Ascriptive legal language and its origins in the speech act theory

This article presents H. L. A. Hart's theory of an ascriptive legal language as it has been developed in his influential paper “The Ascription of Responsibility and Rights” through the application of a methodology of the speech act theory proposed especially by John Langshaw Austin and partly by John Searle. The author proposes to retrieve Hart's theory of ascriptive statements in the face of critics by carefully analyzing the ascriptions in the context of the speech act theory and capturing their linguistic applications in the legal language, at least for some of them. Hart noted that, in legal language, there is a contradiction between the epistemology of descriptive utterances, which describe facts about an act that can be confirmed by observations, and the epistemology of ascriptive utterances, which cannot be confirmed because it is impossible to state the epistemic question of truth/falsity. From Hart's view, two important methodological conclusions can be supported. First, the ascription of responsibility or rights is performed by saying something; action verbs are important especially in the descriptive use of present and future tenses. Second, the ascriptive use occurs mainly in the past tense, in which the verb is often both timeless and genuinely referring to the past as something distinguished from the present. It is shown that Searle offers three significant dimensions as the basis of the classification of speech acts: illocutionary purpose, direction of fit between words and the world, and sincerity condition. These dimensions according to an ascriptive justify introducing of the illocutionary act, a new speech act-namely, the ascriptive speech act-to Austin's and Searle's taxonomy. The result is not the refutation of ascriptivism but rather an opportunity for a constructive modification of Hart's position. Thus, it is possible to demand that an ascriptive is a distinct illocutionary act with special characteristics and to claim the introduction of the new unit in the current taxonomy of speech acts.

Keywords

Authors

References