Asgeirsson on 'Non-Literal Content and Legal Directives', Dec 12, 2011
Hrafn Asgeirsson (University of Southern California)
16.00-17.30: Non-Literal Content and Legal Directives
Respondent: Tria Gouvas (Antwerp)
Venue: S.M.103 (De Meerminne building, Sint-Jacobstraat 2) Program
In ordinary conversational settings, it frequently happens that speakers assert something other than what they literally say. Given the ubiquity of this phenomenon, it makes sense to ask whether it also frequently happens that legislatures assert something other than what they literally say.
Andrei Marmor has argued that the legislature rarely asserts something other than what it literally says. According to Marmor, a speaker succeeds in asserting something other than what she literally says only if it is obvious that she cannot be intending to assert the literal content of her remark. And that rarely happens in law, he says. I argue that the epistemic constraint on non-literal assertion is often lower than Marmor holds – although its exact “height” may (like standards of proof) vary between legal domains.
I argue, however, that Marmor’s argument can be successfully revised: the content of a statutory directive is rarely determinately different from its literal content due to the fact that legislative contexts generally contain little unequivocal information about legislative intent. In a significant number of cases, however, it is to some extent vague what the content of the relevant statute is. This has significant consequences for the analysis of a number of important but controversial legal cases, which I discuss in some detail.