A
Speech Act Analysis of Judicial Decisions
Carlos L. Bernal*
I. Introduction
According to the theory of speech
acts, speech is a kind of action. He, who says something, does something. Certainly,
when a judge or a court makes a decision, he or it says something.[1] He performs some (locutionary) acts
like uttering or writing some sentences.[2] However, there is something further
he does, namely, by uttering or writing some sentences in the appropriate
context, he makes a judicial decision. By a judicial decision I mean an act by
a judge adjudicating a case according to the law, with the authority that the
state and the legal system confer on him. In a judicial decision the judge says
something about the law, the facts of the case, and the consequences that the
legal system imputes to the parties, in the most cases, the plaintiff or the
prosecutor and the defendant. How does the judge saying the things he does
bring it about that he has adjudicated a case? More specifically, what kind of
speech acts, or more precisely, illocutionary acts,[3] does he perform, and what is their
relation to the adjudication?
As
these questions indicate, the aim of this paper is to give an account of
judicial decisions from the point of view of the theory of speech acts. This account
can contribute to two different projects at the same time. On the one hand, it
can help to explain the nature and the structure of judicial decisions, as a
set of sentences uttered by the judge which constitute a set of speech acts. The
ontology involved in a judicial decision looks quite simple at the first
glance. It seems to be the same ontology implicit in every instance of a human
act of speaking: a set of sounds or strings, articulated as sentences, pronounced
or written respectively by a person or group of persons. However, this ontology
is in fact very complex. In a judicial decision the speaker, that is to say,
the judge, has a special status and performs a special function. We, the group
of citizens of the state, have conferred on the judge this special status: we
have given him the power to solve legal disputes according to the law of the
state. In John Searle’s term, being a judge is having a certain status
function, whose reality consists in a broad agreement that a person so
designated, by certain performances in an appropriate context and in accordance
with appropriate rules, makes certain changes to social, and, in this case,
specifically legal, reality.[4] Consequently, the sentences
pronounced or written by the judge also have special status functions in the
institutional framework of the law. One relevant question for this paper is
what these status functions are. The answer to the question about what the
judge does in a judicial decision or what kind of illocutionary acts the judge performs
in a judicial decision, can provide an answer to this question about the status
functions of the sentences involved in a judicial decision. This promises to be
a fruitful way to determine what a judicial decision is and what kind of
structure it has.[5] In addition to this, as we will
see, a speech act analysis can explain the criteria used to evaluate judicial
decisions. This analysis will make clear that a judicial decision is a highly complex
logical sequence of illocutionary acts, or to put it in a more precise way, of speech
acts with several illocutionary forces.[6]
Consequently, it is possible to evaluate these speech acts, from a variety of points
of view: truth or falsity, correctness or incorrectness, and validity or
invalidity.
On the other hand, this account can
also contribute to the theory of the speech acts by providing an analysis of
speech acts which occur in the highly institutionalized context of judicial
decisions. Such an account can contribute to how the theory of speech acts explains
the relationship between language and reality, and in particular how by having
certain status functions certain speech acts can not just reflect but change
reality.[7]
To achieve this aim, I will explain
what kind of illocutionary acts are involved in a judicial decision and what
are the necessary and sufficient conditions required for a non-defective performance
of a judicial decision. To facilitate my exposition, I will use a particular judicial
decision as an example. In my analysis I will use the well known judgment by
the New York Court of Appeals in the case Riggs
v. Palmer. It will be possible to generalise only some considerations drawn
from the analysis of this case. For this reason, I will try to clarify how various
considerations will change in other typical cases.
The plan of this paper is the
following. In section (I), I will summarise the facts, the justification for, and
the decision of the New York Court in the case Riggs v. Palmer. In section (II), I will explain the logical
structure of a judicial decision. I will show that two premises and the
decision are the structural elements of a judicial decision. In section (
II. The judicial decision in the case Riggs v. Palmer[8]
A. The facts
On
B. The justification of the decision
The question for the Court in this
case was whether Palmer had the right to this property. To answer this
question, in its reasoning, the Court developed an argument in three steps.
First, it determined what legal rule provided the solution for the case. The
answer was not obvious. The Court recognised that, according to a literal
interpretation of the statutes regulating the making, proof and effect of
wills, and the devolution of property, due to the fact that the will had been
in force and had not been modified, the law ordered that the property be given
to the murderer. The statutes did not prescribe an exception, according to
which, if the inheritor murdered the testator, he lost the title to receive the
property. Nevertheless, the Court said that this solution was not correct. The
Court gave an alternative interpretation of the legal system. It said that the
purpose of the statutes,[9]
the intention of the law-makers,[10]
the application of a rational interpretation,[11]
and the principle[12]
or general maxim of the common law, according to which: “No one shall be
permitted to profit by his own fraud, or to take advantage of this own wrong,
or to acquire property by his own crime”, which was applied in the precedent
case New York Mutual Life Insurance
Company v. Armstrong, allowed the conclusion that: if the inheritor had
murdered the testator, he would have no title to the property.
Now in a second step, the Court
verified that Palmer had murdered the testator, that is to say, his
grandfather.
According to the Court, these
reasons led to the following decision (the third step of the reasoning): the
defendant Palmer could not possess any of the property as heir.
III. The logical structure of a judicial decision
Any judicial decision has two parts:
the justification and the decision. Now, the justification has two dimensions:
one internal, the other external. The internal justification consists of the reasoning
whereby a conclusion leading to the decision is inferred from the supporting
premises, whereas the external justification is the reasoning which supports the
premises that make up the internal justification, and from which the conclusion
follows.[13]
In this paper I will focus in the
internal justification. In a simple case, the internal justification has the following
structure:[14]
(1) (x)(Cx
" LCx)
(2) Ca
(3) LCa MP
(1, 2)
This corresponds to the structure of
a syllogism, namely, it involves the movement from a major premise and a minor
premise to a conclusion. The major premise (1) is a general rule. According to
this rule, the judge has the power and ought to impute[15]
the legal consequence (LC) to every
agent (x), whose actions fulfil the
conditions (C). Correlatively, this
rule also establishes that if an agent (x)
performs the action described in (C),
the legal consequence (LC) is to be
imputed to him. The judge asserts this general rule as a legal interpretation
of a statement or a set of statements belonging to the sources of the law (the
constitution, the statutes, a contract or a precedent). The minor premise (2),
meanwhile, consists of an assertion about a particular. By means of this
assertion the judge affirms that, according to the evidences, an action or a
set of actions of the agent (a) took
place and fulfilled the conditions mentioned in the antecedent of the general
rule (1). Finally, the decision (3) is a particular rule, which follows by
modus ponens from the major and the minor premises. According to this rule, the
judge has the power and ought to impute to the agent, who performed the action (a), the legal consequence (LC) established by the general rule (1).
Correlatively, this rule also establishes that the agent (x), who performed the action (a),
prescribed by the general rule (1), is subject to the imputation of the legal
consequence (LC).
However, the decision (3) goes
further. In the decision (3) the judge also orders other officials to impute or
imputes himself the legal consequence (LC)
to the agent (a). In criminal law,
for instance, a typical decision entails also an order of imprisonment. In
torts law, the decision involves also the declaration of liability of the agent
and the order to pay for the damages he caused. In other cases, like contract
law cases or divorce cases, the decision entails a declaration about the legal
status and the legal relationship of the parties. Finally, in some
constitutional cases (especially in the continental European system of constitutional
review) the decision involves the declaration about the legal status of a legal
rule, that is to say, the constitutionality or unconstitutionality of a legal
rule.
This schema can explain the logical
structure of the judgment by the Court of Appeals of
(i)
The
Court states the major premise of its reasoning by means of the following
sentence: “one cannot take property by inheritance or will from an ancestor or
benefactor whom he has murdered”.
(ii)
It
is possible to restate this sentence in the following way without introducing
changes in its content: if an inheritor has murdered the testator (an ancestor
or benefactor), then the property conferred to him by inheritance or will is
not to be given to him.
(iii)
However,
it is necessary to understand this last sentence in the context of the
institutional framework of the law and the state. The law of the state confers on
the judge (in this case the Court of Appeals) the institutional authority to
give or not to give the property conferred by inheritance or will. Taking this
into account, then a further statement runs as follows: if an inheritor has
murdered the testator (an ancestor or benefactor), then the judge is empowered
by the law and ought not to give to him the property conferred to him by
inheritance or will.
(iv)
The
last step arrives to the sentence: the judge has the power and ought to impute
the legal consequence: not to give the property (¬G) to any inheritor (x)
having murdered the testator (M).
The logical
form of this last sentence is the major premise: (x)(Cx " LCx)
Premise (2) is the assertion that,
according to the evidence, Palmer (p)
murdered the testator (Mp). The Court
states this premise when it says: “He [Elmer Palmer] knew of the provisions
made in his favour in the will, and, that he might prevent his grandfather from
revoking such provisions, which he had manifested some intention to do, and to
obtain the speedy enjoyment and immediate possession of his property, he wilfully murdered him by poisoning him”
[Emphasis added].
From these premises the conclusion follows
by modus ponens, namely, the judge ought not to give the property to Palmer (¬Gp). This conclusion is not explicit in
the judgment of the Court, but could be inferred from its decision. The decision
(D) of the Court is the following:
(D)
“that the devise and bequest in the will to Elmer be declared ineffective to
pass the title to him; that by reason of the crime of murder committed upon the
grandfather he is deprived of any interest in the estate left by him”.
Let us express the logical form of
this decision by means of the sentence (IWp).
From this decision, and with the understanding of some additional elements of
the legal institutional framework, it is possible to infer the conclusion of
the internal justification, according to which the Court ought not to give the
property to Palmer (¬Gp). The
declaration of the ineffectiveness of the devise and bequest in the will to
pass the title to Elmer Palmer is the way in which the Court fulfils the
obligation to not give the property to him. In order to fulfil this obligation
the Court has to declare that the devise and bequest in the will to Elmer is
ineffective to pass the title to him. Then, it looks like in this case the
Court not only achieves the conclusion that it ought not to give the property to
Elmer Palmer (¬Gp), but also does not
give him the property in the same judgment, by means of the declaration of the
ineffectiveness of the devise and bequest in the will to pass the title to him.
If we denote this last move with (Ix)
(Ineffectiveness of the will), then we have the following structure:
(1) (x)(Mx
" ¬Gx)
(2) Mp
(3) ¬Gp MP
(1, 2)
(4) (x)(¬Gx
" IWx)
(5) IWp MP
(4,3)
This argument includes premise (4)
to support the conclusion (5). Premise (4) makes explicit the legal rule
according to which, if any judge wants not to give the property to an
inheritor, it ought to declare the ineffectiveness of the devise and bequest in
the will to pass the title to him. The conclusion (5) follows from (4) and (3) by
modus ponens and makes it explicit that the Court has to declare the
ineffectiveness of the will in the case of Elmer Palmer. This conclusion is the
support for the decision (D) of the
New York Court of Appeals that in deed declares the ineffectiveness of the will
to pass the title to Elmer Palmer. The sentences (3), (4) and (5) are implicit
in the reasoning of the Court. They do not appear in the text of the judgment
but could be inferred from (1), (2) and the decision (D).
IV. The propositional content and illocutionary force of the premises
and the decision
This reconstruction of the logical
structure of judicial decisions makes clear that a judicial decision implies at
least three locutionary acts: the utterance or writing of the premises (1) and
(2), and the decision (3). It also clarifies what the propositional content of
these acts is.[16]
In the case Riggs v. Palmer, the
structure of the judicial decision is more complex. It is made at least of the
following (explicit and implicit) premises, where now I indicate, at least in
part, the force with which they are put forward, using the turnstile to
indicate assertion, ‘╞’:
╞ (1) (x)(Mx
" ¬Gx)
╞ (2) Mp
╞ (3) ¬Gp MP
(1, 2)
╞ (4) (x)(¬Gx
" IWx)
╞ (5) IWp MP
(4,3)
It is necessary to add also the decision,
where I use ‘d!’ to indicate, in Searle’s terms, a declarative speech act,
which we will discuss further below (what we might express in ordinary English
with a kind of third person imperative, “let it be that this very act makes it
the case that,” though the effect can be achieved in context without the
explicit statement of the intent and will require in addition that the
institutional setting be appropriate):
d! (6) IWp
The speech act indicated in (6) is
different from that in (5). The assertion of (IWp) states an obligation: the obligation of the Court to declare
the ineffectiveness of the will to transfer the property to Palmer. Meanwhile,
the speech act indicated in (6) which is performed using the very same sentence
as in (5) makes a declaration: the declaration that in deed the will made by
his grandfather is ineffective to pass the property to Palmer.
This
shows that a judicial decision involves a logical sequence of speech acts. The
final speech act is the decision (D).
This decision is justified by means of an argument leading from premise (1) to
a conclusion (5), through a finite number of premises (2), (3) and (4).
Nevertheless, this structure does not make it explicit what kinds of
illocutionary act the judge performs by uttering the premises (1) and (2), and
the decision (D) (Let us remember
that (3) (4) and (5) are implicit). It is not obvious that these three acts are
just assertions. Indeed, it is clear
that, in uttering the decision (D)
the judge is not merely reporting that the legal consequence of the rule (1) is or will be imputed to the agent. He is actually imputing the legal
consequence by a declaration of the ineffectiveness of the will to pass the
title to Elmer Palmer. This declaration has a consequence for the legal status
of the agent. It not only settles something epistemically, it brings something
about, it changes the world by determining the heretofore undetermined legal
status of the property in question. In the case of Palmer, the consequence is
that he does not have a legal right to the property, or, put in another way,
that the legal system does not recognize his right to this property and,
correlatively, it recognizes the plaintiffs to have a right to it. In other
kinds of cases, the judge performs in its decision analogous sorts of
declarations. In criminal law cases, e.g.,
the judge may convict the defendant of a crime and order his imprisonment. In
contract law or torts law cases, the judge may declare there to be a state of
legal relations between the parties and give, for instance, compensation for
damages.
In uttering premise (1) the judge is
not merely reporting that the rule, (x)(Mx " ¬Gx),
is a legal rule. He is also stating that this rule is a correct legal
interpretation of a sentence or a set of sentences belonging to the sources of
law. The judge usually builds the major premise after performing a (literal,
teleological, historical or systematic) interpretation of a provision or a set
of provisions from the constitution or the statutes, or a sentence or set of
sentences from other kinds of sources of law. For instance, in the case Riggs v. Palmer, the New York Court of
Appeals gives arguments for and against two different interpretations of the
law that could be applied as premise (1). The first interpretation is the rule
(x)(Mx " Gx),
according to which, in cases of murder of the testator by the inheritor, the
judge ought to assign him the property. The Court speaks about the hypothesis
when it says: “It is quite true that statutes regulating the making, proof and
effect of wills, and the devolution of property, if literally construed, and if
their force and effect can in no way and under no circumstances be controlled
or modified, give this property to the murderer”. The second interpretation is the rule
(x)(Mx " ¬Gx) that the Court applied as major
premise to the case. According to the Court, on the basis of the arguments from
the purpose of the statutes, the intention of the law-makers, the application
of a rational interpretation, and the principle or general maxim of the common
law, according to which: “No one shall be permitted to profit by his own fraud,
or to take advantage of this own wrong, or to acquire property by his own
crime”, it is the second and not the first one of these which is the correct
interpretation of the law. For this reason, the Court applies as major premise
of the case the rule according to which: “one cannot take property by
inheritance or will from an ancestor or benefactor whom he has murdered”.
There are cases, like Riggs v. Palmer, in which it is clear
that this rule did not even exist before in the legal system. Thus, the judge,
in exercising his authority, is creating a new legal rule. This new rule is
also a precedent for future cases. In addition to this, the judge is also
applying this rule to the case. In this sense, he is taking it as the legal
basis for resolving the case.
In uttering premise (2) the Court is
of course asserting something about the occurrence of the action (a), that is to say, the state of affairs
described in the rule (1). There are cases in which the judge is the fact
finder and cases in which the jury is the fact finder. Whoever plays this role
is doing something further in uttering premise (2). The judge or the jury is
creating an institutional fact that entitles the judge to impute the legal
consequence to the agent and that is a precedence for future decisions. The
occurrence of the action (a) in the
world is a natural fact. However, when the fact finder asserts in a trial that
the action (a) occurred in world and
that it is proved, it creates an institutional fact that has various effects in
the law. For instance, in the decision in Riggs
v. Palmer the Court takes the fact that Palmer murdered the testator as a
fact that has been proved in the criminal procedure in which Palmer has been
found guilty.
There are further complexities. In
the cases of premises (1) and (2), the judge assigns a function to the
utterance of these statements,[17]
leading to specific consequences. Both premises accomplish the function of
creating institutional facts,[18]
which the judge uses as a basis for the justification of the judicial decision
and which modifies the legal system. In this sense, the creation of these
institutional facts and the role they play presuppose a particular kind of
collective intentionality[19]
and certain constitutive rules. There is a qualitative difference between the
fact that a professor utters the rule (x)(Mx " ¬Gx)
as an interpretation of the sources of the law in the classroom and the fact
that the Court of Appeals of
This institutional network can also
explain why, concerning the premise (2), there is a difference between the fact
that somebody says that Palmer poisoned his grandfather and the fact the Court
of Appeals of New York declares that this fact was proved and counts as murder.
Uttering premise (2) there is more than a mere assertion.
Now, this first approach shows that
the reconstruction of the logical structure is not enough to achieve a complete
analysis of a judicial decision. This analysis should entail also an
explanation of what kind of illocutionary acts the judge performs by uttering
premises (1) and (2) and the decision (D).
I will develop this explanation in section V. However, before I turn to that I
would like to summarise some concepts of the theory of speech acts that I will
apply in the following section.
V. Some elements of Speech Act Theory
An analysis of the illocutionary
acts that are the elements of a judicial decision presupposes to state a taxonomy
of illocutionary acts. Any taxonomy must
acknowledge, first, that there are at least five types of illocutionary acts
and, second, that they may differ in along at least seven dimensions of
illocutionary force, and in direction of fit and perlocutionary effect. On the
one hand, the types of illocutionary acts are: assertives (e.g., a statement), directives (e.g.,
an order), expressives (e.g., thanks),
commissives (e.g., a promise) and
declaratives (e.g., a firing).[25]
On the other hand, according to Searle and Vanderveken, the seven dimensions of
illocutionary force are: the illocutionary point, the degree of strength of the
illocutionary point, the mode of achievement, the propositional content
conditions, the preparatory conditions, the sincerity conditions and the degree
of strength of the sincerity conditions.[26]
It is necessary to add the satisfaction conditions and the intended and actual
perlocutionary effects to these components.
The illocutionary point is the basic
component of the illocutionary force. It is the point or purpose which is
internal to every illocutionary act, that is to say, “a successful performance”
of a certain type of illocutionary acts necessarily achieves that purpose. To
put it differently, it could not be a successful act of that type if it did not
achieve that purpose.[27]
The point of an assertive is “to describe the world”, the point of a directive
is “to direct one’s hearer to perform a certain king of act”, the point of
expressives is “to express the speaker’s emotion or attitude”, the point of
commissives is “to commit the speaker to doing something” and the point of
declaratives (for instance, of the declaration that p) is “to make it the case that p”.[28]
Different
illocutionary acts may achieve “the same illocutionary point with different
degrees of strength”,[29]
because of several causes. Searle and Vanderveken give good examples of this
property: “if I request someone to do
something my attempt to get him to do it is less strong than if I insist that he do it”, or: “both
pleading and ordering are stronger than requesting, but the greater strength of
pleading derives from the intensity of the desire expressed, while the greater
strength of ordering derives from the fact that the speaker uses a position of
power or authority that he has over the hearer”.[30]
The mode of achievement is the way
in which an illocutionary act achieves its purpose. For instance, an order
achieves its purpose “by way of invoking the position of authority of the
speaker” in issuing the order. Another example is the following: “a person who
makes a statement in his capacity as a witness in a court trial does not merely
make a statement, but he testifies,
and his status as a witness is what makes his utterance count as testimony”.[31]
The propositional content conditions
are the conditions that the content of a speech act has to fulfil because of its
illocutionary force. For instance, in commissives, the speaker commits himself
to doing something. This kind of speech act sets a condition on its content: that
the speaker does something in the future. For example, anyone who makes a
promise commits himself to doing something in the future.
The preparatory conditions are conditions
that it is necessary to fulfil for a successful and non-defective performance
of an illocutionary act. For instance, “all acts whose point is to get the
hearer to do something -orders, requests, commands, etc.- have as a preparatory condition that the hearer is able to do
the act directed”.[32] For example, unless we have a time machine, a
judicial decision would be defective, if the judge gives the defendant the
order to travel to the past and to stop the performance of some prior action of
his.
The sincerity conditions are the
conditions that the psychological states of the speaker have to fulfil for the
illocutionary act to be non-defective. The utterance of an illocutionary act
implies certain psychological states related to the content of the act. Thus,
“an insincere speech act is one in which the speaker performs a speech act and
thereby expresses a psychological state even though he does not have that
state”.[33]
For instance, “an insincere promise is one where the speaker does not in fact
intend to do the things he promises to do”.[34]
The last of the seven dimensions of
illocutionary force is the degree of strength of the sincerity conditions. As
Searle and Vanderveken make explicit, “just as the same illocutionary point can
be achieved with different degrees of strength, so the same psychological state
can be expressed with different degrees of strength”.[35]
For instance, “the speaker who makes a request expresses the desire that the
hearer do the act requested; but if he begs, beseeches, or implores, he
expresses a stronger desire than if he merely requests.”
Now, as Ludwig and Boisvert explain:
“assertives, directives, commissives and declaratives have satisfaction conditions,
which come in two varieties: those with word-to-world direction of fit, and
those with world-to-word direction of fit”.[36]
They also explain the difference between the illocutionary acts from this point
of view: “Assertives have word-to-world direction of fit, since their point is
to make the words match the world; directives and commissives have
world-to-word direction of fit, since their point is to make the world match
the words. Declaratives have at least world-to-word direction of fit since
their point is to bring the world to match their contents […], and arguably, in
some case, word-to-world direction of fit as well”.[37]
Finally, when an illocutionary act
is successfully and non-defectively performed, it produces an effect in its
addressee. This effect is the perlocutionary effect of the speech act and
refers to the impact it aims to have (intended perlocutionary effect) or really
has (actual perlocutionary effect) on the “feelings, attitudes, and subsequent behaviour
of the person or persons to whom it is addressed”.[38]
VI. Illocutionary acts in the justification and decision
Taking into account these concepts
of the theory of speech acts, it is possible to analyse the three elements of a
basic judicial decision: major and minor premise and decision. However, before
looking at this, it is necessary to explain two general preparatory conditions
that the judicial decision has to fulfil.
A. General preparatory conditions
The judicial decision as a sequence
of speech acts has to fulfil at least two general conditions to be successful
and non-defective. The first concerns the authority of the judge. It is
necessary for the judge to have the legal power or competence to make the
decision. Concretely, a rule of the legal system must confer this competence on
the judge. This rule must be valid. As we say, it is necessary to understand
the validity of this rule in the institutional framework of the legal system as
a hierarchical structure of valid norms (rules and principles). Only in this
framework it is possible to understand the rule conferring power to the judge
as a constitutive rule according to which the decision (that is to say a certain
chain of speech acts) of the judge (a certain speaker) counts as a judicial
decision.[39]
If the speaker does not have the power to make a judicial decision at all or
the judge does not have the specific power to resolve the case at issue, then
the chain of speech acts he performs would not count as a judicial decision and
would be void.
Now the second general condition relates
to the form and the environment of judicial decisions. The judge has to make
the decision in a trial. The trial has to fulfil the forms that the law
establishes and the judicial decision as such has to fulfil certain formalities
as well. A serious procedural irregularity or a serious irregularity in the
form of the decision can make the judicial decision void. For instance, in the
case Riggs v. Palmer, the validity of
the decision presupposed that the New York Court of Appeals had competence to
provide a decision for the case and that its judgment took place at the end of
a procedure with all the legal formalities of an appeal. The decision by the
Court fulfilled all these conditions.
Having
stated these conditions it is now possible to analyse the structure of the main
elements of a judicial decision from the point of view of the theory of speech
acts.
B. Premise (1): The general rule
By uttering premise (1), that is to
say, the general rule “R”, the Court
is doing at least the following things. First, he asserts that “R” is the correct interpretation of the
law to apply in the actual case. Second, since this rule did not exist before,
at least as a rule in the legal system, the Court creates it as a rule of law.
Third, the Court set this precedent for analogous future cases. Fourth, the
Court uses the rule as a major premise in resolving the case.
These four things clearly appear in
the case of Riggs v. Palmer. The New
York Court of Appeals asserted that the rule (x)(Mx " ¬Gx)
is the correct interpretation of the law for cases like this. Second, since
this rule did not exist before, the Court creates the rule. Third, the Court
set this precedent for analogous future cases. Fourth, the Court uses the rule
as a major premise in resolving the case.
These four things correspond to
three different illocutionary forces of the judicial speech act of uttering
premise (1). The first one corresponds to a special kind of assertive. Let me
call this special kind: declarative
judgement. On the one hand, the declarative judgement is an assertive,
because by saying that “R” is the
correct interpretation of the law to rule the actual case, the judge is
describing the world. This is its illocutionary point. However, he is not
describing something in the physical realm but in the normative (more precisely:
legal) realm of the world.[40]
The judge is saying that “R” is valid
under description of the legal system.[41]
Let us remember that in the decision Riggs
v. Palmer the New York Court of Appeals gives some arguments about the
purpose of the statutes, the intention of the law-makers, the application of a
rational interpretation, and the principle or general maxim of the common law,
according to which: “No one shall be permitted to profit by his own fraud, or
to take advantage of this own wrong, or to acquire property by his own crime”, in
order to ground the claim that the rule “one cannot take property by
inheritance or will from an ancestor or benefactor whom he has murdered” is the
right interpretation of the law for cases like that of Elmer Palmer. This
argumentation entails a description of the legal realm, or put in another way,
of the legal practice. The statutes, the intention of the law-makers, the
methods of interpretation and the general maxims of the common law are elements
of this legal practice.
In addition to this, this
description of the normative realm has an evaluative component. The judge
utters premise (1) as the correct interpretation of what the statutes and the
other sources of the law establish for the actual case. This interpretation
depends on objective and subjective factors. The words of the statements are an
objective factor and the attitudes of the judge about the moral values
grounding the statutes are subjective factors. Consequently, the utterance of
premise (1) is not merely an assertion, but an assertion that presupposes an
evaluation. Since the assertion has a normative propositional content, the following
name is appropriate: judgement. Thus, in the case Riggs v. Palmer, the New York Court of Appeals performs a normative
assertion that the rule, (x)(Mx " ¬Gx),
belongs to the legal system.
Now a special preparatory condition
of this illocutionary act is that the judge has reasons for “R”. A propositional content condition
is that “R” is a possible
interpretation of what the legal system establishes for the actual case.
A sincerity condition is that the judge believes that “R” is correct. A further question is
about the standard of correctness. The question is whether it is enough that “R” be correct under the legal system or
whether “R” has to be correct also in
general, that is to say, according to justice. Certainly, the sincerity
condition refers to correctness under the legal system. However, it is possible
to ask whether, in order to be non-defective it is also necessary that the
judge believe that “R” is correct
from the point of view of justice. Let
us image a case in which a statute establishes an evil rule “ER” and the judge has simultaneously two
different psychological states related to the content of the act: on the one
hand, he believes that “ER” is a
correct interpretation of the law; on the other hand, he believes that “ER” is unjust. If we use the strategy of
stating “R” and simultaneously
denying the psychological state related to correctness from the point of view
of justice,[42]
then we get the following result: “ER”
is the correct interpretation of the law, but “ER” is unjust. At this point, the answer to the question whether
the utterance of “ER” by a judge is
non-defective depends on the answer to the question whether there is a
conceptually necessary connection between law and justice, or law and morality.
A legal positivistic theorist would deny this connection and say that the
utterance of “ER” is non-defective.[43]
A non-legal positivistic theorist would endorse this connection and say that
the utterance of “ER” is defective.[44]
The reason for the defectiveness would be the paradox between, on the one hand,
the sentence that we get when we contrast the content of the speech act with
the psychological state of the judge, that is to say: “ER” is the correct interpretation of the law, but “ER” is unjust, and, on the other hand,
the sentence stating that there is a conceptually necessary connection between
law and justice. If, due to this connection, genuine law can never be unjust, “ER” cannot be at the same time “the
correct interpretation of the law” and “unjust”.
In any case, it is necessary to say
that the direction of fit of the illocutionary act of uttering premise (1) is word-to-world,
since its point is to make the justification of the judicial decision match the
correct interpretation of the normative (legal) realm. Its intended
perlocutionary effect is to persuade the parties in the process, the legal
community and the community in general, that “R” is the correct interpretation of the law in the actual case.
The second illocutionary force of
the utterance of premise (1) is declarative. For this reason, the speech act
involved in uttering premise (1) has been called declarative judgement. By the
utterance of this premise, the Court creates the rule “R”. The illocutionary point of uttering this declaration is to
bring about the state of affairs that it represents. The Court is actually
introducing a modification in the legal system. He is adding a new rule. By
uttering the premise (1) he is bringing about this state of affairs. From this
moment, the new rule appears in the legal system. This is the creation of a new
institutional fact. It also explains why this rule is valid as a precedent for
future cases and why the judge can apply it as major premise to resolve the
actual case. This is the way in which the New York Court of Appeals creates the
rule (x)(Mx " ¬Gx). The Court set this rule as precedent for future cases and
applies it as major premise for the case Riggs
v. Palmer.
Nevertheless, this application of
the rule “R” as major premise implies
another different illocutionary force. This is again a declarative, but it is
different from the creation of the rule “R”.
In the application of the rule “R”
the judge is bringing about the state of affairs that the actual case, for
instance, Riggs v. Palmer is going to
be adjudicated under the rule “R”.
This is also the creation of a new institutional fact.
Now the direction of fit of these
declarations is world-to-word, precisely: normative realm-to-word, since the
point of the first is to introduce a new rule in the legal system and the point
of the second to introduce the major premise in the justification of the case.
They aim to bring about those new legal facts.
C. Premise (2): The subsuntive statement
Premise (2), that is to say: (Ca), is a subsuntive statement. By
uttering it, the judge is doing at least the following things. First, he is
asserting that the facts described as conditions of the rule “R” took place,
according to the evidence. In the case Riggs
v. Palmer the subsuntive statement is (Mp).
According to this statement, Palmer (P)
murdered his testator and, in this way, this event is an instantiation of the
conditions described in the antecedent of the rule: (x)(Mx " ¬Gx).
Of course, since it is a judgment by the New York Court of Appeals, this Court
does not evaluate directly the evidence in order to assert that (Mp). The Court takes this assertion for
granted, that is to say, its point of depart is the assertion by the criminal
jury, according to which Palmer murdered his grandfather. It is well known that
in the American System of Justice, in certain cases the judge is the fact
finder and the other cases the fact finder is the jury. In the first kind of
cases is the judge who asserts that the conditions described in the antecedent
of the rule took place. In the second sort of cases, the jury asserts it and
the judge departs from the assertion made by the jury. In what follows I will
speak about the cases in which the judge is the fact finder.
Second, by uttering premise (2) the
judge is also creating this institutional fact, and setting it as precedence. Third,
he is also including this sentence (Mp)
as minor premise in the justification of the decision.
These three things correspond to
three different illocutionary forces of the judicial speech act of uttering
premise (2). The first one corresponds to a special kind of assertive. Let me
call this special kind: empirical declarative judgement. The empirical
declarative judgement is an assertive, because by saying, for instance, that (Ca) (in the case Riggs v. Palmer: “Mp”),
that is to say, that the action (a) (What
Palmer “p” did) fulfilled the conditions
(C) (to murder the testator: “Mx”) of the rule “R”, (x)(Mx " ¬Gx),
the judge is describing the world. This is its illocutionary point. However, he
is not describing directly something in the empirical world, because the judge
actually does not have any direct contact with the performance of the action (a).[45]
Therefore, the judge is just able to assert indirectly that (a), at least probably, took place and
fulfilled the conditions (C). The
judge is directly describing something about the proofs taken into account in
the process. He is asserting that the proofs show that (a). Nevertheless, the judge adds an evaluative component to this
assertion. The judge does not merely describe what the proofs show, but
evaluates it according to normative criteria related to their relevance and
reliability. For this reason, (Ca) is
not a mere empirical assertion but an empirical ascription.[46]
A special preparatory condition of
this illocutionary act is that the judge has reasons for the truth of (Ca). These reasons derive from the
evaluation of the proofs. Now there are at least two kinds of sincerity
conditions for this illocutionary act. According to Austin,[47]
in criminal law cases it is arguable whether the judge has to believe (“really
feel”) “that the defendant is guilty” or to believe “that one is justified
(‘feel justified’), on the evidence adduced at the trial, in accepting that he is guilty”. At the
first glance it looks like the second hypothesis of Austin is true, that is to
say, that the sincerity conditions of asserting premise (2) presupposes that the
judge believes that he is justified on the evidence in accepting that (Ca). Nevertheless, this does not seem to
be enough. Premise (2) also presupposes that the judge believes that the
defendant is indeed guilty, that is to say, that an action performed by the
defendant indeed took place and is an instantiation of the conditions described
in the antecedent of the rule “R”. If we use again the strategy of stating (Ca) and simultaneously denying the belief
of the judge that the defendant performed (a)
and that this action is an instantiation of the conditions described in the
rule,[48]
then the result is the following paradox: (Ca)
is proved, but this statement is false, because (a) did not actually take place or did not actually fulfilled the
conditions (C). Now the direction of
fit of this illocutionary act is word-to-world, since its point is to make the minor
premise of the justification of the judicial decision match the evidence and
the empirical world. Its intended perlocutionary effect is to persuade the
parties in the process, the legal community and the community in general, that,
according to the evidence, (a) indeed
took place and fulfilled the conditions (C)
of the rule “R”.
As in premise (1), the second illocutionary
force of the utterance of premise (2) is declarative. For this reason, it has
been called: empiric declarative judgement. By the utterance of this premise, the
fact finder (the judge or the jury) creates a new institutional fact. It
declares that “Ca”. The illocutionary
point of uttering this declaration (“a”
officially took place and fulfilled the conditions “C” of the rule “R”) is
to bring about the state of affairs that it represents. The fact finder is
actually introducing a modification in the legal system. He is officially
adding a new fact to the set of facts officially recognised by the legal system
and he is changing the status of the agent of the action (a). From this moment, this action (a) is officially imputed by the legal system to the agent and it is
officially declared that this action (a)
fulfilled the conditions (C) of the
rule “R”. The judge declares with his
authority that the agent’s behaviour took place and fulfilled the conditions
described in the general rule. By doing this, the accusations of the plaintiff
became official fact. There is a difference between this institutional fact and
the brute facts. This institutional fact is a “legal certification”[49]
that the brute fact took place. Only the fact finder (judge or jury), with his
competence, after a judicial procedure and with the right legal forms can give
this legal certification. The legal
certification makes the brute fact relevant to the legal system. All this also explains why this declaration
has precedential force for future cases and why the judge has to (or can) apply
it as minor premise to solve the actual case.
Nevertheless, this application of
the statement “Ca” as minor premise
implies another different illocutionary force. This is again a declaration, but
it is different from the creation of the official declaration that “Ca”. In the application of “Ca” to the case, the judge is bringing
about a state of affairs, namely, that the actual case, for instance, Riggs v. Palmer is going to be
adjudicated under the premise “Mp”.
This is also the creation of a new institutional fact.
Now the direction of fit of these
declarations is world-to-word, more precisely, normative realm-to-word, since
the point of the first is to introduce a new official fact into the legal
system and the point of the second to introduce the minor premise in the
justification of the decision in the case.
D. The decision (D)
Finally, by uttering the decision (D), that is to say, the imposition of
the legal consequence (LCa) to the
agent, the judge is doing one of two things or both. First, he is changing or
settling the legal positions, that is to say the legal status or relationships
of the parties. Second, he is giving an order addressed to other competent
authorities or to the parties.
The first thing clearly appears in
the case Riggs v. Palmer. The New
York Court of Appeals imputes directly the sanction (¬Gp), that is to say, does not give the property to Palmer and,
correlatively, gives this property to the plaintiffs. Nevertheless, in other
cases the judge can also give an order to other competent authorities. In
criminal judgments, for instance, the judge can give an order of imprisonment
of the defendant, and in tort law cases the judge can order the payment of
damages to a party. In these last cases, the decision has also a declarative
component. If a judge convicts an agent of a crime and orders his imprisonment,
he is also changing the legal status of this agent.
These two things correspond to two
different illocutionary forces of the judicial speech act of uttering the
decision (D). The first one is
declarative. By uttering the decision (D)
the judge is creating a new institutional fact. He is changing the legal
positions of a party or of the parties. The illocutionary point of uttering
this declaration (the actual imputation of the sanction “S” to the agent “a”) is
to bring about the state of affairs that it represents. The judge is actually
introducing a modification in the legal status of the agent. He is officially
adding a new institutional fact to the set of institutional facts that the
legal system associates with the agent (a).
It is possible to see very clearly this point in cases like divorce decisions.
With the decision, the judge actually changes the legal status of the agent and
this change has certain consequences (for example, the agent can get married
again).
Now the second illocutionary force
of the decision corresponds to a directive. Its point is to direct the
addressees of the order to perform the imputation of the sanction (S) to the agent of the action (a). The judge has to use directive
speech acts when he does not have the competence to impute the sanction by
himself. For instance, in the criminal cases, when a sanction of imprisonment
is a stake, the judge clearly does not have the power himself to bring the
defendant to prison. Consequently, he gives the order to impute this sanction
to the competent authority. A special propositional condition of this speech
act is that the sanction has not yet been imputed to the agent. The imputation
of the sanction must be a future act. A special preparatory condition is that
the addressee of the order is empirically and legally able to impute the
sanction (S) to the agent of the
action (a) and that the judge
believes it. A special sincerity condition is that the judge actually intends
to impute the sanction (S) to the
agent of the action (a). Finally, an
essential condition is that the order counts as an attempt of the judge to make
the competent authority impute the sanction (S) to the agent of the action (a).
The direction of fit of this speech act is world-to-word, since its point is to
make the world (the act of imputing the sanction) match to the decision.
Finally, in some cases (e.g., in certain criminal and tort law
cases) the decision has also an expressive force. It expresses (in the speech
act sense) a negative attitude towards the agent. According to Ho,[50]
in criminal law cases the decision entails a condemnation or censure that aims
“to bring about a sense of shame in the defendant as a first step towards
repentance and reform.” Some decisions in tort law have a similar expressive
force. However, this is not always the case. In many cases a judicial decision
solves a social problem without any formal expression of any negative attitude
toward the parties.
*
[1] At the beginning of this paper I
will talk about judges performing speech acts. However, this account of the
logical and speech act structure of judicial decisions can also explain a
judicial decision made by a Court, with some modifications concerning the
collective intentionality of an act performed by various judges.
[2] Following J.L. Austin, I will use
the concept of locutionary act as the act of “saying something”. See J.L. AUSTIN, How to do Things with Words,
[3] Following
[4] According to John Searle, “social
reality” is constructed out of status functions. See, on the concept of status
function, J. SEARLE, The Construction of Social Reality,
[5] The theory of speech acts has been
fruitfully used in the analysis of legal concepts in the past. See, e.g. the
analysis of rules conferring powers by D.W.P.
RUITER, Legal Institutions,
Dordrecht, Kluwer, 1993; id., “Legal
Powers”, in S. PAULSON and B.L. PAULSON, Normativity and Norms, Oxford, Oxford University
Press, 1998, pp. 471-492; id.,
“Institutional Legal Facts: Legal Powers and Their Effects”, Artificial Intelligence and Law, 1997, pp.
377-385. See also the analysis of contracts by J. CONISON, “The Pragmatics of Promise”, Canadian Journal of Law and Jurisprudence, 1997, pp. 273-ff; J. YOVEL, “What Is Contract Law
‘About’? Speech Act Theory and a Critique of ‘Skeletal Promises’”, Northwestern University Law Review,
2000, pp. 937-ff. See also the analysis of a verdict by H.L. HO, “What Does a Verdict Do? A Speech Act Analysis of Giving a
Verdict”, International Commentary on
Evidence, 2006, pp. 1-ff.; and the analysis of the judicial overruling by P.H. DUNN, “How Judges Overrule: Speech
Act Theory and the Doctrine of Stare Decisis”, Yale Law Journal, 2003, p. 493.
[6] The illocutionary force is a property of speech acts, which results of
the “combination of the illocutionary point of an utterance, and particular
presuppositions and attitudes that must accompany that point, including the
strength of the illocutionary point, preparatory conditions, propositional
content conditions, mode of achievement, sincerity conditions, and strength of
sincerity conditions”, Summer Institute of Linguistics, 10 Apr. 2007, http://www.sil.org/linguistics/GlossaryOfLinguisticterms/WhatIsIllocutionaryForce.htm.
Now, depending on their illocutionary force, it is possible to distinguish
among the following types of acts: asserting, promising, excommunicating,
exclaiming in pain, inquiring and ordering. See also J. SEARLE and D. VANDERVEKEN, Foundations of Illocutionary Logic,
[7] Thinking about the law has contributed for developing the theory of
speech acts. See, e.g. the explicit references to the law in the works by J. SEARLE, The Construction of Social Reality, supra note 4, pp. 82-ff.; and J.L. AUSTIN, How to do Things with Words, supra
note 2, pp. 7-ff. In this book
[8] Court of Appeals of
http://www.courts.state.ny.us/reporter/archives/riggs_palmer.htm
[9] According to the Court, this
purpose was to “enable testator to dispose of their estates to the objects of
their bounty at death and to carry into effect their final wishes legally
expressed”.
[10] According to the Court, this
intention was that: “the donees in a will should have the property given to
them. But it never could have been their intention that a donee who murdered
the testator to make the will operative should have any benefit under it”.
[11] The rational interpretation or
equitable construction tries to correct the impossibility of the law makers ruling
on every particular case in which a rule applies, and allows the Court to
restrain or to extend the meaning of the word of a statute to avoid irrational
outcomes. In this case, the Court enhanced the exceptions to the inheritance of
the property by including among the exceptions the case in which the inheritor
murdered the testator.
[12] This case is well known because R. DWORKIN used it to show (against
Hart’s concept of law) that the legal system is not only made of rules but also
of principles; Taking Rights Seriously,
London, Duckworth, 1977, pp. 23-45.
[13] On the concepts of internal and
external justification, see R. ALEXY,
A Theory of Legal Argumentation: The
Theory of Rational Discourse as Theory of Legal Justification, transl. [by N. MACCORMICK and R. ADLER, Oxford,
Clarendon Press, 1989]; J. WRÓBLEWSKI,
“Legal Decision and its Justification”, in J.
WRÓBLEWSKI, Le raisonnement juridique,
Brussels, Hubien, 1971, p. 412; N.
MACCORMICK, Legal Reasoning and Legal
Theory, Oxford, Oxford University Press, 1978, p. 100.
[14] On this kind of logical
reconstruction of judicial decisions, see R.
ALEXY, “Die Logische Analyse Juristischer Entscheidungen”, in R. ALEXY, Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie,
[15] On the concept of imputation, see S. L. PAULSON, “Hans Kelsen’s Doctrine
of Imputation”, Ratio Juris, 2001,
pp. 47-ff.
[16] For the concept of propositional
content, see J. SEARLE, Speech Acts, supra note 2, pp. 29-30. Searle says: “A proposition is what is
asserted in the act of asserting, what is stated in the act of stating”. The
propositional content remains constant, despite changes in the illocutionary
force of the speech act.
[17] On the assignment of a function,
see J. SEARLE, The Construction of Social Reality, supra note 4, pp. 14-ff and 23.
[18] On the concept of institutional
fact: Ibid., pp. 17-ff.
[19] On the concept of collective
intentionality: Ibid., pp. 23-ff.
[20] On the concept of rule of
recognition, see H.L.A. HART, The Concept of Law,
[21] On the concept of basic norm, see H. KELSEN, Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure
Theory of Law, transl. [by B.
LITSCHEWSKI PAULSON and S.L. PAULSON,
Oxford, Clarendon, 1997], pp. 58-ff.
[22] On the concept of we-intention and
its role in collective intentionality, see K.
LUDWIG, “Foundations of Social Reality in Collective Intentional
Behaviour”, in S.L. TSOHATZIDIS, Intentional Acts and Institutional Facts:
Essays on John Searle’s Social Ontology,
[23] On the concept of constitutive
rule, see J. SEARLE, The Construction of Social Reality, supra note 4, pp. 27-ff. According to
Searle, a canonical formulation of this kind of rules is: “X counts as Y in context C”.
[24] In this sentence, the interpretation
of the canonical formulation of the constitutive rule “X counts as Y in context C” is:
Domain: The set of all the human actions
X: The interpretation of the statutes
Y:
Major premise for the justification of the decision and precedence for
future cases
C: X is performed by the Court of Appeals of
[25] See J. SEARLE, Speech Acts, supra note 2, pp. 31-ff and 64-ff. See
also D. GONZÁLEZ LAGIER, The Paradoxes of Action: Human Action, Law and Philosophy,
[26] See J. SEARLE and D. VANDERVEKEN, Foundations of Illocutionary Logic, supra note 6, pp. 12-ff.
[27] Ibid., p. 13.
[28] See K. LUDWIG and D. BOISVERT,
“Semantic for Nondeclaratives”, in E.
LEPORE and B. SMITH, Oxford Handbook of
the Philosophy of Language, Oxford, Oxford University Press, 2006, Chapter
34.
[29] See J. SEARLE and D. VANDERVEKEN, Foundations of Illocutionary Logic, supra note 6, p. 15.
[30] Ibid., p. 15.
[31] Ibid., p. 16.
[32] Ibid., pp. 17-18.
[33] Ibid., p. 18.
[34] Ibid., p. 18.
[35] Ibid., p. 19.
[36] See K. LUDWIG and D. BOISVERT, “Semantic for Nondeclaratives”,
supra note 28, p. 3.
[37] See J. SEARLE and D. VANDERVEKEN,
Foundations of Illocutionary Logic, supra note 6, p. 3.
[38] See K. LUDWIG and D. BOISVERT, “Semantic for Nondeclaratives”,
supra note 28, p. 11.
[39] On the analysis of the rules
conferring powers as constitutive rules, see D.W.P. RUITER, “Legal Powers”, supra
note 5, pp. 471-ff.
[40] This corresponds to the third realm
of Frege. See G. FREGE, “The
Thought: A Logical Inquiry”, transl. [by A.
M. QUINTON and M. QUINTON, in P. F. STRAWSON, Philosophical
Logic,
[41] The legal system is part of the
normative realm.
[42] See J. SEARLE and D. VANDERVEKEN, Foundations of Illocutionary Logic, supra note 6, p. 19.
[43] See
[44] See R. ALEXY, The Argument form
Injustice: A Reply to Legal Positivism, transl. [by B. LITSCHEWSKI PAULSON and S. L. PAULSON,
[45] However, this could be the case in
exceptional circumstances, when the judge makes a direct inspection of certain
things.
[46] On the concept of ascription in
this context, see H.L. HO, “What Does
a Verdict Do? A Speech Act Analysis of Giving a Verdict”, supra note 5, p. 19.
[47] See J.L. AUSTIN, How to Do Things
with Words, supra note 2, p. 41.
[48] See J. SEARLE and D. VANDERVEKEN, Foundations of Illocutionary Logic, supra note 6, p. 19.
[49] H.L. HO,
“What Does a Verdict Do? A Speech Act Analysis of Giving a Verdict”, supra note 5, p. 13.
[50] See H.L. HO, “What Does a Verdict Do? A Speech Act Analysis of Giving a
Verdict”, supra note 5, p. 25.