclusion
To sum up, implicature may have some role to play in the interpretation of legal texts, but the role could be limited. Authoritative legal texts could be analogised to ordinary conversations, but there are some crucial differences. First, the “listeners” (judges and litigants) are not true participants in the conversation. Consequently, the “speakers” cannot reasonably expect the listeners to share the background context needed to flesh out the relevant implicatures. Second, the “conversation” between law-makers and subjects is not a cooperative one, and cooperation is often needed to make implicatures work.
Things are different when it comes to private acts of autonomy such as contracts. Here, the principle of good faith may be part of the legal context in which the contract is negotiated. That essentially makes Grice’s cooperative principle part of the context of contractual conversation, which in turns facilitates implicature.
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