I’ve written a few posts about the philosophy of legal interpretation before and this is another one. This is because I’ve been reading a lot about the phenomenon of pragmatic enrichment and the role it can and should play in legal interpretation. Pragmatics and semantics are two areas of modern philosophy that used to bored me to tears, but having now re-engaged with them via my interest in legal philosophy I’m beginning to see some of the attraction but also some of the frustration. This series of posts tries to convey some element of both. I’ll need to start by looking at some basic definitions of the key terms.
”Pragmatics” is, in essence, the study of language and meaning in context. Traditionally, semantics looked at how words and utterances had a conventional meaning coded within them. Take a phrase like “What is the stars?” (from Juno and the Paycock). From a traditional semantic point of view, in addition to being grammatically ill-formed, it looks like a simple question with a clear meaning. But in a certain context the phrase might have a very different meaning. Indeed, among friends of mine at university, the phrase was a coded way of highlighting whenever a pretentious intellectual reference had been made in a conversation. Since we all knew the phrase to be a slightly obscure literary reference, whenever someone outside the group would make an obscure reference, someone within the group would say “ah, what is the stars?”. In this way, the phrase took on a meaning independent from its literal semantic content.
Pragamtic enrichment is the phenomenon whereby utterances take on meaning that is independent from or additional to its literal semantic content. We say that the utterance is “enriched” by the contextual features of the conversation in which the utterance is made, as in the example just given. Pragmatic enrichment of this sort is very common in everyday conversation. When we talk to one another we typically share a rich body of assumptions that feed into and shape the meaning of what we say. Consequently, it becomes natural to interpret conversational language in a way that includes pragmatically enriched content. Thus, the boundary between pragmatics and semantics, at least in ordinary conversation, is a fuzzy one.
This raises some interesting questions about legal interpretation, specifically: What role is there for pragmatic enrichment in legal interpretation? Is it natural and proper for judges and other legal officials to interpret legal texts (statutes and constitutions) in such a way that contextual factors and background assumptions play an important part in determining the “meaning” of the text? Or is there some reason to think pragmatic enrichment should play a more limited role in the law?
I’ve actually considered answers to these questions before when looking at Francesca Poggi’s work on implicature and legal interpretation, but I want to do so again here by looking at some of the arguments presented in Andrei Marmor’s article “The Pragmatics of Legal Language”. Marmor makes similar arguments to Poggi (though his article pre-dates hers) but expands on them in more detailed ways. My main interest is in those expansions, but to get to them I need to take a few steps back and consider the importance of this debate in legal interpretation, as well as the main argument.
The remainder of this post is dedicated to those tasks. It first looks at the debate over constitutional originalism and the role that pragmatic enrichment might play in that debate. It then presents Marmor’s basic argument, which is that pragmatic enrichment plays a very problematic role in legal interpretation. This is because the conditions that make pragmatic enrichment such an innocuous feature of everyday language are not present in the legal setting. In a subsequent post, I look in more detail at Marmor’s reasons for thinking those features are not present.
1. Pragmatic Enrichment and Constitutional Originalism
“Originalism” is general descriptor for a range of specific theories about the nature and purpose of constitutional interpretation. Though the different forms of originalism are numerous, and the subtle distinctions between them often baffling, they nevertheless share a central commitment to what Solum calls the fixity and fidelity theses. Roughly defined as follows:
Fixity Thesis: The meaning of the constitution was fixed at the time of ratification.
Fidelity Thesis: We ought to follow the original fixed meaning of the constitution.
The fixity thesis is a semantic claim; the fidelity thesis is a normative one. The question we must consider here is whether the meaning that is fixed at the time of the constitutional ratification includes pragmatically enriched content? To understand the significance of the question, it might be useful to consider an example or two. Take the Ninth Amendment to the U.S. constitution (though as you do bear in mind that the philosophical points being raised here have significance outside of the U.S. context):
Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This text here seems to imply or, rather, presuppose that the people have rights that are not enumerated in the constitution. What could those rights be? This is where pragmatic enrichment could play a role. It might be argued — and indeed it has been argued — that the rights presupposed by the Ninth Amendment are of a very specific sort. This is because, at the time of drafting and ratification, many states protected a set of liberty-based rights like the right to property, freedom of contract and so forth. Thus, in the pragmatic context in which the constitution was created, the phrase “rights…retained by the people” had a reasonably well-defined meaning and this meaning forms part of the meaning of the constitutional text. This is an argument that has been made by Randy Barnett and is an example of pragmatic enrichment.
But, perhaps surprisingly, Barnett is a little cagey about how much more extensive a role should be played by pragmatic enrichment. In an article titled “The Misconceived Assumption about Constitutional Assumptions”, Barnett defends the notion that pragmatic enrichment plays a role in the meaning of the Ninth Amendment, but then takes other originalists to task for going too far in arguing that pragmatic enrichment plays a role in the meaning of nearly all other constitutional provisions. For example, the vague phrases like “cruel and unusual punishment” do not, contrary to what Scalia and some other originalists argue, only include “punishments that were deemed cruel and unusual at the end of the 18th Century”. Nor, contrary to McGinnis and Rapoport is it true to say that meaning is constrained by the interpretive theories operational at the time of ratification. These are cases of pragmatic enrichment gone too far.
Barnett’s reasons for thinking so are interesting, and may well form the basis of a later series of posts, but I won’t get into them here. Instead, I offer his thoughts merely to highlight the tension and diversity of opinions present in the originalist movement about the role of pragmatic enrichment. The suggestion seems to be that some degree of pragmatic enrichment is acceptable, but it’s not clear how much.
Marmor’s paper takes an extremely abstract perspective on this debate. Indeed, in the paper under consideration, he doesn’t engage with originalism at all (he does elsewhere). But in taking that abstract perspective he helps us to see the wood for the trees, and partly explains why the debate over the proper role of pragmatic enrichment in originalist interpretation is the way it is.
2. Marmor on Pragmatic Enrichment in the Law
Marmor’s argument is a straightforward one. It starts from the premise that there are certain conditions that typically need to be satisfied in order for conversational pragmatic enrichment to take place. It then follows this up with the argument that those conditions are not met in the case of most legal “conversations”, such as those between the legislature, the courts, and the citizenry or the constitutional drafters, the courts and the citizenry. It is the fact that these conditions are not met in most legal cases that explains the contentious and problematic nature of the debate over pragmatic enrichment within originalism. I’ll work through each step in Marmor’s argument here, starting with the conditions he thinks are needed in order for pragmatic enrichment to take place.
Marmor identifies three conditions for pragmatic enrichment. According to him, there must be:
(a) A speaker who has certain communicative intentions.
(b) A conversational context that, at least to some extent, is common knowledge between speaker and hearer.
(c) Some conversational maxims that apply to the relevant speech situation.
Before we consider these in the context of legal speech acts, it’s worth considering them in the ordinary conversational context. Imagine you are at the doctor, trying to figure out what’s wrong with you. He has run several tests, and the results have just come in. He says to you “Well, you’re not going to die”. At the level of literal semantic content, this is a puzzling statement. After all, you are going to die someday. So the doctor couldn’t have literally meant what he said. What he really meant was something like: “whatever it is that is wrong with you is not sufficient to kill you anytime soon”. But, of course, you knew that’s what he meant. His utterance was naturally enriched by the pragmatic context.
What Marmor is saying is that this enrichment is natural in that context because the three conditions listed above are satisfied. The doctor has certain communicative intentions: he wants you to understand that there’s nothing seriously wrong with you. There is common knowledge of the conversational context: you know that he just ran some tests to figure out what was wrong with you, and he knows that you know this. Finally, there are cooperative maxims that apply to this situation (Grice’s maxims): the doctor wants you to understand what he is saying; and you want to understand what he is saying. Consequently, you share a common normative framework for the conversation.
The claim is that these three conditions are, if not completely absent in the legal context, at least problematic in the legal context. Let’s spell out the argument formally before considering the defence of this key claim:
- (1) In order for an utterance to be pragmatically enriched, three conditions should be met: (i) there should be a speaker with certain communicative intentions; (ii) there should be a conversational context that is, to at least some extent, common knowledge between speaker and hearer; and (iii) there should be some conversational maxims that apply (and are known to apply) to the relevant speech situation.
- (2) These three conditions are problematic in the legal context, and hence rarely met.
- (3) Therefore, pragmatic enrichment in the law is problematic and rare.
The second premise is the one we need to investigate. Since there are three separate conditions at issue, it’s no surprise to see that at least three separate arguments must be made. Marmor duly obliges.
Turning to the first condition — the need for a speaker with a communicative intention — Marmor simply notes that this is rare in the legal context. Constitutions and statutes are usually the product of a collective body of agents. Many legislators or many drafters working together produce the legal text. While it’s not impossible for the collective body to have a discrete and identifiable set of communicative intentions, it is, at the very least, difficult for this to be the case. Indeed, this is one reason why many modern-day originalists eschew an intentionalist basis for their theory, preferring to adopt a conventional “public meaning”-based approach.
- (2.1) There is typically no single speaker of legal texts, this makes it more difficult to identify a discrete set of communicative intentions.
As for the second condition — the need for a shared context — there are a variety of problems. Take once more the hypothetical conversation between yourself and your doctor. In that case, the conversational context is simple and well-defined. It consists of two parties, it takes place within known spatial and temporal boundaries, and the range of background assumptions the parties must share is fairly limited. This isn’t true in the case of a legal conversation. The parties are many (legislators, judges, citizens and other legal officials), they speak to one another across vast and sometimes expanding spatial and temporal boundaries, and many of the parties (judges) have to rely on secondary sources (history books, archival documents) to figure out what the conversational context really was. Again, this is something that some originalists recognise though they all think some epistemic access to the conversational context is possible and must affect how we interpret the legal text (see my post on Solum’s semantic originalism for an example of this).
- (2.2) The conversational context of legal speech is complex and ill-defined. It consists of many speakers, talking with one another across vast and ever-expanding spatial and temporal distances. This makes it difficult for the context to be common knowledge.
Finally, and perhaps most importantly, there is the third condition: the need for some set of conversational maxims that govern the speech situation. Marmor argues that this is where the problems really kick-in for pragmatic enrichment in law. Ordinary conversation is governed by Grice’s cooperative maxims; legal conversations are not. Au contraire. Legal conversations are far more strategic than ordinary conversations. Conversational partners in law do not necessarily want to be understood, perfectly, by one another. They might use plausibly deniably implicatures (which I covered recently) to reach a compromise.
- (2.3) The legal conversation is not governed by Grice’s cooperative maxims because the legal conversation is far more strategic in nature.
Marmor offers a range of additional arguments in support of this premise (2.3). Since I think there is much of interest in those arguments, I’m going to dedicate the next post to their elaboration.
So, to sum up, pragmatic enrichment is a common aspect of everyday conversations. The meaning of a particular speech fragment is frequently enriched by various features of the context in which it is uttered. To the extent that legal texts are speech fragments, one might think that they too can be pragmatically enriched. This is something that many originalists seem to agree with, indeed one could argue that this is the essence of their distinctive contribution to interpretive legal theory. But there is some disagreement as to how great a role pragmatic enrichment can and should play in interpretive theory. Marmor’s argument shows why this is the case. Pragmatic enrichment is common in everyday conversation because those conversations satisfy three important conditions. Those conditions are problematic and rare in the legal context. In particular, it is problematic that legal conversations are not governed by Grice’s cooperative maxims.