Notes / Speech acts
Saying as doing
Working note — a draft kept in the open. Tell me where it’s wrong.
Austin begins How to Do Things with Words with a small, devastating observation. Some utterances do not describe anything and are not true or false. “I do” at the altar; “I name this ship the Queen Elizabeth”; “I bequeath my watch to my brother”; “I bet you sixpence.” To say these, in the right circumstances, is not to report a marrying, a naming, a bequeathing, a betting — it is to marry, name, bequeath, bet. He calls them performatives, and the whole architecture of philosophy-of-language-as-truth-conditions wobbles, because here is a great class of meaningful speech to which truth is simply the wrong question.
Performatives do not pass or fail by being true; they succeed or misfire by being felicitous. There must be an accepted procedure, the right persons and circumstances, the words said completely and correctly, the appropriate intentions. The ship-naming by a stranger who shoves to the front and smashes the bottle is not a false naming; it is no naming at all — a misfire. Austin’s genius is to give us a grammar of failure that is not the grammar of falsehood.
The distinction that ate itself
Austin sets out to mark off performatives from ordinary “constatives” (statings, describings, the truth-apt utterances), and then, with great honesty, watches the line dissolve in his hands. For a stating is also something one does — an act of asserting, with its own felicity conditions (do not assert what you do not believe; do not assert without evidence). And a constative can misfire exactly as a performative can: “the present King of France is bald” does not state a falsehood so much as fail to state, presupposing a king who is not there. By the end of the lectures the constative/performative distinction has been replaced by something deeper: every full utterance is the performance of an act.
Hence the triad I find indispensable. In saying something I perform a locutionary act (I produce a meaningful sentence); in saying it I perform an illocutionary act (I warn, promise, order, assert — this is the force of the utterance); and by saying it I may achieve a perlocutionary effect (I frighten, persuade, console). Meaning, on this picture, is never just sense and reference; it is sense and reference taken up into a force. To understand an utterance is to know what was done in it.
The total speech act in the total speech situation is the only actual phenomenon which, in the last resort, we are engaged in elucidating. J. L. Austin, How to Do Things with Words
Law is a museum of speech acts
Nowhere is “saying is doing” more literal than in law, which is why the speech-act tradition and the philosophy of law belong together. A verdict, a sentence, a statute, a finding of fact, a granting of probate, a declaration of war — each is an utterance that, said by the right person under the right procedure, changes the normative world. Searle’s category of declarations — speech acts that make something the case by declaring it so — is essentially a description of what officials do for a living. “The defendant is guilty” in the mouth of a foreman after a trial is not a prediction or a description that could be checked against an independent fact of guilt; it is a verdictive that, felicitously performed, makes the person guilty in the eye of the law.
This reframes the old puzzle about legal interpretation. If a statute were a description, interpretation would be reading off what it reports. But a statute is an illocution — an act of legislating, done for reasons, in a procedure — and Marmor is right that its content is fixed partly by pragmatics: by what was asserted in enacting it, against the background of why. The infelicities have legal names, too: ultra vires acts (wrong person/power), procedural nullities (wrong procedure), unconscionable bargains (defective uptake). Austin’s grammar of misfire is, read sideways, a fair part of the law of voidness.
Where this leaves me: meaning is force before it is truth, and a legal system is an institution for performing a particular family of forces with maximum seriousness and maximum accountability. The same move that takes assertion out of the museum of truth-bearers and puts it back among the things we do is the move that lets us see a courtroom for what it is.
Touching: Austin How to Do Things with Words (1962), Searle (1969, 1979), Grice (1975), Marmor (2014). See the canon §D.