## 1. Historical introduction



Systematic efforts to use philosophical insights about language to
solve problems in philosophy of law are relatively recent. Jeremy
Bentham was perhaps the first to make a deliberate attempt at it. He
developed a radically empiricist theory of the meaning of words, which
supported his utilitarianism and his legal theory.



Bentham wanted to abandon what he considered to be a nonsensical
mythology of natural rights and duties--that is, moral rights and
duties that people have regardless of whether anyone is prepared to
enforce them. He wanted, instead, to explain the nature of law by
reference to 'sensible' phenomena (Bentham 1782, 251-2,
283n.). Linguistic acts struck him as respectably empirical phenomena,
and he made them an essential element of his theory of law. He based
his
 'legal positivism'
 on his claims about the meaning and use of words.



Language had not been especially important to the
 natural law
 theorists whose views Bentham despised. They accounted for a law as a
certain sort of reason. From that perspective, philosophy of language
has no special role in explaining the nature of law. Philosophy of
language cannot explain the nature of reasons; it has the ancillary
role of explaining the possibility of communicating reasons and the
possibility of creating reasons by the use of language (so that
natural law theorists have the same reason as others to seek a good
account of the legal effects of the use of language, and of the role
of courts in resolving disputes over it). Bentham, by contrast,
fastened on the 'sensible' phenomenon of a perceptible,
intelligible linguistic act for his purpose of expounding the nature
of law by reference to empirical phenomena.



Bentham seems to have thought of the meaning of a word in causal
terms, as its capacity to act on a subject by raising an image of
perceptible substances or emotions for which, he said, the word was a
name. 'By these general terms or names, things and persons,
acts, and so forth are brought to view...' (Bentham 1782,
82; see also Bentham 1776, 28, 108n). Words that do not bring to view
such perceptible things have no meaning, on his theory, except insofar
as they can be expounded by
'paraphrasis'--Bentham's method of translating
whole sentences in which those words are used into sentences that do
raise images of perceptible things.



To many legal theorists that approach appeared, as H.L.A. Hart put it,
'as a revelation, bringing down to earth an elusive notion and
restating it in the same clear, hard, empirical terms as are used in
science' (Hart 2012, 84). The theory supported not only
Bentham's empiricism, but also his utilitarianism, because it
privileged what he viewed as the ultimate sensible (and therefore
intelligible) 'affections': the pain and pleasure that
utilitarianism treats as the basis for a theory of value and of
morality.



In his legal theory, this view of language became the basis of an
innovative account of law as the expression of the will of a sovereign
in a political community. Bentham stated it as follows:



> 
> A law may be defined as an assemblage of signs declarative of a
> volition conceived or adopted by the *sovereign* in a state,
> concerning the conduct to be observed in a certain *case* by a
> certain person or class of persons, who in the case in question are or
> are supposed to be subject to his power... (Bentham 1782, 1)
> 



He went on to explain that the signification of volition by such an
assemblage of signs must be backed by 'motives' of pain or
pleasure offered by the sovereign.



Two features of this theory tie the philosophy of law to the
philosophy of language. One feature is methodological, and the other
is substantive. First, Bentham proposes his theory as a definition of
the term *a law* (see section 6.1 below, on 'Definition
as a methodology in philosophy of law'). Secondly, he defines a
law as a particular kind of assemblage of signs (see section 2.1
below, on 'Law and Signs'). In Bentham's view, a law
is an assemblage of signs, and legal philosophy is a form of
philosophy of language. The legal theorist has a linguistic task of
defining the terms (especially *law*, but others as well) of
legal discourse.



That, in brief, is the apogee of the use of philosophy of language in
philosophy of law. Bentham was ahead of his time. His theory of the
meaning and use of words anticipated various trends in
twentieth-century philosophy of language (including Frege's and
Wittgenstein's 'context principle', some views of
logical positivists, and the development of speech act theory). It was
H.L.A.Hart who, in the 1950s and 1960s, made a concerted effort to use
twentieth-century developments in philosophy of language to
'elucidate' the nature of law. He did so with an
enthusiasm for the work of Wittgenstein, and also of the Oxford
philosophers J.L.Austin and Paul Grice. So Hart had some advantages
over Bentham. Wittgenstein's *Philosophical
Investigations* had been directed against the view that a
word's meaning is the thing for which it stands as a name. That
was one of the misconceptions that distorted Bentham's theory of
the meaning of words: he thought that a word like 'right'
had to be a name for an entity, and that since no such entity could be
sensed, the word was a name for a 'fictitious
entity' (Bentham 1782, 251). And J.L.Austin took an
attitude to ordinary discourse that was quite opposed to that of
Bentham, who thought that philosophy must tear away the 'veil of
mystery' that ordinary language throws over every object of
study (Bentham 1782, 251). Wittgenstein's attitude was more
complex: he thought both that philosophers create philosophical
problems by bewitching themselves with language, and also that a clear
understanding of the use of language could provide healthy therapy for
people suffering from philosophical problems. Taking advantage of the
insights of Wittgenstein and J.L.Austin, Hart aimed to put philosophy
of language to work in addressing problems of legal philosophy,
without making what he regarded as Bentham's extravagant
mistakes.



In 1961, Hart's book *The Concept of Law* raised issues
that have occupied legal philosophers ever since. He borrowed J.L.
Austin's method of 'using a sharpened awareness of words
to sharpen our perception of the phenomena' (Hart 2012, v, 14).
Hart's observations about the use of language in law were
elements in an innovative approach to explaining the normativity of
law--that is, the fact that law presents itself as conferring
rights and powers and as imposing obligations and liabilities. Hart
argued that we can understand that feature of law more clearly, if we
understand where Bentham and his nineteenth-century disciple
 John Austin
 (not to be confused with J.L.Austin) went wrong in explaining the
meaning and use of normative language. Hart's new approach to
the issue has been a starting point for discussions of the normativity
of law since the 1960s (see section 6.2 below).



Ronald Dworkin argued that Hart's focus on language had a toxic
effect on legal philosophy. He wrote that Hart suffered from a
'semantic sting', because he wrongly thought 'that
lawyers all follow certain linguistic criteria for judging
propositions of law' (Dworkin 1986b, 45; see section 6.1 below).
That argument in the philosophy of language has set an agenda for much
debate in philosophy of law (see, for example, the essays in Coleman,
2001).



Because of the allure of philosophy of language, and partly as a
result of the influence of Hart, the use of philosophy of language in
philosophy of law became the focus of much jurisprudential thought and
debate in the 20th century. One notable example is the work of Jerzy
Wroblewski, a Polish legal theorist who developed a
'semantic conception of a legal norm' (Wroblewski
1983), and offered a theory of legal language as a sub-type of natural
language with multiple 'fuzzy' characteristics
(Wroblewski 1985). In Italian analytical legal philosophy, the
influential theorist Norberto Bobbio began in the 1950s 'to
consider law as a language and legal science as a meta-language'
(Pintore and Jori 1997, 3), in service of a theory of law based on a
non-cognitivist moral theory. Two succeeding generations of Italian
legal theorists have engaged in 'dispute on semiotic ground,
rather than directly by arguments of general legal philosophical
positions' (Pintore and Jori, 17).



That development was one instance of the widespread use of views about
language in debunking conventional views about law in the 20th
century. Perhaps this development resulted not so much from the
influence of Bentham's own writings, as from pursuit of the same
search that he undertook, for ways of identifying the elements of law
that suit empiricist philosophical sensibilities. The energetic
20th-century school of 'Scandinavian legal realism' viewed
legal terms like 'right' as 'lacking semantic
reference' and 'denoting nothing'. So they
considered statements asserting the existence of rights, duties, and
other legal relations to be incapable of being true or false
(Olivecrona 1971, 246, 255, 261). They variously explained the use of
such statements as attempts to perform magical incantations, or as
tools for taking advantage of the psychological conditioning that
leads officials and citizens to act in one way or another when they
hear such statements (see the outline of Scandinavian realism in
Olivecrona 1971, 174-182, and see Ross 1956; see also section
5.1 of the entry on
 naturalism in legal philosophy).



Similarly, various strands in the influential American legal academic
enterprise of 'economic analysis of law' share
Bentham's debunking attitude toward central legal terms such as
'right' and 'obligation'. Like Bentham, some
economic analysts oscillate (or equivocate) between (1) a moral theory
that reduces those normative terms to terms describing maximization of
human satisfactions, and (2) a theory that does not engage in moral
argument, but only claims to describe human motivation, accounting for
terms such as 'right' and 'obligation' as
rhetorical epithets that agents use to pursue what they will (see the
entry on the
 economic analysis of law,
 section 2.2).



Not all legal sceptics have been driven by the empiricism of Bentham
and the Scandinavians. Many other forms of scepticism about law have
also sought support in scepticism about the meaning of language.
Attacks on the coherence of the idea of the rule of law, and on the
meaningfulness of legal discourse, have used ideas in the philosophy
of language as diverse as Saul Kripke's interpretation of
Wittgenstein's remarks on rule following (see section 3.1 of the
entry on
 interpretation and coherence in legal reasoning),
 and deconstruction (see Endicott 2000, chapter 1).


## 2. The use of language in law


### 2.1 Law and signs



There are insurmountable objections to Bentham's idea that a law
is an assemblage of signs. Law (in the sense that is relevant here) is
the systematic regulation of the life of a community by standards
treated as binding the members of the community and its institutions.
A law is a standard that is part of such a systematic form of
regulation. Many such standards have no canonical linguistic
formulation (that is, no form of words which, according to law,
determines the content of the standard). Lawyers in common law systems
are familiar with such norms: murder may be a criminal offence (or
slander may be a tort, or certain agreements may be enforceable as
contracts...), not because of the expression by any person or
institution of a rule that it should be so, but because the
institutions of the legal system customarily treat murder as an
offence (or slander as a tort...). Moreover, common law systems cannot
be distinguished from legal systems consisting only of linguistic
acts, because no legal system consists only of linguistic acts. A
civil law system with a civil code and a criminal code may make murder
an offence (and slander a tort...) by a written act, and it may
be a written constitution that gives legal force to the civil code and
to the criminal code. But the validity of the written constitution
will depend on a norm which is not created by the use of signs: the
rule that the constitution makers' act of using *that*
text to set out the constitution is to be treated as
 authoritative.[2]



Bentham and John Austin knew that there are rules of law that were not
laid down in language. Preserving their view of law as signification
of volition, they accounted for such laws as *tacit* commands
of the sovereign. That convoluted device cannot provide the resources
needed to explain the existence of a norm. In the right circumstances,
it is certainly possible to communicate without using signs (and in
particular, it is possible to convey a volition, backed by a threat of
force, just by saying or writing nothing). But silence can only be a
means of communication when the circumstances give it a meaning. We
can say that a tacit command has been issued only if it is possible to
identify features of the situation that distinguish the tacit
communication from mere inaction communicating nothing (see Hart 2012,
45-48). Those features do not generally accompany customary
rules (in fact, they generally do not accompany customary rules).



There is another conclusive objection to the idea that a law is an
assemblage of signs. When a lawmaking authority does use language to
make a law (as when a legislature uses a lawful process to pass an
enactment that is within its powers), the resulting law is not an
assemblage of signs. When I write you an email message to make a
request, the message is an assemblage of signs, but the request is not
an assemblage of signs; I used the assemblage of signs to make it. The
law that results from the use of language in an enactment is a norm or
norms whose existence and content are determined by the legal effect
that the law ascribes to that use of an assemblage of signs (see Von
Wright 1963, Chapter VI, on the distinction between norm formulations
and norms).



A law, therefore, is not an assemblage of signs, and 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, you may say, are standards of behaviour that
can be communicated (and some of which are made) by using language.
But even this is controversial among writers on legal
interpretation.


### 2.2 Language and legal interpretation



What is the relationship between the language that is used to make
legal standards, and the law itself? If the law provides that a form
of words determines the content of a standard (such as a term of a
contract, or a criminal offence, or a duty of the executor of a will),
what is the effect of the use of the words? The question seems to
demand general theories of the meaning of language and of the
interpretation of communicative acts. If there are no general theories
to be had, then there is no general answer to the question. A theory
of meaning and interpretation of legal language would not be very much
less general than a theory of meaning and interpretation of
language.



Legal theorists have tried to construct theories of the meaning of
legal language, and theories of legal interpretation, based on
specific features of law, of legal systems, and of the use of language
in making law. The entries on
 constitutionalism
 (see section 7, 'Constitutional Interpretation'),
 interpretation and coherence in legal reasoning,
 legal interpretation,
 legal interpretivism,
 the nature of law, and
 naturalism in legal philosophy
 all address theories of legal interpretation. This section addresses
features of language that raise challenges for philosophy of law and
for philosophy of language. Any good account of the legal effect of
the use of language in law making depends on the context of its use
(addressed in this section). Section 2.3 addresses
'pragmatic' effects of language use, such as
context-dependence, which have long been the matter of jurisprudential
debate; recently the use of Gricean and post-Gricean
 pragmatics
 has become a major field of debate among philosophers of language and
philosophers of law. These pragmatic features of communication raise
insuperable difficulties for any attempt to give a true account of
legal interpretation that is well enough organised to deserve to be
called a 'theory'. Debates over the pragmatics of legal
language are often premised on the view that the effect of a lawmaking
use of language is that the content of the linguistic communication in
question determines the content of the law. But we will see in section
3 that even this premise is controversial; it has been denied by
theorists who account for the law as being determined by moral reasons
for conclusions as to what rights, duties, powers, and liabilities
people have, given the facts of legal practice and history.



As an instance of controversy over the effect of the use of language
in law, consider the case of *Garner v Burr* [1951] 1 KB 31.
The legislature had made it an offence to use a 'vehicle'
on a road without pneumatic tires. Lawrence Burr fitted iron wheels to
his chicken coop, and pulled it down the road behind his tractor. Burr
was prosecuted under the statute. The magistrates acquitted him,
apparently on the ground that a chicken coop is not a
'vehicle'. The appeal court reversed that decision. The
Lord Chief Justice wrote,



> 
> The regulations are designed for a variety of reasons, among them the
> protection of road surfaces; and, as this vehicle had ordinary iron
> tyres, not pneumatic tyres, it was liable to damage the roads. [The
> magistrates] have put what is in my opinion too narrow an
> interpretation on the word 'vehicle' for the purposes of
> this Act. It is true that, according to the dictionary definition, a
> 'vehicle' is primarily to be regarded as a means of
> conveyance provided with wheels or runners and used for the carriage
> of persons or goods. It is true that the [magistrates] do not find
> that anything was carried in the vehicle at the time; but I think that
> the Act is clearly aimed at anything which will run on wheels which is
> being drawn by a tractor or another motor vehicle. Accordingly, an
> offence was committed here. It follows that [the magistrates] ought to
> have found that this poultry shed was a vehicle within the meaning of
> s. 1 of the Road Traffic Act of 1930. ([1951] 1 KB 31 at 33)
> 



The magistrates and the appeal court seem to have disagreed over the
effect of two principles: a principle that statutes should only be
read as imposing criminal liability if they do so unequivocally, and a
principle that the purposes for which Parliament passed the statute
should be pursued. Assume that those principles are *legal*
principles, in the sense that a decision in accordance with the law
must respect them. The apparent tension between the principles might
be resolved in one of the following two ways. We do not have the
magistrates' reasons, but let's presume that they resolved
the tension in the first way; the appeal court resolved it in the
second way:



> 
> 1. by concluding that Parliament's purposes can be respected
> appropriately while still construing the prohibition narrowly (so that
> it is no offence to pull a chicken coop down the road on iron wheels,
> because the chicken coop is not *undeniably* a vehicle), or
> 
> 
> 2. by concluding that Parliament's purpose is sufficiently clear
> that it can be pursued by convicting Mr.Burr, without jeopardising the
> principle that criminal liabilities ought to be clearly spelled out,
> even if someone might reasonably claim that a chicken coop on wheels
> is not a 'vehicle'.
> 
> 
> 



It may seem that this common sort of disagreement tells us nothing
about language, except perhaps that language is of no particular
importance in law. It may seem that the two courts did not disagree
over any question of language (after all, everyone involved was
competent in English), but only over whether they ought to give effect
to Parliament's evident purpose of protecting roads by
convicting Mr.Burr, or whether that would be unfair to him.



One explanation of the decision would be that the appeal court ignored
the word 'vehicle', and treated the pneumatic tires rule
as if it applied to anything that moves on wheels (instead of applying
to vehicles, which is what the legislation said). But the Lord Chief
Justice did not explain his decision that way. He did not hold that,
because Parliament aimed to protect roads from iron wheels, Burr
should be convicted regardless of the meaning of the word
'vehicle'. He held that the magistrates ought to have
found that the chicken coop *was* a vehicle, 'for the
purposes' of the Road Traffic Act. Presumably the magistrates,
too, considered themselves to be giving effect to the language of the
Act, rather than ignoring (in the interests of fairness) what
Parliament had enacted.



No doubt, legal decisionmakers sometimes depart from what the
legislature provided in a valid enactment (or a testator provided in a
valid will...). They may do so corruptly, or in the exercise of an
equitable jurisdiction to depart from the law, or because they
consider that justice demands it even if the law accords them no power
to depart from the enactment or the will. But in *Garner v
Burr*, the magistrates and the appeal judges evidently saw
themselves as giving effect to the Road Traffic Act. And the sort of
disagreement that arose in that case (disagreement over the legal
effect of the use of a word) is so common that we seem to find a
paradox:



> 
> **The apparent paradox of legislative language:**
> 
> Competent speakers of the English language share a knowledge of the
> meaning of the word 'vehicle', and the law that is made by
> legislation using the word must be determined by the meaning of the
> word, yet English speakers disagree--apparently
> sincerely--over the effect of legislation using the word.
> 
> 
> 



To resolve the apparent paradox of legislative language, we can say
that what speakers of the English language share, in virtue of their
grasp of the meaning of a word like 'vehicle', is an
ability to use the word in a way that depends on the context. The
question of whether a chicken coop on wheels counts as a
'vehicle' would be a different question (and might have a
different answer), if another statute or regulation imposed a tax on
'vehicles'. The relevant considerations might be different
again if a statute or regulation required 'vehicles' to
keep to the left-hand side of the road. The Lord Chief Justice was
right that a dictionary definition of 'vehicle' could not
conclude the question of whether the chicken coop was a vehicle in
*Garner v Burr*, because the purpose of a dictionary definition
is to point the reader to features of the use of the word that can be
more-or-less important in a variety of more-or-less analogical ways in
various contexts. A definition of 'vehicle' as a mode of
conveyance offers the reader one central strand in the use of that
word, but does not tell the reader whether a more-or-less analogical
extension of the word to a chicken coop on wheels is warranted or
unwarranted by the meaning of the word. Another way of stating this
resolution of the apparent paradox of legislative language is by
distinguishing between the meaning of a word (which the magistrates
and the appeal judges all knew) and the way in which a communicative
act using the word ought to be understood (over which they disagreed).
The judges and magistrates in *Garner v Burr* shared a
knowledge of the meaning of the word 'vehicle'; they could
all share mastery of that word, while disagreeing over the effect of
the legislature's use of the word. The evident good sense of
that proposition has led some philosophers to theories that state or
imply that law is not made by the use of language; see section 3
below.


### 2.3 The pragmatics of legal language



The dependence of the effect of legal language on context is an
instance of a general feature of communication, which some
philosophers of language have approached by distinguishing semantics
from pragmatics. The distinction is, roughly, between the meaning of a
word or phrase or other linguistic expression, and the effect that is
to be ascribed to the use of the expression in a particular way, by a
particular user of the language, in a particular context. The
pragmatics of legal language is a vast field, because the term
'pragmatics' could be used as a heading for much of what
modern legal scholars and theorists have described as grounds for
interpretation. In fact, 'pragmatics' could also be used
as a heading for much that they have described as the theory of
interpretation - since 'pragmatics' is a term not
only for effects of communication, but also for the study of those
effects. For example, the work of the judges in *Garner v
Burr* can be described as an exercise in pragmatic inference. The
technical sound of the word 'pragmatics' may suggest that
it is a term for the theoretical study of its object; in fact, the
field of study is what might be inferred from the fact that someone
said what they said in the context in which they said it. No object of
study is less apt for theorising.



This vast field has been much studied over millennia by lawyers and
philosophers, but only recently through the use of resources that may
be borrowed from the 20th-century development of
'pragmatics' as a discipline in linguistics and the
philosophy of language. Much recent work in the pragmatics of legal
language has focused on Gricean and post-Gricean pragmatics, as a
source of insights into the theory of legal interpretation (see e.g.
Marmor 2008, 2014, Soames 2008, Ekins 2012 (see especially pp
205-211), Carston 2013, Solum 2013; on Gricean and post-Gricean
pragmatics, see
 pragmatics).



It is controversial whether legal pragmatics is simply a part of the
pragmatics of language use in general (see Dascal and
Wroblewski 1988). It stands to reason that if the pragmatics of
language use depends on the context of an utterance, the legal context
of a lawmaking use of language will have implications for the meaning
conveyed and, therefore, for the law that is made. Scott Soames has
argued that the question of the relation between the content of the
law and authoritative sources (such as statutes), is 'an
instance of the more general question of what determines the contents
of ordinary linguistic texts' (Soames 2008). It is a popular
idea that when a legislature enacts a statute, 'The content of
the statute is what the lawmakers asserted and committed themselves
to, in adopting the statutory language' (Soames 2008). Speakers
can commit themselves to something that they have not asserted, and
can make assertions in contexts that make it clear that they are not
committed to what they have asserted.



But Andrei Marmor has argued that the pragmatics of legal language is
unique in crucial respects (Marmor 2008), with pragmatic
considerations playing some very significantly lesser role in law than
in other contexts: 'In ordinary conversations, pragmatic
enrichment is the norm, not the exception; in statutory law, it is the
exception' (Marmor 2014, 34). In his view, the Gricean maxims of
conversation, derived from a general principle of cooperation, do not
straightforwardly apply in legislative communication, because
legislative communication is 'strategic' rather than
cooperative (Marmor 2014, 45-57). Likewise, Francesca Poggi has argued
that Grice's theory does not apply to legislation, because of
the 'conflictual behaviour' of those addressed by
legislation (Poggi 2011, 35). As Marmor points out, speakers and
listeners in strategic communication take advantage of uncertainties
in the
 implicatures
 to be derived from pragmatic norms of communication. For present
purposes, we can think of an implicature as a proposition that a
person is to be understood to have conveyed by using language in a
particular way, although it is not expressed by what the person said
(see Grice 1975, 43-4). Speakers may exploit implicatures in order to
avoid asserting what they prefer to implicate, and listeners may
exploit uncertainties concerning implicatures in order to bend the
effect of a communication to their liking. Yet these aspects of
communication are not distinctive to law making. And they depend on
cooperation among participants in the 'conversation' in
question: some degree of cooperation is necessary in order for it to
make any sense for a speaker to take advantage of an implicature, or
for a listener to treat an uncertain implicature as a genuine
implicature.



'Near-side' pragmatics (for Korta and Perry's
distinction between 'near-side' and 'far-side'
pragmatics, see
 pragmatics)
 is a matter of what is said by an utterance; in informal conversation
it involves the use of indexicals and pronominal figures that are
avoided in legislation, and involves the implications of context for
an understanding of the uses of terms. And 'far-side'
pragmatics (determining what is implicated rather than said, and
determining what speech acts are carried out by means of an utterance)
can involve figurative uses of language such as sarcasm, innuendos,
and other techniques that lawmakers avoid. There is some force in
Marmor's claim that pragmatics is different in law. Legislation
systematically avoids many communicative devices that can be so very
useful in other contexts of communication. But those devices are also
avoided in a wide range of other formalized and technical uses of
language--for example, in most wedding invitations, in Wikipedia
articles that have not been hacked, and in well-written instruction
guides for applying for bank account or for operating a rice
cooker.



Yet the pragmatic effects of communication are essential in all of
those formalised contexts of language use, and they are essential to
the legislative use of language. This is true both of
'near-side' and 'far-side' pragmatics. The
discussion of the decision in *Garner v Burr*, above, provides
an illustration of the ways in which the context of a legislative
enactment can determine the reference of terms such as
'vehicle', and this determination of meaning is an aspect
of near-side pragmatics. The dispute over the requirement of pneumatic
tires on 'vehicles' in *Garner v Burr* can be
understood as a dispute over the effect of the context on the content
of the regulatory provision; another way of making the same point is
to describe it as a dispute over the implicatures to be drawn from the
fact of the enactment of that provision. This aspect of the pragmatics
of legal language is simply an instance of the pragmatics of the use
of language in general. It would be very easy to formulate a version
of the apparent paradox of legislative language, discussed in section
2.2 above, in a non-legal context: only imagine that Lawrence
Burr's mother told him not to go driving the farm vehicles down
her driveway without tires.



The role of far-side pragmatics is illustrated by the master
implicature of every legislative act: it is never said in legislation,
but there is always an implicature, that the rights and duties and
powers established by the legislation are to be *legal* rights
and duties and powers, under the law of the jurisdiction for which the
enactment is made (see Endicott 2014, 55). Very many other more
particular lawyers' presumptions serve as maxims of the
pragmatics of lawmaking (such as the presumption that a new enactment
overrides a contrary previous enactment).



It is worth noting, as well, that the diversity of contexts of
communication (even the diversity of conversations that the same two
people may have, let alone all the diversity of exchanges that might
be called 'conversations' by more or less remote analogy)
is so great that the variations among pragmatic aspects of ordinary
conversations are much wider and deeper than any general distinction
that can be drawn between legislative communication as a class, and
ordinary conversations as a class. The use of language in making law
is so closely interwoven with the use of language to exercise
authority in other contexts, and with the use of language in games, in
talk (in many different contexts) of what is right and wrong, and
generally in communication in families and in organisations of every
kind, that the pragmatics of legal language is best seen as a deeply
integral part of the pragmatics of the use of language in general.



It may seem otherwise, because the persons to whom laws are addressed
can be extraordinarily creative in finding ways of fitting the laws to
their own interests, and parties to a dispute over the law tend to
disagree deeply over the effect of the language that has been used to
make law (so that it is not at all unusual for each side to end up
with a deeply-felt conviction that the law is so clearly on his or her
own side, that no reasonable person could think otherwise). So it
seems, as Marmor argues, that the use of language to make law is not
part of a cooperative exchange between lawmakers and the persons to
whom their communications are addressed.



For this very reason, of course, every legal system has tribunals for
the resolution of legal disputes. They are always an integral part of
the system of governance in a state that is ruled by law, although
they very often have various forms of independence from other
institutions of the system. The tribunals or courts typically have
authority to interpret the lawmaking use of language and to determine
its effect in particular cases. Unlike the parties to a dispute,
courts are characteristically involved with the lawmakers in the
enterprise of governance (even where the courts are independent), and
often have their own lawmaking capacities. Their role in the system is
the substratum for a cooperative principle that has even deeper
significance (and somewhat simpler implications) in the operation of a
legal system, than Grice's cooperative principle has in ordinary
conversation. And, of course, that cooperative role of a court in the
legal system constrains the arguments of parties to a dispute: however
strongly they are inclined to twist the language of the law (and
however strongly they may feel that the other side is twisting the
language of the law), they need an argument that will persuade an
institution that is committed, at least in principle, to cooperative
interpretation of lawmaking acts. One way of explaining the decision
in is to say that the Lord Chief Justice cooperated with the
legislature by treating the legislature as having adhered to
Grice's Cooperative Principle: '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' (Grice 1989, 26; for discussion of the principle
see
 Grice).
 Sometimes, as lawyers know well, courts interpret legislation in more
or less non-cooperative ways, and it is not hard to envisage
legislative pathologies (or to identify real life examples of
pathologies) that justify such an attitude on the part of judges. If
courts take a generally non-cooperative attitude to legislation, the
whole legal system suffers from a pathology: an inability to sustain
the rule-of-law values of openness and clarity of the laws.



The problem faced in cases like *Garner v Burr* is an
especially vivid reminder of a problem that philosophers of language
have long been more or less aware of (see Aristotle's discussion
of the notion of 'friendship' in Eudemian Ethics VII, 2,
1236a 33). The context-dependence of the meaning of utterances
requires an account of linguistic competence that relates it to other
human capacities--capacities to judge the importance of context
and to draw analogies. It would be a mistake in the philosophy of
language to account for language in a way that divorces its mastery
from other aspects of reason. That connection between the use of
language and reason is also illustrated by the contentious nature of
the use of language in law. Much work on pragmatics by philosophers of
language has concerned the conditions for understanding an utterance;
judicial disputes over language are a reminder that those
conditions--even though they are conditions of intelligibility of
communication--lend themselves to disagreement and to reasoned
dispute over how an utterance is to be understood (see Carston 2013,
for discussion of controversies over the application of conversational
maxims). The special feature that distinguishes the legal use of
language from ordinary conversation is not that participants in a
legal system act strategically while participants in an ordinary
conversation act cooperatively; the special feature is that in order
to attain the ideal of the rule of law, legal systems need
institutions and processes for resolution of the disputes about the
effect of law-making uses of language that arise as a result of its
context-dependence, and as a result of other pragmatic aspects of
communication.


## 3. Can law be made by the use of language?



Discussions of the pragmatics of legal language are expressly or
implicitly premised on a view of the relation between a law-making use
of language, and the law that is made. It is the view that if an
agency or a person is authorised to make law, it makes the law that it
communicates by its use of
 language.[3]
 That 'communication model' must be qualified in at least
four ways, because the law itself regulates the making of law:


1. the law that is made will be limited by any legal limit on the
power of the law maker (as to the substance of the law that it can
make, or as to the process by which it can lawfully make law),
and
2. rules of law may qualify the law that is made in a variety of ways
that are not susceptible of any general
 characterisation[4]
 (see Solum 2013 for an extensive discussion of ways in which the law
that is made by a communicative act may be qualified), and
3. courts may need to resolve indeterminacies in the effect of an act
of law making, and where they do so, their decisions may have
conclusive legal effect (for the parties, and also for the future if
the decision is treated as a precedent), and
4. if a court departs from the law that the law maker communicated
(for good reasons or bad), the decision of the court may still have
conclusive legal effect (for the parties, and also for the future if
the decision is treated as a precedent).



Even with those qualifications, some theorists reject the
communication model. They argue that the identification of legal
rights and duties cannot be based merely on facts such as the fact
that an authority has communicated this or that. This section will
address theories that seek to ground the law on something more
dignified than mere words. And we will have to ask whether those
theories can account for the diverse normative powers that legal
systems confer on institutions and agencies and persons.


### 3.1 The Semantic Sting



The most influential theory to have denied the communication model is
that of Ronald Dworkin, as it emerged in his argument against the idea
that the law of a country is a system of rules. H.L.A.Hart had tried
to explain the nature of a legal system on the basis of social rules
for identifying the law of a community, which provide shared tests of
validity for rules of the system. Hart treated it as obvious that such
rules commonly identify the acts of law-making authorities as sources
of law, conferring power on those authorities to make law, and that
(subject to qualifications that are part of the communication model
such as those listed above) the law becomes what a lawmaker conveys
that it is to be, in the communicative act by which it exercises such
a power.



On that view, the content of the law of a community depends on a
conventional way of recognizing legal rules. But if members of the
community share a way of recognizing their law, how can they engage in
the deep disputes about the law that we are all so familiar with?
Dworkin made that question into a focus of jurisprudential debate. And
he framed the question as an objection to a misguided view of
language, and of the relation between law and language. He began his
book *Law's Empire* (Dworkin 1986b) by contending that
legal theorists like Hart cannot explain theoretical disagreement in
legal practice, because they think that lawyers share uncontroversial
tests (tests which Dworkin termed 'criteria') for the
truth of propositions of law. The 'semantic sting'
involves the misconception that the language of the law can be
meaningful only if lawyers share such criteria. It is fatal to a legal
theory, because it leads the theorist to think that people cannot have
any deep (or 'substantive' or 'genuine')
disagreement about the law. They can only disagree (1) about empirical
questions such as what words were used in a statute, or (2) about how
to resolve penumbral cases, or (3) about whether the law should be
changed. If you suffer from the semantic sting, you will conclude that
disagreeing about the criteria for application of the language of the
law would be like using the same words with different meanings. People
who disagree in that way are only talking past each other. Here is how
Dworkin set out the views of theorists who suffer from the semantic
sting:



> 
> 
> We follow shared rules, they say, in using any word: these rules set
> out criteria that supply the word's meaning. Our rules for using
> 'law' tie law to plain historical fact....
> Philosophers of law must elucidate them for us by a sensitive study of
> how we speak. They may disagree among themselves, but that alone casts
> no doubt on their common assumption, which is that we do share some
> set of standards about how 'law' is to be used. (Dworkin,
> 1986b, 31)
> 
> 
> 



Dworkin argued that legal philosophy needs to make a fresh start, in
order to face the challenge of explaining disagreement about the law.
Any theory of law, he claimed, needs to be a 'constructive
interpretation' of legal practice. A constructive interpretation
is one that simultaneously fits the facts of the object of
interpretation (in the case of legal interpretation, the object is not
some particular communicative act by a lawmaker, but the entire
practice of the community) *and* portrays it as an object that
achieves its purpose. On this view, a theory that does not present law
as an exercise in constructive interpretation cannot even compete as a
theory of law, because it suffers from the semantic sting. And the
communication model is incompatible with the idea that law is an
exercise in constructive interpretation.



The semantic sting really does seem a gruesome fate for a lawyer,
because those who suffer from it would have to say that no one really
disagrees with anyone about the law: whenever people think they
disagree about how to identify the law on any point, that fact in
itself would demonstrate that there is nothing to disagree about:
there *is no* law on the point at issue, if the agreed ways of
identifying the law do not decide the point. So if you suffer from the
semantic sting, you will conclude that sincere, competent lawyers who
know the facts of a case will never disagree with each other. When an
apparent disagreement arises, they ought to throw up their hands and
say that there is no law on the point. If you suffer from the semantic
sting, you will think that at least one party to any dispute over the
content of the law is either legally inept and philosophically
misguided, or dishonest.



Dworkin somewhat obscured his brilliant argument by melding the vice
of thinking that legal philosophy is a matter of disclosing the agreed
way of using the word 'law' (see section 6.1 below) with
the vice of thinking that the content of the law of a jurisdiction is
determined by agreement over the use of the words in which it is
formulated. Pierluigi Chiassoni has recently isolated the second vice
and called it the 'container-retrieval' theory (Chiassoni
2019, 113). On the container-retrieval theory, legislative language is
filled up with content by linguistic conventions as to the application
of the words in which it is expressed. The task of applying
legislation is the task of identifying those cases to which its words
conventionally apply. On that approach, *Garner v Burr* was
rightly decided if English speakers were disposed in 1951 to apply the
word 'vehicle' to a chicken coop on wheels. If they were
disposed to withhold the term, the case was wrongly decided. And if
they had no shared disposition either way, then there was a gap in the
law, and the Court of Appeal had to fill it. In any case, the
content-retrieval theorist is, as Dworkin suggested, doomed to
conclude that competent lawyers cannot disagree in good faith as to
what law has been made.



Dworkin's challenge is pressing because of the absurdity of the
content-retrieval view. To meet the challenge, it is necessary to
explain how it can be reasonable to disagree over the application of
rules made by communicative acts. If the meaning of words determines
the rules, and the Lord Chief Justice and the magistrates agreed in
their grasp of the meaning of the words of the legislation, how could
they differ on the question of what the rules required?



The potential for such a reasonable disagreement (even among people
who understand the language of the lawmaker equally well) is to be
found in the complex pragmatic considerations discussed in section 2.3
above, concerning the effect of a lawmaking communicative act.
Consider that if we tried to adhere to the content-retrieval theory,
we would have to say that the relevant dispositions of speakers have
to be contextualised: because the context affects speakers'
dispositions, we would have to ask whether they are disposed to apply
the word to a chicken coop with wheels, in the context of the
application of the word 'vehicle' in a statutory provision
making it an offence to use a vehicle without tires, for the purpose
of protecting road surfaces... And once we ask the dispositions of
speakers in that proper context, it becomes obviously absurd to think
that there should be any legal force in their dispositions to decide
the very question that the Court had jurisdiction and duty to
decide.



If we accept the communication model, we will conclude that
participants in legal practice typically share an understanding of the
meaning of the language of legislation; yet it is still clear that
there are bound to be deep disagreements as to the implications of
those law-making acts in some cases. Disagreement about the content of
the law will arise if the persons subject to the law must apply a test
that, like the legislation in *Garner v Burr*, can be
controversial in its application in some cases. Likewise, disagreement
will arise if the legislative act delegates authority to a court (as
legislatures often do), or if the legislature communicates unclearly.
The persons subject to the law must decide (and may dispute) how to
interpret the acts of the legislature. And it may also be unclear (and
controversial) in some cases whether the legislature has the power
that it claims to have exercised, or whether a court has power to
depart (and if so, whether it ought to depart) from a decision of the
legislature.



Does the recent outpouring of work on the pragmatics of legal language
provide a successful defence of the communication model against
Dworkin's semantic sting argument? That work makes it abundantly
clear that the communication model does not need to rely on the
content-retrieval picture of the meaning of words. The point of legal
interpretation in *Garner v Burr* was not to decide whether the
meaning of the word 'vehicle' encompasses a chicken coop
on wheels. It was, instead, to decide what it was that Parliament had
done, when it required vehicles on the roads to have tires. In
J.L.Austin's slogan, 'The total speech act in the total
speech situation is the only actual phenomenon which, in the last
resort, we are engaged in elucidating.' (Austin 1962, 148).



But Dworkin would presumably have extended his 'semantic
sting' argument into an argument that the communication model
suffers from a 'semantic-and-pragmatic sting'--i.e.,
the misconception that the content of the law is determined by
agreement both as to the semantics of words, and also as to the
pragmatics of communication. He would no doubt have said that the only
antidote to this sting is his theory of 'constructive
interpretation', holding that the 'pragmatic'
aspects of the use of language in law include the attitude that law
must justify the use of state coercion, which requires the interpreter
to construct the theory of rights and duties that best fits and
justifies the whole pattern of legal practice. That was
Dworkin's essential claim. His semantic sting argument cannot in
itself undermine the communication model, because his argument was
based on an impoverished view of the controversy that can result from
communication.


### 3.2 How to make a legal norm



So the communication model can explain controversy over the law. But
can it explain how a law maker can do 'normative magic'
(Enoch 2014, 296), making mere words into law? Mark Greenberg has
argued that:



> 
> Trying to understand legislation on the model of communication is
> misguided because legislation and legislative systems have purposes
> that have no parallel in the case of communication and that may be
> better served if a statute's contribution to the content of the
> law is not constituted by what is communicated by the legislature.
> (Greenberg 2011, 221; for arguments against Greenberg's claim,
> see Marmor 2014, 15-22, and Asgeirsson 2020, Chapter 1)
> 



That can indeed be the case if, for example, the purposes of the law
are best served if a court is authorised to depart from what the
legislature decided. But it is also possible for the law's
purposes to be served by treating a law maker's contribution to
the content of the law as being just what the law maker communicated.
Consider for simplicity the making of a particular legal norm. With a
gesture of a hand, a police officer at the scene of an accident can
wave to a driver to indicate that she can go ahead, or can direct the
driver to stop. The law, by authorising the officer to direct traffic,
makes the officer's gesture count as the law's decision as
to whether the driver has permission to proceed or a duty to stop.



Language facilitates the making of far more articulate legal norms.
When the appeal court in *Garner v Burr* sent the matter back
to the magistrate with instructions to convict, suppose that the
magistrate wrote 'fine: five shillings' on the court
docket. If the justice was authorised to impose such a fine, and
writing those words on the docket was a lawful way of exercising that
legal power, then how should we understand the contribution to the law
of the act of the magistrate? That contribution would, in English law,
be just what the magistrate indicated by using the words: that Mr Burr
was thereby fined five shillings. A court bailiff would be treated by
English law as being authorised to collect five shillings, and not
more. The law's good reasons for such a way of proceeding are
very evident: after Mr Burr's presumably fair hearings in the
magistrate's court and the appeal court, when a magistrate (in
the exercise of a jurisdiction on behalf of a court) wrote those words
on the docket, the best way to proceed is for the bailiff to treat the
judgment of the court as a fait accompli. Suppose, instead, that the
bailiff treated the magistrate's decision as one weighty
consideration among others in the overall calculation concerning how
much property to seize from Mr Burr. The loss of finality would be a
setback for the rule of law. The resulting discretionary power of
bailiffs would likewise be a setback for the rule of law. And the
shift of decision making power from the magistrates (subject to the
appeal court's oversight) to a bailiff would be a setback for
regulatory justice because of the loss of just and expert decision
making as to the rights and the liabilities of the parties to a
dispute.



It is the capacity of the law to regulate its own allocation of power
in a just and effective way that explains why it is appropriate for
the law to give a court legal power to impose a fine by its act (that
is, by what the judge says in the exercise of the power).



Now consider the making of general legal norms. In England there is a
Value Added Tax of 20 per cent. That is the case because the U.K.
Parliament enacted (in language that you may well consider rather
peremptory) that 'VAT shall be charged at the rate of 20 per
cent' (Value Added Tax Act 1994 s 2(1), as amended by the
Finance (No 2) Act 2010, s 3(1)), and English law treats Parliament as
having law-making authority. We can imagine a system in which the
contribution of that legislative act to the law of England is
qualified by a discretion on the part of tax collectors to collect
more or less than 20 per cent. We can imagine a system in which judges
are given an equitable jurisdiction to reduce the tax where a company
supplying goods and services is at risk of insolvency. There are sound
and pressing reasons, instead, for English law to treat the decision
of the legislature as having determined the tax. The central reason,
of course, is the allocation of the taxing power to the Parliament;
subsidiary but very important reasons concern the rule of law values
to be secured if taxpayers and enforcement officials and judges are
all bound by the decision of Parliament.



Mark Greenberg writes, in the entry on
 legal interpretation,



> 
> It is crucial not to conflate a provision's linguistic meaning
> with its contribution to the content of the law.... If, in addressing
> the preliminary question of what legal interpretation seeks, we simply
> conflate a statute's contribution with its linguistic meaning,
> then, among other mistakes, we miss the need for a substantive
> argument for that claim. (Greenberg 2021)
> 



Here is the substantive argument: the purposes of a legal system very
commonly include the allocation of decision-making power, enabling a
person or an agency not merely to take an action that they know will
be treated as legally consequential, but to decide what the law is to
be on some point. The law can authorise them to take an action that
the law itself treats as its decision of a matter of right or duty or
liability. When, for example, the U.K. Parliament enacts that
'VAT shall be charged at the rate of 20 per cent', the
contribution to the law is that VAT shall be charged at the rate of 20
per cent.



That argument, you might say, should not be overgeneralised, for not
all legislation is like the Value Added Tax. Just as it is possible to
make law by the use of language, it is also possible to fail to do so:
when the would-be lawmaker has no authority, or when the law deprives
the act of lawmaking effect because of a defect in the substance or
the process of the action of the would-be lawmaker, or when the law
confers on another agency the power to override or to change the law
made by the lawmaker. And it is possible for the law made by a
legislature or by the framers of a constitution to be morphed out of
all recognition by a pattern of judicial acts that change its effect,
even if the courts and all the lawyers describe the courts' role
all along as 'interpretation'. Moreover, in some
circumstances and for some purposes there is something to Ronald
Dworkin's picture of a judge in the United States as 'a
partner continuing to develop, in what he believes is the best way,
the statutory scheme Congress began' (Dworkin 1986b, 313). For
legislation can create a scheme of regulation that cries out for
elaboration in the course of the judicial resolution of disputes over
its operation. But that work of reasoned elaboration is only an
occasional aspect of a role in which a judge may be bound by a
legislative decision, where the law allocates a power of lawful
decision to the legislature.



We should conclude that it is not merely possible for an agency or a
person to make law by the use of language; it is a central technique
of legal ordering (and of the rule of law) for the law to confer
authority on persons and agencies to make particular legal norms and
general rules of law. The reasons of political morality for doing so
are indeed a dignified ground for the content of the law, although the
techniques that enable the effective allocation of legal power also
lend themselves to abuse. And the moral value of the allocation of
legal power and its potential for abuse both depend on human language:
the most prodigiously useful set of tools for the articulation of a
policy and for the conferral and for the exercise of power.



When lawmakers use those tools to make law, is it the linguistic
meaning of their action that determines the content of the law?
Greenberg says that 'Linguistic meaning is the information that
is reliably and systematically conveyed by words, sentences, and other
linguistic entities.' (see the entry on
 legal interpretation,
 section 2.1). But linguistic entities do not convey information, or
make law. We need to remind ourselves of J.L.Austin's slogan,
and we need to remind ourselves of the lesson of the semantic sting:
when an agency or a person has authority to make law, and exercises
its authority lawfully (as Parliament did in imposing the Value Added
Tax, or as a court does in ordering the payment of a fine), it would
be absurd to think that the contribution to the law of its action is
determined by the dispositions of speakers of the language to use the
words of the law maker in one way or another. The content of the law
made by the lawmaker is what the lawmaker did in the exercise of its
lawmaking authority. That is, what it communicated by using the
language it used, in the way that it did, in 'the total speech
situation'.


## 4. Evaluative language and the nature of law



The context of the use of the word 'vehicle' in *Garner
v Burr* requires anyone addressing the problem in the case to make
evaluative judgments, just to decide whether the word applied to the
chicken coop on wheels. The context of use is a criminal prohibition
imposed for a presumably good public purpose of protecting road
surfaces. To determine in that context whether the word
'vehicle' extends to a chicken coop on wheels, you need to
address (and to resolve any tension between) the two principles
mentioned above: that the purposes for which Parliament passed the
statute should be pursued, and that criminal liability should not be
extended to conduct that has not been unequivocally prohibited.
Because of that context, the question of the meaning and application
of the language of the statute cannot be answered without making
judgments on normative questions as to how those principles are to be
respected. The role of evaluative considerations in the application of
ordinary descriptive terms like 'vehicle' raises a
challenge for any thorough-going scepticism about value: the challenge
is to decide whether to adopt a thorough-going scepticism about the
meaning and application of descriptive language, which seems to follow
from general scepticism concerning value (see Chiassoni 2019 for a
sustained defence of such a form of scepticism, concluding that
'The province of proper and practical legal
interpretation"the province of judicial and juristic
interpretation"is, properly speaking, a province without
truth.' (at 46)).



The effect of the use of descriptive language can depend on evaluative
considerations. For philosophy of law, that dependence raises special
problems. If you cannot tell whether to describe an object as a
'vehicle' for the purposes of the Act without evaluative
reasoning, then the legal effect of the Road Traffic Act does not
depend merely on physical facts (such as that there were wheels on the
chicken coop) and social facts (such as that Parliament used the word
'vehicle' in the Act, or the complex social fact of the
whole pattern of uses that have been made of the word
'vehicle'). You cannot identify the law (that is, you
cannot tell what legal rights and duties people have) without
evaluative reasoning. That conclusion, if it is sound, seems to have
important implications for the long-running debates in theory of law
over the relation between fact and value in law, and over relations
between law and morality. The conclusion seems to contradict one of
the most provocative and controversial claims in the theory of
law--the 'sources thesis', which Joseph Raz has
stated as follows:



> 
> All law is source-based. A law is source-based if its existence and
> content can be identified by reference to social facts alone, without
> resort to any evaluative argument. (Raz (1994), 194-5; see entry
>  the nature of law)
>  



We can only decide whether the chicken coop was a
'vehicle' for the purpose of the Road Traffic Act by
understanding the Act as pursuing something that the legislature
decided to pursue, and by making an normative judgment as to whether
due respect for the goal that the legislature valued through the
enactment, and due respect for the requirement of certainty in
criminal liability, support the conclusion that the chicken coop is to
be treated as a 'vehicle' in the relevant sense. So we
cannot apply the law without resort to evaluative and normative
reasoning.



It may seem that judges need to make such evaluative judgments only in
borderline cases for the application of legal language--and that
they have discretion in those cases (that is, the judge must make a
decision that is not determined by law). That, you might say, would
vindicate the sources thesis. But a clear case of a vehicle counts as
a 'vehicle' for the purpose of the Road Traffic Act just
because the evaluative considerations that justify the use of the word
'vehicle' in that context clearly support its application.
The sources thesis seems to be contradicted even in the clearest cases
of the application of a law stated in descriptive language, if the
content of such laws depends on how the purposes of the law ought to
be conceived. That form of evaluation, you may say, can only be
carried out by engaging in the very same form of reasoning that, in
Raz's theory, law excludes.



It is true that, in order to decide what the sources have directed
(and thereby, in Raz's terms, to identify the existence and
content of a law), you need to understand the sense in which a word
like 'vehicle' is used. But the existence and content of
the offence can still be identified without first judging whether it
ought to be an offence to do what Mr.Burr did, or whether there ought
to be any offence at all of driving without pneumatic tires. The
sources thesis articulates this important insight: in English law,
there was no offence of driving without pneumatic tires (whether or
not it would be a good idea for that to be an offence), until
Parliament acted to create the offence. And then, it became an offence
because of the fact that Parliament had done so (whether or not it was
a good idea to do so). Moreover, if the institutions of the law had
not been prepared to treat the chicken coop as a vehicle, then because
of that social fact, it would have been false (after a decision with
precedential effect) to say that it was an offence to pull a chicken
coop on iron wheels on the road. Law is reflexive in the sense that
the law gives legal authority to legal institutions to identify the
law. Therefore, the courts' decisions determine legal rights and
obligations. So, we might say, a law is source-based if its existence
and content can be identified by reference to social facts alone,
without resort to any evaluative argument, other than whatever
evaluative argument may be needed to determine the social facts, or to
work out their implications for the case at hand.



Raz's explanation of the nature of law is not undermined by the
fact that evaluative judgments are necessary in order to identify the
implications of the social fact that Parliament prohibited vehicles
from being driven without pneumatic tires. It is still possible for
legal directives to have the exclusionary force that, in his theory of
authority, they claim (Raz 2009, chapters 1 and 2). The court in
*Garner v Burr* can decide whether it is an offence to pull a
chicken coop on wheels without pneumatic tires, without answering the
question, 'should it be an offence to pull a chicken coop down a
road on iron wheels?', or the question, 'should it be an
offence to use a vehicle without pneumatic tires?' But the court
needs to ask the related question: 'what is the relevant sense
of "vehicle" for the purposes of this Act?' It is
what Parliament did that determines Lawrence Burr's liability;
it may take evaluative reasoning to answer the question of social
fact, 'what did Parliament prohibit, when it prohibited vehicles
from being driven without pneumatic tires?'


## 5. Vagueness in language and in law



A speed limit on a highway is a fairly precise law: in most cases it
is clear whether a driver has conformed to the standard. But highway
traffic regulation also needs (and typically uses) rules against
careless or dangerous driving. Such abstract standards are designed to
control a variety of behaviour that is too diverse for the legislative
purpose to be attained by reference to any uniform, measurable
criterion that would allow the precision of a speed limit.



Vague laws, such as a rule against careless driving, pose problems for
philosophy of law that are related to problems that philosophers of
language and of logic have addressed in arguments about the
*paradox of the heap* (see the entry on the
 Sorites paradox).
 Suppose that, according to law, it counts as careless driving to
drive with bald tires. If the law gives a precise definition of the
thickness of tire tread that counts as bald, then in this regard the
law is (more or less) precise, and for the purposes of the law,
virtually every tire is either clearly bald or clearly not bald. But
if there is no such precise standard, then there are 'borderline
cases' in which it is neither clearly true that a tire is bald,
nor clearly false. And we can construct a sorites series and a sorites
paradox for the application of the law:


1. A new tire is not
 bald.[5]
2. If a tire is not bald, it does not become bald by losing one
molecule of rubber from its tread.
3. So a tire that has lost one molecule of rubber is not bald.
4. Reiterate 2.
5. So a tire that has lost two molecules of rubber is not bald.
6. Reiterate 2.



> 
> 
> ...
> 
> 
> 
> N. So a tire never goes bald.
> 
> 
> 
> N+1. So no one can ever break the rule against careless driving by
> driving with bald tires.
> 
> 
> 



The false conclusions N and N+1 arise by apparently valid reasoning
from apparently true premises. Philosophical approaches to the paradox
seem to have implications for legal theory: arguments that vague terms
are *incoherent*, and that reasoning with them is impossible,
would support arguments that vague laws are incoherent. Since vague
laws are an important part of every legal system (Endicott 2001), the
implications seem to be far-reaching.



'*Epistemic*' arguments that the only way to solve
the paradox is to deny the truth of step 2 (so that vagueness is a
problem of ignorance as to where the sharp boundary is between tires
that are and are not bald) imply that there is always a single right
answer to the application of a law stated in vague language. Arguments
that the application of a vague expression is indeterminate in
borderline cases (or in some borderline cases) imply that the
application of a law that can be expressed in vague language is
indeterminate in some cases. But it is even controversial whether such
theories matter to legal philosophy (Schiffer 2001 and 2021,
Greenawalt 2001).



Philosophers of law have not been especially concerned with the
question of how to solve (or to resolve) the paradox, but they have
debated the nature of borderline cases, and its implications for the
role of judges in a community, and for the possibility of the rule of
law. If the application of vague laws is indeterminate in some cases,
then in those cases a judge (or other official) responsible for
applying the law cannot decide the matter by applying the law, since
the law does not determine the matter (and in fact, no one can use the
law to guide their conduct).



Some legal philosophers have responded to this problem by claiming
that judges never (or virtually never) have such a choice, and that
there is virtually always a right answer to a question of legal rights
(Dworkin, 1986a, 1991). Others have responded to the problem by
claiming that the law gives judges discretion, in all or some
borderline cases, to decide issues that the law does not determine
(Hart, 2012, chapter VII.1). That is, the standards of the system
leave a choice to judges as to how to decide the issue. Then judges
must treat the parties to litigation as having liabilities or
obligations or entitlements that were not determinately theirs at the
time when the dispute arose. That power of judges appears to some to
run contrary to a requirement of the rule of law: that laws (or at
least, that legal burdens) should not be imposed retroactively.



As a result, vagueness raises an extraordinarily important set of
problems for the philosophy of law. It may seem to be a different set
of problems from those raised by vague language in general, because of
three ways in which the legal use of vague language is distinctive.
First, legal systems need to provide for authoritative resolution of
disputes as to the effect of the use of vague language (where in some
other domains of the use of language, we can get by without any such
resolution).



Secondly, vagueness in legal language is distinctive because lawmakers
avoid ordinary vague expressions like 'driving very fast'
and prefer precise speed limits (or blood alcohol limits...). When the
law uses vague language, it uses *abstract* evaluative
expressions. Lawmakers typically do not prohibit driving with
'bald' tires; they either impose precise measures (such as
tire tread measurements), or address the problem as part of an
abstract, general prohibition on, e.g., 'careless'
driving. An abstract standard calls upon its subjects to construct a
view of the care that, in their law, a driver owes to another
person--(and not merely to ask the seemingly pointless question,
how bald is a bald tire?). Abstract standards are a very common and a
very important part of lawmaking technique. A negligence standard may
require 'reasonable care'; a constitution may define a
procedural right as a right to 'due process', or a
contract may require the delivery of goods in 'satisfactory
condition'. Those abstract terms are very different from the
vague descriptive terms that philosophers of logic use to illustrate
their arguments about the sorites paradox ('heap',
'thin', 'bald', 'red'...). It
misses the point, you might think, to say that abstract standards do
not draw sharp lines, because they are not designed to draw lines at
all. By using an abstract standard, the lawmaker requires the people
who must apply the law to construct a theory of the standard (of care,
or of process, or of condition), which will draw any line that is
needed. Ronald Dworkin has claimed that abstract expressions are not
vague at all--that they have a different semantics from that of
vague words like 'heap' (Dworkin, 1986b, 17).



Thirdly, the legal context of an expression may be very different from
other contexts of its use. Principles of legal interpretation (for
example, a legal requirement that vague criminal enactments are to be
interpreted as applying only in clear cases) may make the legal effect
of the use of a word more precise than its ordinary effect. The
interpretation of a legal prohibition on careless driving demands an
understanding of what counts as careless *for the purposes of the
law*. The effect of a vague legal prohibition may be governed by
precedents that rule out decisions that would otherwise be a
reasonable application of the vague language. Even apart from the
regulatory role of precedent, a good advocate or judge may have a
relatively clear sense of the accepted practice in applying the
prohibition, and the practice may well involve not treating certain
forms of conduct as careless, when it would be fair enough, apart from
that practice, to call them careless.



Given these distinctive features of law, it may seem that
logicians' discussions of heaps and baldness are beside the
point, and that legal reasoning is exempt from any implications that
the paradox may have for logic or for semantics. And because of the
context dependence of the use of language in law (see section 2.2),
some have argued that indeterminacies in law are not significantly
related to the susceptibility of statements of law to sorites
reasoning (Lanius 2019, Chapter 3). Yet statements of law that use
abstract expressions, and use them to different effect in different
contexts, certainly are vague in the philosophers' sense: that
is, they appear to be susceptible to sorites reasoning.
'Careless driving' in its legal sense is a much more
complex concept than 'driving with bald tires', and
driving with bald tires is an instance of careless driving only in
virtue of the evaluative and contextual considerations that must be
understood if the law of careless driving is to be understood. Yet
'careless driving' is susceptible to sorites reasoning:
e.g., those evaluative and contextual considerations give reason to
conclude that it is careless to drive with bald tires. For all their
complexity (and their relation to deep questions of the rights of the
citizen and the responsibilities and the liabilities that a community
can justifiably impose on the citizen), those considerations do not
determine a standard that is *more precise* than a standard
that could be expressed using such an ordinary vague expression as
'bald'. That is, those considerations do not provide a way
of distinguishing between one tire in the sorites series and the next.
Similarly, it is obviously possible to construct sorites series for
the application of even more abstract legal standards such as the
right to due process, or the United States constitutional prohibition
on cruel and unusual punishment. These evaluative tests have special
legal meanings that can only be understood in the context of a legal
system, and in the more particular context of a specific area of law,
and by reference to their elaboration and development in a common law
system of precedent. Even with a mastery of all those aspects of the
context, however, the best theory of the effect of such standards will
not provide a way of distinguishing between one tire in the sorites
series and the next. A theory of careless driving in some particular
legal system at a particular time would be a defective theory, if it
yielded the conclusion that the loss of one molecule of rubber from a
tire can make the difference between driving that is careless and
driving that is not careless according to law.



Consider again the case of *Garner v Burr* (above, section
2.2). The term 'vehicle', as properly understood for the
purposes of the Road Traffic Act, is vague if there are borderline
cases for its application (cases in which it is unclear whether the
term applies to some object). It may seem that nothing is more
patently a borderline case of a 'vehicle' than a chicken
coop on wheels. But we should bear in mind that (if the discussion in
section 2.2 above is sound) the correct application of the term
depends on legal principles relating to the purposes of the
legislation and to the need for clarity in criminal liabilities. So
the chicken coop on wheels is a borderline case if it is unclear
whether those principles required the provision to be applied to it.
And the application of the term was indeterminate in the case, if
those principles did not require a decision one way or the other. Of
course, the appeal court held that a conviction was
required--which we might say amounts to a decision that the term
applied to the chicken coop on wheels. The magistrates and the appeal
court disagreed about it, but that disagreement in itself does not
mean either that the application of the term was determinate or that
it was indeterminate. And the fact that the appeal judges seem to have
thought that the term clearly applied to the chicken coop cannot tell
us that the application of the term was determinate.



The magistrates' approach put a special emphasis on the
principle of certainty in criminal liability, and the appeal
court's approach put a special emphasis on the effective
accomplishment of the purpose the legislation was designed to pursue.
Each approach would take the law in a different direction. The
application of the term was indeterminate (before the decision of the
appeal court set a precedent) if neither approach was demanded by the
complex resources of legal reasoning that the courts (as a matter of
legal obligation) had to act upon. If that was the case, then the
appeal court's decision was not contrary to the law. But a
decision upholding the acquittal would not have been contrary to the
law, either. The law as it was at the time of the decision allowed the
courts to move it in either direction.



That account of a case like *Garner v Burr* would support the
controversial claim that judges have widespread discretion in
resolving legal disputes. Legal philosophers have debated whether that
claim undermines the ideal of the rule of law, or reflects a basic
requirement of the rule of law: that a legal system needs techniques
for the resolution of legal issues that are not determined by the law
(see Endicott 2000, chapter 9, and on the value of vagueness in law
see Asgeirsson 2020; on a variety of issues concerning vagueness and
philosophy of law, see the essays in Keil and Poscher 2016).


## 6. The use of philosophy of language in philosophy of law


### 6.1 Introduction: Definition as a methodology in philosophy of law



Bentham presented his theory as a definition. In focusing their
attention on the meaning of the main terms of legal discourse, Bentham
and John Austin were ahead of their time. But it has come to be a
commonplace view in legal theory (though still controversial) that
they were misguided in attempting to define those terms. So, for
example, Hart in the 1960s rejected definition as a useful technique
in philosophy of law (Hart 2012, 14-17). Dworkin in the 1980s
accused Hart of only repackaging the same approach as the 'more
candidly definitional' method of John Austin (Dworkin 1986,
32-33). And Richard Posner in the 1990s accused both Hart and
Dworkin of pointlessly "trying to define
'law'" (Posner 1996, vii).



There is no reason to describe the work of either Hart or Dworkin as
defining the word 'law'. And defining that word would not
solve any of the problems of jurisprudence (as Hart pointed out). The
fundamental reason is that the legal philosophers' problems and
their disputes would not be resolved by a statement of the meaning of
the word 'law' that would be useful to someone who did not
know it. Philosophers of law cannot solve their problems by giving a
definition of the word 'law', any more than philosophers
of language can solve their problems by giving a definition of the
word 'language' (for discussion of the implications for
legal philosophy of the semantics and metasemantics of the word
'law', see Coleman and Simchen 2003).



A further reason is that, as John Finnis and Ronald Dworkin have both
explained in different ways, the word 'law' can be used in
a variety of senses: the law of the jungle, the law of gravity, laws
of thought, Murphy's law, etc. (Finnis 1980, 6; Dworkin 1986,
104). A definition would have to allow for those senses. It might be
an intriguing (and arduous) study in culture and human thought to
explain the analogies among those senses, but it is a study that holds
out no special promise for understanding the law of a community.


### 6.2 Language and the normativity of law



Legal philosophers have tried to explain *the normativity of
law*--the fact that the law of a community is, or presents
itself as, a guide to the conduct of members of a community. One easy
way to express this abstract feature of law is by pointing out that
the law can be stated by making normative statements (i.e. statements
that use expressions like 'obligation',
'right', 'must', 'may'). And one
attractive way of trying to explain the normativity of law is by
explaining the meaning and use of the normative language that is often
used in stating the law. That is, the problem of explaining the nature
of legal norms (obligations, rights, etc.) can be addressed by
explaining the meaning or the use of the normative words that are used
in law ('obligation', 'right',...).
Joseph Raz has put it that 'The problem of the normativity of
law is the problem of explaining the use of normative language in
describing the law or legal situations.' (1990, 170)



We saw that Bentham's theory of normative language in general
was that, because there is no object, substance or perceptible human
affection for which they stand as a name, words such as
'right' must be 'expounded' by paraphrasing
sentences containing them. The paraphrase would use sentences that
contain only words that can be defined as referring to objects,
substances, and affections. When no such paraphrase is available, he
considered that normative language is meaningless. So he held that the
phrase 'natural rights' is "simple nonsense: natural
and imprescriptible rights, rhetorical nonsense; nonsense upon
stilts" (Bentham 1843, Art.II). While the language is
meaningless, he thought, we can explain its use--as a way of
doing something. Using such nonsensical expressions is a way in which
the speaker expresses his preferences.



Although Bentham and John Austin thought that the notion of a
*natural* right was nonsense, they did not at all think the
same about the notion of *legal* rights. In their command
theory they found a way of paraphrasing normative expressions in their
legal use. They explained the meaning of the word
'duty'--and thereby the normativity of law--by
reference to the pain and pleasure that a superior offered as
motivation for compliance with the superior's will:



> 
> That is my *duty* to do, which I am liable to be
> *punished*, according to law, if I do not do: this is the
> original, ordinary, and proper sense of the word *duty*.
> (Bentham 1776, 109; cf. John Austin 1832, 14).
> 



Hart used the resources of twentieth-century philosophy to challenge
that approach to normative language. He drew on the work of J.L.
Austin, a philosopher of language who thought that problems in many
areas of philosophy could be dissolved by pointing out the things that
people do with words. J.L. Austin once suggested that "a
statement of 'the law'" is a performative statement,
rather than "a statement of fact" (Austin 1962, 4 n.2).
The suggestion is that to state the law is to perform an act (an act
other than the making of an assertion that could be true or false).
J.L. Austin's claim offered to account for the normativity of
law by reference to the things that people do with words. That hint
attracted Hart (Hart, 1954), whose theory of law is based on a
'practice theory of rules'. He articulated the theory by
pointing out what people do with the normative language they use in
stating rules.



Hart started by arguing that Bentham and Austin had explained the
meaning and use of normative language in a way that failed to account
for its role in ordinary discourse. He pointed out that their account
of the meaning of the word 'duty' left them unable to draw
a distinction that people ordinarily draw in their use of language,
between the command of a gunman (which no one would say imposes a
'duty' or an 'obligation'), and a legal
prescription:



> 
> The plausibility of the claim that the gunman situation displays the
> meaning of obligation lies in the fact that it is certainly one in
> which we would say that *B*, if he obeyed, was
> 'obliged' to hand over his money. It is, however, equally
> certain that we should misdescribe the situation if we said, on these
> facts, that *B* 'had an obligation' or a
> 'duty' to hand over the money. So from the start it is
> evident that we need something else for an understanding of the idea
> of obligation. There is a difference, yet to be explained, between the
> assertion that someone *was obliged* to do something and the
> assertion that he *had an obligation* to do it. (Hart 2012, 82)
> 



Bentham and Austin would have had a ready response: that people
ordinarily misuse the word 'obligation'. They fail to give
it a meaning that can be expounded by reference to sensible objects.
Bentham and Austin were linguistic philosophers, but (unlike J.L.
Austin) not ordinary language philosophers. They sought a way of using
language that would back up their empiricism and utilitarianism, and
they were actually pleased if that technique called for a
reorganisation of ordinary language: it showed that they were
disclosing what had been obscured by mere cant.



Hart's approach to language was different. It may seem that he
did not need to talk about language, and that his point could have
been made without mentioning types of assertions, or what 'we
would say'. His argument, you might think, simply puts into the
linguistic mode an argument that could be made with no mention of
language: an argument that you can have an obligation without being
liable to sanction. And yet, the linguistic form of the argument was
important to Hart. He wanted to avoid explaining the difference
between obligation and coercion in the way a
 natural law
 theorist might (by saying that an obligation is a kind of reason). So
his focus on the use of the *word* 'obligation' is
no accident. He did not point out the way we use that word as an
oblique way of appealing to our shared wisdom as to what obligation
*is*. It was actually important to him to point out how we
*use* the word. His explanation of the normativity of law
relies on the use of such words to display an attitude.



Hart claimed that a legal system is a system of power-conferring and
duty-imposing rules, which are validated by a 'rule of
recognition'. That rule is not made valid by another rule; it is
a 'social rule'. In explaining that crucial notion of a
social rule, Hart turned to the use of words to explain the
normativity of law. He claimed that a social rule is a regular pattern
of conduct accompanied by a 'distinctive normative
attitude', which 'consists in the standing disposition of
individuals to take such patterns of conduct both as guides to their
own future conduct and as standards of criticism' (Hart, 2012,
255). In accounting for that disposition, or 'internal
attitude', Hart's emphasis was on speech acts--on the
use that participants in the practice make of normative language.



> 
> What is necessary [for a social rule to exist] is that there should be
> a critical reflective attitude to certain patterns of behaviour as a
> common standard, and that this should display itself in criticism
> (including self-criticism), demands for conformity, and in
> acknowledgments that such criticism and demands are justified, all of
> which find their characteristic expression in the normative
> terminology of 'ought', 'must', and
> 'should', 'right' and 'wrong'
> (Hart, 2012, 57).
> 



Hart's interest in normative language was focused not on its
meaning, but on the attitude that people display when they use it. His
explanation of the difference between non-normative and normative
assertions (between, as he put it, 'the assertion that someone
*was obliged* to do something and the assertion that he *had
an obligation* to do it') was merely that the latter sort of
assertion is used to display a distinctive sort of attitude.



Just as Bentham's approach to normative language was allied to
his empiricism and his utilitarianism, Hart's approach to
normative language was allied to his philosophical methodology, and to
his views on the relation between law and morality. His methodological
purpose was to elucidate human practices, and he wanted to defend a
conceptual separation between law and morality--a distinction in
kind between legal obligation and moral obligation (see Hart 2012,
239-240). The practice theory of rules attracted him as a tool
for those purposes, because it offered a way of accounting for the
normativity of law by pointing to forms of behaviour which could be
described, and which did not (in his view) carry any moral baggage. In
saying that people use normative language to display an attitude to
regularities of behaviour, the theorist did not need to do moral
philosophy, and did not need to make any moral evaluations of the
practice being described. The theorist did not even need to ascribe
any moral evaluations to the participants in the practice, since the
fact that people use normative language to display an attitude is,
Hart considered, consistent with their having various moral views or
none at all.



How much simpler it would be to say that normative language means the
same in its moral uses and in its legal uses. While a person who says
that you *must* stop at a red light may display various
attitudes, what he or she *asserts* is a necessity that implies
a (presumptively) conclusive reason to stop. If the statement is a
statement of law, the necessity is a legal necessity; if the statement
is a moral statement, the necessity is a moral necessity.



That approach is not only simpler; it closes the gap that Hart left in
his theory. According to Hart, the meaning of normative language
differs in morality and in law. But in fact, Hart had nothing to say
about the *meaning* of normative expressions such as
'ought' and 'must' or 'obligation'
or 'right' (except that their meaning differs in law and
in morality). He only pointed out that people display an attitude when
they use such language.



Joseph Raz rejected Hart's claim that normative terms have a
distinctive meaning in statements of law. In Raz's view, to make
a normative statement such as 'you must stop at a red
light' is to imply that you have a certain sort of reason for
action. If it is a statement applying the law, it implies that you
have reason to stop from the point of view of the law. Raz's
theory of law, unlike Hart's, is part of a theory of practical
reason in general, and his account of normative statements treats them
as having the same meaning in law and in morality. Hart initially
thought that that approach would necessarily lead to an extreme sort
of natural law theory, in which every true statement of law is
necessarily a true moral statement, and every valid legal obligation
is necessarily a moral obligation. But Raz resolved that concern of
Hart's, by pointing out that normative statements can be made in
a detached way. People can make them without endorsing the point of
view from which the reasons they are stating are valid (see Raz 1990,
175-177). Still, Hart did not accept Raz's approach, which
he felt created a certain sort of conceptual connection between law
and morality. In responding to Raz, he insisted that 'statements
of the subject's legal duties need have nothing directly to do
with the subject's reasons for action' (Hart 1982, 267).
And in an interview with the Spanish journal *Doxa* near the
end of his career he maintained 'that legal and moral obligation
are conceptually different', so that a statement of obligation
has a different meaning in law and in morality (De Paramo 1988). He
never explained the difference in meaning; its necessity only follows
from a methodological preconception.