Herman Oliphant, stare decisis and the primacy of pragmatics in legal reasoning (with a brief excursion into neuropragmatics)

Abstract

Abstract Capone and Bucca argue that legal interpretation can go significantly wrong when founded upon a false conception of language and linguistic practices. This claim is correct. Specifically, semantic-based theories of linguistic meaning that are based upon the idea that a “core” semantic meaning can be identified outside of context and then needs to be “pragmatically enriched” for specific applications get the project of understanding language use in the legal context profoundly backwards. This paper emphasizes the primacy of an embedded pragmatics over other conceptions of linguistic meaning and practice in law. Herman Oliphant, in “A Return to Stare Decisis” offers an argument that helps strengthen the claim for the “primacy of pragmatics” in law. His work also shows that if the primacy of pragmatics is accepted, not only does this have significant impact upon actual legal practice, but it also highlights worrisome blind spots in currently dominant philosophical theories of law. His argument is that a conception of law that is centered upon such an appeal to principle, stare dictis, leads to a legal practice based upon distorting abstractions and a false conception of language use in law pulled out of its worldly roots. Because of this, he argues that stare dictis is detrimental to a living and empirically effective and informed legal system. Hence the need for a return of stare decisis properly understood. His article gives some grounds for critiquing many dominant philosophical theories of law. Oliphant’s theory is, importantly, compatible with, and supported by, a picture of language use offered by Jaszczolt and recent work in neuropragmatism. This, in turn, can be thought as further verification of Capone and Buccas’ assertion that the adoption of a false theory of language can have far ranging and detrimental effects upon legal practice and legal theory.