Post on 10-Apr-2023
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The Semantics and Pragmatics of According to the Law
J.J. Moreso and Samuele Chilovi
Abstract – In this paper, we offer an analysis of the truth conditions of
legal statements – statements to the effect that according to the law,
such-and-such is the case – in cases where the operator „according to
the law‟ takes under its scope a stipulative or fictional sentence.
Further, we advocate a general principle to determine the implicit
content that is expressed by utterances of provisions of the same kind.
To do so, we draw on the philosophical literature on the semantics of
the fictional operator „in fiction x, …‟, and raise some objections to
some of the most influential accounts on the topic.
Key-words: intensional semantics, legal interpretation, propositions of law, truth in fiction, pragmatics,
David Lewis.
4.1. Introduction
Legal provisions can be of various kinds. Amongst those, they can be used to create legal fictions
and to issue stipulations. On the other hand, legal statements are sentences that are used to report
what those provisions say. Hence, some legal statements can be used to assert what is true in some
legal fiction or stipulation. In general, legal statements are statements of the form „according to the
law, φ‟. And when φ is replaced by a sentence of a fictional or stipulative sort, the complex
statement can thus be taken to express a content about what is the case according to some legal
fiction or stipulation.1 At the same time, a good deal of philosophical ink has been spilled in order
to provide an adequate characterization of the truth-conditions of fictional statements, statements of
the form „in fiction x, φ‟. Thus, on the assumption that the two topics might bear some relation to
one another, it should be reasonable to try to investigate to what extent they resemble each other,
and what can be drawn from one context to provide answers to questions that emerge in the other.
1 „φ‟ will be used as a metalinguistic schematic letter.
2
That is what we will try to do in this paper. In section 4.3, we introduce the notions of law-making
and fiction-making, and provide an account on which each of these two acts exemplifies a distinct
illocutionary type. In section 4.4 we dive into the topic of truth in fiction, outlining Lewis‟ proposal
on the semantics and pragmatics of the fictive operator, and point out some critical aspects that
might put it in need of refinement. However, this discussion will be largely functional to
introducing the semantic framework we will work with, and to see later on to what extent Lewis‟
proposal lends itself to be used as a model to deal with the legal case. In section 4.6, we characterize
legal fictions and stipulations in general terms and highlight the differences and similarities that
they bear to fiction tout court. Finally, in sections 4.7 and 4.8, we reach a proposal on the truth-
conditions of those legal statements where the law operator takes under its scope a stipulative or
fictional sentence, and outline a general principle to determine the implicit content that is expressed
by utterances of provisions of this sort.
4.2. Law and Fiction
One central task of many legal systems is to provide guidance for people‟s behavior. Sharing a
land and living together normally triggers coordination problems among the agents involved, and
the higher the number of people, the deeper the complexity of the underlying issues that may
emerge in context. Given this, relatively wide social environments require articulated ways to cope
with those problems, and legal systems and institutions are meant to be a crucial component in the
strategies through which they can be successfully tackled. Part of the way in which legal institutions
achieve, or at least strive to achieve, this goal consists in creating laws those who are subject to
which should comply with. By setting forth a conduct as compulsory, forbidden, or permitted, laws
set standards the satisfaction of which is thought to facilitate the achievement of a common goal, or
the solution to a coordination problem.
But legal systems can be more complex than that. Frequently, their function is not fulfilled by
simply prescribing some conduct via the expression of a deontic modal content, and other types of
provisions can be put to use in the service of the same objective. They also regulate social life by
providing categories or conceptual schemes through which some objects are grouped together, or by
introducing relations that are said to hold between entities of a certain kind. The rules that normally
fulfill this latter function are often called „constitutive‟, and the general form that they take is
usually represented by the well-known schema „X counts as Y in context C‟.2 Several further
2 See Searle (1995).
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distinctions can be drawn within this genus of rules, and indeed many have been made. Our main
focus in this paper is to zoom through two specific types of provisions that, insofar as they may be
viewed as performing the same kind of task, could accordingly be seen as subclasses of the same
genus of rules.3 These are provisions which rule by pretending and defining. One common feature
of definitions and fictions is that they both typically involve the predication of certain attributes of
certain things. However, while in one case certain categories are stipulated into existence by the
setting of some conditions such that whatever might happen to satisfy them may be truly said to fall
within those categories, in the other ordinary language predicates or names are non-standardly
applied to objects that normally would not count as being referred to by those names or as falling in
the extensions of those predicates. Indeed, this distinction – the distinction between fiction and
stipulation – tacitly relies on the assumption that legal language is a mixture of ordinary and
technical terms, since if all legal language were technical, there could be no fiction. For the
purposes of this paper, we can safely work on the assumption that a legal language is any language
that is used in a practice of law, for instance to make up a legal source – a statute, constitution,
directive, regulation, or whatnot. As far as technical language is concerned, it may happen that its
terms be introduced by means of an explicit stipulation, or that its expressions have their meanings
gradually determined by the use by the relevant professional community. Either way, the feature
that will be shared by the examples we will be working with is that some words be endowed with a
sufficiently determinate meaning, enabling them to determinately apply to some items.
So far, we have drawn a threefold distinction between deontic sentences, definitions and fictions.
A sentence belonging to any of these classes may become, under the appropriate circumstances, a
legal provision, and all of them may be used accordingly as tools to achieve some of the goals legal
systems are typically meant to accomplish. We will motivate and expand on this distinction later in
the paper, will look at the relations that hold between these three types of legal provisions, and will
seek to provide an account of their differences. However, doing this is going to be largely
instrumental in pursuing another task, which provides the principal objective of the paper. Our main
focus will be an investigation of the semantics of the operator „according to the law‟, and of the
principles that govern the production of the content that is pragmatically conveyed by uses of some
legal provisions. To this end, we will introduce an intensional semantics, and look at how it has
been used to model the semantic behavior of fictive operators, to which our target expression is
relevantly similar. Further, providing a survey of the variety of legal provisions that were previously
mentioned should play an important role in helping model distinct accessibility relations associated
3 Along these lines, one could regard „count as‟ as ambiguous. Whereas in fictions, the formula should be specified as
„X is treated as if it were Y in context C‟, in stipulations it would mean the same as „X just is Y in context C‟. More on
this below.
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with the law-operator, depending on the type of sentence it embeds to form a legal statement. At the
outset, however, we deal with the relation between law-making and fiction-making, in order to get
clearer on the differences and similarities between legal fictions and fictions tout court. It is to this
task that we now turn.
4.3. Law-making and fiction-making as illocutionary acts
In this section, we outline a way to account for the essential features of law-making and fiction-
making within speech act theory. In particular, we see how each can be viewed as involving the
performance of an illocutionary act of a certain type, and sketch some of the salient properties that
they possess.
4.3.1. Lawmaking
Law-making in modern societies typically4 takes place through a process that crucially involves the
performance of a specific type of illocutionary act.5 A lawmaker endowed with de facto authority
6
produces a written text made up of a collection of legal provisions, which then undergoes a process
of approval, modification, or rejection by an authorized voting body. The first step in this sequence
thus consists in the production of some sentence tokens by some author.7 So we take law-making to
involve the performance of some speech act, an act of communication carried out by a speaker8
usually with some communicative intention and directed to an audience. More specifically, we take
the inscription of any legal source to be a specific type of illocutionary act in the technical sense.
Illocutionary acts constitute one level of the total speech act that is performed in saying something.
They are what a speaker does in uttering something, which is to be kept distinct from the act of
4 There might be kinds of lawmaking processes, such as those that result in the production of customary law, that are
left out by the present account; but even if that were so, we take the account to be sufficiently accurate for the purposes
of the present paper, since it merely serves to introduce the analysis of legal statements and of the operator they contain,
on whose analysis we will focus. We will also stay neutral on the vexed question that divides positivists and anti-
positivists in the philosophy of law, concerning whether social facts (of which this illocutionary act is one element) can,
must or cannot be sufficient grounds of law-determination. For some of the relevant literature on this issue, see Hart
(1961), Raz (1979), Dworkin (1986), and Greenberg (2004). 5 Austin (1962) famously introduced and gave the first general characterization of illocutionary acts, distinguishing
them from locutionary and perlocutionary acts within his general theory of speech acts. 6 For the notion of de facto authority, see Raz (1979).
7 In this context, „production‟ is a generic term we use to refer to an utterance or inscription; sometimes we will slide
into using „utterance‟ and cognate expressions equivalently, thus with a wider sense than in ordinary language. 8 Loosely speaking, since she could be a writer or what not.
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uttering it (the locutionary act), and from what he does by uttering it (the perlocutionary level). In
order to get the difference straight, consider an example. If we uttered the sentence „it‟s time to
leave‟ on a given occasion, this would count as a speech act identifying the three layers of which
would pose no serious difficulty. On the one hand, one could single out the act of saying that which
we said – in this case, that it‟s time to leave; on the other, in saying what we said we would have
been performing an act of asserting; and lastly, by uttering that sentence we might have sought to
achieve a variety of goals, such as getting the addressee to leave with us, or to remind ourselves or
someone else that a commitment has to be complied with, and so on.
However, as communication theory9 and speech act theory teach us, characterizing law-making
as an illocutionary act would fall very short of offering a sufficiently fine-grained characterization
of it, since there are several varieties of illocutionary acts. A few more examples would include
asserting, promising, requesting, inviting, apologizing, claiming, announcing, and many others. So
the question naturally arises: what is it that makes the act performed in uttering some sentence a
law-making act, and therefore distinguishes it from other types of illocutionary acts?
First, it would be useful to narrow down the live options by saying something that law-making
clearly is not. For some types of illocutionary acts, the distinctive feature that sorts them out lies in
the kind of communicative intention by which they are accompanied, so that they can be grouped
on the basis of the attitude expressed by the speaker. In those cases, illocutionary success depends
not on the satisfaction of any rule or convention governing the conversation, but rather on the
uptake or understanding on the part of the addressee.10
According to a prominent taxonomy in the
literature,11
illocutionary types of this kind can be sorted among constatives, directives,
commissives, and acknowledgements. Although there are differences between the acts belonging to
these categories (e.g. the direction of fit is from mind to world in the case of constatives and from
world to word in the other cases), they also share the common feature that recognition of the
attitude expressed suffices for the act to be successfully performed. Indeed, not even possessing the
attitude expressed is necessary to that end, for uptake and sincerity are different things.12
Now, it is
important to notice that, on this score at least, lawmaking appears to be relevantly dissimilar, for in
contrast with the types of acts that we considered before, background rules and conventions seem
here to be playing a crucial role in determining both the success of the performance of the act, and
whether the act really counts as an instance of lawmaking in the first place. This is so because a
central feature of the act in question is that lawmaking is a regulated, highly institutionalized, and
9 The general study of communication and pragmatics in a linguistically sophisticated framework were, of course,
inaugurated by Grice‟s seminal works on the subject (collected in Grice 1989a). 10
This aspect was already recognized by Strawson (1964) and Austin (1962). 11
We adopt here the taxonomy of speech acts provided by Bach and Harnish (1979). 12
Bach (2006) makes the point clearly and endorses it.
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largely conventional phenomenon that always takes place within some jurisdiction.1314
So rules or
conventions here play a role in constituting an act as a lawmaking act. And, at least in central cases,
it is clear that in order for what is being done in inscribing a text to count as the production of a
legal source – an instance of lawmaking – it has to be the case that some rules or conventions
constitute the act qua act of lawmaking. Thus, having an audience directed intention is not
sufficient for any act to count as an act of this sort. Typically, these conventions, perhaps with the
additional aid of further background principles,15
will provide some test to determine for any given
person if she is a suitable agent for performing the kind of act in question, and to check whether the
way she is carrying it out satisfies the pedigree that must be followed to reach the desired effect.
That is, a suitable actor will have to be someone who is fit for acting as a lawmaker – whereas
presumably this will require possessing de facto authority, which could itself in turn be a matter
subject to rules, hence to be achieved via compliance with the corresponding standards. And the
pedigree will normally consist of a regulated procedure, by following which alone the inscription
acquires the special significance that qualifies it as lawmaking.
Second, part of what makes something an act of lawmaking is the peculiar upshot the act is
meant to produce. This effect consists in having an impact on the system in which it takes place,
namely the effect of updating the total amount of valid norms that are part of it. Essentially, a legal
utterance is an attempt to bring about an institutional change through a change in the system‟s laws.
And since we can think of a law as a legally valid content, and of a legal system as a set of laws, a
lawmaking act will be an attempt of altering that set, by way of subtracting or adding a new content
to it. Then, the act will be of a kind such that in performing it an agent expresses some content and
typically intends the content expressed to become part of the law of the jurisdiction she is an
authority of.16
Attainment of this effect is also what constitutes success in the performance of the
act. Complete illocutionary success will then be achieved if the effect on the system perfectly
matches that which the author had meant to produce. Yet since failure on this score need not result
in a complete failure, illocutionary success becomes a matter of degree. Thus, lawmaking is one of
the conventional illocutionary acts that Bach and Harnish (1979) qualify as effectives, as these are
acts that, by „meeting certain socially or institutionally recognized conditions for being [acts] of that
13
We conveniently ignore the controversial case of the founding act (if there is such a thing), which would probably not
even count as lawmaking. 14
We use the term „jurisdiction‟ in a nontechnical sense to refer to a socially or legally defined region of space. 15
For instance the principles that are posited by antipositivists to explain law determination. 16
Somewhat related ideas can be found in Soames (2013), J.J. Moreso and Samuele Chilovi (forthcoming), and Rosen
(2011).
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sort‟ (Bach 2006), effect an institutional state of affairs. In this case, by expressing some content p,
the authority of a jurisdiction j makes true the proposition of law that in j, p.17
We have seen that attitude recognition is not sufficient for the success of any lawmaking act. But
is it necessary? Although it would normally be expected that the utterer intends her act to carry the
impact that the act is meant to bring about, it also seems safe to say that in general no special
attitude is required on the part of the lawmaker in order for the act she performs to fulfill its aim,
nor any particular intention needs to be had to that effect (unless special conditions are provided for
by rule or convention that defeat this presumption). This consideration, indeed, appears to be
epistemically reflected in the fact that we seem to have greater knowledge of what laws there are in
a jurisdiction than we do of the mental states of the lawmakers, which suggests18
that this kind of
mental state is not required for law creation.
As we have seen, the essential effect of a lawmaking act is to update the legal system by adding
to the set of laws of a jurisdiction the content of the source that the author tries to get across.19
On
the other hand, voting procedures, albeit frequently present as further components of law-making
processes, are accidental elements of those, and one would normally expect significant variation
across time and jurisdictions in this respect. To sum up, a lawmaking act consists in the expression
of a content by an authority and through a pedigree in compliance with the principles that for a
given jurisdiction set the conditions for updating the total amount of contents that are legally valid
in that jurisdiction. If the process is successful, by expressing a given content in the appropriate
way, the lawmaker will have turned that content into a law of the jurisdiction in question.
4.3.2. Fiction-making
Also the distinction between fiction and nonfiction has often been understood in terms of the
peculiar force possessed by fiction-making acts. While some authors have regarded fiction-making
as a specific type of illocutionary act on its own (see Currie 1990, and Garcia-Carpintero 2007),
17
This is the schematic account of the effect produced by a lawmaking act that we presented in J.J. Moreso and
Samuele Chilovi (forthcoming):
(M) for any authority A and any provision x, if A enacts x, some legal norms
n1, ..., nn obtain such that the content of n1, ..., nn is identical with some of the
contents expressed by A‟s utterance (inscription) of x. 18
This is no more than an element to that conclusion, and it is widely insufficient to establish it, as of course there are
many cases where we have safer knowledge of (say) a macroscopic phenomenon than we do of its underlying
microscopic components. 19
Of course, this is not to deny that other perlocutionary effects might be occasionally associated with the performance
of a given act of law-making, as has been highlighted by many authors. (See, on this, e.g. Dan-Cohen (1984), and
Greenberg (2011)).
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others have modeled its peculiar properties in terms of the effects of fiction-making on the
performance of another illocutionary act, namely assertion (see Lewis (1978), Searle (1974)).
According to the latter line of thought, authors of works of fiction, while clearly not engaged in
asserting the content of the stories they make up, engage instead in the pretense of uttering the
sentences making up those works with assertoric force. More specifically, as Lewis explains, we
should think of a fiction “not in the abstract”, but rather as a story which is told by a storyteller on a
particular occasion; and storytelling is a pretense in which a narrator “purports to be telling the truth
about matters whereof he has knowledge [by] talking about characters who are known to him, and
whom he refers to, (…) by means of their ordinary proper names. But if the story is fiction, he is not
really doing these things” (Lewis 1978: 40).
When a writer makes up a story, an act of storytelling occurs in this world, just as many acts of
storytelling occur at other worlds. And it may well be the case (unless, for instance, the story is
contradictory or crucially defective) that some of those worlds are worlds where the exploits that
are recounted by the story really happen. Then, if the story is told as fiction here but told as known
fact there, “there storytelling is what here it falsely purports to be: truth-telling about matters
whereof the teller has knowledge” (Lewis 1978). We will see in section 4.4 why Lewis is led to
this characterization of fiction and which role it plays in his account of the truth-conditions of
fictional statements; for now, the important point is just that fiction-making is characterized by him
in terms of the peculiar force that is had by specific acts of storytelling, and that for him storytelling
in the actual world is pretending to do what in the worlds compatible with the stories is really done:
asserting the content of the stories as known fact.
As we mentioned earlier, other plausible accounts are available on this issue, as for instance one
which is elaborated by Currie (1990), and amended by Garcia-Carpintero (2007). According to
Currie (as interpreted by Garcia-Carpintero), „to fiction-make a proposition by uttering something
(…) is to so utter with the communicative intention to put an intended audience in a position to
make believe (imagine) that proposition‟ (Garcia-Carpintero 2007). But we need not take a stance
on which of these accounts fares better, and for present purposes it will be enough to have provided
a simple illustration of the types of illocutionary acts that lawmaking and fiction-making might be
exemplifications of. This should contribute to an understanding of the difference between legal
fictions and fiction tout court, and enable us to characterize the former vis-à-vis the latter in a
suitable level of detail. Before we get to this, we must first outline a semantics for the operator „in
fiction x …‟, and say something more specific regarding the nature and variety of the class of
sentences that any legal fiction is a member of: legal provisions.
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4.4. Truth in fiction
Once a work of fiction has been produced, there remains the task of interpreting it. Here we shall
not be concerned with providing an understanding of some specific work of fiction, of its subtleties
and mysteries, but rather with looking into the semantic machinery and pragmatic principles that are
in general presupposed by any such interpretation.
4.4.1. Semantic preamble
Typically, a work of fiction tells a story that neither is supposed to be true in the actual world, nor
happens to be true there (whether it cannot be true there is a much more complex issue, which we
shall soon be confronted with). So if we were to make a claim about what happens in a story
without somehow saying that it is in the story that the things we are talking about happen, that claim
would normally fail to be true. Consider the notorious
(1) Sherlock Holmes lives at 221B Baker Street.
As it stands and without any further qualification, (1) makes a claim that is either false or truth-
valueless, since the proper name „Sherlock Holmes‟ does not refer to anyone in this world, and
since by default we evaluate unqualified claims at the actual world. This, however, would not have
been the case, if instead of uttering (1) we had uttered
(2) In the Sherlock Holmes stories, Sherlock Holmes lives at 221B Baker Street.
In contrast with (1), (2) certainly expresses a truth-evaluable content, one moreover which is plainly
true given how the famous stories written by Conan Doyle happen to be like in our world. This
suggests at least that the fictive operator we prefixed to (1) in order to make up the complex
sentence in (2) makes a non-vacuous semantic contribution to the semantic value of the complex
expression. So the question is now to see what semantic contribution it makes such that it produces
this and other effects on the interpretation of sentences containing it.
An extensional semantics assigns to each lexical entry in a given language an extension as its
semantic value. Within this framework, the extension of a sentence is taken to be a truth value, that
of a singular term an individual, and that of a predicate a set, or the characteristic function of the
corresponding set. More complex semantic values are then assigned to n>1-place predicates,
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connectives, quantifiers, determiners and prepositions by constructing complex functions built out
of individuals, truth values, and simpler functions. One of the fundamental assumptions on which
the framework rests is that the semantic value of a complex expression can be computed
systematically from the semantic values of its constituent parts. In most cases, semantic
composition is achieved through functional application, but other compositional principles have
also been designed in order to capture the intuitive truth-conditions of a language‟s sentences in a
systematic and general fashion. Unfortunately, this machinery runs into a crucial problem as soon as
one tries to apply it to linguistic items of a specific type, the so-called „intensional expressions‟.
Attitude verbs such as „believe‟ or „know‟, and operators like „necessarily‟ or „it is possible that‟
create intensional contexts when they embed other expressions, defying the fundamental principle
that the extension of a complex expression is always a function of the extension of its parts and the
compositional rules. A consequence of this principle is indeed that if one starts with an expression –
say a sentence – and substitutes any of its components with an item of the same category that has an
equal extension, the extension of the complex expression (in this case, its truth value) will not
change. By contrast, when a well formed sentence contains an intensional item, intersubstitutability
of co-referential expressions salva veritate is no longer guaranteed to hold, which is what makes
these expressions intensional. For instance, suppose that John believes that Mallorca is in Spain.
Then, the sentence
(3) John believes that Mallorca is in Spain
would be true. But now suppose also that „John‟, „believe‟ and „Spain‟ as they occur in the next
sentence have the same extension as they do in (3):
(4) John believes that the largest Balearic Island is in Spain.
Then, since Mallorca is the largest of the Balearic Islands, and given the principle of substitutability
of co-referential expressions salva veritate, it should not be possible for (3) and (4) to differ in truth
value. But it clearly is possible – John may believe that Mallorca is in Spain without believing that
the largest of the Balearic Islands is, or vice versa – and so the semantic system collapses.
One important thing that intensional items allow us to do is to achieve displacement by
using language in our talk and thought about the world.20
That is, constructions built out of
expressions such as modal auxiliaries, propositional attitude verbs, habituals and generics enable us
to talk about things that are not in the immediate surrounding environment, and so require us to
displace the point of view at which we evaluate the expressions they embed or are otherwise joined
20
See Von Fintel and Heim (2011) for more details on this notion.
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together. Displacement can occur either across temporal or modal dimension; for instance, the
modal adverb in
(5) Possibly, Menorca is not in Spain
urges us to check if its complement is true in some world among those that are accessible from
our own, and tells us that if that is the case, then we should regard (5) as true as well. Of course,
since everything that is the case is possible, if the embedded sentence is true in actuality we don‟t
need to look at alternative world states to know if (5) is true. But in general, the operator contains
an instruction to inspect counterfactual situations and check if the prejacent is satisfied there, and
then to assign a truth-value to the complex sentence on the basis of such investigation. Something
similar happens with temporal adverbs such as „yesterday‟, which enjoin us to move back in time to
evaluate the sentence to which they are attached, and inspect whether it was true at the day before
the utterance took place. Fictional operators work roughly in the same way. When we evaluate (2),
we consult the worlds in a certain set in order to see whether the complement of „in the Sherlock
Holmes stories‟ is true there.
Formally, these results are achieved by adding to the inventory of the extensional semantics a set
of possible worlds, and by expanding the domain of individuals we had before by taking it to be the
union set of all the world-specific domains – a set of possible individuals that includes a domain of
individuals for each possible world. Further, the semantic interpretation function through which we
calculate the semantic value of an expression is amended so as to be relativized not just to an
assignment function – which is still needed to assign referents to traces and variables – but also to
possible worlds. The world relative to which the semantic value of an expression is computed is
now called „evaluation world‟. Finally, the entries of the lexicon and the compositional principles of
our language must also be reformed, since now semantic values are assigned relative to possible
worlds. Some lexical items, such as predicates, will have world-dependent extensions, whereas
others, such as proper names and connectives, will retain a world-independent denotation. By
assigning semantic values relative to possible worlds, the semantic system acquires the ability of
allowing the evaluation world to shift, a possibility that materializes when required by the presence
of a shifting device. And fictional operators are precisely devices of this sort. By embedding the
sentence „Sherlock Holmes lives at 221B Baker Street‟, our operator in (2) shifted the world with
respect to which the sentence should be evaluated and instructed us to check whether the sentence
was true there. More specifically, these operators work like restricted universal quantifiers over
possible worlds, and contribute to the sentences in which they occur an instruction that enjoins us to
assign to the complex sentences they are used to compose the value 1 if their prejacent is true at all
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the worlds in a given set, and 0 otherwise. To a first approximation, this will be the set of all the
worlds that are compatible with the stories. Slightly more technically, using an intensional
semantics a lexical entry for „in the Sherlock Holmes stories‟ can be given as follows.
For any world w ∈W, and any assignment function g:
(6) ⟦ In the Sherlock Holmes stories ⟧ w,g = λp<s,t> . ∀w’ compatible with the Sherlock Holmes
stories in w: p(w’) = 1.
In words: the semantic value of „in the Sherlock Holmes stories‟, relative to a world w and under an
assignment function g, is a function with a domain of propositions and a range of truth values, that
maps each proposition into the truth-value 1, if that proposition is true at all the worlds w‟ that are
compatible with the Sherlock Holmes stories as they were written in w, and to 0 otherwise.21
Alternatively, a syncategorematic semantics for the operator can also be given, by stating the effect
that the operator produces on the semantic value of the sentence that contains it. We lay it down for
ease of exposition, since Lewis‟ paper and the subsequent contributions to the debate it spawned
have developed in those terms. In its general version, abstracting from specific fictions and
sentences, it can be stated as follows:
(7) „in fiction x, φ‟ is true iff φ is true at every possible world compatible with x.22
Now that the main technical tools which are needed for our argument to take off are in place, an
important question that we shall address can be raised: which are the worlds compatible with the
fiction?
4.4.2. Analyses -1 and 0
In his seminal paper „Truth in Fiction‟, David Lewis sets out to provide a semantics for expressions
of the form „in such-and-such fiction …‟, but at a level of analysis which is more ambitious than
(7), since it aims at capturing also other features of the operator and since it is further meant to
provide a principle of generation for implicit truth in fiction. To do this, he starts with a simple
analysis and then goes on through a process of refinement and amendment, which eventually leads
him to a disjunctive account to the effect that either analysis 1 or 2 is to be preferred, although he
21
Von Fintel and Heim (2011) give a lexical entry along those lines. 22
A bit more precisely, a syncategorematic semantics for the fiction operator could be stated as follows.
For any sentence φ, any world w ∈ W, and any assignment function g:
⟦In the Sherlock Holmes stories φ⟧w,g = 1 iff ∀w’ compatible with the Sherlock Holmes stories in w: ⟦φ⟧w’,g
= 1.
13
remains neutral over which should be adopted. In the remainder of this section, we will largely
follow him in the manner and order of presentation, albeit we will also raise some objections to the
line of reasoning he pursues.
Lewis starts by considering those worlds where the plot of the fiction is enacted or, in other
words, those in which a course of action takes place which matches the story. Call this analysis „-1‟:
(-1) „in fiction x, φ‟ is true iff φ is true at every possible world where the plot is enacted.
What can be said about (-1)? A first observation that should be made is that much of its fate
depends on what is meant by the phrase „where the plot is enacted‟. For one thing, if by „plot‟ one
comprehensively meant what is true in the stories, the account thus understood would be subject to
a threat of circularity, as Lewis notices. For insofar as the notion of plot were taken determine all
internal fictional truths, the analysis – although trivially correct – would presuppose the very notion
it sets out to explicate, thus failing to achieve informativeness. On the other hand, if something
different and more substantive was meant by that, one should say what that would be, whereas
Lewis does not. Secondly, he raises a powerful objection to the analysis, based on a remark to be
found in an addenda to Kripke‟s Naming and Necessity (1972) and later developed in greater detail
in Reference and Existence (2013). Suppose that Doyle had written the stories as pure fiction; he
made them up and had no knowledge of any exploit of the kind that he attributes to Holmes. But
assume also that in the actual world there had been someone who had done all the things that Doyle
ascribes to Holmes, and likewise for all the deeds, events and tragedies that are recounted in the
novels. If this had been the case, Lewis tells us, our world would then have been one of the worlds
where the plot is enacted. Improbable, incredible, but surely possible! At the same time, however, it
would also be clear that the name „Sherlock Holmes‟ as used in the stories would not refer to the
actual man who had done all the things Doyle attributes to Holmes. This would be so even if that
man‟s name had been „Sherlock Holmes‟, since we need to tell Menorca (Spain) and Menorca
(Ontario) apart. This, in a nutshell, is the Kripkean intuition. But then it would be false at this world
that „Sherlock Holmes‟ as used in the stories refers to someone, although it would be true in the
stories that „Sherlock Holmes‟ as used in the stories refers to someone. So there would be
something that is true in the stories but false in one of the worlds where the plot is enacted.
Counterexample (Lewis 1978: 39).
Although the argument is clearly valid, it is not entirely clear that it is sound, even if one accepts
the Kripkean intuition as a premise. For suppose that it is false at this world that „Sherlock Holmes‟,
as used in the stories, refers to someone. Then it would be true to say that in this world Sherlock
Holmes does not exist. However, at the same time, the plot of the Holmes stories is clearly about
14
Holmes; it says that he, not someone else, did such-and-such. So the actual world would not be one
of the worlds where the plot is enacted. In other words, if one rejects Lewis‟ premise to the effect
that in the Kripkean scenario our world would count as one where the plot is enacted, then it seems
that his argument would not go through. And there seem to be good reasons to reject that premise.
Secondly, it should be noticed that it is not entirely clear that the two objections that Lewis raises
are compatible with each other. For if (-1) is circular in the strong sense that the plot determines all
internal fictional truths, then it is hard to see how there might be a world where the plot is enacted
and something that is true in the stories is not true there.23
Another critical aspect of his analysis lies in the way he reacts to the problem he is dealing with.
As we saw in section 4.3.2, Lewis enjoins us to conceive of fictions as particular acts of
storytelling, and when storytelling takes place in the actual world, the teller “purports to be telling
the truth about matters whereof he has knowledge. (…) But if his story is fiction, he is not really
doing these things” (Lewis 1978: 40). This is his diagnosis and the first step towards his solution.
And we know that in worlds where „Sherlock Holmes‟ is used as a fictional proper name, the name
does not refer; so we know that if in the actual world the story is fiction, then since it is part of the
fiction that the name is used as a fictional name, the name does not refer in the actual world. The
natural response is then to elaborate the new analysis in such a way that the worlds compatible with
the fiction are just those in which the name is used as an ordinary proper name. And to take care of
this, Lewis offers his first amendment, analysis (0):
(0) „in fiction x, φ‟ is true iff φ is true at every world where x is told as known fact.
Does analysis (0) meet the constraints stemming from the consideration it was meant to address?
Surely yes, for in no world where the story is told as known fact is the name „Sherlock Holmes‟
used as a fictional name. The trouble, however, is that the amendment commits him to a thesis that
is much stronger than what originally motivated his departure from (-1), and so in a way constitutes
an overreaction with respect to the original concern. Indeed, notice that the Kripkean judgment was
driven by a consideration connected to a general feature of names. Since proper names are devices
that we use to refer to some particular individual, if by introducing a name in a fictional manner we
are not really trying to refer to anyone (no baptism takes place), no matter how closely someone
resembles the man that is named in the story, he (or anyone else, for that matter) could not count as
that man. Now, given the structure of this line of thought, the question of what one should say about
truth in fictions that lack the use of proper names is in principle left untouched, whereas Lewis‟
amendment doesn‟t. On the contrary, it commits him to the view that no work of fiction, whether
23
Perhaps this objection could be overcome by “lightening” the notion of plot somehow.
15
nameful or nameless, can ever be true in the actual world (unless it is told as known fact there as
well).
At this point, one may protest that our focus on the weird case of nameless fiction is misplaced
because materially irrelevant, given that virtually any fiction employs fictional proper names. After
all, did you ever read a fiction which just told a story about some x, such that Gx, Fx, and so forth?
But in fact, the matter is for us of the greatest importance since, as we shall see, legal fictions tend
to be exactly of this type – this being so largely due to the scope and generality that in modern
societies laws have to achieve in order for them not to be regarded as discriminatory or ad
personam. So what in the literature on fiction tends to be overlooked as a weird and unimportant
case becomes in our context the central one. (We shall also later see how this impacts on the formal
properties of the law operator). But let us set aside this issue for a while and go on through the
Lewisian route, to see what other flaws affect analysis (0).
4.4.3. Implicit content: analyses 1 and 2
Having reached analysis (0), Lewis rejects the proposal on the grounds that it fails to capture the
fact that a lot of fictional truth is merely implicit in the story. So not enough sentences would come
out as true if one were to adopt (0) conclusively. To use one of his examples, it is true in the
Holmes stories that Holmes lives nearer to Paddington Station than to Waterloo Station, although
the stories never say this. But as far as (0) is concerned, there would be possible worlds where the
stories are told as known fact in which London is arranged just like its this-worldly counterpart, just
as there would be other worlds in the same set in which London is arranged very differently from
our own. (This remark of Lewis‟ actually rests on the controversial assumption, with which we shall
deal later on, that “such a distortion of geography need [not] prevent the otherworldly places there
called „London‟, „Paddington Station‟, … from being the same as, or counterparts of, their actual
namesakes.” (Lewis 1978: 41)). Thus, given that the fictional operator universally quantifies over
worlds, the sentence that we would intuitively take to be true in the fiction fails to be validated by
the analysis.
In detecting some of the main features of fictional operators, Lewis himself notices both that
they are closed under logical implication, and that arguments with mixed statements are not valid.
These are arguments that either have some prefixed as well as some unprefixed premises, or whose
premises are all of a kind but whose conclusion is of a different kind. However, he then goes on to
observe that although such arguments are invalid, in fact “the fallacy is often not so bad in
16
practice”. And the explanation he puts forward for this is that when an unprefixed premise is true in
actuality and nothing in the stories makes it false, thereby forcing us to bracket it, the information
about actuality carries over into the fiction as part of the implicit defeasible content of the stories.
This is what enables him to tell apart the following two arguments, affording him the resources to
predict that the conclusion of (8) is false, while that of (9) is true.
(8) P1) In the Sherlock Holmes stories, Sherlock Holmes lives at 221B Baker Street,
P2) the only building in 221B Baker Street is a bank,24
C1) in the Sherlock Holmes stories, Sherlock Holmes lives in a bank.
(9) P1‟) In the Sherlock Holmes stories, Sherlock Holmes lives at 221B Baker Street,
P2‟) Baker Street is closer to Paddington Station than to Waterloo Station,
C1‟) in the Sherlock Holmes stories, Sherlock Holmes lives closer to Paddington Station than to
Waterloo Station.
Since the stories suggest that Sherlock Holmes did not live inside a bank, they ask us to bracket off
this piece of information about London, making it inappropriate to employ P2 as a premise in (8).
Conversely, since nothing in the story suggests that London as referred to by „London‟ in the novels
has Paddington and Waterloo located at distorted positions, it is appropriate to use P2‟ as a premise
in (9). Thus, P2‟ can be regarded as part of the implicit content of the stories and can accordingly be
prefixed by „in the Sherlock Holmes stories‟, which turns (9) into a sound argument and thus
accounts for the truth of C1‟. These reflections lead Lewis to formulate his first analysis that keeps
track of implicit content, which does so by interpreting fictional statements as counterfactuals with
a closeness relation that ties the storyworlds to the actual world. The set of worlds compatible with
the fiction is now the set of those worlds where the explicit content is told as known fact, that are
closest to the actual world:
Analysis 1: „in fiction x, φ‟ is (non-vacuously) true iff some world where x is told as known fact and
φ is true differs less from the actual world than does any world where x is told as known fact and φ is
false.
Although analysis 1 is not without virtues – for instance, it predicts the truth of C1‟ – it quickly runs
into trouble. Consider any case in which the truth in fiction of some sentence φ presupposes or
requires the truth of some other sentence ψ, which is true (say) according to the author‟s beliefs, but
false at the actual world. If analysis 1 is correct, φ won‟t come out true in the fiction. Yet there are
24
It is uncertain whether at the time when Doyle was writing the novels the only building in 221B Baker Street was a
bank, but let us assume for the sake of the argument that it was.
17
cases in which we intuitively think that φ should be true in the fiction. So we have reasons to
modify analysis 1. Lewis provides us with one such case, which he borrows from a paper by Carl
Gans,25
and offers a new analysis to cope with it. In the short story entitled „The Adventure of
Speckled Band‟, Holmes‟s solution to a case is that the victim was killed by a Russell‟s viper that
had climbed up a rope. However, unbeknownst to Doyle, in actuality those vipers are not capable of
concertina movement. So if analysis 1 is correct, Holmes did not solve the case after all.
Lewis‟s amendment consists in grounding truth in fiction in a combination of explicit content
and of a background of overt beliefs generally shared by the members of the community where the
fiction originated. The set of worlds compatible with those beliefs then becomes that to which the
set of worlds where the fiction is told as known fact is bound under the closeness relation:
Analysis 2: „in fiction x, φ‟ is (non-vacuously) true iff, whenever w is one of the collective belief
worlds of the community of origin of x, some world where x is told as known fact and φ is true
differs less from w than does any world where x is told as known fact and φ is false.
This analysis validates our intuitive judgment on the upshot of „The Adventure of Speckled Band‟,
and fits well with the idea that the implicit content of fictions should be more heavily dependent on
the way the world is taken to be, than on the way the world actually is. We do not wish to challenge
this analysis in connection with the kind of works for which it was elaborated – works of fiction –
but we will use it as a starting point as well as the main target of criticism when we will look at how
it would fare if it were used to provide an analysis of legal statements instead. We now go into the
last of our topics related to truth in fiction.
4.4.4. Impossible fictions
As Lewis himself acknowledges, on his counterfactual analysis of truth in fiction, anything
whatsoever is vacuously true in a fiction x if x has an impossible plot, since in this case there is no
world where the plot is told as known fact and therefore the antecedent of the counterfactual
conditional is always false. Lewis deems this consequence of his account to be acceptable if the
plot‟s impossibility is “blatant”, and regards it in need of refinement only in cases where the plot
contains a contradiction which is due to some oversight on the author‟s part. In keeping with this
take, he provides two methods to deal with those cases in a way that avoids the counterintuitive
25
Gans (1970), however, uses the case to argue that some of the explicit content of the Sherlock Holmes stories is false
in the stories. As it is often said in those cases, one author‟s modus ponens is another‟s modus tollens.
18
consequence. However, it should be clear that this modification falls short of tackling a wide variety
of interesting cases where vacuous abundant truth would be felt as equally disturbing. These are
fictions in which not only the impossibility affecting the plot might be of a metaphysical or
nomological stripe, but where the very point of the novel might be that such impossibilities are
realized in the story. More importantly for our purposes, there are central cases of legal provisions
that bear this feature and, for reasons that are quite obvious, we want to avoid having to say that
according to the law everything is the case. Accordingly, we shall seek to accommodate these cases
by amending the analysis in some further respect (we will see in the last section how this goal can
be achieved).
Throughout this section, we have outlined the process through which Lewis reaches a disjunctive
account of truth in fiction, pointed out some of its shortcomings and critical aspects. The accounts
that Lewis defends qualify as candidates for a syncategorematic semantic analysis of the operator
„in fiction x …‟. We shall take these analyses as the starting point for our account of the meaning of
the operator „according to the law …‟, on the assumption that the two expressions share some
salient common features. Our next step will be to characterize in general terms the distinct types of
legal provisions whose content is reported by assertions to the effect that according to the law, such-
and-such is the case. Legal provisions and legal statements can thus be viewed as two sides of the
same coin, so to speak, and before we get to the latter notion, we shall see what the former amounts
to.
4.5. Legal provisions
Most legal sources are texts composed of legal provisions; the latter, in turn, are collections of
sentence tokens resulting from particular inscriptions. According to the partition among types of
legal provisions that we outlined in section 4.2, three general types of regulative tools were
identified: deontic sentences, legal definitions, and legal fictions. Let us start with the provisions of
the first type.
4.5.1. Deontic sentences
We mention deontic sentences only with a view to set the background for the subsequent account of
the semantic contribution which is made by „according to the law‟ to the truth conditions of
19
complex sentences in which the operator embeds a deontic sentence. Let us call „deontic‟ a sentence
if it contains a modal term with a deontic (legal) flavor – an auxiliary verb, an adverb, an adjective,
or a modal expression belonging to some other syntactical category. Those include „may‟, „can‟,
„should‟, „shall‟, „must‟, „ought to‟, „permissible‟, „obligatory‟, „forbidden‟, and so on. In directive
speech acts, such sentences can be used to express permissions, obligations, prohibitions and the
like, and they do so by ascribing to an action or a state of affairs the relevant modal profile.26
Alternatively, provisions of this kind can also be deployed with a view to endow certain subjects
with a given normative position such as a right or power. In general, we take the contents of such
sentences to be norms, and in the case study involving norms of this type that will be examined, we
are going to focus specifically on the impact that a false presupposition has on the legal change
effected by a law-making act involving a provision of this sort.
4.6. Legal fictions
The line between what falls in and outside the scope of legal fictions is a persistent subject of debate
both in the jurisprudential and legal-theoretic literature.27
Whereas laymen and even practitioners
(lawyers and judges) are often happy to apply the predicate „legal fiction‟ to a wide and
heterogeneous range of cases, here as in many other areas of (broadly construed) linguistic inquiry
it is unclear to what extent such predications should be taken at face value. For, as it often happens,
one should balance the cost of attributing widespread mistakes to ordinary or specialist users of a
language against the benefits that one‟s theory might have. And whether those benefits could only
be achieved at that cost, and at what point the cost becomes unbearable, often constitute a further
matter of dispute. In the present context, the issue pops up when we ask whether legal
presumptions, which both legal experts and laymen often call „fictions‟, really count as fictions. But
although the issue is vexed and complex, it is not one we should be particularly worried about. For
albeit we will introduce legal fictions, contrast them with fictions tout court, and part them into pure
fictions and presumptions, doing this will be merely instrumental in the treatment of the formal and
pragmatic features of „according to the law‟. Apart from this, whether it is a fiction on our part to
call presumptions „fictions‟ is up to your judgment.
What are, then, legal fictions? One fruitful starting point in tackling this issue would be to
highlight a consequence of what was said in section 4.3. There we proposed an analysis of the act of
26
On the distinction between obligations concerning states of affairs and actions, see Von Wright (1983). 27
The contemporary classic on this topic is Fuller (1970), but the debate dates back at least to Roman times.
20
lawmaking, and reported two prominent analyses of fiction-making, both of which relied centrally
on the notion of illocutionary type. In particular, the distinction between fiction and non-fiction on
both analyses relied on the type of force with which fictive utterances are taken to be essentially
intertwined. And something one might be tempted to do is to treat legal fictions simply as a species
of fictions tout court. But if what we said is correct – that is, if fictions are individuated by the type
of illocutionary act that they are used to make – then this clearly won‟t do. For legal fictions (or at
least those in which we are interested) are used to make new law, and so are put to use in the service
of another kind of speech act.
Alternatively, one could try to analyze legal fictions along analogous lines, by means of
illustrating their own illocutionary type. One difficulty of this project is that since legal fictions are
a species of legal provisions, and since all legal provisions are used to perform the same type of act,
an analysis of this sort would be unable to distinguish legal fictions vis-à-vis those other provisions,
which is precisely what we are trying to do. However, perhaps one could try to pursue this tack by
increasing the complexity of the relevant illocutionary act by adding more to its structure at the
level of how its primary lawmaking function get to be fulfilled. On this hypothesis, we would be
dealing with complex acts involving nested illocutionary types, so that, in particular, lawmaking
acts involving different types of provisions could be discriminated on the basis of the secondary
illocutionary function that they fulfil in the service of realizing their primary lawmaking function.
4.6.1. Pure fictions
Let us start with two examples. In Roman law, when a foreigner was authorized to bring a lawsuit
against a Roman citizen, he was treated as if he were a citizen. Second, in a classical decision (case
Mostyn v. Fabrigas) that was taken by the King‟s Bench court in 1774, the Mediterranean island of
Menorca, at the time under British occupation, was treated as if it were part of the city of London. It
is common to these two cases, which we take to be central instances of legal fictions, that some
object or individual a, which does not possess a certain property F or which is not a part of another
complex object b, is treated as if it possessed F or was a part of b. The first thing to notice is that
both cases involve a pretense; when the court said that a foreigner was a citizen, or that Menorca
was part of London, what they said would have been false if there had not been a tacitly understood
modifier prefixing them. Such statements would not have been true simpliciter. Secondly, it is
common to them that in neither case it was believed that a was an F or a part of b. And thirdly,
neither involved an attempt on the court‟s part to deceive anyone, so that one could not properly
21
view them as instances of lying. In keeping with this, we may schematically say that a legal fiction
is an act of inscribing that fulfils its primary illocutionary function – lawmaking – by pretending
that the sentences that make up the inscribed provision contain truthful predicative or identity
statements, while doing so without any intention to deceive and without carrying any belief or
commitment to their truth.
4.6.2. Presumptions
Also legal presumptions involve a pretense of sorts, as they typically make assumptions to the effect
that a given state of affairs holds, irrespective of whether it in fact does. They pretend that
something is the case without carrying a commitment to its actually being the case. But in contrast
to pure fictions, they do not require the falsity of the object of the pretense, and so they are
compatible also with it being the case that the state of affairs that it is fictitiously taken to obtain
eventually does obtain. Further, their function is to effect a shift of the burden of proof between the
plaintiff and the defendant in trials. Traditionally, they are parted into those in which the shift is
rebuttable – presumptions iuris tantum – and those in which it is not – presumptions iuris et de iure.
A good example of this comes from the common law presumption that the husband of a mother is
the father of any child born to the mother during the marriage.28
A crucial feature of this case in
qualifying it as a case of fiction is of course that the term „father‟ is being used in its biological
sense, for if it had been used in a technical legal sense, it would have involved no pretense. This
aspect in fact underscores the point, previously made, that the possibility of legal fictions rests on
the assumption that not all legal language is technical. And indeed, when a fiction is turned into a
definition by the introduction of a new technical term, it ceases to be a fiction. It is this point that
Bülow saw and tried to convey with the following passage:
from the moment when one introduces into the sphere of law an element (…) of conventionalism,
(…) there are no fictions at all, (…) and there is a reality of law (Bülow 1879: 612).
This fragment introduces us to the relation between fictions and definitions.
4.6.3. Definitions
28
This case is discussed also in Schauer (2015).
22
Within the kind of definitions in which we are interested – nominal definitions, that is, definitions
that provide the meaning of a term, and not real definitions that explain the nature of a thing –
several different types are traditionally distinguished. There are definitions of a dictionary,
stipulative, descriptive, explicative, and ostensive sort.29
And among those, we shall solely focus on
stipulations.
A legal stipulation is a definition that authoritatively establishes a special meaning for the
defined expression, regardless of whether that meaning is in keeping with any ordinary previous use
of the term. For instance, think again of the common law presumption, but this time imagine that its
formulation concerned instead the legal meaning of „father‟. In this scenario, we would not be
dealing with a presumption, but rather with a stipulation to the effect that whoever happens to be the
husband of a certain woman just is the legal father of any child that was born during their marriage.
No fiction, no pretense; just plain truth of law. Or again, think of Mostyn v. Fabrigas. A lawmaker
could instead have said: „let the meaning of „Schlondon‟ be given by the following rule: something
is identical with Schlondon if and only if it is the mereological sum composed by the actual referent
of „London‟ and by the actual referent of „Menorca‟.‟ Then, the court would have been entirely
right in continuing its reasoning by saying „… and so we conclusively find that Menorca is part of
Schlondon‟. No fiction, no pretense; just plain truth in virtue of a stipulation of law.30
In a way, as
Fuller (1970) noticed, if the (imaginary) court had been the lawmaker, and if it had not made this
reasoning explicit, it would simply have joined Humpty Dumpty in assuming that „when I use a
word, it means just what I choose it to mean, neither more nor less‟. But of course, this would not
have been a fiction at all, which is why the two cases are so different.
4.7. ‘According to the law’
In this section, we provide an analysis of the intensional operator „according to the law‟, as it occurs
(tacitly or explicitly) in legal statements, namely sentences to the effect that, according to the law,
such-and-such is the case.
4.7.1. Legal statements
29
See, Gupta (2015). 30
And also in virtue of fact, since the mereological sum of Menorca and London exists independently of any
stipulation. The lawmaking act served merely to give it a name and to endow it with application conditions.
23
Legal statements are sentences that are used to make an assertion on what the law requires in a
jurisdiction at a time. In general,31
they take the following form:
(10) According to the law, φ
where φ picks out a sentence of the kind that could also be used in a legal provision. There are
equivalent ways to express the same content as (10), as one could easily substitute the phrase
„according to the law‟ with the equivalent „legally …‟, „the law says that …‟, „it is the law that …‟,
or cognate expressions. In what follows, we will focus on (10) only for ease of exposition.
4.7.2. Semantic features
To a first approximation, in all of its various uses „according to the law …‟ is an operator that takes
as prejacent a sentence and denotes a function that maps any proposition to the truth-value 1 if that
proposition is compatible with the content of the law. Thus, it applies the proposition expressed by
its prejacent to a world that is included in the set of the worlds that are compatible with the law. In
this respect, its role as a shifting device is fulfilled by shifting the world of evaluation at which the
truth value of its complement must be checked, and its semantic contribution can accordingly be
viewed as an instruction to perform this operation. Further, just like a fictional operator, it works as
a restricted universal quantifier over possible worlds, quantifying over the worlds that are accessible
from a certain point. These informal remarks can be captured by the following semantic entry:
(11) ⟦ according to the law ⟧ w,g = λp<s,t> . ∀w’ compatible with the content of the law in
w: p(w’) = 1.
Although this is a good starting point, in a way it is also too “coarse-grained”, in the sense that it
overlooks the fact that the content of the law does not merely change from world to world – which
is captured in (11) by having „w‟ in the right hand side of the identity sign – but also depends on the
specific jurisdiction that is being considered. This aspect is intuitively reflected in the observation
that a sentence like „according to the law, gay marriage is not allowed‟, albeit syntactically
complete, would be semantically defective unless reference to a jurisdiction were somehow made.
Indeed, there would be no way for it to be truth-evaluable if such information were not supplied. So
we should think of the sentential modifier rather as expressing a (binary) relation between
31
This was noted by Raz (1994: 197).
24
jurisdictions and propositions, just as attitude verbs express a relation between individuals and
propositions. Coming to think about it, it seems quite clear that saying that according to the law, so-
and-so, is just like saying that the law says so-and-so. And nothing can be a law without being a law
of a particular jurisdiction. A few equivalent ways are available for expressing this fact. For one
thing, since in an intensional framework propositions are taken to be sets of possible worlds, the
legal relation is a function that maps a world w and a jurisdiction j into the set of worlds w‟ that are
compatible with what that the law of j says at w. Both „according to the law of j‟ and its
complement determine a set of worlds, and for any prejacent, the complex statement is true if and
only if the set of worlds expressed by the operator is a subset of that expressed by its complement.
Another way is to represent the legal relation as a function mapping a jurisdiction and a world into
the set of propositions that the law of that jurisdiction prescribes at that world.
Formally, this amendment results in the following formulation (where „y‟ is a variable ranging
over jurisdictions); for any world w ∈ W, and any assignment function g:
(12) ⟦ according to the law ⟧ w,g = λp<s,t> . λy . ∀w’ compatible with the content of the law of y in
w: p(w’) = 1.
Now we have a semantics that is duly sensitive both to the world of evaluation and to the
jurisdiction whose laws are at a given moment being considered. The operator quantifies over the
set of worlds, accessible from a certain world- jurisdiction pair, where all the propositions of law
that are enshrined in that jurisdiction at that world are true.
But now an important problem remains to be dealt with: what sort of accessibility relation is the
one which is associated with the operator? In tackling this issue, we shall see that the proper answer
is bound to depend on the specific type of sentence that the operator takes under its scope.
4.7.3. Stipulations
We want to know whether the accessibility relation of the operator „according to the law‟ is
reflexive, irreflexive, or non-reflexive. Let us begin with the case of stipulations. Analytic truths
like the one we saw before – „Menorca is part of Schlondon‟32
– are made true by stipulation. Now,
although which sentences are true in virtue of legal stipulation will depend on what stipulative
definitions are laid down in which jurisdiction at which world, it seems clear that if anything is
32
Notice that the rule through which the term „Schlondon‟ was ex hypothesi defined was supposed to give its meaning,
not just to fix its reference; so the claim that Menorca is part of Schlondon would not only be true, but analytically so.
25
made true by a stipulation performed at a world w in a jurisdiction j, then that thing will be true at,
among other worlds, w itself. In other terms, it seems clear that w will have to be within the set of
worlds compatible with the law, unless special conditions are in place.33
For it is a characteristic
feature of stipulations that they make true what they stipulate. So, we conclude that in this case, the
accessibility relation will have to be reflexive.
4.7.4. Presumptions
We grouped presumptions among fictions. And as we know from Lewis‟ analysis of fiction, he
thinks that the accessibility relation associated with the fictive operator is irreflexive, since no
fiction can be true at the actual world. Should we then conclude that when „according to the law‟
embeds a presumption, its accessibility relation is irreflexive? Perhaps not. First, as we saw, there
aren‟t conclusive reasons to think that nameless fictions need to be false at the actual world. And
the common law presumption, as most of the fictions of its kind, is just like that: nameless. Indeed,
intuitively it seems that no matter how unlikely it might be that all this-worldly husbands be the
fathers of their wives‟ children, we could discover this to be the case. Improbable, incredible, but
surely possible! Secondly, we need not think that legal fictions behave exactly like fictions tout
court. And thirdly, even if legal fictions were just like ordinary fictions, and even if the latter
behaved just as Lewis says they do, we need not think that presumptions are legal fictions. Perhaps
they are not, and the layman and practitioner who say that they are would be simply wrong. Still,
this would leave the accessibility relation of the operator they‟re embedded by as non-reflexive as it
seems to be. And this is what matters to us.
4.7.5. Impossible worlds
We concluded the last subsection by saying that it seems possible for the actual world – better,
its fragment that lives under a regime of common law – to be such that all the husbands in it are the
fathers of their wives‟ children. But is this a genuine metaphysical possibility? On one plausible
interpretation, the common law presumption would be instructing us to consider those worlds where
all the men who are actually married with certain women are the fathers of their this-worldly wives‟
children. And, under such interpretation, if this world is not in that set (which it probably isn‟t),
33
One could imagine a lawmaker stipulating that only other-worldly husbands be the fathers of their wives‟ children.
26
then that set is empty. Hence the common law presumption states an impossible law. Hence in
common law countries anything is permitted and everything forbidden. Wait. The reasoning we just
went through, true enough, is based on powerful considerations relating to the necessity of origins.34
In keeping with those, if you take any person, and then consider someone with different parents,
one thing you will know for sure is that he cannot be that person. So worlds where this-worldly
children are born from different parents are impossible. Still, should we thereby conclude that in
common law countries chaos reigns? One way out from this predicament, that here we only hint at,
would be to introduce impossible worlds in our semantics and thus allow the evaluation world to be
shifted to them. Is this absurd? Not for semantic purposes, we think. For just as one can adopt a
possible world semantics without being committed to a realist metaphysics of possible worlds, so
one could do the same with impossible ones. Or take „Menorca‟ and „London‟. Both are non-
descriptive proper names, hence rigid designators. Does it follow that in the fiction according to
which Menorca is part of London everything is the case? Here, we would seem to have additional
reasons to abandon the Lewisian clause that a fictional statement is true only in those worlds where
the story is told as known fact. But even if we wished to preserve it, an alternative route could resort
to widening the domain of worlds where something can be told as known fact, and impossible ones
seem to suit the cause. Perhaps, as Lewis believed, „London‟ being rigid does not prevent London
from undergoing drastic architectural and geographic changes across worlds. And since we are
dealing with cities (human artifacts) rather than people (ignore clones), this claim would seem to
gain additional plausibility. Or perhaps, as Lewis also thought, any time a name is used in a work of
fiction its semantics ceases to be rigid, and its reference is fixed by the descriptions that we find in
the stories. But if that is not the case, then impossible worlds have some more work to do.
There is also another case of impossible law that we wish to consider. But this rather involves a
false presupposition, and therefore is a subject for the next subsection.
4.8. Pragmatic aspects
We have seen that a sentence of the form „according to the law φ‟, where φ is substituted by a legal
fiction or stipulation, is true (roughly) just in case φ is true at all worlds w‟ compatible with the
content of the law as prescribed in w from which w‟ are accessible. It remains to be seen, as in the
fictional case, which implicit legal statements can plausibly be taken to be true. In the remainder,
we formulate a principle of generation for implicit truth in law.
34
See Kripke (1980).
27
Since law making is largely a human activity, it would seem to be inappropriate (as it is in the
fictional case) to carry over into implicit truth in law all and only that body of information that is
true in the actual world. To be more confident on this, consider a case that came up before the
Mayor‟s court in New York City in 1818, Maurice v. Judd. There, the jury was asked to decide
whether Samuel Judd, a merchant who had purchased three barrels of uninspected whale oil, had
violated a law prescribing that all fish oil sold in New York be inspected. It was common ground in
the legal community at the time when the provision was enacted, that whales are fish. However, as
it turned out, they aren‟t. So if something along the lines of Lewis‟ analysis 1 were to be taken as a
model for implicit truth in law, we should conclude that whale oil was not to be inspected after all.
But law is a social instrument designed to serve common purposes and interests, and has a great
practical impact on people‟s lives. Thus, insofar as the normative consequences of reaching such a
decision would seem to be inadequate, we should resist the conclusion.
An alternative, as we know from Lewis‟ analysis 2, is to tie implicit truth to a background of
overt beliefs shared by the community where the law originated.35
And this would seem to take
good care of the decision in Maurice v. Judd. But also this analysis does not seem, upon reflection,
to be entirely satisfactory – mainly for the following reason. Laws are instruments designed to be
applicable for long times, under all sorts of variations of epistemic and factual circumstances, and
across all sorts of different cases of life. Our beliefs about matters of facts can, and often do,
change, as change the states of affairs that our social life is sensitive to, whereas our laws are often
not so easily and promptly modifiable. And unless some normatively negative upshot had its ground
in the explicit letter of the law, it would be nice to avoid it by having a mechanism that at the level
of implicit content were sensitive to such changes, without having each time to appeal to a new act
of lawmaking. It may seem odd that the content of a speech act could be updated as time goes on,
given that speech acts are events which take place at a particular time, once and forever. But we
should be accustomed by the history of the philosophy of language to surprises of this kind. And
indeed, the assessment sensitivity of content determination has not passed untheorized in the
philosophical landscape.36
In this context, assessment sensitivity under the guise of sensitivity to
beliefs and judgments about the normative consequences of some legal state of affairs is precisely
what we intuitively want, not just what we need. In light of this, we propose the following
amendment to the analysis that we have offered, to take care of implicit truth in law:
35
The notion of common ground was elaborated by Robert Stalnaker (see the essays collected in Stalnaker 1999).
Bonomi & Zucchi (2003) develop a formal framework for truth in fiction based on that notion. 36
See, e.g., Cappelen 2008b.
28
(13) „according to the law of y, φ‟ is true iff, whenever w is one of the collective belief worlds of
the community which is relevant to y and the members of that community are disposed to accept
the normative consequences that would follow from the truth of φ, some world which is
compatible with the semantic content of the law of y and where φ is true differs less from w than
does any world which is compatible with the law of y and where φ is false.
Here, the relevant community should be understood as that whose members are subject to the law of
y, and can accordingly be allowed a margin of diachronic and spatial change. Analysis (13) can then
be employed to correctly predict the reasoning of the court in Maurice.
(14) P1‟‟ According to the law of j, fish oil ought to be inspected,
P2‟‟ whale oil is fish oil,
C1‟‟ according to the law of j, whale oil ought to be inspected
(14) accounts for the fact that the jury‟s argument contains a true conclusion in virtue of the fact
that P2‟‟ could be correctly prefixed by the law-operator thanks to being part of the implicit content
of the law of j. And this is so, first, because P2‟‟ was a common belief of the relevant community
(in this case, the community of origin and of assessment overlap, so things are easier) and,
secondly, because its members would have been disposed to accept the normative consequence
deriving from the truth of P2‟‟ (in this case, the inspection of whale oil) even if they had known that
whales are not fish.
A final note concerning impossible laws. As you may think that not only whales are not fish, but
they can‟t possibly be so,37
the strategy of widening the domain of worlds of the semantics to
include possible as well as impossible worlds will have one more theoretical job to do. Which,
according to it, is all the better.38
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This thesis is defended by Kripke 1980, in his remarks on natural kind terms as rigid designators. 38
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