Brian E. Butler

Law and the Primacy of Pragmatics

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.

Dews, Dworks, and Poses Decide Lochner

Lochner represents a crucial case in American constitutional law. An investigation of the decision highlights important philosophical aspects of the place of law in a democratic society. Analysis of contemporary stances on Lochner, the actual Lochner opinion (including the dissents by Harlan and Holmes) and how judges following the legal philosophies of John Dewey, Ronald Dworkin and Richard Posner (“Dews,” “Dworks,” and “Poses”) would have decided the case shows that Dewey’s theory of law and democracy emerges as the most attractive alternative.

Law and Indirect Reports: Citation and Precedent

In this chapter Alessandro Capone’s claim as the intimate relationship between legal reasoning and indirect reports is investigated through looking at legal citation practices, use of case law, and statutory and constitutional interpretation. Capone’s thought is informed in the chapter through a reference to the work of Ronald Dworkin and Edward H. Levi. The conclusion of the chapter is that Capone is correct that use of indirect reporting in law is ubiquitous and therefore warrants careful study. Further, and opposite of Dworkin’s hope for a univocal use of indirect reports, Levi’s analysis emphasizes the bottom-up, conversational and polyvocal aspects of legal reasoning as is noted by Capone. This in turn requires eliminating the hope for finding or imposing a determinate and univocal meaning on legal citation, case law, and statutory and constitutional interpretation. Instead, continuing dialogue is required. Indeed, legal process should try to include as many voices in the construction of meaning as possible.

Dworkin’s “Semantic Sting” and Behavioral Pragmatics

Ronald Dworkin in Law’s Empire famously utilized what he described as the “semantic sting” to explain both why the concept of “law” is an essentially contestable concept and because of this why the concept of law is also essentially interpretive. Ultimately Dworkin’s theory makes law and legal practice on all levels turn on, in his terms, an essentially semantic dispute over what the best conception of law is. That is, law is in all its worldly glory ultimately an interpretive concept based upon a conception of meaning centered upon semantics. I argue that law is better analyzed as a set of embodied and socially embedded practices and that emphasis upon the interpretive or “semantic” aspects of law crowds out the more important behavioral and concrete aspects of legal practice. The claim in this chapter is simply that even the most sophisticated conceptual or semantic analysis of law in terms of a core set of concepts is indefensibly reductionist. If semantic theories of law have a tendency to crowd out the recognition of practices, of embodied social ways of life, then the real “semantic sting” is in accepting the semantic move, and not in any disagreement over how semantic content is to be identified.

Dark borders: film noir and American citizenship

explores the stylistic and aesthetic choices of two actors – Eve Angelina and Allie Sin – and critiques their skills as actors, performers, and sexual athletes. Her close analysis of Allie Sin’s 10 minute scene, focusing particularly on a 4minute section where there is a close-up of Allie’s face as she fellates her co-star, reveals the grace and beauty of her acting, something that is not often focused on in adult performers. Smith also points out the misogynistic backlash suffered by female porn stars, and the implicit, uncomfortable assumptions that they are not artists at all, but prostitutes – itself a gross misunderstanding of the mechanics of sex work. Her autobiographical look at the life and career of Eve Angelina is affectionate and admiring. This kind of humanising, respectful discourse is a positive addition to the collection and creates a truly feminist space for discussion of pornography. The last two essays are the only two on explicitly queer themes. John Mercer writes on Treasure Island Productions, barebacking, and the power bottom in gay pornography. As one of the only representations of gay pornography in the collection, this essay engages with contentious issues without reducing them to medicalised, pathologised discourses. Rebecca Beirne handles the age-old issue of lesbian pornography – and the problems of making porn by women for women when lesbian love scenes have been appropriated and perverted by mainstream heterosexual pornography. Her chapter offers a review of lesbian-made and lesbian-oriented films. Though there are some concerns about the US/UK bias and sparseness of queer representation amongst these essays, this is an excellent snapshot of porn studies as they are today and provides an insight into the range and quality of critical engagement with hardcore pornography in the industry, in the academy, and beyond.

Rorty, the First Amendment and Antirealism: Is Reliance upon Truth Viewpoint-Based Speech Regulation?

In this article I investigate the implications of antirealism, as characterized by Richard Rorty, for First Amendment jurisprudence under the United States Constitution. It is hoped that the implications, while played out in the context of a specific tradition, will have more universal application. In Section 1, Rorty’s ‘pragmatic antirealism’ is briefly outlined. In Section 2, some effects of the elimination of the concept of truth for First Amendment jurisprudence are investigated. Section 3 argues for the conclusion that given the antirealist stance, the Supreme Court’s usage of the true/ false fact distinction is actually an uncritical allowance of viewpoint-based discrimination into speech protection that has potentially far-reaching and restrictive results for important speech. Finally, in Section 4 Rorty’s antirealism is combined with various traditional models of First Amendment analysis to see how it would function. The conclusions aimed at are twofold. First, that Rortian antirealism is compatible with the traditional models underlying First Amendment theory. Second, that a realization that truth is the result of, in Rorty’s words, ‘intra-mundane’ discourse leads to an argument for different and potentially stronger and more farreaching protections to speech.