Law and the primacy of pragmatics

Abstract

Many standard pictures of pragmatics and legal jurisprudence reflect a common set of largely unquestioned assumptions. One recurring and central assumption is that of a separate and discretely identifiable linguistic system with concomitantly identifiable semantic meaning that then often needs “pragmatic enrichment” in order to be applied to context. In the legal realm this then raises the question of when is it acceptable to enrich semantic context in the context of rule application. This picture of rule and language application rests upon an analysis that takes as given the primacy of semantics to pragmatics. In this paper I will reverse this standard picture and construct an analysis of law and jurisprudence that begins from the assumption of the primacy of pragmatics in linguistic practice. Semantic meaning is seen from this stance as a hypothesis about behavioral meaning in linguistic practice and not as a to-be-applied starting point. Instead of starting from a presumed meaning, seeing pragmatics as primary rests identification of linguistic meaning, or the meaning of an institutional practice such as law, on a more central investigation of legal practices and habit, ostensibly linguistic or not. Using the work of George Herbert Mead, Charles Morris, Willard van Orman Quine and Donald Davidson, all theorists that emphasized behavior broader than that focused upon by more intellectualist theories of language, I will argue that greater attention to the primacy of pragmatics challenges standard theories of jurisprudence thereby forcing greater attention to traditionally ignored aspects of legal practice. This result, in turn, renders a more inclusive analysis necessary in order to construct a proper analysis of the pragmatics of legal practice.