The role of pragmatics in (re)constructing the rational law-maker

Abstract

The recent debate on pragmatics and the law has found ways to circumvent an important distinction, originally drawn by Dascal and Wróblewski (1991), between the historical law-maker, the current law-maker, and the ideal/rational law-maker.1 By insisting on the relationship between the rational law-maker and contextualism and textualism (see Manning 2005, 2006), I want to redress this fault in current discussions. In this paper, I start with general considerations on pragmatics, intentionality in ordinary conversation, and intentionality in the context of judiciary proceedings and legal texts. I then move on to considerations on rationality as a prerequisite for understanding the law and on the rational law-maker, an ideal construct proposed by Dascal and Wróblewski (1991). I argue that contextualism (of the moderate kind) is the best way to carry out the program by Dascal and Wróblewski on interpretation and the rational law-maker (also see considerations by Fish 2005); (on contextualism see Dascal and Weizman 1987). I argue that bearing in mind the rational law-maker postulated by Dascal and Wróblewski is a guidance to interpretation of statutes whose texts create interpretative difficulties. I conclude by saying that the considerations on the rational law-maker constitute a compromise between Scalia’s (1997) textualism and contextualism (see Manning 2005, 2006 on the divide between textualism and contextualism).