The Pragmatic Turn in Law : Inference and Interpretation in Legal Discourse
In legal interpretation, where does meaning come from? Law is made from language, yet law, unlike other language-related disciplines, has not so far experienced its “pragmatic turn” towards inference and the construction of meaning. This book investigates to what extent a pragmatically-based view of linguistic and legal interpretation can lead to new theoretical views for law and, in addition, to practical consequences in legal decision-making. With its traditional emphasis on “the letter of the law” and the immutable stability of a text as legal foundation, law has been slow to take the pragmatic perspective: namely, the language-user’s experience and activity in making meaning. More accustomed to literal than to pragmatic notions of meaning, that is, “in” the text rather than constructed by speakers and hearers … the disciplines of law may be culturally resistant to the pragmatic turn. By bringing together the different but complementary perspectives of pragmaticians and lawyers, this book addresses the issue of to what extent legal meaning can be productively analysed as deriving from resources beyond the text, … beyond the letter of the law. This collection re-visits the feasibility of the notion of literal meaning for legal interpretation and, at the same time, the feasibility of pragmatic meaning for law. Can explications of pragmatic meaning support court actions in the same way concepts of literal meaning have traditionally supported statutory interpretations and court judgements? What are the consequences of a user-based view of language for the law, in both its practices of interpretation and its definition of itself as a field? Readers will find in this collection means of approaching such questions, and promising routes for inquiry into the genre- and field-specific characteristics of inference in law. In many respects, the problem of literal vs. pragmatic meaning, confined to the text vs. reaching beyond it, will appear to parallel the dichotomy in law between textualism and intentionalism. There are indeed illuminating connections between the pair of linguistic terms and the more publicly controversial legal ones. But the parallel is not exact, and the linguistic dichotomy is in any case anterior to the legal one. Even as linguistic-pragmatic investigation may serve legal domains, the legal questions themselves point back to central conditions of all linguistic meaning.
The chapter addresses several dilemmas associated with the semantic structure of legal concepts denoting proprietary and other legal relations, which pose difficulties in cross-lingual conveyance. Legal meaning is claimed to represent a text-external convention applied by the legal profession as default knowledge. Such default knowledge is ascribed to legal concepts from within respective fields of law; it is arranged in elaborated hierarchies with sophisticated linkages and correlations among those concepts. Conceptual content of certain terminologies can evolve over time to meet evolving legal relationships in any one jurisdiction, as the case of ‘chattels’ reveals. Instances of conceptual conventions are profiled by applying a ‘referential portraying’ method, however even scarce data can be indicative of conceptual collisions between different types of meaning within one word-form. The term ‘referential elasticity’ is introduced to highlight semantic properties of technical terms of law and to emphasize their pragmatically-conditioned nature. An English–Russia language pair is employed for a cross-lingual analysis based on lexicographic data. The case studies of grammaticalized pragmatic meaning illustrate the value of pragmatic theory applications to real-life legal discourse. In legal translation, pragmatic factors appear to make cross-linguistic transposition of legal knowledge a complicated task.