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Highlights added by jeanne.

This is a the first four pages of a 28 page article. When you reach the point that you want to follow original sources, which is a very good point to reach, this will give you some idea of what law review articles are like. Meanwhile, I'll quote the phrases I use, and I'll explain them as simply as I can. Trust me, knowing that my perspective has to influence my interpretation. And consult the sources when you must. love and peace, jeanne

What Does a Verdict Do?
A Speech Act Analysis of Giving a Verdict

H. L. Ho

Abstract

To give a legal verdict is to perform a speech act that carries many illocutionary forces. A verdict declares the institutional fact of (non-)guilt or (non-)liability; it asserts, on one interpre-tation, propositions of facts underlying or constitutive of the alleged guilt or liability, and, on a different interpretation, propositions about the legal proof of those facts; it ascribes legal character to the facts as found; it expresses a psychological state in relation to its propositional content, and, in some cases, with greater or lesser force, a negative attitude to the defendant’s past conduct. A verdict can be evaluated on many different dimensions corresponding to the things that it does. As a declaration, it can be judged valid or not; as an assertion, it is true or false; and as an ascription, it is assessable in terms of right and wrong. So far as a verdict expresses belief, we demand that it be sincere and so far as it expresses condemnation, we require that the moral criticism be de-served. The aim of this essay is to provide a set of terminological apparatus with which analyses of the trial process may be conducted with greater clarity, and a framework within which to locate existing discussion of issues arising from such analyses.

KEYWORDS: verdict, speech-act, fact-finding, legal proof, evidence, truth, sincerity, truthfulness

INTRODUCTION

Hart warned against the ‘useless project’ of trying to define legal terms, such as right and duty, in the abstract. He suggested that we analyze the function the word performs in characteristic statements made in the legal context and examine the standard conditions in which these statements (for example, that ‘X has a right’ or ‘X has a duty’) are true. 1 Hart’s first point is well taken, and while his view that such statements are non-descriptive is at best controversial, 2the approach I shall take is in the general spirit of his methodology. I propose to go some way to answer the question, ‘What is a legal verdict?’ by answering the question ‘What does a legal verdict do?’ By a ‘legal verdict’, I mean the fact-finder’s judgment on ultimate issues of guilt or liability. 3 The verdict is based indirectly on findings of, as they are sometimes called, evidential facts. 4 Thus, at a criminal trial, a guilty verdict communicates the ultimate finding that the defendant is guilty as charged, which necessarily implies positive findings on each of the elements of the crime; these are the factual instantiations of the actus reus and mens rea. In reaching the verdict, the court may, for example, have to decide on an evidential issue of alibi. A guilty verdict implies the rejection of the alibi claim; the court may convict the defendant only if it finds that the defendant, despite his protestation, was at the scene of the crime at the material time. 5 A legal verdict is usually followed by a court directive, such as an order of imprisonment. The directive is authorised by, but not part of, the verdict. Nor are remarks that the judge may make after the verdict is in, or in the course of giving the verdict, part of the content of the verdict. For instance, it is quite usual for the judge to reprimand the defendant after the jury has declared him guilty and before sentence is delivered.

At one level, the verdict, unlike abstract legal concepts such as right and duty, exists straightforwardly in the world of facts. An ostensive explanation of a ‘legal verdict’ (for convenience, henceforth, ‘verdict’) can be given by pointing to the pronouncement made in the courtroom by the jury or, in the case of a bench trial, the judge, after final deliberation on the contested issues. However, this can only tell us what the verdict denotes in the material world of observable facts; it does not tell us what the verdict connotes in the social world, of which norms, values and institutions are part. This essay explores the connotations of a verdict by subjecting it (or more precisely, subjecting the giving of a verdict) to a speech-act analysis. The aim of this essay is a modest one. It is to provide a set of terminological apparatus for clearer analysis of the trial process, and a framework within which to locate existing discussion of issues arising from such analyses. 6

SPEECH-ACT THEORY

The two most prominent proponents of speech act theory are J L Austin 7 and his intellectual successor John R Searle; 8 although the literature is voluminous, it is primarily on their classic works that I shall rely. Hancher exaggerated when he claimed that ‘the Austin-Searle theory of language use has been almost completely ignored by lawyers and jurists’. 9 But he is certainly right that the theory is, as Olivecrona before him had also recognised, ‘well worth the attention of students of the law.’ 10 After all, both Austin and Searle relied on legal examples, 11 and the former developed his ideas under the considerable influence of Hart. 12 Those interested in the trial process will find Austin’s work particularly relevant; as Miller observed of the book carrying the name which prompted the title of the present essay:13 The realm of lawyers, the law, court cases, arrests, interrogations, trials, with all their complex protocols of swearing witnesses, taking evidence, making depositions, rendering verdicts, and so on is a prime source … of the examples… Austin adduces and analyzes in… How to Do Things with Words. A rhythmic counterpoint of multitudinous references to law, lawyers, judges, and courtroom scenes punctuates [that book]…. It can be argued… that the underlying purpose and raison d'être of How to Do Things with Words is to make it possible for a judge speaking in the proper circumstances to say, "I find you guilty" … and to have it work to get the miscreant punished.

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Footnotes

1 H. L. A. Hart, ‘Definition and Theory in Jurisprudence’ (1954) 70 LQR 37, reprinted in his Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), essay 1; see also his ‘Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer’ (1957) 105 University of Pennsylvania Law Review 953, and his earlier work, ‘The Ascription of Responsibility and Rights’ in A.G.N. Flew (ed), Essays on Logic and Language (Oxford: Blackwell, 1951) 145-166 (originally published in (1948) 49 Proceedings of the Aristotelian Society 171).

2 On the surrounding controversy, see P.M.S. Hacker, ‘Definition in Jurisprudence’ (1969) 77 The Philosophical Quarterly 343; George Pitcher, ‘Hart on Action and Responsibility’ (1960) 69 The Philosophical Review 226; J. R. Lucas, ‘The Ascription of Actions’, unpublished but available at http://users.ox.ac.uk/~jrlucas/ascript.html; Michael D. Bayles, Hart’s Legal Philosophy – An Examination (Dordrecht: Kluwer, 1992) 6-11; Joseph Horovitz, Law and Logic – A Critical Account of Legal Argument (New York: Springer-Verlag, 1972) 148-160. Hart himself famously came to doubt his own arguments: Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 2.

3These propositions of fact are sometimes called ‘material’: J.L. Montrose, ‘Basic Concepts of the Law of Evidence’ (1954) 70 LQR 527 at 536-7.

4 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions – As Applied in Judicial Reasoning (Wesport: Greenwood Press, 1964) 32-35.

5 The present distinction is discussed by James Fitzjames Stephen, The Indian Evidence Act – with an Introduction on the Principles of Judicial Evidence (Calcutta: Thacker, Spink & Co, 1872) 9-10 where he contrasts ‘facts in issue’ with ‘relevant facts’.

6 With regard to the ability of a study of language use in casting light on norms governing the practice within which the language is used, compare Austin’s famous description of his project as one of ‘using a sharpened awareness of words to sharpen our perception of… the phenomena’. He thought ‘linguistic phenomenology’ was a better way of describing his methodology than ‘ordinary language philosophy’: J L Austin ‘A Plea for Excuses’ in J.O. Urmson and G.J. Warnock (eds), J L Austin, Philosophical Papers (Oxford: OUP, 1979, 3 rd ed) ch 8 at 182. However, ‘linguistic phenomenology’ may not be an apt label for Austin’s work on speech acts. According to Joseph J. DiGiovanna, Linguistic Phenomenology – Philosophical Method in J L Austin (NY: Peter Lang, 1988) 191, Austin’s speech act writings ‘are not attempts to carefully delineate distinctions marked by ordinary language in order to throw light on relevant phenomena. Rather they are attempts to understand how language, itself, functions.’

7 His principal works in this area are ‘Performative Utterances’ in Austin (1979), n 6 above, ch 10, and J.O. Urmson, and Marina Sbisà (eds), How to Do Things with Words (Oxford: Clarendon Press, 1975, 2 nd ed).

8 Apart from his book, Speech Acts – An Essay in the Philosophy of Language (Cambridge: CUP, 1969), see also John R. Searle, ‘A Taxonomy of Illocutionary Acts’ in K. Gunderson (ed), Language, Mind, and Knowledge (Minneapolis: Univ of Minnesota Press, 1975), reprinted in John R. Searle, Expression and Meaning – Studies in the Theory of Speech Acts (Cambridge: CUP, 1979), ch 1 . A concise and accessible introduction to his theory can be found in John R. Searle, Mind, Language and Society – Philosophy in The Real World (New York: Basic Books, 1998) ch 6.

9Michael Hancher, ‘Speech Acts and the Law’ in Roger Shuy and Anna Shukal (eds), Language Use and the Uses of Language (Washington D.C.: Georgetown University Press, 1980) 245. There is in fact a significant body of legal literature applying speech act theories to law generally, although, to be fair to Hancher, many were written after his piece: see eg Karl Olivecrona, Law as Fact (London: Stevens & Sons, 2 nd ed, 1971) ch 8 (entitled ‘Legal Performatives’) and his ‘Legal Language and Reality’ in Ralph A. Newman (ed), Essays in Jurisprudence in Honor of Roscoe Pound (Indianapolis: Bobbs-Merrill, 1962) 151-191, especially at 174 et seq; Martin P. Golding, ‘Rights, Performatives, and Promises in Karl Olivecrona’s Legal Theory’ (2005) 18 Ratio Juris 16; Dennis Kurzon, It is Hereby Performed: Explorations in Legal Speeech Acts (Amsterdam: John Benjamins, 1986) and ‘Prolegomena to a Speech Act Approach to Hearsay Evidence’ (1988) 1 International Journal for the Semiotics of Law 263; Paul Amselek, ‘Philosophy of Law and the Theory of Speech Acts’ (1988) 1 Ratio Juris 187; Brenda Danet, ‘Language in the Legal Process’ (1980) 14 Law & Society Review 445 especially 457-461. The hearsay doctrine has also been subjected to speech-act analysis: eg, Austin (1975), n 7 above, 13; Sanford Schane, ‘Hearsay: A Speech Act Analysis’, available at http://www.lawandlanguage.com/ and Language and the Law, forthcoming, ch 3 of which deals with ‘Legal Hearsay and Speech Acts’ (I thank Professor Schane for the references) and Stephen Guest, ‘The Scope of the Hearsay Rule’ (1985) 101 MLR 385 (Austin and Searle are mentioned); Christopher B. Mueller, ‘Post-Modern Hearsay Reform: The Importance of Complexity’ (1992) 76 Minnesota Law Review 367, Part IV, and ‘Incoming Drug Calls and Performative Words: They’re Not Just Talking About It, Baron Parke!’ (1995) 16 Mississippi College Law Review 117; Craig R. Callen, ‘Hearsay and Informal Reasoning’ (1994) 47 Vanderbilt Law Review 43 (offering a Gricean analysis of the hearsay doctrine).

10 Olivecrona (1962), n 9 above, 174.

11 Hancher, n 9 above, 245: ‘It is… obvious that for the structure and details of his theory Austin was heavily indebted to concepts and practices of the English common law. In fact, it can be objected that as a general theory of language Austin’s theory suffers from just this partiality; that for a general theory it is too much in the thrall of the law.’

12 According to Nicola Lacey, A Life of H L A Hart – The Nightmare and the Noble Dream (Oxford: OUP, 2004) 145, ‘Herbert’s legal input to seminars with Austin almost certainly contributed to the latter’s development of his famous “speech act” theory’. Similarly, John Gardner, in his review of Lacey’s book (2005) 121 LQR 329, 332 quoted the observation by Tony Honoré (made in Oxford Magazine 232 (2004), 10) that Austin’s ‘theory of speech-acts owed more to Hart than Hart owed to him’. Austin has on at least one occasion explicitly acknowledged Hart’s influence (Austin (1975), n 7 above, 7), a compliment repaid by Hart (1983), n 1 above, 2. In an article published a few years after his inaugural lecture (Hart (1957), n 1 above, 962), Hart drew attention to the relevance and importance of ‘speech-act’ theory in legal analysis. However, Gardner, (2005) 121 LQR 329, 330-1, noted that while ‘Hart once held out high hopes for the jurisprudential significance of Austin’s thinking’ and while his ‘philosophical debt to Austin is patent’ in Hart’s early works, it is ‘less clear… how much of the same influence works its way into either Causation in the Law or The Concept of Law.’

13 J. Hillis Miller, ‘(In)Felicitous Speech Acts in Kafka’s The Trial’, (2000) 4 Tympanum – A Journal of Comparative Literary Studies, available online at http://www.usc.edu/dept/comp-lit/ tympanum/4/miller.html.

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