Int J Semiot Law (2020) 33:1199–1205

https://doi.org/10.1007/s11196-020-09729-2

BOOK REVIEW

Review Article of Implicatures Within Legal Language

by Izabela Skoczeń (Springer 2019)

Francesca Poggi1 

Published online: 23 May 2020

© Springer Nature B.V. 2020

Abstract
The relationship between legal interpretation and ordinary understanding has raised
growing interest among legal scholars. According to the mainstream view, law is a
communicative phenomenon and, therefore, the best theory of ordinary communica-
tion should also explain and guide legal interpretation. Certainly, it is very contro-
versial which theory is the best one, but, even if there are many candidates, Grice’s
conversation model has attracted a lot of attention. Some legal scholars claim that
Grice’s theory of conversational maxims should be applied in legal domain, while
others dispute this claim. Izabela Skoczeń’s book, Implicatures within legal lan-
guage provides an original contribution to this ongoing debate. Through an interdis-
ciplinary approach that engages with the most recent advances in Pragmatics as well
as with the most popular legal approaches, Skoczeń recasts Grice’s theory of con-
versational implicatures in order to explain the mechanisms behind court decisions.
This review article provides a critical examination of Skoczeń’s book, highlighting
its strengths as well as its problems.

Keywords  Legal interpretation · Grice · Conversational model · Implicatures

The standard picture of legal interpretation is focused on language and the linguistic
tools to discover the meaning of a statute, and legal interpretation is therefore con-
ceived as a subfield of linguistics [3]. More precisely, the mainstream view relies on
different theories that have been developed with respect to our everyday linguistic
interaction in order to set down what the legal meaning is and how to grasp it. The
basic assumption sounds very reasonable: since legislation mainly employs natural
language, and since it should be understandable by its recipients in order to direct
their conduct, it seems to follow that legal interpretation does not or should not differ
significantly from ordinary understanding. It is true that there are many competing

* Francesca Poggi
francesca.poggi@unimi.it
1
Department “Cesare Beccaria”, University of Milan, Via Festa del Perdono 7, 20122 Milan,
Italy

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theories of ordinary understanding—from contextualism to different forms of lit-

eralism, or from relativism to inferentialism—but Grice’s conversation model has
aroused growing interest among legal scholars.
According to Grice, the meaning of an instance of language use is the meaning
that the speaker intends to communicate. More precisely, by uttering (and intending
to utter) x, a speaker means S if and only if she intends (a) that the hearer under-
stands S; (b) that the hearer recognizes that the speaker intends (a), at least in part
on the basis of the utterance of x; and (c) that the hearer understands S partly on the
basis of the fulfilment of (b). As far as the fulfilment of (b) is concerned, conversa-
tional maxims play a central role. In fact, Grice claims that conversations are gov-
erned by four maxims that, taken together, express the general cooperative principle
(henceforth CP): “Make your conversational contribution such as is required, at the
stage at which it occurs, by the accepted purpose or direction of the talk exchange in
which you are engaged” [7, p. 26]. In Grice’s view, we follow the CP and the max-
ims, not at the level of what is said, but insofar as what we say implicates a meaning
that respects the maxims. Accordingly, everything we say is interpreted, as far as
possible, in a cooperative manner, as though it implicated a meaning in accordance
with the conversational maxims at stake.
Some legal scholars claim that Grice’s theory of conversational maxims should
be applied in legal interpretation [6, 9], while others think that his theory is already
applied, since legal interpretative criteria amount to versions of Grice’s maxims
[13, 16, 18]. Still other theorists argue whether Grice’s account is suitable for legal
interpretation, either criticizing the intentionalist view of legal meaning [12, 14] or
stressing that the nature of legal practice is not cooperative [10–12].
Izabela Skoczeń’s book, Implicatures within legal language [17], provides an
original and very sophisticated contribution to this ongoing debate. Through an
interdisciplinary approach that engages with the most recent advances in Pragmatics
as well as with the most popular legal approaches, the author recasts Grice’s theory
of conversational implicatures in order to explain the mechanisms behind court deci-
sions. In particular, after a clear presentation of the issues at stake and their rel-
evance for legal interpretation (chap. 1), in chapter 2 Skoczeń outlines the classical
Gricean theory, suggesting that it is not directly applicable to the legal realm, and
she sketches her original model. This model is then refined in the following three
chapters through a close comparison with the most important trends in the study of
ordinary conversation. Finally, the last chapter provides a number of examples to
validate the proposed model.
The book discusses a number of interesting issues and presents several original
claims. However, here I will examine only the most central theses, namely the revi-
sion of Grice’s theory and the strategic model of legal interpretation.
Skoczeń recognizes that Grice’s original apparatus is in need of certain revisions:
some of these revisions are considered necessary to account for both legal interpre-
tation and ordinary conversation, while others are required for legal interpretation
only.
First, Skoczeń criticizes the changes to Grice’s original approach advanced by
the proponents of the Relevance theory, and in particular those proposed by Carston
[4]. Skoczeń convincingly shows that, while “as far as everyday exchange in natural

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language, the principle of psychological and contextual relevance could be suffi-

cient” [17, p. 83], this principle is totally unsuitable for legal interpretation. The
cognitive theory of relevance relies on the biological grounds for our language
processing, and aims to explain why one particular interpretation comes to mind
first. However, the idea of a legislative collective mind seems implausible, and legal
interpretation is often counterintuitive: “legal interpreters choose interpretations that
are not the first, most obvious interpretations that come to mind” [17, p. 87]. For
example, the most obvious interpretation of “use a firearm” is surely “use a firearm
as a weapon”, but this is not the interpretation chosen in Smith v US. Skoczeń argues
that, by contrast, Grice’s four conversational maxims can be reduced to Horn’s two
principles—that of sufficiency (Q), “Make your contribution sufficient, i.e., say as
much as you can”, and that of least effort (R), “Make your contribution necessary,
i.e., say no more than you must” [8]. In addition to simplicity, this move has the
advantage of adjusting Grice’s apparatus to legal interpretation. Horn’s principles
are overtly inconsistent—they are “antinomic forces” [17, p. 70]—and, precisely for
this reason, Skoczeń suggests that they are more suitable to account for the counter-
intuitive nature of legal interpretation. Moreover, as other authors have previously
shown [4, 9, 18], Horn’s Q and R principles are clearly mirrored by the legal canons
expressio unius est exclusio alterius and eiusdem generis, respectively. Therefore
they have a well-founded legal tradition.
Secondly, the Gricean notion of what is said is revised. According to Grice, what
is said is equivalent to the truth-conditional content of the utterance – that is, to the
semantic meaning plus reference resolution, indexical fixing and disambiguation [7,
p. 25]. Grice’s position is not far from literalism, the idea according to which “we
may legitimately ascribe truth-conditional content to natural language sentences,
quite independently of what the speaker who utters this sentence means” [15, p. 3].
What is said is a semantic notion, “closely related to the conventional meaning of
the words (the sentence) [one] has uttered” [7, p. 25], while what is implicated is
determined by pragmatic inferential processes driven by the conversational max-
ims. Nowadays, this picture is highly contested, and many scholars are engaged in
what Skoczeń calls the border war: a battle waged under the banners of Minimal-
ism, Indexicalism, Contextualism and many neo-Gricean theories in a fight to fix
the boundaries between Semantics and Pragmatics. In chapter 4, Skoczeń carefully
reconstructs this dispute and ends up accepting Recanati’s position, admitting the
existence of a pragmatic meaning that “is neither an implicature nor a bottom-up
process trigged by something in the syntactic or semantic structure of the sentence”.
Briefly speaking, according to Skoczeń (and Recanati), what is said is also deter-
mined by pragmatic “top-down” processes, such as free enrichments. Skoczeń also
provides some examples of pragmatic enrichment in law, and she discusses in detail
some recent proposals to account for them [2], showing that they have a low explan-
atory and predictive force. Skoczeń’s criticisms are quite convincing, but it remains
undecided whether her model is more successful. I will come back to this point later.
Finally, Skoczeń revises a very fundamental aspect of Grice’s original theory,
in order to make it suitable for legal interpretation. Grice adopts an internalist
approach to meaning: according to Grice, the implicated meaning is the mean-
ing that the speaker intends to communicate. However, Skoczeń argues that “in

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the legal context, it is possible to substitute an internal intention understood as

a subjective mental state with external, public cues found in the context” [17, p.
135]. Therefore, “we can speak of implicatures while having externalist views on
meaning. Since for the externalist it is the evidence available to a hearer—such as
conventions or context—that constitutively determines meaning, we can speak of
the legislator conversationally implicating some content. This is because such an
implicature is formed if the external evidence leads the hearer to the conclusion
that there was an implicature” [17, p. 156]. The adoption of an externalist stance
has the great advantage of allowing Skoczeń to avoid one of the stronger objec-
tions to the applicability of Grice’s framework to legal interpretation, without
compromising herself in the metaphysical nature of legislative intentions.
Even with all the above changes, Skoczeń claims that the Gricean model is
still not suitable for legal interpretation, because this is not a cooperative but a
strategic interaction: a kind of communication in which the parties reach stra-
tegic goals, that is, goals that can be achieved only when one wins and others
lose the game [17, pp. 35, 36, 44]. In order to account for strategic interactions,
Skoczeń proposes a two-stage model that applies both to implicated meaning and
to what is said as far as enrichments are concerned. The first stage is the coun-
terfactual assumption of the CP and Horn’s R and Q principles, while the second
stage is the application of a strategic principle and strategic maxims, with the aim
of choosing the implicatures and the enrichments in accordance with one’s goal.
The strategic principle states: “assume that the speech is cooperative, infer all
the implicatures/enrichments and then apply the second-order strategic maxims to
the inferred implicatures/enrichments (anticipate which implicatures/enrichments
your hearer/speaker will choose/ignore)” [17, p. 115]. The second-order strategic
maxims are as follows [17, pp. 115–117]:

a. Strategic maxim: “Pursue your goal (independently of your interlocutor’s goal)”;

b. Selectivity maxim: “Deny implicated/enriched content that does not conform to
your goal” (this maxim has two sub-maxims formulated for the speaker and the
hearer respectively);
c. Anticipation maxim: “Anticipate the goal of your interlocutor and anticipate what
content he may wish to deny”; and
d. Persuasion maxim: “Model your strategic contribution so as to convince the
hearer to join your goal”.

According to the author, the four maxims above can be summarized into one
super-maxim: “Pursue your goal through selecting conforming implicatures/
enrichments” [17, p. 117].
It is worth noting that Skoczeń’s strategic model is not a real Gricean model,
but, rather, a parasitic model based on the Gricean one. In fact, in Skoczeń’s stra-
tegic model the peculiar feature of the conversational model, namely the gen-
eral expectation of compliance with the CP, is absent. In Grice’s original picture
everybody usually follows the CP, and this fact founds the general expectation
that everybody will usually follow the CP, an expectation that, in its turn, means

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that everybody usually follows the CP. There is a circle, but not a vicious one.
In Skoczeń’s model this mechanism is absent. Not even Skoczeń’s first stage is
really cooperative: it is not a stage governed by the CP, because, if it were, the
subsequent strategic phase would not follow. In other words, the pervasiveness
of the strategic stage and its prevalence over the cooperative one imply that the
CP, as such, does not apply in the legal interpretation. This also highlights a rift
between legal interpretation and ordinary interaction. According to Skoczeń,
ordinary interaction is usually, even if not always, cooperative, it relies on the
principle of psychological and contextual relevance, and it admits an internal-
ist view on meaning, while legal interpretation is strategic, inconsistent with the
principle of psychological and contextual relevance and requires an externalist
approach. In short, Skoczeń’s theses also constitute arguments against the assimi-
lation between ordinary understanding and legal interpretation.
Skoczeń’s strategic model is very sophisticated and I think that it can explain
many types of strategic interaction, but I doubt that it can account for the linguistic
exchange between legislators and courts.
According to Skoczeń the linguistic exchange between legislators and courts can
be described as a strategic interaction, as a kind of communication in which the par-
ties reach goals that can be achieved only when one wins and the others lose the
game. Skoczeń’s strategic maxims require that both judges and legislators pursue
goals, support preferred interpretations, and are able to anticipate and frustrate each
other’s goals.
As far as judges are concerned, Skoczeń seems to identify their goal with decid-
ing the case according to their sense of justice [17, p. 39]. This idea, which smells
of Legal Realism (a position that is not examined in the book), presents an obvious
problem: how can we know what the sense of justice of a single judge is like? In
most cases, we cannot. This point is very important, because if we cannot know
what the judge’s goal is before the judge decides the case, then the strategic model
has no power of prediction: it cannot predict which implicatures and enrichments the
judges will recognize and which ones they will deny.
As far as the legislators are concerned, to assume that they follow the strategic
maxims—that they pursue their goals, deny the implicated/enriched content that
does not conform to their goals, anticipate the judges’ goals, etc.—again raises all
the ontological and epistemological problems related to the existence of a single leg-
islative intentionality that Skoczeń has tried to work around by dismissing an inter-
nalist approach. Skoczeń is partially aware of this problem, and she claims that “[s]
ince the legislative goals and ends are often indeterminate, the goals and purposes
must be supplied by judges” [17, p. 117]. As a consequence, it seems to me that here
we do not actually have two parties engaged in a strategic interaction, but just one:
judges, who play a schizophrenic game with themselves. The legislator is something
like a fictitious player: an empty box that someone else (a defendant, prosecutor,
judge, legal scholar, etc.) fills with different goals and interpretations according to
her own purposes. I think that this is tantamount to saying that the legislature is not
a part of the interaction at all.
Moreover, who does decide which party, which interpretation, wins the strate-
gic game? It is the judges themselves. That is, one of the parties to the strategic

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interaction decides which interpretation wins. This seems odd: it makes the strate-
gic game foolish. Why do the judges need to anticipate the legislators’ goal and to
anticipate what content they may wish to deny, if, at the end of the day, they decide
who wins?
Obviously, there can sometimes be a real form of strategic interaction between
legislators and courts: when, for example, the legislators enact a provision in order
to pursue a specific political goal, the judges interpret it in a different way and, then,
the legislators enact an amendment to counteract the judicial interpretation. This is
what happened in FDA v Brown and Williamson—a case discussed in the book—
but, nevertheless, this is not the most frequent case.
To conclude, I claim that Skoczeń’s model can account for many types of stra-
tegic interaction, but legal judges’ interpretation is not a strategic interaction in
Skoczeń’s sense. In the legal realm there are other types of strategic interaction. In
particular, many authors have pointed out that some interactions between the par-
ties to litigation, such as cross-examination, are not cooperative [1, 5, 19, 20]. If we
leave judges and legislators out of the picture, I think that Skoczeń’s model can eas-
ily be applied to such interactions, clarifying the sense in which they are not cooper-
ative and shedding light on their internal dynamics. In these fields, the model would
also have a high predictive power, because the parties are individuals—the public
prosecutor, the plaintiff and the defendant—and their conflicting goals are relatively
clear from the beginning.

Funding  Funding was provided by Harmonia, Polish National Centre for Science (Grant No. 2018/30/M/
HS5/00254).

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