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Legal Theory
Lexicon: Speech Acts via Legal Theory Blog de Lawrence Solum em 14/11/10


Speech act theory will forever be associated with the great J. L.
Austin, the Oxford philosopher whose work in the 1950s had an enormous
influence on analytic philosophy. One of Austin's core insights is
reflected in the title of his William James lectures, delivered at
Harvard in 1955,How to Do Things with Words. When we use language, we
don't just communicate information or say things about how the world
is; when we use language, we do things. We command, request, apologize,
contract, convey, and admonish. Speech act theory focuses on the ways
in which language (both oral and written) can be used to perform

Legal theorists are interested in speech act theory for a variety of
reasons, but one of the most important is that speech act theory helps
to explain the way that the law uses language. Statutes, holdings, and
constitutional provisions aren't like "the cat is on the mat." That is,
a statute does not tell us how the world is in the same way that a
declaratory sentence does. Legal language is full of speech acts. This
entry in the Legal Theory Lexicon provides a rough and ready
introduction to speech act theory pitched at law students (especially
first-year law students) with an interest in legal theory.

Sentences, Propositions, Meaning, and Truth

There are lots of ways we could start, but let's begin with a simple
sentence. "The sidebar of Legal Theory Blog contains a link to
Balkinization." What does this sentence mean? One answer to that
question is pretty straightforward. There is an object in the world
(the sidebar of legal theory blog) and that object includes another, "a
link to Balkinization." Simple declarative sentences like this have
truth values (or are "truth-apt"). In this case, the sentence is true,
because the sidebar to Legal Theory Blog actually does have a link to
Balkinization. There is a temptation to think that all sentences are
like simple declarative sentences in that (1) the meaning of the
sentence can be cashed out by the way it refers to the actual world,
and (2) if the sentence is meaningful (i.e. it succeeds in referring),
then the sentence has a truth value.

O.K., that was a lot to swallow, but what does it have to do
with "speech acts"? Now, take this expression in English: "Please add
my blog to your blogroll." Does this sentence refer to anything? Well,
it does include elements that refer, e.g. "my blog" and "your
blogroll." But this sentence doesn't assert that my blog is on your
blogroll. It may imply that my blog currently isnot on your blogroll,
but that implicit assertion doesn't exhaust its meaning. The
sentence "Please add my blog to your blogroll" is a request. By
uttering (or posting) these words, I am making a request. If you do add
my blog to your blogroll, the request will succeed. If you don't, the
request will have failed. Although the request can succeed or fail, it
would be strange indeed to say that "Please add my blog to your
blogroll" is either true or false. Requests are not truth-apt; they do
not bear truth values.

Are there any other types of expressions that are similar to requests?
Once we start looking, we will discover lots and lots. Orders,
questions, offers, acceptances, warnings, invitations, greetings,
welcomes, thank yous--all of these are types of expressions that do not
seem to refer or to have truth values. What do these expressions mean
then, if they don't refer? When I gave an order, I perform an
action--the act of ordering X to do Y. When I make an offer, I perform
an action--the act of creating a legally effective option for the
offeree to form a legally binding contract by accepting the offer. When
I extend an invitation to a party, I perform an action--the act of
inviting person P to event E. Speech act theory begins with the idea
that language can be used to perform actions.

Form and Function

We might be tempted to think that we can tell the difference between
sentences that describe the world and expressions that perform actions
simply by their form. So we might be tempted to say, "Sentences of the
form X is Y express propositions that refer," whereas sentences of the
form, "I hereby do X" perform a speech act. But language is much
messier than this. Take the sentence, "This room is a pig sty." In some
contexts, this sentence might be referential. If one were taking a tour
of an animal husbandry research facility, the sentence "This room is a
pig sty" might express a true proposition about the function of a
particular room. But if the same words were used by a parent, in an
annoyed tone, and directed to a teenage child, the real meaning of the
expression might be, "Clean up your room!" Certain forms are
characteristically associated with propositions that refer and others
with the performance of speech acts, but the question of meaning
depends on the context of utterance.

Utterance, Locution, Illocution, Perlocution

With the basic idea of a speech act under out belts, we can now
introduce a useful set of terminological distinctions:

- Utterance--We can use the term "utterance" to refer to the words
(e.g. the sounds or letters) that constitute a particular use of
- Locution--We can use the term "locution" to refer to the semantic
meaning of the utterance.
- Illocution--We can use the term "illocution" to refer to the speech
act that is performed by use of a particular utterance in a particular
- Perlocution--We can use the term "perlocution" to refer to the effect
that a given expression has when it is uttered in a particular context.
Take the example of the sentence, "This room is a pig sty." The
utterance is simply the words that are used: suppose this is an oral
statement in English made by a parent to a child on a particular
occasion. The same parent could utter similar worlds in English (or
another language) that have the same semantic content. "The family room
is a pig sty"--would express the same propositional content as "This
room is a pig sty" if "this room" was "the family room." The
illocutionary force of this statement is ambiguous. If the child spoken
to was responsible for the mess, then both parent and child might
understand that "This room is a pig sty" is the equivalent of "Clean up
this room." The same illocutionary force can be obtained by a variety
of expressions. Finally, the perlocutionary effect of "This room is a
pig sty" will also depend on context. The effect might be to produce
shame, but it might also produce anger. Thus, one utterance has both
locutionary content, illocutionary force, and perlocutionary effect.

A Typology of Speech Acts

One of the tasks of speech act theory has been to develop typologies of
speech acts. Here is one typology developed by Bach and Hamish:

- Constatives: affirming, alleging, announcing, answering, attributing,
claiming, classifying, concurring, confirming, conjecturing, denying,
disagreeing, disclosing, disputing, identifying, informing, insisting,
predicting, ranking, reporting, stating, stipulatin
- Directives: advising, admonishing, asking, begging, dismissing,
excusing, forbidding, instructing, ordering, permitting, requesting,
requiring, suggesting, urging, warning
- Commissives: agreeing, guaranteeing, inviting, offering, promising,
swearing, volunteering
- Acknowledgments: apologizing, condoling, congratulating, greeting,
thanking, accepting (acknowledging an acknowledgment)
There are other ways of slicing and dicing the types of speech acts,
but Bach and Hamish's typology gives a good sense of how such a
typology might work.

Speech Act Theory and Legal Theory

How can legal theorists use speech act theory? We could start by noting
the important role that speech acts play in the law. Laws themselves
might be seen as speech acts--as types of commands or authorizations.
In contract law, issues of contract formation frequently turn on
questions whether particular utterances were speech acts of particular
types. Was this utterance an offer? Was that statement an acceptance?
In a very general way, speech act theory is helpful simply because it
allows us to understand legal phenomena from a new angle.

Speech act theory may also be helpful in resolving particular sorts of
doctrinal puzzles. For example, in the theory of the freedom of speech,
one might be puzzled about the unprotected status of certain
expressions. Oral contracts are speech. Threats are speech. An order
from a Mafia boss to a hitman is speech. But no one thinks that these
instances of speech raise serious questions under the First Amendment.

Why not? One possible answer to this question could begin
with "marketplace of ideas" theory of free speech famously associated
with Justice Holmes--a theory that emphasizes the role of freedom of
speech in facilitating the emergence of truth from the unrestricted
public debate and discussion. Directive speech acts, such as orders, do
not make truth claims, and hence might be entirely outside the freedom
of speech. But constantive speech acts, such as affirming,
conjecturing, or disagreeing, do make speech claims and hence would
raise free speech issues on the marketplace of ideas theory. Of course,
one paragraph does not a theory of the freedom of speech make--for more
on this, see my Freedom of Communicative Action.

Here is another example. The hearsay rule is notoriously difficult to
conceptualize precisely, because the canonical formulation, that
hearsay is "an out-of-court declaration introduced for the truth of the
matter asserted," is not transparent. Speech act theory may perform a
clarifying function. The phrase "out of court declaration" may be
clarified by reference to the categories of speech acts: out-of-court
declarations are constantive speech acts. Other categories of speech
acts, e.g. directives, commisives, and acknowledgements, are not
declarations. Moreover, the phrase "for the truth of the matter
asserted" may be illuminated by distinguishing propositional contents
which may bear truth values, on the one hand, and illocutionary force
and perlocutionary effects on the others. The hearsay rule is usually
not violated if an out-of-court declaration is introduced for the
purpose of demonstrating its illocutionary force. For example, a third
party can testify to the making of an oral contract for the purpose of
showing that the action--making the contract--was performed.

If you are interested in acquiring a very basic knowledge of speech act
theory, I recommend that you start with Austin's marvelous How to Do
Things with Words. Although many of Austin's particular points have
been criticized or superceded by subsequent work, this is a marvelous
book--concise, illuminating, and a model of ordinary language
philosophy at its best. More advanced readings are included in the
bibliography below.


- Mitchell Green, "Speech Acts" in the Stanford Encyclopedia of
- Kent Bach, "Speech Acts" entry in the Routledge Encyclopedia of
- What Is a Speech Act?
- Kepa Korta, Pragmatics in the Stanford Encyclopedia of Philosophy
- Barry Smith, Towards a History of Speech Act Theory


- Austin, J. L. (1962) How to Do Things with Words, Cambridge, Mass.:
Harvard University Press.
- Bach, K. and R. M. Harnish (1979), Linguistic Communication and
Speech Acts, Cambridge, Mass.: MIT Press.
- Grice, H. P. (1989) Studies in the Way of Words, Cambridge, Mass.:
Harvard University Press.
- Searle, J. (1969) Speech Acts: An Essay in the Philosophy of
Language, Cambridge, Eng.: Cambridge University Press.
- Lawrence B. Solum, Freedom of Communicative Action: A Theory of the
First Amendment Freedom of Speech, 83 Northwestern University Law
Review 54 (1988 1989).
- Strawson, P. F. (1964) 'Intention and convention in speech acts',
Philosophical Review 73: 439-60.
(Last modified on November 14, 2010.)

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