Friday, April 19, 2013

Pragmatic Enrichment and Legal Interpretation (Part Two)

(Part One)

Pragmatic enrichment is the phenomenon whereby the meaning of a particular speech act is “enriched” by the context in which it is uttered. This happens all the time in everyday conversation. The question being considered in this series of posts is whether it can, and should, happen in the interpretation of legal texts.

One group of interpretive theories — originalist theories — seem to be particularly torn on this issue. Originalists think that the meaning of legal text is frozen at the time of its ratification. As such, it seems like they have to believe that pragmatic enrichment plays some sort of role in the meaning of the text. They are, after all, claiming that we must pay some attention to the historical context in which the text was created. But there is considerable disagreement as to how expansive a role this context plays in “enriching” the meaning of the text.

Andrei Marmor’s paper “The Pragmatics of Legal Language” helps to explain why. As detailed in part one, Marmor argues that pragmatic enrichment typically requires three conditions to be met: (i) there must a speaker with a communicative intention; (ii) there must be a conversational context that is, to some extent, common knowledge between speaker and hearer; and (iii) there should some shared maxims or norms that apply to the speech situation. While all three of these conditions are difficult to satisfy when it comes to the production of legal texts, the third is particularly problematic. Ordinary conversation is typically governed by Grice’s cooperative maxims; legal “conversation” is not. Indeed, legal conversation is highly strategic.

In this post, I want to burrow deeper into Marmor’s reasons for thinking that legal conversation is strategic, not cooperative. Furthermore, I want to consider why this is a problem and whether there is way to reconcile the strategic basis of legal conversations with some degree of pragmatic enrichment. To this end, the remainder of this post has three parts. First, it looks at Marmor’s “Two Conversations” argument in favour of strategic-ness. Second, it looks at his “Multiple Communicative Purposes” argument. And third, it looks at his attempt to come up with “strategic norms” that might govern the legal speech situation. I offer some comments and critical reflections at each stage in the discussion, drawing particular connections between what Marmor is saying that debate over constitutional originalism.

1. The Two Conversations Argument
In part one we discussed the problem of determining exactly what the conversational context is in the case of legal texts. If we take something like a piece of legislation or a constitution, and consider the conditions in which it is drafted and interpreted, we can see the problem quite clearly. Such texts seem to be involved in (at least) two separate conversations:

The Intra-Legislature Conversation: This is the conversation taking place between the drafters of the legal text. They typically number in the tens or hundreds, and they vote and approve a version of the text.
The Legislature-Applicator Conversation: This is the conversation taking place between the drafters and the people who ultimately interpret and apply the text (obviously the courts, but also legal officials, agencies and the general public who must decide what it means for their lives). These conversational partners can be separated from the drafters by vast temporal distances.

There may be other conversations too. For example, some texts — particularly constitutional texts — are first approved by a group of drafters, and then by the public through a referendum or plebiscite. Thus there is an additional legislature-public conversation that takes place. Nevertheless, the two mentioned above are the most common ones, and they suffice to illustrate Marmor’s point.

What is that point? Well, if I’m interpreting him correctly (hah!), I think it is this: It may be plausible to say that Legislature-Applicator conversation is governed by the ordinary cooperative rules of conversation. After all, it does seem like the legislature wants the applicators to understand what they are saying, and that the applicators want to understand what the legislature are saying. True, there are all sorts of problems for the applicators in figuring out the background assumptions they share with the legislature, but nevertheless it still seems like the conversation between the two would be governed by cooperative maxims. The intra-legislature is quite a different beast. It is often highly strategic, and this has a knock on effect on pragmatic enrichment of the text.

To see this, we need to nail down the concept of strategy that is at play here. “Strategy”, ironically, can mean many things to many people. But here it means, roughly, the tendency for partners to have conflicting or competing conversational goals. In other words, it covers the possibility that conversational partners do not necessarily want to be perfectly understood by one another. I considered why people might do this recently when looking at Pinker’s theory of indirect speech, and I’ll say some more about it below, for now it’s just this notion of different conversational goals that we need to keep in mind.

It is this possibility that contaminates the legal text, and undermines pragmatic enrichment. The mechanism of contamination is all important. It starts with the idea that legal texts can be the product of compromise, or what Marmor calls “tacitly acknowledged incomplete decisions”. Assume that X and Y are two legislators, and before them is a particular piece of text P, which may implicate Q. The text might be approved under one of these four conditions:

A) X and Y both agree that P implies Q. 
B) X says P intending for it to imply Q, but Y does not. 
C) Y says P intending for it to imply Q, but X does not. 
D) X and Y say P intending to remain undecided about the implication of Q.

Take the text of the Ninth Amendment to the US constitution which refers to certain rights, not mentioned in the constitution, that are “retained by the people”. Ignoring the actual historical evidence, it’s possible that this was intended, by all drafters, to implicate a certain well-defined class of liberty rights. It’s also possible that it was not, that drafters disagreed about the nature of the rights, or that the drafters remained undecided about the nature of the rights.

These possibilities obviously have an effect on the legislator-applicator conversation. In interpreting the legal text, the applicators will want to work out its meaning. In doing so, they need to decide whether that meaning includes pragmatically enriched content. But because the text might be the product of known or unknown compromises, it’s very difficult to say when pragmatic enrichment arises. Indeed, any decision to include pragmatically enriched content looks like it would be a moral-political one, not a purely semantic one. You might be favouring one group of legislatures preferred implication over another, or ignoring the tacit compromise.

Maybe the solution here is to say that whenever there seems to universal agreement about the possible implications of the text, it can be said to be pragmatically enriched. Certainly, this is an argument that originalists like Randy Barnett make and the suggestion seems to be that they are making a semantic claim not a moral one. But I wonder whether it’s as straightforward as all that.

2. The Multiple Communications Argument
So much for the problems posed by the intra-legislature conversation. There are also problems posed by the fact that the legislature might be engaging with multiple conversational partners. As I defined it above, the class of “applicators” is diverse. It includes, courts, regulatory agencies, legal officials and the general public. It is possible that the legislature, assuming they agree among themselves, have different conversational goals they wish to accomplish with each of these conversational partners.

I’ll explain by means of an analogy, one that will be familiar to those who read my earlier series on “The Logic of Indirect Speech”. Suppose you are pulled over for speeding and a police officer is going to give you a ticket. You contemplate offering him a bribe but realise there are risks inherent in this. If the police officer is honest, you should definitely not give him a bribe as this will lead to your arrest. On the other hand, if the officer is dishonest, you should give him a bribe as this will reduce the fine you have to pay. What should you do? One solution is to use opaque or ambiguous language, i.e. to make an implicit or veiled bribe. This way you allow the dishonest cop to take you up on your offer, while at the same time using the ambiguity of your language to prevent the honest cop from arresting you for bribery. In this scenario, you have different conversational goals, depending on who you audience really is. The language you use allows you to hedge your bets between the two possible audiences.

Could something similar be true in the legal context? Marmor says yes. Here’s an example. There’s a long-standing debate in legal and ethical circles about the propriety of interrogational torture. While most people think it is wrong in virtually every instance, many are willing to tolerate its use in certain extreme situations. Suppose this is the view of most law-makers and they are debating a proposed change in the law on torture. Should they make an explicit law that allows for torture in a certain range of circumstances, or should they stick with an absolute ban on the use of torture? The two possible wordings are below:

Torture Law A: The use of torture is outlawed.
Torture Law B: The use of torture is outlawed, except in certain extreme cases C1…Cn

You might think, given that they all believe there should be some exceptions to the absolute ban, that the second wording is better, but this might not be the case. Perhaps the legislators have been presented with conclusive evidence showing that if they adopt B, torture will start to be used in non-extreme cases because people perceive the law to be more forgiving than it is intended to be. Thus, they feel that adopting law A is the better bet, reasoning that most people will believe it is an absolute ban, but might still use it in extreme cases accepting the possibility of punishment, and that the courts will allow anyone prosecuted under the law to avail of the defence of necessity.

In this scenario, the legislature would have different conversational goals they wish to achieve with their different audiences. They would like the public (or perhaps the military/police) to believe that there really is an absolute ban so that they don’t start using torture too often; but they would like the courts to take a slightly more flexible approach to the law, allowing some leeway to those trapped in truly extreme cases.

Now, this is just an example, and it may be slightly contrived, but it still illustrates the thrust of Marmor’s argument. What he is saying is that the legislature, even if they agree among themselves, might want different audiences to take up different implied meanings of what they say. They would like the general public to think that Law A means what it says, but they would like the courts to think that it doesn’t quite mean what it says. This is another way in which legal conversations are strategic, and another way in which Grice’s cooperative maxims are thwarted in the legal context.

3. Might other norms apply to the legal conversation?
If we accept Marmor’s arguments, where does that leave us? Since our concern is with the degree of pragmatic enrichment that takes place in the legal context, it leaves us in a bit of a bind. Pragmatic enrichment is a common and uncontroversial aspect of everyday conversations because we all tend to agree on the norms that govern those situations. If Marmor’s right, then those norms do not apply to the legal context, thus making pragmatic enrichment a good deal more controversial.

This creates problems for originalists. As I said in part one, originalism demands that there be at least some role for pragmatic enrichment in legal interpretation. Indeed, the theory doesn’t make much sense without it, since it calls attention to the original speech situation in which the constitutional text was drafted and ratified and says our interpretation is constrained by that original speech situation. That looks like an appeal to pragmatics to me.

But perhaps things aren’t all that bad. Perhaps the legislative or constitutional context is governed by a discrete set of widely-agreed upon norms — distinct from Grice’s norms — that will nevertheless allow for pragmatic enrichment? This is, in fact, a view that is put forward by some originalists, albeit not in these terms. For instance, McGinnis and Rapoport, who advocate for something they call “Original Methods Originalism”, think that the original speech situation in which the US Constitution was produce was governed by a knowable set of norms. In this instance, the norms of legal interpretation that were in operation at the time the constitutional text was ratified. In other words, they argue that drafters and ratifiers were aware, at the time, that the text they prepared would be interpreted by the courts in accordance with then extant rules of interpretation. Those rules of interpretation would thus have affected how they prepared the constitutional text and so would have provided a normative background sufficient for pragmatic enrichment.

It’s a more complicated argument than that, but that’s the gist of it. Marmor, for what it’s worth, is sceptical about this kind of attempt to identify norms for legislative conversations. It’s not that the historical evidence adduced by originalists is unpersuasive (though it may be) it’s just that any particular concept of the legislative or constitutional conversation that is “thick” enough to generate a great deal of pragmatic enrichment, is also likely to be deeply controversial. Thus, there will always tend to be an ineliminable level of moral-political argument when it comes to determining the correct theory of interpretation. Most originalists accept the need to make moral-political arguments for their view, but Marmor’s point explains why they have to do this.

4. Conclusion
To sum up, pragmatic enrichment is the phenomenon whereby the semantic content of an utterance is enriched by the pragmatic context in which the utterance is made. In this series, I’ve been considering how great a role pragmatic enrichment might play in the interpretation of legal texts, in particular in the interpretation of a written constitution.

Following the arguments set down in Marmor’s article “The Pragmatics of Legal Speech”, it has been suggested that pragmatic enrichment is particularly problematic in the legal context. Enrichment is relatively uncontroversial in everyday speech because there is a widely-agreed upon set of norms governing those conversations. But there is no such set of norms governing legal conversations. On the contrary, there seems to be an ineliminable moral-political conflict at play when it comes to determining the norms that govern legal conversations.

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