This vast field has been much studied by jurists and philosophers over the millennia, but only recently through the use of resources that can be borrowed from the development of “pragmatics” as a discipline of 20th century linguistics and philosophy of language. Much recent work on the pragmatics of legal language has focused on Gricéan and post-Gricéan pragmatics as a source of understanding of the theory of legal interpretation (see, for example, Marmor 2008, 2014, Soames 2008, Ekins 2012 (see in particular pp. 205-211), Carston 2013, Solum 2013; for Gricéan and post-Gricéan pragmatics, see Pragmatics). Bentham and John Austin knew that there are legal rules that are not established in language. Preserving their vision of law as the meaning of the will, they explained these laws as tacit orders of the sovereign. This entangled device cannot provide the resources to explain the existence of a standard. Under the right circumstances, it is certainly possible to communicate without signs (and in particular, it is possible to convey a will supported by a threat of violence by not saying or writing anything). But silence can only be a means of communication if circumstances give it meaning. We can say that a tacit order has only been given if it is possible to identify the characteristics of the situation that distinguish tacit communication from simple inaction that communicates nothing (see Hart 2012, 45-48). These features usually do not accompany the usual rules (in fact, they usually do not accompany the usual rules). The problem encountered in cases such as Garner v Burr is a particularly striking reminder of a problem of which philosophers of language have long been more or less aware (see Aristotle`s discussion of the term “friendship” in Eudemian Ethics VII, 2, 1236a 33). Contextual dependence on the meaning of utterances requires consideration of language competence, which links it to other human capacities – the ability to judge the meaning of context and to make analogies. It would be a philosophical error to explain language in a way that separates its mastery from other aspects of reason.
This link between the use of language and reason is also illustrated by the contentious nature of the use of language in law. Many works of philosophers of language on pragmatics have dealt with the conditions of understanding a statement; Legal disputes over language remind us that these conditions – while they are conditions of comprehensibility of communication – lend themselves to disagreements and reasoned disputes over how a statement should be understood (see Carston 2013, for a discussion of controversies over the application of conversational maxims). The peculiarity that distinguishes legal language from ordinary conversation is not that participants in a legal system act strategically while participants in ordinary conversation act cooperatively; The peculiarity is that, in order to achieve the ideal of the rule of law, legal systems need institutions and processes to resolve disputes about the effect of the use of legislative language arising from their contextual dependence and other pragmatic aspects of communication. It is true that in order to decide what the sources directed (and thus, in Raz`s words, must identify the existence and content of a law), one must understand the meaning in which a word such as “vehicle” is used. But the existence and content of the offence can still be established without first assessing whether doing what Mr. Burr has made or should be a driving offence without tires. The source`s thesis articulates this important finding: under English law, there was no criminal offence of driving without tyres (if it would be a good idea to call it a criminal offence) until the legislature acted to create the offence. And then it became a criminal offence because Parliament had done it (whether it was a good idea or not). If the legislation had not been prepared to treat the chicken coop as a vehicle, it would have been wrong (after a decision with previous effect) to say that it was a criminal offence to pull a chicken coop on iron wheels on the road. The law is reflective in that it gives legal institutions the legal authority to identify the law. Therefore, court decisions determine legal rights and obligations.
A law could therefore be said to be source-based if its existence and content can be identified solely by reference to social facts, without resorting to any evaluative argument, except for any other evaluative argument necessary to determine the social facts or to determine their implications for the present case. Once you have learned the legal meaning of words, you are expected to use them accurately. Replacing one with the other can lead to serious mistakes and misunderstandings. The legal meaning of words is the common language of lawyers and judges who rely on this language to communicate efficiently and effectively. Despite these reservations, some theorists reject the communication model. They argue that the determination of legal rights and obligations cannot be based solely on facts such as the fact that an authority has communicated this or that. This section deals with theories that attempt to base the law on something more worthy than mere words. And we will have to ask whether these theories can explain the multiple normative powers that legal systems confer on institutions, agencies, and individuals. A law is therefore not a set of signs, and the law is not necessarily made by the use of language, and every legal system has norms that were not made by the use of language. Laws are not linguistic acts.
Laws, one might say, are standards of conduct that can be communicated through language (and some of which are made). But this, too, is controversial among writers about the interpretation of the law. The team analyzed thousands of contracts with more than three million words on other types of writing, such as film scripts, newspaper articles, and academic papers. With Center-Embedded, researchers found that using unnecessary legalese makes it harder for people to understand what their contract says. “It`s no secret that legal language is very difficult to understand. It`s often borderline incomprehensible,” says lead author Edward Gibson, a professor of brain and cognitive sciences at MIT, in an academic publication. “In this study, we document in detail what the problem is.” Ronald Dworkin argued that Hart`s emphasis on language had a toxic effect on the philosophy of law. He wrote that Hart suffers from a “semantic sting” because he mistakenly thought “that all lawyers follow certain linguistic criteria in judging legal principles” (Dworkin 1986b, 45; see section 6.1 below). This argument in philosophy of language has given rise to much debate in philosophy of law (see, for example, Coleman`s essays, 2001). There are insurmountable objections to Bentham`s idea that a law is a set of signs. Law (in the relevant sense) is the systematic regulation of the life of a community through norms considered binding on the members of the community and its institutions. A law is a norm that is part of such a systematic form of regulation.
Many of these norms do not have canonical linguistic formulation (that is, any form of words that, according to the law, determines the content of the norm). Lawyers in common law systems are familiar with these norms: murder can be a criminal offense (or defamation can be a misdemeanor, or some agreements can be enforceable as contracts…), not because a person or institution expresses a rule that it should be so, but because the institutions of the legal system generally treat murder as a criminal offense (or defamation as a crime…). Moreover, common law systems cannot be distinguished from legal systems consisting solely of linguistic acts, since no legal system consists solely of linguistic acts. A civil justice system with a civil code and a penal code can make murder a criminal offense (and defamation a crime…) by a written act, and it can be a written constitution that gives the force of law to the civil code and the penal code. But the validity of the written constitution will depend on a norm that is not created by the use of signs: the rule that the action of the authors of the constitution to use this text to determine the constitution must be treated as authoritative. [2] Bentham presented his theory as a definition. By focusing their attention on the meaning of the most important concepts of legal discourse, Bentham and John Austin were ahead of their time. But it has become a common view in legal theory (though still controversial) that they have been misguided in trying to define these terms.