Widening the gricean picture to strategic exchanges

Abstract

Recent attacks on textualism are somehow dismissive of the relevance a Gricean approach to normative texts may have. Before entering the issue, the essay sketches some insights made possible by the analysis of presuppositions and implicatures in statutes and opinions. As an example, the techniques established by Sbisà (Detto non detto. Le forme della comunicazione implicita. Roma – Bari, Laterza, 2007) for the retrieval of implicit information carried by texts are applied to a statute, to some opinions related to it, and to its final amendment. Cleared that approaching normative texts in this vein purports no theory of legal interpretation (indeterminacy being an essential feature of implicatures), the discussion focuses on the scope Andrei Marmor (The Language of Law. Oxford Univesity Press, Oxford, 2014) attributes to the Cooperative Principle of conversation. Marmor’s interpretation depends on a deviant reading of the adjective ‘cooperative’ as essentially helpful and sincere, whereas Grice meant his principle to cover both collaborative and strategic communicative exchanges, an established interpretation here confirmed by evidence suggesting that Grice’s elaboration of the Principle was partly inspired by the Hart-Rawls Principle of Fair Play, meant to cover expectations arising in both cooperative and strategic interactions. In Grice’s theory, any communicative exchange includes both a strategic and a collaborative component, their balance depending on the amount of purposes shared by the parties. The maxims in force in the conversation and the degree of collaboration the parties may mutually expect their moves to respect are shaped consequently. In conversations in which the parties pursue mostly aligned purposes, expectation of helpfulness and sincere collaboration is high; as a consequence, the moves available to the parties are different from those allowed in conversations in which the parties mutually know to be striving to reach mostly divergent purposes. Finally, the essay inquiries the general form a cooperative principle governing the textual exchange between the legislature and the courts may have, provided that its concretion in each legal community is modulated by the legal and social history of the community.