1

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.

5

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.

6

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.

11

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

References

Austin, J.L., 1962. How to Do Things with Words, OUP: Oxford.

Bach, K., 2006. Speech Acts and Pragmatic, in M. Devitt and R. Hanley (eds.), The Blackwell

Guide to the Philosophy of Language, Blackwell Publishing: Oxford, 147-167.

37

This thesis is defended by Kripke 1980, in his remarks on natural kind terms as rigid designators. 38

We would like to thank Oscar Cabaco, Aurélien Darbelley, Esa Díaz-León, Francesco Gallina, Manuel García-

Carpintero, David Rey, and Alessio Santelli for helpful and insightful discussions on the topics of this paper.

29

Bach, K., Harnish, R.M., 1979. Linguistic Communication and Speech Acts, MIT University Press:

Cambridge (Mass.).

Bonomi, A., Zucchi, S., 2003. A Pragmatic Frawework for Truth in Fiction, “Dialectica”, 57(2):

103-120.

Bülow, O., 1879. Civilprozessualische Fiktionen und Wahrheiten, Archiv für die civ. Praxis.

Cappelen, H., 2008b. The Creative Interpreter: Content Relativism and Assertion, in “Philosophical

Perspectives”, 22, 1, pp. 23-46.

Currie, G., 1990. The Nature of Fiction, Cambridge University Press: Cambridge (Mass.).

Dan-Cohen, M., 1984, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal

Law, “Harvard Law Review”, 97: 625-677.

Dworkin, R., 1986. Law’s Empire, Hart Publishing: Oxford.

Fuller, L., 1970. Legal Fictions, Stanford University Press: Stanford.

Gans, C., 1970. How Snakes Move, “Scientific American” 222(6): 82-96.

Garcia-Carpintero, M., 2007. Fiction-Making as a Gricean Illocutionary Type, “The Journal of

Aesthetics and Art Criticism”, 65(2): 203–216.

Greenberg, M., 2004. How Facts Make Law, “Legal Theory”, 10: 157-198.

Greenberg, M., 2011. Legislation As Communication? Legal Interpretation and the Study of

Communication, in A. Marmor and S. Soames (eds.), Philosophical Foundations of Language in

the Law, OUP: Oxford, 217-256.

Grice, P.H., 1989a. Studies in the Way of Word, Harvard University Press: Cambridge, London.

Gupta, A., 2015. Definitions, The Stanford Encyclopedia of Philosophy (Summer 2015 Edition),

Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/sum2015/entries/definitions/>.

Hart, H.L.A., 1961. The Concept of Law, Oxford Clarendon Press: Oxford, 2nd

ed. 1994.

Kripke, S., 1972. Naming and Necessity, in G. Harman, D. Davidson (eds.), Semantics of Natural

Language, Springer: Dordrecht.

1980. Naming and Necessity, Harvard University Press: Cambridge (Mass.).

2013. Reference and Existence, OUP: Oxford.

Lewis, D., 1978. Truth in Fiction, “American Philosophical Quarterly”, 15: 37-46.

Moreso, J.J., Chilovi, S. (forthcoming), Interpretative Arguments and the Application of the Law, in

G. Bongiovanni, G. Postema, A. Rotolo, G. Sartor, D. Walton, and C. Valentini (eds.),

Handbook of Legal Reasoning and Argumentation, Springer: Dordrecht.

Raz, J., 1979. The Authority of Law, OUP: Oxford.

Raz, J., 1994. Ethics in the Public Domain, Clarendon Press: Oxford.

30

Rosen, G., 2011. Textualism, Intentionalism, and the Law of the Contract, in A. Marmor and S.

Soames (eds.), Philosophical Foundations of Language in the Law, OUP: Oxford, 130-164.

Schauer, F., 2015. Legal Fictions Revisited, in M. Del Mar and W. Twining (eds.), Legal Fictions in

Theory and Practice, Springer International Publishing: Dordrecht, 113-129.

Searle, J., 1974. The Logical Status of Fictional Discourse, in “New Literary History”, 6(2): 319-

332.

Searle, J., 1995. The Construction of Social Reality, Free Press: New York.

Soames, S., 2013. Deferentialism: A Post-Originalist Theory of Legal Interpretation, “Fordham

Law Review”, 82: 597-617.

Stalnaker, R., 1999. Context and Content, OUP: Oxford.

Strawson, P., 1964. Intention and Convention in Speech Acts, “The Philosophical Review”, 73(4):

439-460.

Von Fintel, K., Heim, I., 2011. Intensional Semantics, MIT University Press: Cambridge (Mass.).

Von Wright, G.H., 1983. Norms, Truth, and Logic, in G.H. Von Wright (ed.), Practical Reason,

Cornell University Press.