What does a verdict do? A speech act analysis of giving a verdict

International Commentary on Evidence

Volumn 4, Issue 2, 2006, Pages

  Ho, H L ^a  

^a NATIONAL UNIVERSITY OF SINGAPORE   (Singapore)

Author keywords

Evidence; Fact finding; Legal proof; Sincerity; Speech act; Truth; Truthfulness; Verdict

Indexed keywords

EID: 33751316794     PISSN: 15544567     EISSN: 15544567     Source Type: Journal    
DOI: 10.2202/1554-4567.1042     Document Type: Article

References (141)

1. H. L. A. Hart, 'Definition and Theory in Jurisprudence' (1954) 70 LQR 37, reprinted in his Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), essay 1;
2. see also his 'Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer' (1957) 105 University of Pennsylvania Law Review 953,
3. and his earlier work, 'The Ascription of Responsibility and Rights' in A.G.N. Flew (ed), Essays on Logic and Language (Oxford: Blackwell, 1951) 145-166 (originally published in (1948) 49 Proceedings of the Aristotelian Society 171).
4. On the surrounding controversy, see P.M.S. Hacker, 'Definition in Jurisprudence' (1969) 77 The Philosophical Quarterly 343;
5. George Pitcher, 'Hart on Action and Responsibility' (1960) 69 The Philosophical Review 226;
6. J. R. Lucas, 'The Ascription of Actions', unpublished but available at http://users.ox.ac.uk/~jrlucas/ascript.html;
7. Michael D. Bayles, Hart's Legal Philosophy - An Examination (Dordrecht: Kluwer, 1992) 6-11;
8. Joseph Horovitz, Law and Logic - A Critical Account of Legal Argument (New York: Springer-Verlag, 1972) 148-160.
9. Hart himself famously came to doubt his own arguments: Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 2.
10. These propositions of fact are sometimes called 'material': J.L. Montrose, 'Basic Concepts of the Law of Evidence' (1954) 70 LQR 527 at 536-7.
11. Wesley Newcomb Hohfeld, Fundamental Legal Conceptions - As Applied in Judicial Reasoning (Wesport: Greenwood Press, 1964) 32-35.
12. The present distinction is discussed by James Fitzjames Stephen, The Indian Evidence Act - with an Introduction on the Principles of Judicial Evidence (Calcutta: Thacker, Spink & Co, 1872) 9-10 where he contrasts 'facts in issue' with 'relevant facts'.
13. With regard to the ability of a study of language use in casting light on norms governing the practice within which the language is used, compare Austin's famous description of his project as one of 'using a sharpened awareness of words to sharpen our perception of.. the phenomena'. He thought 'linguistic phenomenology' was a better way of describing his methodology than 'ordinary language philosophy': J L Austin 'A Plea for Excuses' in J.O. Urmson and G.J. Warnock (eds), J L Austin, Philosophical Papers (Oxford: OUP, 1979, 3rd ed) ch 8 at 182.
14. However, 'linguistic phenomenology' may not be an apt label for Austin's work on speech acts. According to Joseph J. DiGiovanna, Linguistic Phenomenology - Philosophical Method in J L Austin (NY: Peter Lang, 1988) 191, Austin's speech act writings 'are not attempts to carefully delineate distinctions marked by ordinary language in order to throw light on relevant phenomena. Rather they are attempts to understand how language, itself, functions.'
15. His principal works in this area are 'Performative Utterances' in Austin (1979), n 6 above, ch 10,
16. and J.O. Urmson, and Marina Sbisà (eds), How to Do Things with Words (Oxford: Clarendon Press, 1975, 2nd ed).
17. Apart from his book, Speech Acts - An Essay in the Philosophy of Language (Cambridge: CUP, 1969),
18. see also John R. Searle, 'A Taxonomy of Illocutionary Acts' in K. Gunderson (ed), Language, Mind, and Knowledge (Minneapolis: Univ of Minnesota Press, 1975), reprinted in John R. Searle, Expression and Meaning - Studies in the Theory of Speech Acts (Cambridge: CUP, 1979), ch 1.
19. A concise and accessible introduction to his theory can be found in John R. Searle, Mind, Language and Society - Philosophy in The Real World (New York: Basic Books, 1998) ch 6.
20. Michael Hancher, 'Speech Acts and the Law' in Roger Shuy'and Anna Shukal (eds), Language Use and the Uses of Language (Washington D.C.: Georgetown University Press, 1980) 245.
21. There is in fact a significant body of legal literature applying speech act theories to law generally, although, to be fair to Hancher, many were written after his piece: see eg Karl Olivecrona, Law as Fact (London: Stevens & Sons, 2nd ed, 1971) ch 8 (entitled 'Legal Performatives')
22. and his 'Legal Language and Reality' in Ralph A. Newman (ed), Essays in Jurisprudence in Honor of Roscoe Pound (Indianapolis: Bobbs-Merrill, 1962) 151-191, especially at 174 et seq;
23. Martin P. Golding, 'Rights, Performatives, and Promises in Karl Olivecrona's Legal Theory' (2005) 18 Ratio Juris 16;
24. Dennis Kurzon, It is Hereby Performed: Explorations in Legal Speeech Acts (Amsterdam: John Benjamins, 1986)
25. and 'Prolegomena to a Speech Act Approach to Hearsay Evidence' (1988) 1 International Journal for the Semiotics of Law 263;
26. Paul Amselek, 'Philosophy of Law and the Theory of Speech Acts' (1988) 1 Ratio Juris 187;
27. Brenda Danet, 'Language in the Legal Process' (1980) 14 Law & Society Review 445 especially 457-461.
28. The hearsay doctrine has also been subjected to speech-act analysis: eg, Austin (1975), n 7 above, 13;
29. Sanford Schane, 'Hearsay: A Speech Act Analysis', available at http://www.lawandlanguage.com/ and Language and the Law, forthcoming, ch 3 of which deals with
30. and Stephen Guest, 'The Scope of the Hearsay Rule' (1985) 101 MLR 385 (Austin and Searle are mentioned);
31. Christopher B. Mueller, 'Post-Modern Hearsay Reform: The Importance of Complexity' (1992) 76 Minnesota Law Review 367, Part IV,
32. and 'Incoming Drug Calls and Performative Words: They're Not Just Talking About It, Baron Parke!' (1995) 16 Mississippi College Law Review 117;
33. Craig R. Callen, 'Hearsay and Informal Reasoning' (1994) 47 Vanderbilt Law Review 43 (offering a Gricean analysis of the hearsay doctrine).
34. Olivecrona (1962), n 9 above, 174.
35. Hancher, n 9 above, 245: 'It is... obvious that for the structure and details of his theory Austin was heavily indebted to concepts and practices of the English common law. In fact, it can be objected that as a general theory of language Austin's theory suffers from just this partiality; that for a general theory it is too much in the thrall of the law.'
36. According to Nicola Lacey, A Life of H L A Hart - The Nightmare and the Noble Dream (Oxford: OUP, 2004) 145, 'Herbert's legal input to seminars with Austin almost certainly contributed to the latter's development of his famous "speech act" theory'.
37. Similarly, John Gardner, in his review of Lacey's book (2005) 121 LQR 329, 332 quoted the observation by Tony Honoré (made in Oxford Magazine 232 (2004), 10) that Austin's 'theory of speech-acts owed more to Hart than Hart owed to him'.
38. Austin has on at least one occasion explicitly acknowledged Hart's influence (Austin (1975), 50 n 7 above, 7),
39. a compliment repaid by Hart (1983), n 1 above, 2.
40. In an article published a few years after his inaugural lecture (Hart (1957), n 1 above, 962),
41. Hart drew attention to the relevance and importance of 'speech-act' theory in legal analysis. However, Gardner, (2005) 121 LQR 329, 330-1, noted that while 'Hart once held out high hopes for the jurisprudential significance of Austin's thinking' and while his 'philosophical debt to Austin is patent' in Hart's early works, it is 'less clear... how much of the same influence works its way into either Causation in the Law or The Concept of Law.'
42. J. Hillis Miller, '(In)Felicitous Speech Acts in Kafka's The Trial', (2000) 4 Tympanum - A Journal of Comparative Literary Studies, available online at http://www.usc.edu/dept/complit/tympanum/4/miller.html.
43. Austin (1975), n 7 above, 5-6.
44. ibid 14.
45. I should mention a debate into which we need not go. For some, a performative is also a statement; for others, a statement is a performative of some other kind. On the first view, I make a statement when I say'I promise to do x', whereas on the second, to utter that sentence is not to make a statement but to perform the different speech act of giving a promise; in the that very utterance, I make a promise rather than make a statement that I am making a promise. The two views seem equally plausible. See Searle's attempt at reconciliation in John R. Searle, 'How Performatives Work' in Daniel Vanderveken and Susumu Kubo (eds), Essay in Speech Act Theory (Amsterdam: John Benjamins Publishing Co, 2001).
46. Austin (1975), n 7 above, 139.
47. See 'the bit where we take it all back': Austin (1979), n 7 above, 241, and 246-251;
48. also Austin (1975), n 7 above, Lecture XI.
49. Austin (1975), n 7 above, lectures 2-4.
50. In a transcript recorded by Pat Carlen, Magistrates'Justice (London: Martin Robertson, 1976) 110-11, we see a long exchange between the court and the defendant before the right words were elicited from the latter. A part of the exchange reads: Magistrate: Do you plead guilty or not guilty? Defendant: Yes, I did it. Magistrate: No, I'm asking you whether you plead guilty or not guilty. You must use either the words "not guilty" or "guilty."
51. Acknowledging as much: P.F. Strawson, 'Intention and Convention in Speech Acts' (1964) 73 The Philosophical Review 439, 443: '[T]he fact that the word "guilty" is pronounced by the foreman of the jury in court at the proper moment constitutes his utterance as the act of bringing in a verdict; and that this is so is certainly a matter of the conventional procedures of the law.'
52. Searle (1979), n 8 above, 4-5.
53. Austin (1975), n 7 above, 40.
54. ibid 41.
55. This question is addressed by L. Jonathan Cohen, An Essay on Belief and Acceptance Oxford: Clarendon Press, 1992) 117-125.
56. A good collection of essays on the relation between the two concepts can be found in Pascal Engel (ed), Believing and Accepting (Dordrecht: Kluwer, 2001).
57. Speech act belongs to the theory of language use (pragmatics), which is different from, although related to, the theory of linguistic meaning (semantics). For the distinction and relation between them, see Kent Bach, 'Speech Acts and Pragmatics' in Michael Devitt and Richard Hanley (eds), Blackwell Guide to the Philosophy of Language (Malden, Mass: Blackwell, 2006).
58. Austin (1975), n 7 above, lectures 8-10.
59. Searle disputes Austin's locutionary-illocutionary or meaning-force distinction. As Searle sees it, the real distinction lies between the propositional content of an utterance and its force: John R. Searle, 'Austin on Locutionary and Illocutionary Acts' in (1968) 77 The Philosophical Review 405.
60. eg Searle, n 29 above, 422 (discussion of the distinction between 'statement-act' and 'statement-object')
61. eg Susan Haack, Evidence and Inquiry - Towards Reconstruction in Epistemology (Oxford: Blackwell, 1993) 29 (difference between a belief-state and belief-content).
62. Searle, n 29 above, 406-7.
63. Austin (1975), n 7 above, 61.
64. Searle (1969), n 8 above, 30.
65. Searle (1979), n 8 above, 3.
66. ibid 3-4.
67. Austin (1975), n 7 above, 109.
68. ibid 101-2, and lecture IX.
69. John R. Searle and Daniel Vanderveken, Foundations of Illocutionary Logic (Cambridge: CUP, 1985) 11.
70. My point, elaborated later, is that a conviction itself expresses criticism of the person's conduct. It is not unusual for the judge to explicitly chastise a person after his conviction in order to bring home the condemnation which is already implicit in the act of convicting him.
71. eg, R. A, Duff, Trials and Punishments (Cambridge, CUP, 1986);
72. Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadras, 'Introduction: Towards A Normative Theory of the Criminal Trial' in Antony Duff et al (eds), The Trial on Trial - Truth and Due Process (Oxford: Hart, 2004).
73. See generally Martin P. Golding, Philosophy of Law (Englewood Cliffs, New Jersey: Prentice Hall, 1975) ch 6;
74. Tom R. Tyler, Why People Obey the Law (New Haven: Yale UP, 1990).
75. Searle (1979), n 8 above.
76. Searle (1998), n 8 above, 150;
77. Neil MacCormick and Zenon Bankowski, 'Speech Acts, Legal Institutions, and Real Laws' in Neil MacCormick and Peter Birks (eds), The Legal Mind - Essays for Tony Honore (Oxford: Clarendon Press, 1986) 128-129;
78. Judith Jarvis Thomson, 'Liability and Individualized Evidence' (1986) 49 Law and Contemporary Problems 199, 213.
79. Olivecrona (1971), n 9 above, 209.
80. See also Hans Kelsen, Pure Theory of Law (Berkeley: niversity of California press, 1967) 240: [T]he legal does not say: 'If a certain individual has committed murder, then a punishment ought to be imposed upon him.' The legal rule says: 'If the authorized court in a proper determined by the legal order has ascertained, with the force of law,that a certain individual has committed a murder, then the court ought to impose a punishment upon that individual.' In juristic thinking the ascertainment of the fact by the competent authority replaces the fact itself that in nonjuristic thinking is the condition for the coercive act.
81. Note, however, that in finding guilt of liability, the court is not thereby committed to imposing punishment or awarding damages. A verdict is, for this reason, not a speech act of the nature of a 'commissive.'
82. cf Zenon Bankowski, 'The Jury and Reality' in Patrick Nerhot (ed), Law, Interpretation and Reality (Dordrecht: Kluwer, 1990) 236 (the trial serves the purpose of 'certifying' truth).,
83. Searle (1979), n 8 above, 7 and 18;
84. Searle (2001), n 16, above, 99-100.
85. The concept of institutional fact is clearly illustrated by Searle (1969), n 8 above, 51: 'it is only given the institution of money that I now have a five dollar bill in my hand.
86. Take away the institution and all I have is a piece of paper with various gray and green markings.' There is much valuable discussion of institutional facts in the context of a trial (eg Bert van Roermund, 'The Instituting of Brute Facts' (1991) 4 International Journal for the Semiotics of Law 279)
87. as well as in the more general legal context (eg Neil MacCormick and Ota Weinberger, An Institutional Theory of Law - New Approaches to Legal Positivism (Dordrecht: D Reidel, 1986)).
88. See the useful discussion in Olivecrona, n 9 above, 200-202.
89. Searle (1979), n 8 above, 19-20.
90. The ambiguity of the illocutionary force of a verdict was also noted by Austin (1979), n 7 above, 249-250 and 141-142.
91. Searle (1979), n 8 above, 12-13.
92. ibid 17.
93. cf Searle (1969), n 8 above, 65: 'One cannot, for example, greet or christen insincerely, but one can state or promise insincerely.'
94. Austin long ago recognised this multi-dimensionality: Austin (1975), n 7 above, 42-3: There is a class of performatives which I call verdictives: for example, when we say 'I find the accused guilty' or merely 'guilty' .... When we say 'guilty', this is happy in a way if we sincerely think on the evidence that he did it. But, of course, the whole point of the procedure in a way is to be correct... [W]e may have a 'bad' verdict: it may either be unjustified (jury) or even incorrect (umpire). So here we have a very unhappy situation. But still it is not infelicitous in any of our senses: it is not void (if the umpire says 'out', the batsman is out; the umpire's decision is final) and not insincere.
95. See also ibid at 249-250.
96. Searle (1998), n 8 above, 150.
97. Of course, the trial is neither wholly nor straightforwardly a process of discovery. Trial deliberation is undoubtedly highly complex. For a sophisticated and illuminating account of 'the intellectual operations the jury must perform on the trial's linguistic practices' (Robert P. Burns, A Theory of the Trial (Princeton, NJ: Princeton University Press, 1999) 185),
98. see ibid, ch. VII. My essay is written from what Burns calls the 'Received View of the Trial'.
99. Hanna Fenichel Pitkin, Wittgenstein and Justice (Berkeley, Los Angeles: University of California Press, 1972) 262-3.
100. The 'Popi M' [1983] 2 Lloyd's Rep 235.
101. Randy E. Barnett, The Structure of Liberty - Justice and the Rule of Law (Oxford: Clarendon, 1998) 206: 'A failure to find a person "guilty" is not the same as a finding of "innocence." When a presumption of innocence has not been overcome by sufficient evidence of guilt, all we know is that there is inadequate evidence to conclude that he is guilty'.
102. Similarly, Duff, Farmer, Marshall and Tadros, n 41 above, 19: 'surely "not guilty" cannot amount to an assertion of the defendant's innocence, but must rather be read as asserting that he has not been proved to be guilty.'
103. As Schiemann LJ put it in R (Mullen) v Home Secretary [2002] EWCA Civ 1882 at [43]; [2003] QB 993, 1007, the 'criminal law system.... does not provide for proof of innocence'. This is not true in some jurisdictions. In California, the defendant may, following acquittal, petition for a finding that he is 'factually innocent': see section 851.8 of the California Penal Code.
104. In McNicol v H M Advocate (1964) SLT 151, 152, the High Court of Justiciary explained that the 'not proven' verdict 'gives a jury, who have some lingering doubts as to the guilt of an accused and who are certainly on the evidence not prepared to say that he is innocent, the chance to find the charge against him not proven.'
105. Thomas Weigend, 'Is the Criminal Process about Truth?: A German Perspective' (2003) 26 Harvard Journal of Law & Public Policy 157 at 166-7 ('In systems relying on professional judges to find the facts... the court must invariably explain in writing how it arrived at its verdict, and the court must relate the outcome of the case to the evidence presented').
106. eg, in R v Fergus (1994) 98 Cr App R 313, 325, the Court of Appeal, in quashing a conviction, made it a point to announce that 'the conviction was not only unsafe and unsatisfactory. but that [the defendant] was wholly innocent.'
107. (1993) 17 EHRR 221, 235, para 30.
108. It is very doubtful that the presumption of innocence is, in fact, as expansive as the rhetoric supporting it suggests. Larry Laudan, Truth, Error, and Criminal Law (Cambridge: CUP, 2006) 93-6, has forcefully argued that the presumption has an extremely narrow application within the legal process.
109. [2004] UKHL 18, [2005] 1 AC 1.
110. For criticisms of this case, see Richard Nobles and David Schiff, 'Guilt and Innocence in the Criminal Justice System: A Comment on R (Mullen) v Secretary of State for the Home Department' (2006) 69 MLR 80.
111. On which see eg Lech Morawski, 'Law, Fact and Legal Language' (1999) 18 Law and Philosophy 461, 465-6: 'in judicial proceedings we are in some circumstances compelled to accept false statements if they follow e.g. from irrebuttable presumptions.'
112. See Joseph Horovitz, Law and Logic - A Critical Account of Legal Argument (New York: Springer-Verlag, 1972) 151-2.
113. Hart (1951), n above, 146.
114. Three major complications are identified by Michael D. Bayles, 'Principles for Legal Procedure' (1986) 5 Law and Philosophy 33, 40: [J]udicial decision making is not a simple application of rules and principles to facts. First, finding facts is not a straight-forward descriptive process. Facts must be classified for the application of rules and do not come neatly labeled. Second, many so-called factual questions are matters of evaluation. Determining whether someone was negligent, reasonable, or insane requires judgment and evaluation. Third, even when the facts are clear, it is not always clear what the rules and principles imply.
115. See also Michael D. Bayles, Procedural Justice - Allocating to Individuals (Dordrecht: Kluwer, 1990) 116-7.
116. On the evaluative and normative nature of fact-finding, see Bert van Roermund, Law, Narrative and Reality - An Essay in Intercepting Politics (Dorchecht: Kluwer, 1997) ch 4 ('Ascription of Normative Consequences to Facts);
117. Olivecrona, n 9 above, 212-215 ('The Element of Valuation');
118. and on the related difficulty of drawing a bright line between facts and legal norms: Morawski, n 69 above.
119. At lower levels, a verdict asserts, if only by implication, facts on which the ascription operates.
120. cf Searle and Vanderken, n 39 above, 190.
121. Sanford Schane, introduction to his forthcoming book, Language and the Law.
122. For a sophisticated argument against construing what the nullifying jury does as lying, see Matt Matravers, "'More Than Just Illogical": Truth and Jury Nullification' in Duff, Farmer, Marshall and Tadros (2004), n 41 above.
123. On the condemnatory aspect of a conviction, see Duff, n 41 above, 108.
124. Tadros argues 'that imposing criminal responsibility expresses moral indignation about the fact that an individual has failed properly to be motivated by the interests of others' (Victor Tadros, Criminal Responsibility (Oxford: OUP, 2005) 85;
125. and see further ibid at 79-82).
126. Searle (1979), n 8 above, 15.
127. It is worth noting that moral expressivism, while certainly a respectable theory, is challenged by some philosophers. See eg, Julius Kovesi Moral Notions (London: Routledge & Kegan Paul, 1967) especially the claims made at 148-9, and the discussion that follows;
128. and see also the application of Kovesi's argument by James R. Doughney, 'Moral Description: Overcoming Dichotomy in Social Research' (2005) 2 International Journal of Mental Health and Addiction 6 at 9-10.
129. Tellingly, 'condemn' is defined in the Oxford English Dictionary as synonymous with 'convict'.
130. Tadros (2005), n 78 above, 75;
131. see also ibid at 80: 'The label "criminal" is appropriate when certain moral attitudes are appropriate in response to the conduct prohibited, and this is to be distinguished from, for example, torts. The label "tortious" may make appropriate some reactive attitudes, but surely not the same kind as are made appropriate by the criminal law.'
132. R v H [2003] UKHL 1, [2003] 1 All ER 497 is, strictly speaking, a logical decision. But for broader criticisms, see A. J. Ashworth, [2003] Crim L R 817.
133. The point is forcefully put by Joel Feinberg, 'Noncomparative Justice' (1974) 83 The Philosophical Review 297, 302: When an innocent man is pronounced guilty, the record about him is falsified to the disadvantage of his reputation and to the detriment of the cause of truth. This is an injustice to him and remains so even if his sentence is suspended and no further hardship is imposed upon him. The injustice in this case consists precisely in the falsity of what is believed about the unjustly convicted man.
134. Charles Nesson, 'The Evidence or the Event? On Judicial Proof and the Acceptability of Verdicts', (1985) 98 Harvard Law Review 1357.
135. Critical reactions to this piece include: Ronald J. Allen, 'Rationality, Mythology, and the "Acceptability of Verdicts" Thesis' (1986) 66 Boston Law Review 541;
136. Neil B. Cohen, 'The Costs of Acceptability: Blue Buses, Agent Orange, and Aversion to Statistical Evidence' (1986) 66 Boston Law Review 563
137. and Roger C. Park, 'The Hearsay Rule and the Stability of Verdicts: A Response to Professor Nesson' (1986) 70 Minnesota Law Review 1057.
138. Nesson's thesis is applied by Carl F. Carnor, 'Daubert and the Acceptability of Legal Decisions' (2005) 5 Journal of Philosophy, Science and Law, available at www.psljournal.com/archives/all/cranor.cfm.
139. Nesson, n 85 above, 1373.
140. ibid 1374.
141. See the contemplative remarks in his conclusion, ibid 1391.