Can the Law Imply More than it Says? On Some Pragmatic Aspects of Strategic Speech

A great deal of the law (even if not all) in any given jurisdiction consists of directives issued by various legal authorities, such as legisla- tures, judges, administrative agencies, and others. In a fairly clear sense, therefore, the content of the law is determined by what legal authorities communicate. Both lawyers and philosophers of language know very well, however, that the full content of communication in a natural lan- guage often goes beyond the meaning of the words and sentences ut- tered by the speaker. Semantics and syntax are essential vehicles for conveying communicative content, but the content conveyed on particu- lar occasions of speech is often pragmatically enriched by various fac- tors. My purpose in this essay is to explore some of the pragmatic as- pects of legal speech. Some of these aspects are unique. The standard model in the pragmatics literature focuses on ordinary conversations, in which the parties are presumed to engage in a cooperative exchange of information. Unlike ordinary cases of conversation, however, the legal context offers an example of conversation that is strategic in nature. Part of my purpose here is to show that the pragmatics of strategic conversa- tion has certain features that deviate from the standard model. The essay proceeds as follows: the first section aims to clarify the conceptual framework, focusing on two main instances of implied communicative content, namely, implicatures and utterance presupposi- tions. I will argue that in both of these cases, there is an important dis- tinction between implied content that is semantically encoded in the ut- terance - and therefore forms part of what the law communicatively de- termines -- and implied content that is essentially contextual and thus much more problematic in the legal case. In the second section I focus on the idea of pragmatic commitments and their normative foundations. My main concern here is to explore the normative framework of strate- gic speech and ways in which it differs from ordinary conversations. Fi- nally, I will try to explain in what sense legal speech is strategic, and demonstrate how the pragmatic aspects of strategic speech actually work in the legal context.