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Speech Acts with Legal Consequences

October 25th, 2006 by David Kronemyer · 1 Comment

This is yet another note precipitated by re-reading J. L. Austin’s famous paper, “A Plea for Excuses,” see previous post. As I described, Austin originated the concept of “speech acts,” which are the things one does, or accomplishes, by uttering words. Examples are activities such as promising, commanding, evaluating, describing, etc.

Now, there’s a significant difference between uttering “words,” and actually “doing something.” This can be summed up in the colloquialism, “actions speak louder than words,” and its cognates, “if you can’t walk the walk, then don’t talk the talk,” “money talks but bullshit walks,” and the like. These reflect a common-place, folkloric kind of wisdom. Even so, as Dmitri Karamazov found out to his detriment in The Brothers Karamazov, there is a difference, say, between talking about murdering one’s father, and actually doing so.

“The law” primarily is about evaluating the consequences of “actions.” For example, the term “homicide” simply describes an event in the real world; whereas, the term “murder” is an evaluation of the homicide, made by a jury, which has determined that certain propositions can be applied to the homicide (they are “ascriptive predicates” of the homicide), such as, it was committed by a person who had a particular mental state.

There is another category of events with legal consequences, however, where the only action is somebody talking (it also could be writing, though “talking” presents an even more outlandish juxtaposition). In other words, a speaker might incur significant legal consequences, not by doing anything, but rather, merely by uttering certain words. Some examples of what I have in mind are: extortion; slander; forming an oral contract; getting married; committing an anticipatory breach of contract; and even treason.

No question but these are “speech acts.” However, they aren’t speech acts per se, using Austin’s definition, see the previous note. Although various speech acts may be undertaken during the course of their performance, such as, for example, “promising” or “threatening,” in truth we’re dealing with a higher order concept or conclusion. This is the result of amalgamating spoken words, together with a legal evaluation of those words. The underlying words themselves need not be speech acts, classically understood.

For example, if you’re a party to a contract, you might commit an anticipatory breach of that contract by instilling in your counterpart party a concern that you don’t intend to perform your part of the deal. If the contract is about painting a fence, you might say, “I’m not going to paint that fence.” While the speech act of “repudiation” is involved, repudiation itself has no social significance. Rather, it’s only after those words have been spoken, and analyzed in a certain way, that they have legal consequences.

I wonder how many other examples there might be, of “speech acts,” in this specialized “legal” context.