Francesca Poggi

Grice, the Law and the Linguistic Special Case Thesis

This paper aims to investigate the applicability of Grice’s theory of conversational implicatures to legal statutes and other general heteronomous legal acts (while acts of private autonomy are excluded from the scope of the present investigation). After a brief presentation of Grice’s theory Sect. 1 and an attempt to adapt conversational maxims to normative discourse – which is assumed to be neither true nor false Sect. 2 – I will survey one of the most convincing arguments against the applicability of conversational maxims to the legal domain, the one based on the (absence of a precise, real) legislative intention Sect. 3. I will argue that this argument is not decisive, but that, however, conversational maxims do not apply to legislation: as a matter of fact, legal practice does not include Grice’s conversational maxims among its conventions Sect. 4. This inapplicability, which derives from the very nature of the cooperative principles and the maxims, fits other peculiarities of legal practice: perhaps the most relevant is what we may call the contextual indeterminacy of legal discourse, a characteristic that is rigidly coupled to its conflicting nature. I will claim that all these features explain why legislation and other general heteronomous legal acts are not special cases of ordinary conversations Sect. 5.

L'autonomia in bioetica: A proposito di un libro di Marina Lalatta Costerbosa

Una bioetica degli argomenti by Marina Lalatta Costerbosa (2012) addresses some complex issues about the concept of autonomy and its role within some bioethical dilemmas: in particular, it engages with two questions connected, respectively, with prenatal testing and cloning. In this review the author, after having recognized the undoubted merits of the book in question, moves some criticisms to the concept of autonomy employed and to the solutions proposed.

The Possibility Puzzle and Legal Positivism

The aim of this chapter is to discuss a paradox concerning the law, which Shapiro analyzes in his book Legality. According to Shapiro, it is puzzling how the law could have been invented: attempts to explain the origins of law face a paradox, which Shapiro labels possibility puzzle (PP). Briefly, the problem is that in order to get legal power, one must already have legal power. According to Shapiro, the legal positivist solutions to the PP are not homogeneous. Shapiro examines two of these solutions, Austin’s solution and Hart’s one, and he argues that they are both unsatisfactory. In fact, Shapiro stresses that whatever solution to the PP must be compatible with a theory dealing with problematic issues such as the methodology of legal theory, the logical status of normative statements, the judicial duty to apply the law and the relation between moral and legal duties. But, according to Shapiro, neither Hart’s solution nor Austin’s one solves satisfactorily these underlying problems. In this chapter I will sustain, firstly, that once we adopt a legal positivist point of view, the PP vanishes or, better, it turns into a not paradoxical question; secondly, that all the legal positivists (including Hart and Austin) give the same answer to that question, and this is because that answer stems from (is implicit in) the very concept of legal positivism; finally, that the underlying problems (previously mentioned) had already been solved by a legal positivist theory. With regard to the last point, I will try to vindicate Hart’s theory against Shapiro’s criticisms, although I will acknowledge that some corrections must be made.

SIGNIFICADO LITERAL: UNA NOCIÓN PROBLEMÁTICA*

RESUMEN. En este trabajo la autora examina y critica diversos usos de «significado literal» difundidos en el ambito juridico. Despues propone una nocion alternativa que otorga relevancia al rol desempenado por el contexto en la determinacion del significado. En la ultima parte del trabajo, esta nocion de significado literal es comparada con la subyacente al art. 3 del Codigo Civil Espanol. Palabras clave: significado literal; interpretacion juridica; contexto; art. 3 del Cod. Civ. espanol.