Izabela Skoczeń

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation.

In the present paper we argue that although the semantics of both legal and moral statements can be explained with the use of a unified framework called hybrid or quasi-expressivism (Finlay & Plunkett, 2018), there still is an important difference in the semantics of moral and legal terms. Namely, while the truth conditions of legal statements are widely intersubjectively shared, this is not the case with moral statements. We demonstrate this difference using the example of the ex aequo et bono adjudication method. In the first background section we explain what is hybrid or quasi-expressivism as well as what is the standard account of the semantics of moral and legal statements. In the next section, we explain in detail how we aim to demonstrate that the semantics of legal terms and the semantics of some moral terms, such as ‘goodness’ or ‘fairness’, differ importantly. In order to illustrate the difference, we next explain the ex aequo et bono adjudication method and provide examples of cases in which this method has been employed. Crucially, this method is extremely rarely used, which highlights the difference between the semantics of legal and moral statements. Finally, we provide our interpretation of why ex aequo et bono adjudication is so seldom employed and what consequences this has for a theory of the semantics of legal and moral terms.

What does it mean to understand the law? This challenging book discusses whether and how understanding the law is qualitatively different from understanding a different, non-legal text or linguistic utterance, and whether knowledge of a language is sufficient to understand legal content in that language. Providing a comprehensive overview of current studies of interpretivism, both in the common and civil law systems, this book applies state of the art theories and tools of modern philosophy of language to shed new light on traditional questions in legal theory. Chapters discuss the normative importance and descriptive impact of moral inferences in legal interpretation and critically analyse the claims of legal interpretivism, uncovering the most recent versions of legal positivism. The impressive selection of leading contributors explore an array of important topics including metaethics, expressivism and legal semantics. Outlining a new direction of study and delineating the path for future research on moral inferences in legal interpretation, this timely book will be a thought-provoking read for legal scholars and students interested in legal theory, philosophy and interpretation.

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting.

Legal and moral luck goes against the basic principle of criminal law that responsibility ascriptions are based on the mental state of the perpetrator, rather than merely the outcome of her action. If outcome should not play a decisive role in responsibility ascriptions, the attempt versus perpetration distinction becomes more difficult to justify. One potential justification is that we never know whether the attempter would not have resigned from pursuing her criminal intent even at the last moment. However, this paper argues that resigning from criminal intent and trying to stop the criminal outcome, which is called the renunciation defense, can be just as subject to outcome luck as the attempt versus perpetration distinction. And yet the availability of the renunciation defense in court is outcome dependent. I show with a series of experiments (N = 479) that outcome dependence for the renunciation defense is perceived as unjust and discuss the implications for the renunciation defense as well as attempt versus perpetration distinction.

In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting.

W. Baude’s and S.E. Sachs’s paper entitled “The Law of Interpretation” is a fascinating survey of a plethora of cases from the American common law system. The main conclusion of the article is extremely interesting from both philosophical and practical points of view. Namely, the authors claim that there exists something additional in the law that has not been identified before, and this is the law of interpretation. This law of interpretation is claimed to be a set of both written and unwritten rules, including the canons of construction. However, a closer look at the examples provided by Baude and Sachs throughout their paper proves some nonhomogenous nature of the unwritten rules of the law of interpretation. I claim that this nonhomogeneity comes precisely from different, more fundamental facts to which these unwritten rules of interpretation are related. Moreover, I argue that the elements of the law of interpretation that are indeed incorporated into the law are in fact scarce, and I investigate the reasons for this state of affairs. Two main reasons are analyzed—the nature of context and the structure of all-things-considered moral arguments.

In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks.

I investigate: to what extent do folk ascriptions of lying differ between casual and courtroom contexts? to what extent does motive to lie influence ascriptions of trust, mental states, and lying judgments? to what extent are lying judgments consistent with previous ascriptions of communicated content? Following the Supreme Court’s Bronston judgment, I expect: averaged lying judgments to be similar in casual and courtroom contexts; motive to lie to influence levels of trust, mental states ascriptions, and patterns of lying judgments; retrospective judgments of lying, after being presented with the state of the world, to be inconsistent with previous judgments of communicated content: participants hold the protagonist responsible for content she did not communicate. I performed a survey experiment on the Qualtrics platform. Participants were recruited through Amazon Mechanical Turk. I employed standard Likert scales and forced-choice questions. I found that: average lying judgments are similar in casual and courtroom contexts; motive to lie decreases trust ascription and increases lying judgment; judgments of lying are inconsistent with previous judgments of communicated content: participants hold the protagonist responsible for content they did not communicate. Perjury ascriptions are inconsistent. The Supreme Court’s worries expressed in the Bronston judgment are well founded. This article helps reforming jury instructions in perjury cases.

This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics. Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making.

In the present paper, I argue against the claim that ex aequo and bono adjudication cannot be epistemically objective. I start with a survey of legal rules allowing the parties to resort to ex aequo et bono adjudication. Next, I argue that decisions taken on ex aequo et bono basis are not subjective for three main reasons. First, they are analogous to decision making in hard cases. Second, theories of practical reasoning and hybrid expressivism provide a precise theoretical account of the mechanisms at stake. Third, the context of adjudication provides substantial constraints on judicial tasks.

In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.