Pornography and Speech Acts (Part One)

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Pornography is typically viewed as a form of legally protected speech. But could it, as a form as speech, actually constitute a harmful act? Before even attempting to answer that question a brief divagation is required.

If you’ve ever studied feminist legal theory (and really, who hasn’t?), the name of Catherine MacKinnon should be familiar to you. She is one of the so-called “radical” feminists, famous for reshaping sexual harassment laws, developing a Marxist theory of feminism, and her role in highlighting the use forced impregnation in genocide. She is also infamous for her campaign against pornography in the 1980s and 1990s. A campaign waged alongside fellow radical feminist Andrea Dworkin.

As part of this campaign, MacKinnon tried to argue that pornography should not be legally protected speech. On the contrary, pornography, as a form of speech, was itself harmful and discriminatory to women. The argument is most clearly presented in her 1993 book Only Words. In it, MacKinnon essentially argues that the “speaking” of pornography is itself harmful and discriminatory, not merely something that contributes to, causes or encourages harm and discrimination (though it may do those things too).

MacKinnon’s argument is a legal/political one, not a true philosophical one, and her work tends to provoke negative reactions due to its often sensationalistic claims, and turgid academic style. I have certainly never enjoyed reading anything she has written. But other philosophers have attempted to develop her argument with greater sophistication and philosophical clarity. I want to look at some of those attempts here.

In doing so, I will be guided by Mary Kate McGowan’s article “Conversational Exercitives and the Force of Pornography”. In the article, McGowan considers Rae Langton’s version of MacKinnon’s argument, one that takes advantage of the tools of speech act theory. Though ultimately finding Langton’s argument lacking, McGowan uses it as a springboard for developing her own argument.

I want to take you through the stages of McGowan’s analysis in this series of posts. I do so for two reasons. First, the creative use of speech act theory in this debate fascinates me as I’m interested in the use of speech act theory in legal philosophy. Second, the ethics of pornography is a controversial topic, one that’s always sure to provoke debate.

In the remainder of this post, I will do three things. First, I’ll give a brief primer on speech act theory, giving particular attention to the concept of an Austinian exercitive. Second, I’ll outline and explain Langton’s version of MacKinnon’s argument. And third, I’ll present McGowan’s critique of that argument.


1. Speech Acts and Austinian Exercitives
The basic presumption of speech act theory is that words and sentences don’t merely report how the world is, they also do things to the world. So, for example, if I say “I accept your offer” to someone offering me a car for sale, I thereby create a legally binding contract. My utterance has done something: it has changed the nature of the relationship between me and the person offering the car for sale. How does this happen?

In his classic discussion, How to do Things with Words, J.L. Austin helped to answer this question by distinguishing between the three forces of an utterance: (i) the locutionary force; (ii) the illocutionary force; and (iii) the perlocutionary force. The locutionary force is simply the proposition asserted. The illocutionary force is the action constituted by the utterance. And the perlocutionary force is the effect that the utterance actually has on its audience. To give an example, if I say to my friend “I promise to pick you up at the train station”, then the proposition asserted is that I promise to pick them up, the action constituted by the utterance is that of promising, and the effect could be any number of things, e.g. that they believe me, or that they are gratified/reassured.

For our purpose, it is the illocutionary force that is key. For if it is true that utterances are themselves a type of action, MacKinnon’s argument has a foundation on which to build. Consider an example. Suppose I hire a hitman to kill my wife, saying to him “I hereby hire you to kill my wife”. The illocutionary force of that utterance is a promise to pay him in return for killing my wife. This is itself immoral and illegal: it is immoral/illegal to promise to pay someone to do something like this. That is true irrespective of the actual causal effect of my utterance. The hitman may or may not kill my wife. That would not make my speech act any more or less immoral. This is the kind of claim MacKinnon is trying to make about pornography.

But the foundation is not enough. We need a plausible reason to think that the pornographic speech act is immoral. This is where Lanton’s argument comes in. She claims that pornography is an exercitive speech act and that as an exercitive speech act it constitutes a form of harm to and discrimination against women. This raises the question: what the heck is an exercitive speech act?

An exercitive is a particular type of utterance which has the effect of setting out the permissibility conditions on actions in a particular kind of environment. It is almost impossible to understand this idea in the abstract, so an example is in order. Imagine that I am the president of a private club. During one of the club meetings, I declare that “smoking shall not be permitted on club premises any more”. I have just performed an exercitive speech act. I have made it the case that smoking is no longer permitted in the club. (Call these “Austinian exercitives” to differentiate them from another type of exercitive that will introduced later in the discussion).

Note, however, that things are not that straightforward. In order for an exercitive speech act to be successfully performed, a number of conditions must be satisfied. First, the utterance must somehow express the exercitive content. It need not expressly say that “X is no longer permitted”, but it needs to communicate the message that X is no longer permitted. Thus, I could say “No more smoking” or “I am against smoking” and this may communicate the same exercitive content, without expressly saying that “Smoking is no longer permitted”.

Second, in order to successfully perform an exercitive, the speaker must have the authority to determine what is permissible and impermissible. That is why my being president of the club is important in the example just given. If I were not president, I would not have the authority to render smoking impermissible. Official title is not always needed for authority. Parents, for example, have the authority to set permissibility conditions for their children, without needing officially recognised authority.

In addition to these success conditions, a number of conditions must be met in order to prevent the exercitive from being defective. This success/defectiveness distinction is common in speech act theory. If I say “There is a pink unicorn in my garden”, then I have successfully performed an assertive speech act. But the act is defective because the assertion is not true. Likewise, an exercitive may be defective if, for example, no one understood what the speaker was trying to communicate, or if it never has the intended effect.

We’ll return to some of these ideas later when looking at McGowan’s critique of Langton. For now, let’s move on and see exactly what Langton’s argument is.


2. Langton’s Speech Act argument against Pornography
Langton’s argument — as filtered through the lens of McGowan’s article — is that pornography unjustly subordinates and silences women. In reality then, Langton is presenting two separate arguments, the first defending the subordination conclusion, and the second defending the silencing conclusion. Furthermore, she divides each of the arguments into two phases. In the first phase, she argues that pornography is an exercitive speech act i.e. one that enacts a set of permissibility conditions in a particular domain. In the second phase, she argues that these permissibility conditions have the effect of silencing or subordinating women.

Let’s look at the subordination argument first. As McGowan describes it, the argument runs like this:

• (1) Pornographic “speech” enacts the permissibility conditions for the (heterosexual) sociosexual arena. 

• (2) These permissibility conditions: (a) unfairly rank women as having inferior worth; (b) legitimate discriminatory treatment towards women; and c) deprive women of important powers. 

• (3) Anything that does (a) - (c) unfairly subordinates women. 

• (4) Therefore, pornography unfairly subordinates women.

The first premise is contentious. Indeed, it is what McGowan explicitly criticises in the remainder of her article. But something can be said in its favour. The idea is that heterosexual pornographic material, through its depiction of male-female or female-female sexual contact, stipulates what kind of conduct is appropriate in heterosexual sexual relationships. In other words, it is effectively saying “This is how things are to be done! No other way is permissible”. It is thus an Austinian exercitive, covering the permissibility conditions within the heterosexual sociosexual arena.

The second premise then takes up the baton by saying that the actual content of those permissibility conditions is such that women are ranked as inferior, discriminated against, and deprived of important powers. The idea here is that the actual depiction of sexual relationships in heterosexual pornography is such that it is deemed permissible to treat women inferiorly or to discriminate against them. This too is contentious claim, depending as it does on an interpretation of what heterosexual pornographic materials (typically) “say”. No doubt many would dispute the interpretation, but I won’t be getting into that issue here.

The third premise is simply a general principle classifying certain kinds of conduct as subordinative. I don’t see anything particularly contentious about this, although a word or two must be said about the use of “unfairly” in this principle. It is possible that we can fairly subordinate or discriminate certain people, psychopaths or criminals for example. Certain conditions are met in these cases that renders the unfair treatment acceptable. But I think everyone would agree that those conditions could not be met in the case of women. If that’s right, and if premises (1) and (2) are acceptable, then the argument as a whole goes through.

What about the silencing argument? It follows the same general pattern as the subordination argument, but is rather more complex. Instead of focusing directly on permissibility conditions for the treatment of women, it claims that pornography is such that it enacts the success conditions for particular kinds of speech. These conditions work in such a way that they prevent women from saying the kinds of things they would like to say.

To set out the argument in full:

• (5) Pornographic “speech” sets out the success conditions for certain kinds of speech act (“success conditions” being a type of permissibility condition specifically related to speech, they determine what it is permissible or possible for certain people to say). 

• (6) These success conditions stipulate that there are certain kinds of speech act that women cannot perform. 

• (7) Women ought to be able to perform these speech acts. 

• (8) Therefore, pornography unjustly silences women.

This argument is a lot trickier to explain, but its starting premise (5) is broadly equivalent to that found in the subordination argument. The idea, once again, is that the depiction of women in pornography enacts a set of permissibility conditions concerning what they can say and do.

The specific claim, in premise (6), is that these permissibility conditions are such that women are not allowed to perform some kinds of speech act. The classic example, and one used by Langton, is that of saying “no” to certain types of sexual advance. In at least some pornographic material, women are depicted in such a way that it is deemed impermissible (perhaps impossible) for them to deny these advances. Or so the argument goes. Again, this is highly contentious, depending on an interpretation of what pornography does or does not say. But if one can get over that contentiousness, the remainder of the argument should go through.

The net result is that MacKinnon’s overarching conclusion — that pornography unjustly silences and subordinates women — is defended. This is depicted in the diagram below.

3. McGowan’s Critique
Is any of this remotely persuasive? As I say, the second premise of each argument is highly contentious. But since there is such a huge volume of pornographic material out there one could probably make a good case that at least some (maybe a lot) of it depicts women in such a manner that they are deemed inferior or incapable of denying sexual advances. The more philosophically interesting premise, and the one McGowan focuses on, is the first: is it really true to say that pornographic speech performs an Austinian exercitive?

An initial worry would be that pornography is not really of form of speech, or rather not classifiable as an utterance. This can probably dismissed on both pragmatic and conceptual grounds. Pragmatically, one can simply argue that pornography is legally classified as a form of speech by many of its advocates. This allows them to avail of free speech exemptions from regulation. Langton and MacKinnon are merely playing on the advocates territory in this regard. Conceptually, one can argue that it does make sense to view certain kinds of artistic or cinematographic output as “speech”, something that is “spoken” by its producers and distributors to an audience or group of listeners.

A more serious set of worries is that pornography, even though it is a type of speech, cannot be exercitive in nature. This is the argument that McGowan pushes. To make it, she returns to the notion of success and defectiveness conditions in the analysis of speech acts. Let’s use the earlier example of I, as club president, banning smoking on club property. In this example, I was clearly performing an exercitive speech act. But this was only because: (a) I directly or indirectly intended for my speech to be exercitive in nature; (b) the semantic content of my utterance conveyed my intended meaning; c) the relevant audience would have been aware that this was my intention; and (d) I had the requisite authority to perform the exercitive (I was club president after all).

The problem is that these conditions are not typically met in the case of pornography. Maybe some producers of pornography do intend to silence and subordinate women, but many may not. Even if they did have that intention, the consumers of pornography would probably not recognise it. This will most often be caused by the fact that the semantic content of pornography will be exceptionally opaque — not an efficient means to convey the intended exercitive. Finally, and perhaps most fatally, producers and distributors of pornography do not have the authority to enact permissibility conditions concerning heterosexual behaviour or women’s speech acts. And if someone thinks that they do, they are severely mistaken (note: this leaves open that possibility that pornography may indirectly or subconsciously have the effects identified by MacKinnon. This, however, transforms the argument into a purely causal one, not one based on the intrinsic flaws in the pornographic speech act)

Although a failure to meet one or two of these conditions might be tolerable, and might still result in an exercitive speech act being performed, the failure to meet all of them would be fatal to Langton’s analysis. That gives us the following:

• (10) In order to successfully and non-defectively perform an Austinian exercitive, a series of conditions must be met: (i) the speaker must intend (directly or indirectly) for their utterance to have the exercitive effect; (ii) the semantic content of the utterance must convey that intention; (iii) the audience must be able to appreciate the exercitive intention; and (iv) the speaker must have the requisite authority. 

• (11) In most cases, these conditions are not met in the case of pornographic speech. 

• (12) Therefore, it is unlikely that pornographic speech enacts the permissibility conditions for heterosexual behaviour or for the kinds of speech act women can perform.

This has been added to the argument diagram below.

Where does that leave us? As McGowan sees it, the flaw in Langton’s argument is its reliance on the Austinian conception of the exercitive. She thinks it is possible for the argument to made with an alternative conception of the exercitive, something she calls the “conversational exercitive”. This would avoid the problems just highlighted, but may have some problems of its own. We’ll consider McGowan’s proposal in part two.

Implicature and the Interpretation of the Law (Part Two)

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(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.

Implicature and the Interpretation of the Law (Part One)

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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.

Schauer on (fMRI) Lie Detection in the Law (Part Two)

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(Part One)

This is the second part in short series of posts looking at Frederick Schauer’s article “Lie Detection, Neuroscience and the Law of Evidence”. In this article, Schauer examines the debate surrounding the legal admissibility of fMRI lie detection evidence, and argues that there are good reasons to allow such evidence in a court of law. This is interesting in that it runs contrary to the prevailing view about fMRI lie detection.

In part one, I reviewed some of the background issues in Schauer’s article. This included a brief discussion of the problem of false testimony within the law — a problem that makes a reliable lie detector particularly alluring. It also included an overview of the legal history of the lie detector test, noting that from its earliest days it has struggled to win acceptance in the courts. This trend has continued despite the advent of newer versions of the test using fMRI imaging techniques.

Schauer questions the tenability of this trend. He does so by defending one overarching claim, which we may call “Schauer’s Thesis”:

Schauer’s Thesis: Whether fMRI lie detection evidence should be admitted to court is not simply a question of its scientific validity and reliability, it also (perhaps primarily) a question of the normative and ethical function of the law. That is to say, questions of evidential admissibility are fundamentally determined by legal-ethical standards, not purely scientific ones.

This claim is significant in that current tests for the admissibility of scientific evidence, such as DNA fingerprinting and other forensic techniques, are heavily reliant on scientific standards of validity and reliability. For instance the Daubert test, which is now advocated for introduction in the UK, states that judges should assess scientific evidence by referring to the various indicia of reliability that are common in the scientific world. These indicia include things like “known error rates”, “general acceptance within the relevant scientific community”, “testability” and “passing peer review”.

This approach yields significant legal territory to the norms of scientific inquiry, and while this may often be appropriate, Schauer’s Thesis urges lawyers and legal theorists to regain at least part of this territory. What scientists rightfully deem “good evidence” and what legal theorists rightfully deem “good evidence” may be two different things. It’s important not to lose sight of this.

Schauer supports his thesis with two arguments. For cognitive convenience, I have labelled them the probative context argument and the epistemic progress argument. In the remainder of this post, I examine each argument in some detail.


1. The Probative Context Argument
As mentioned in part one, in every legal case there is some set of facts that need to be proved (or disproved) in order for the case to succeed. If I am to be convicted of murder, it must be proved that I intentionally killed another person. One step on the way towards proving this would be to establish that I was present at the scene of the crime. Lie detectors or other forensic evidence might be used to do this. But the value of any such evidence depends largely on three factors:

Probability: Does the evidence raise or lower the probability of the factum probandum and if so, by how much does it raise or lower its probability?

Standard of Proof: What confidence threshold must the probability of the factum probandum cross in order for it to count as being proved or not proved?

Legal Purpose: Is the evidence being submitted in order to prove or disprove the factum probandum?

These three factors determine the probative context in which the evidence is presented. This context varies relative to the legal issue at stake, and the party for whom the evidence is proffered.

For example, in criminal cases, the standard of proof for the prosecution is beyond a reasonable doubt. This is a notoriously fuzzy standard, but let’s put a figure on it and say that it corresponds to a 95% (0.95) probability of the factum probandum being true. To return to my murder trial, it would follow then that, in order to secure a conviction, the prosecution would need to introduce a body of evidence that (in its totality) raises the probability of my intentionally killing the victim to the 95% threshold. Contrariwise, it would also follow that if I could introduce any evidence that lowered the probability back down below the 95% threshold, then I would succeed in my defence. Thus, the probative value of the evidence varies depending on the context.

This is important because it feeds into the assessment of lie detection evidence. Reviewing the available literature, Schauer notes that fMRI lie detector tests have reported reliability rates that vary from 70-90%. This means they are better than chance at identifying deceptive individuals, but far from perfect. Unfortunately, in his discussion, Schauer doesn’t break down the data into false positives and false negatives. Consequently, I’m not unsure whether the 10-30% of failures covers truth-tellers who were falsely identified as liars or liars who were never spotted, or some combination of both. This could make a big difference to the legal utility of the evidence from the prosecutorial side in a criminal trial, but Schauer doesn’t look at the issue from their perspective.

Instead, Schauer looks at the issue from the perspective of the defence and notes that although a 70% reliability rate might not suffice to prove that someone is guilty, it might suffice to prove reasonable doubt. So, for instance, if I’m being tried for murder and I have an alibi which, following the administration of an fMRI lie detection test, is 70% likely to be true (Bayesian considerations to one side), it would be highly useful for the court to be made aware of this fact.

Breaking it down, the argument Schauer’s making looks something like this:

• (1) In its present form(s), the accuracy rate of fMRI lie detection is somewhere between 70% and 90%. 

• (2) In some probative contexts, a 70% likelihood that X is telling the truth/lying is highly probative. 

• (3) Therefore, fMRI lie detection could be useful (even in its present form) in some probative contexts.

Thus we have the probative context argument. It should be pointed at that premise (2) can be defended with a number of examples. I used the criminal example since it’s possibly the most straightforward, but in civil trials the standard of proof is much lower (balance of probabilities) and hence the lie detector test could be highly probative in those contexts too.


2. Challenges to the Probative Context Argument
I have to say, Schauer’s basic point strikes me as being a good one. Nevertheless, there are some lingering concerns. Personally, I think the second premise needs to show some greater sophistication in its use of probabilities and accuracy rates. Thus, as mentioned previously, greater appreciation should be shown for rates of false positives and false negatives, not simply overall accuracy rates. A test that is 46% accurate might actually be highly probative, depending on whether the 54% of inaccuracies refers to false positives or false negatives. If the 54% refers solely to false negatives, then the test might actually be incredibly useful to the prosecution in a criminal trial. For in that case, the test would accurately identify guilty people to the exclusion of innocents. Thus, any concern about punishing the innocent would be allayed.

But this observation is a relatively minor one. The second premise of the argument could easily be reformulated and defended in such a way that the importance of false positives and false negatives is brought to the fore. A more pressing concern, and one that Schauer does actually address, arises in relation to the first premise. Critics will be keen to point out that the 70-90% accuracy rate is derived from experimental studies of the tests, not from real world applications. There are serious doubts as to the merits of extrapolating from such experimental studies to the real world. What might be 90% accurate in the laboratory setting, could be only 30% accurate in the field, or even less. We simply don’t know.

This is the ecological validity challenge. If it succeeds, it would undermine the probative context argument since that argument depends on us having some reasonable estimate of the accuracy of the test in question. If we have no such reasonable estimate — if the probabilities in question are, to put it bluntly, inscrutable — then Schauer’s argument won’t work. But are things really this bad?

Schauer thinks not. As he sees it, the ecological validity objection breaks down into two distinct parts. The first claims that we cannot extrapolate because the experimental subjects are not representative of the wider population. The second claims that the incentives under which people lie in an experimental setting are artificial, and quite distinct from the high stakes incentives in civil or criminal litigation.

Responding to the first claim, Schauer notes that this is a general problem with many kinds of evidence proffered for forensic use. For example, studies about the unreliability of eyewitness identification and memory are typically performed on undergraduate psychology students who may not be representative of the wider population. And because this is such a general problem, psychologists and other scientists have frequently sought to address it in their studies. They have done so by attracting more representative samples and trying to match real-world conditions more closely. Furthermore, they have tried to see whether results derived from the low-stakes unrepresentative sample tests hold up in the more high-stakes representative sample settings. Citing a slew of general reviews done on this topic, Schauer notes that the general trend seems to be that the results do hold-up. Although similar studies have not yet been done on fMRI lie detection, the trend may well remain the same unless there are particular difficulties with the extrapolability of fMRI results.

In relation to the second part of the objection, Schauer accepts the significant problems here. It is very difficult to artificially recreate the pressure to lie that might be felt in a real-world setting in the lab. But some fMRI researchers have tried to do this (Greene and Paxton, 2009) and their results are consistent with the premise underlying fMRI lie detectors. Future studies should address this in more depth and thus a more reliable picture of extrapolability can emerge.

A final related point emerges from the individual-population divide. Most fMRI studies, as well as most scientific studies, generate their statistical output by averaging over the population of experimental subjects. This leads to a classic problem in the legal context: how can this population-level data be probative in the individual case? After all, just because a test is 70% accurate across a population does not mean it is accurate for a particular individual in a particular case. So should the information be used at all?

Although this has been a surprisingly popular critique in legal circles, particularly when it comes to the use of epidemiological studies in tort law, it is flawed. As Schauer points out, the fact that for any random person plucked from the population, a particular test is accurate 7 times of 10 is probatively valuable given the right probative context. So this does not defeat the probative context argument.

The only problem with all this is that it might suggest a certain weakness in the argument. After all, given the right context, a test with an exceptionally low probability of being correct (say 5%) might be probatively relevant. Is this a reductio of the argument, or just a necessary truth about the nature of evidence and proof? I won’t answer that question here.


3. The Epistemic Progress Argument
On its own, the probative context argument has some value. But when coupled with the second argument, the argument from epistemic progress, it makes a good overall case for Schauer’s thesis. To explain the epistemic progress argument, I’m going to rely on some concepts from epistemic systems theory, which I’ve covered before on this blog.

To review, an epistemic system is any social system that (at least sometimes) generates judgments of truth or falsity. The legal trial is classic example since it generates judgments of truth or falsity concerning the factum probandum. Following Koppl’s schema, the epistemic efficiency of an epistemic system can be defined as follows:

Epistemic Efficiency: A measure of the likelihood of the system reaching a true judgment. Either 1 minus the error rate of the system; or the ratio of true judgments to total judgments.

And epistemic progress in this way:

Epistemic Progress: A system can be said to undergo epistemic progress whenever its epistemic efficiency is increased.

The basic idea is that epistemic progress is a good thing, and that any reform to the system that allows it to progress would be welcome. The key, however, is that epistemic progress is always assessed relative to the existing level of epistemic efficiency. Thus, if we wished to argue in favour of a particular reform, we would have to do so by directly referencing the current level of efficiency. This relativistic property of epistemic progress has one interesting effect: if the current level of epistemic efficiency is low, then a particular reform with an unimpressive level of overall accuracy, may nevertheless be warranted on the grounds that it still raises the efficiency of the system.

Unsurprisingly, Schauer argues that this is true in the case of fMRI lie detection. This gives him the following argument:

• (4) If a particular reform to an epistemic system leads to epistemic progress, then it ought to be (all else being equal) welcomed. 

• (5) The admissibility of fMRI lie detection evidence would lead to epistemic progress in the law.  

• (6) Therefore, (all else being equal) fMRI lie detection evidence ought to be welcomed.

Schauer argues in favour of premise (5) by highlighting how existing methods of solving the false testimony problem are rather lacking. Historically, the administration of the religious oath was thought to incentivise truth-telling. In a culture in thrall to the fear of hell, this may have had some sway, but in its modern secular form the oath relies on the desire to be honest and the threat of perjury to do its work. Arguably, neither of these are particularly effective and certainly the oath has no known accuracy rate associated with it.

Robust cross examination is also often singled out as an excellent method for solving the false testimony problem. But this is highly suspect. As Schauer notes, cross examination may expose inconsistencies in certain cases, but is unlikely to do so in the case of the seasoned or practiced liar (movie depictions of the practice notwithstanding). In these cases we may be left with contradictory testimonies, which can be very difficult for a jury to assess. Furthermore, as with the oath, there are no known accuracy rates associated with cross-examination.

In light of these comparators, the admission of fMRI lie detection would seem to represent an improvement. Since it does have known accuracy rates, and since it can do something to break the deadlock between contradictory testimonies, it could lead to epistemic progress. Thus, the argument goes through.

Two caveats are in order here. First, in his defence of premise (5) Schauer may have missed out on other methods of solving the false testimony problem, ones which, although not currently used, would be more progressive than fMRI lie detection. This wouldn’t defeat the argument, but it might lessen its appeal since those alternatives would be the better bet. Second, the conclusion to the argument includes an “all else being equal”-clause. It might be possible for someone to argue that, in the case of fMRI evidence, all else is not equal. For example, they could argue that judges and juries are known to overvalue the results of fMRI studies, hence the admission of fMRI lie detection might do more harm than good. Schauer actually looks at this objection in the article, suggesting that it is ineffective, but I won’t cover that discussion here. I think this issue actually deserves a more detailed consideration, which I may (if the mood takes me) cover in a future post.


4. Conclusion
To sum up, Schauer’s thesis is that the admissibility of fMRI lie detection evidence cannot be determined solely on scientific grounds. He makes his case for this thesis with two arguments. The first — the probative context argument — claims that techniques with (scientifically) unimpressive accuracy rates might still be desirable in the legal setting. This is because the value of evidence varies with the probative context. The second — the epistemic progress argument — claims that even if fMRI evidence is not particularly reliable, its use in the law might nevertheless be desirable if it can raise the epistemic efficiency of the legal system. This, he argues, is something it could well do given that existing methods for solving the false testimony problem are rather weak.

Third Anniversary

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I almost forgot, but then I remembered. My first post on this blog was on Wednesday the 9th of December 2009. That makes this blog 3 years old today. I'm as shocked as anyone to find that my interest has been sustained over that time period.

Schauer on (fMRI) Lie Detection in the Law (Part One)

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Regular readers of this blog will be aware of my interest in scientific evidence and law. As part of that interest, I have spent some time looking at the potential uses of neuroscience-based lie detection (or memory detection) tests in the law. In this post, I take up this interest again by looking at a recent article by Frederick Schauer entitled “Lie-Detection, Neuroscience and the Law of Evidence”.

The article is notable in two respects. First, it is an attempt by a leading scholar in the philosophy of law to weigh-in on an important issue in the study of “neuroscience and the law”. Second, unlike many who have written about this issue in the past, Schauer thinks that neuroscience-based lie detection could have an important role to play in the legal context, even in its present form. This sets him apart from others who, though noting the potential, typically deem such technologies “nascent” or “not yet ready” for legal use.

Schauer has pushed this case in the past, but the above-named article is his latest and most perspicuous defence of it. Over the next two posts, I want to clarify and formally reconstruct what I take to be the two major arguments in Schauer’s article. These are the probative context argument and the epistemic progress argument. To set these two arguments up, I first give some background on the use of evidence in the law, and on the history of the lie detector test. I then proceed to outline both arguments and address the key premises of each.

This post focuses on the background and history, leaving discussion of the arguments themselves ’til the second post.


1. Deception, Bias and Solomon’s Problem
Though it has oft been criticised as an inaccurate or incomplete characterisation, I believe it is true to say that most legal reasoning fits within a syllogistic pattern. That is to say, most legal cases revolve around the question of whether something like the following syllogism is true:

• (1) If S did X, then legal consequence Y follows (legal rule)

• (2) S did X (factum probandum) 

• (3) Therefore, legal consequence Y follows (verdict/ruling).

Let’s take a very simple example. Suppose I am being tried for murdering my best friend. The governing legal rule in such a case would be (roughly): if a person (a) performs an act that causes the death of another person; and (b) they performed that act with intention to kill or cause grievous bodily harm, then they are guilty of murder. So if it could then be proved that I did perform such an act, and that I did so with the relevant intention, it would follow that I was guilty of murder.

Now, legal cases can often be more complex than this, with many chains and nests of syllogisms being linked together in one legal trial, but the basic pattern of reasoning remains the same. And it is this pattern, particularly the second premise in this pattern, that is important here. For it is this premise that states the factum probandum — the key legal fact that needs to be proved in each case — and this premise that reveals the allure of lie detection.

We can see this by considering the factum probandum in more depth. In order to prove this fact (or facts, as the case may be), the court relies on evidence. This evidence is usually presented to the court in the form of witness testimony. In other words, witnesses are put before the court to tell the court about what they saw or what they experienced or, exceptionally in the case of experts, to offer opinions about what might have happened. The problem is that, at least in common law systems, the system is adversarial. As a result, both sides present witnesses and these witnesses oftentimes contradict one another. Thus, it becomes difficult for the court to figure out where the truth really lies.

The contradiction is sometimes attributable to honest mistake, but other times is attributable to the strong incentive to mislead the court. After all, no-one likes to lose a legal case; everyone wants to win. This is classically illustrated in the biblical story of Solomon and the two women. One woman, who kills her child by rolling on top of it in her sleep, tries to claim the child of a second woman as her own. The second woman claims the child is really hers. They bring their case to Solomon who is asked to stand in judgment as to which woman should get to keep the child. But both witnesses contradict each other and, in the absence of further evidence, it is difficult to say who is telling the truth. This the problem of “false testimony”.

As we all know, Solomon solves this problem by changing the incentive structure of the case. He calls for the child to be divided in two and shared between the women, believing that this will incentivise the true mother to alter her testimony so as to benefit the lying mother. This she duly does and so she is awarded the child. This solution, though perhaps ingenious, is simply one of many. Another solution would be to have some credible, and reliable device or system for determining whether someone is telling the truth, one that does not rely on clever tricks such as Solomon’s alteration of the incentive structure. A lie detector test could do exactly this, hence its obvious allure in the legal system.


2. The Curious History of the Lie Detector Test
Despite the obvious allure of a reliable lie detector test, courts have typically been wary about admitting their results in legal cases, particularly in the U.S.. This trend was established in the very early days of the polygraph lie detector test. The polygraph test, invented in something like its modern form in 1921 by John Larson, records levels of physiological activity in the autonomic nervous system. In its classic form, it is based on the premise that elevated levels of activity in the autonomic system are reliable indicators of deception.

In a 1923 decision (Frye v. United States), the US Court of Appeals for the District of Columbia deemed that results from an early version of the polygraph test were inadmissible in a court of law. The case was important not just for this verdict, but for the fact that it set out the test for the admissibility of scientific evidence in US courts for the best part of 70 years: the general acceptance test (or Frye test, if you prefer). According to this test, scientific evidence, such as the result of a polygraph, was inadmissible if it was not generally accepted as reliable within the relevant scientific community.

As Schauer notes, the polygraph test has never really recovered from this early blow. Although the test has become more sophisticated, and although new methods of eliciting and identifying physiological signals that are thought to encode “deceptiveness” have come on stream, courts remain ambivalent, to say the least. This is despite its regular use in employment and non-legal settings. In law, doubts are still expressed about the test’s reliability and accuracy, and concern expressed about its potential to “unfairly prejudice” legal proceedings.

The doubts about the lie detector’s legal admissibility have become particularly significant in the past ten years or so. With the advent of neuro-imaging based techniques for lie-detection, coupled with a general fondness within academic and media circles for all things law and neuroscience-related, the debate about the admissibility of lie detection has caught the public eye once more. Several companies now offer fMRI-based lie detection services for use in legal trials, and some scientists argue strongly in favour of its forensic utility. But they have been met with fairly stiff opposition from other scientists and, indeed, from the courts. The most famous instance of this coming in the 2010 decision in United States v. Semrau which declared that the results of an fMRI-based test were inadmissible under the Daubert test for the admissibility of scientific evidence (this being the new, more sophisticated test that replaced the one put forward in Frye).

But is this scepticism warranted? Should courts be so reluctant to admit the results of an fMRI-based lie detection test? Or, indeed, any of the more modern variants of the test? Schauer suggests not. And we’ll see why he suggests this in part two.

Can death be a fitting punishment?

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This post is going to be about death, retribution, and the relationship between the two. It’s the last post I’m going to do on the philosophy of punishment for a while, but it deals with a significant claim that I’ve danced around in previous posts without addressing head on. What is that claim? It is the claim, common to at least some retributivist defenders of capital punishment, that death is the appropriate punishment for certain kinds of crime (most obviously: murder). But is this right? And how do we decide?

To set things up, we need to consider the basic thesis of the retributivist, which I’ll summarise as follows:

Retributivism: If a person engages in a culpable wrong of type X, then it is right and proper (perhaps obligatory) for them to be punished in a manner that befits that type of wrongdoing.

There are two key parts to this thesis. The first is the notion that punishment is intrinsically good. That is: good irrespective of its broader consequences. This is why it is right and proper (perhaps obligatory) to punish those who engage in culpable wrongdoing. The second is the notion that punishment must satisfy some fittingness-relationship. That is, to use a common formulation: the punishment must fit the crime (note “crime” is perhaps a little narrow since retributivism could cover all types of wrongdoing not just criminal wrongdoing, but that’s by-the-by since we will be focusing on criminal wrongs in the remainder of this post).

It is this second part of the retributivist thesis that I want to focus on today. For it is this part that motivates retributive justifications of the death penalty. Only if death is the fitting punishment for particular crimes will it be right to recruit retributivism in support of capital punishment. But there’s an immediate problem here: the notion of a “fitting punishment” looks to be somewhat vague. To justify their defence of the death penalty, retributivists will need provide some specification of the fittingness-relationship between a crime and a punishment that clearly implies that death is the appropriate punishment. Can they do this?

In the remainder of this post, I’ll try to answer this question by looking at two specifications of the fittingness-relationship. The first — called the “punishment-in-kind” version — is generally thought to be unacceptable even though it could justify the death penalty in particular cases. The second — called the “qualitative matching” version — looks to be more morally acceptable, but it faces problems of abstraction that weaken it’s ability to support the death penalty. And although I’ll refrain from drawing any broader implications from this, it does suggest that a retributivist might (a) struggle to justify the death penalty; or (b) consistently reject it.

[Source Note: This post is cobbled together from a variety of sources and personal reflections on the topic, but is heavily indebted to Jeremy Waldron’s article “Lex Talionis”]


1. The Punishment-in-kind Version
Here’s the first attempt to refine the fittingness-relationship:

Punishment-in-kind Principle: If a person engages in a culpable wrong of type X, then the fitting punishment is for a wrong of type X to be visited upon them.

The use of the word “type” is significant in this definition. In act theory, there is a distinction drawn between act types and act tokens. Roughly, an act type is a general classification or description, whereas an act token (or tokens) is a particular performance of an act type. To give an example, “buying a house” is a general act type, which is performed by the specific act tokens of me taking out a mortgage with my bank, and signing various contracts on a particular day. The same act type could be performed in myriad different ways by different people and at different times.

Some of the subtleties are irrelevant here. The important point is that the punishment-in-kind principle says that whenever a person performs a token of a particular general type of wrong, the same type of wrong must be performed to them. This seems to provide obvious support for the death penalty, at least on some occasions. If A stabs B to death, or if A shoots B, then A has performed the wrong of killing another. Therefore, by the punishment-in-kind principle, the fitting response is for them to be killed. Simple as that, right? The basic logic is illustrated in the diagram below. Two different murders are grouped within the same act type (which is clearly morally wrong) and therefore warrant the same response.

The problem is that the punishment-in-kind principle seems to lead to both practical and moral absurdities. Consider, for instance, the serial killer who has killed multiple people. Is the fitting response for them to be killed, revived and killed again for the relevant number of times? This would seem infeasible (though one could imagine a crude analogue in which the person has their heart stopped for a few minutes, before being revived and undergoing the process again). What about the killer who tortured his victim first? Should he be tortured and then killed? Or how about the rapist, should he be raped as punishment for his wrongdoing?

Superficially, the punishment-in-kind principle seems to warrant these responses. But this is surely absurd. A system of punishment that followed the principle to these extremes would seem unwarranted and downright inhumane. Nobody in their right mind could think it intrinsically good for the government to subject serial rapists to multiple rounds of rape.

So goes the standard objection to the punishment-in-kind principle. It leaves the retributivist with two options. Either bite the bullet and accept these troubling implications, while at least preserving their ability to justify the death penalty in some scenarios. Or seek an alternative specification of the fittingness-relationship that avoids these unpalatable consequences, hoping that the justification of the death penalty remains intact. We consider this possibility next.


2. The Qualitative Matching Version
Here’s the second attempt to specify the fittingness-relationship:

The Qualitative Matching Principle: If a person engages in a culpable wrong of type X, then the fitting punishment is for an act that qualitatively matches the wrong-making properties of X to be performed to them.

The tools of act theory can be used to flesh this principle out as well. Previously, we limited ourselves to one level of abstraction when seeking the fitting punishment. That is to say, we grouped particular act tokens — stabbing to death in one case, shooting in another — together into the general act type of killing. We then said that replicating this general act type would be the fitting response to those act tokens. This was to engage in one-level of abstraction in the search for fitting punishment (from the particular act tokens to the general act type).

But we could have gone further. We could have asked: what are the properties of the act type of killing that makes particular tokens of that act wrong? There are many different accounts of this. For instance, it could be that the general act type of killing is wrong because it exemplifies the even more general wrong of “permanently denying someone the capacity to consciously self-direct their life” or of “irreversibly terminating a person’s opportunity for future positive experiences”. If we looked for fitting punishments in these higher levels of abstraction, the goal of punishment would be to come up with some practice that qualitatively matches these kinds of wrongs.

We’ll return to these specific accounts of the wrongness of killing in a moment. But for now let’s consider whether this approach solves the problems with the punishment-in-kind principle. As we saw, the problem with that principle was that, if followed strictly, it seemed to warrant extremely harsh and inhumane forms of punishment. This was because the punishment had to replicate the general act type of the wrongdoer, as in the raping the rapist counterexample. Arguably, this problem was caused by the fact that it limited itself to the first level of abstraction. If we jumped to a higher level of abstraction, we wouldn’t have to resort to inhumane punishments of this sort. Thus, the wrongness of rape could be that it exemplifies the more general wrongs of “violating autonomy” or “domination and exploitation”. It is possible to replicate those wrongs in a punitive act without actually trying to rape the wrongdoer.

I don’t want to belabour this example too much because it merely meant to illustrate how the qualitative matching principle might work. The key question here is whether the principle supports the death penalty. The answer is far from clear. If we think the wrong-making property of killing is that it permanently denies someone the capacity for conscious self-direction, then punishments short of death may be fitting. For instance, inducing coma might do the trick. Likewise, if we think the wrong-making property of killing is that it irreversibly terminates the opportunity for future positive experiences, then life in prison, under harsh conditions, without the possibility of parole, might do the trick.

The point is that once we jump to the higher levels of abstraction, the wrongness we are trying to match will be capable of being exemplified in many different kinds of act tokens. That is the usual effect abstraction: it groups more and more discrete phenomena together under a general category or label. As a result, the justifiability of the death penalty becomes less immediate. The defender will need to show how alternative types of punishment, which seem to qualitatively match the wrongness of the crime, actually fail to do so and that only death lives up to the demands of the principle. That’s a difficult task since it requires the exhaustive consideration of all the possible alternatives.


3. Conclusion
To sum up, the retributivist defender of the death penalty bases their defence on the claim that death is the fitting punishment for certain kinds of crime (most obviously: murder). The problem with this claim is that the notion of a “fitting punishment” is vague. One way to specify it would be to appeal to the punishment-in-kind principle of fittingness. But, as we saw, this seems to lead to absurd and unwelcome conclusions. Such as: the fitting punishment for a torture-murderer is for them to be tortured and then murdered, or the fitting punishment for the serial rapist is for them to repeatedly raped.

One suggested diagnosis of the problem with the punishment-in-kind principle is that it limits itself to one level of abstraction in the search for the fitting punishment. If it were reformulated so as to allow a search through higher levels of abstraction, the absurd and unwelcome forms of punishment could be avoided. But once we do this, as we did with the qualitative matching principle, it becomes much less clear that death is uniquely warranted by retributivism. Thus, the earlier claim seems to hold: it is possible for a retributivist to (a) struggle to justify the death penalty; or (b) consistently reject it.