Prepublication Draft 2009 Overruling as a speech act: performativity and normative discourse Ross CHARNOCK Université de Paris Abstract: In the common law system, judges are said to be bound by precedents decided in courts of the same level or above. However, in higher courts, under certain conditions, they have the right to overrule. Overruling declarations may be analysed as performative speech acts, having the effect of changing the law. This analysis raises both linguistic and legal problems, discussed with reference to English and American law and language. As the judges are reluctant to be seen to be assuming a legislative function, they tend to use indirect rather than explicit language, especially in the most significant cases. Alternatively, they present their overruling decisions not as new legislation, but rather as declarations of the true state of the unchanging common law. However, this view implies increased illocutionary force, as it may involve retrospective application. Secondly, the legal validity of overruling declarations depends to a large extent on their perlocutionary effects. Even after successful performance, these effects may be cancelled by later decisions in higher courts. Finally, the legal effect of overruling decisions suggests a close relation between performativity and normativity. However, this relation does not in itself provide a satisfactory explanation of the normativity of judicial discourse. 1. Introduction It is trivially true that legal procedure involves performative utterances. In criminal trials, in the common law system at least, the accused is required to plead guilty or not guilty. During the interrogation of witnesses, legal representatives may declare an objection to a particular line of questioning, using either the explicit performative form (“I object”), or, perhaps more typically through the conventional use of the single word “objection”. The judges may sustain or reject such objections, using such phrases as “objection sustained” or “objection overruled”. They are also required to make an official declaration of the result of each case, with such phrases as “appeal allowed”, “judgment affirmed” or “so ordered”. Equally clearly, legal documents (also known, significantly, as “instruments”, precisely because of the legal acts which they are used to represent) also have a performative function. A will is not a simple description of how property will be distributed at some time in the future, or a mere statement of preferences. On the contrary, such documents have an ascriptive function (Hart 1951). Similarly, contracts are not simply descriptions of what is envisaged, but prototypical speech acts involving reciprocal promises, which create legal obligations. Like ordinary language performatives, which may fail (or misfire) in infelicitous circumstances, putative contracts may be invalid or void if certain necessary features are not present. It may be observed that such legal speech acts do not necessarily correspond to Austin’s (1962) canonic performative form; they do not make systematic use of explicit performative verbs, and they are often expressed in the passive. Nor are they necessarily expressed in the first person, as the judge is not speaking in his personal capacity, but rather in the name of the court. While wills need not be expressed orally, certain contracts need not be expressed verbally at all.1 Nevertheless, to the extent that they create new rights and duties, they may still be said to have performative effect. Furthermore, the legal system as a whole is neither descriptive or constative (Austin 1962), but rather prescriptive. In his early discussion of positivism and the normative nature of law, Austin (1832) considered the law as based on a fundamental speech act. In his theory, rules are seen as general commands, emanating from a metaphorical ‘sovereign’ or political superior: “Every law or rule [...] is a command. Or rather, laws or rules, properly so-called, are a species of command” (1832: 21). The law is therefore fundamentally performative in nature. This approach now appears somewhat simplistic, as it does not account for power- conferring or for constitutive rules, which cannot be said to create obligatory duties. English Statutes (also known as “Acts” of Parliament) are clearly presented as “speech acts”, being founded on a conventional introductory formula, expressed by means of the jussive subjunctive: “Be it enacted by the Queen’s most excellent Majesty, by and with the consent of the Lords Spiritual, and 1 Some contracts may be accepted through performance; others, for example contracts for the sale of real property, are only valid when reduced to written form. Commons, in this present Parliament assembled, and by the authority of the same, as follows: [...].”2 Successful performance of the act of legislation requires appropriate felicity conditions, in particular the fact that (in the English system) the Bill has been passed by both Houses of Parliament and received the Royal assent.3 Austin (1962) points out that, while performative speech acts may be described as inappropriate or insincere, they cannot be said to be false. In the same way, a legal statute may not be considered right or wrong, although it may be thought good or bad. Perhaps this is what he (1962: 4, n 2) had in mind when he described the idea of the law as a statement of fact as a “timorous fiction”. “Of all people, jurists should be best aware of the true state of affairs. Perhaps some now are. Yet they will succumb to their own timorous fiction, that a statement of ‘the law’ is a statement of fact.” 4 It is clear that legislation has the effect of creating, rather than simply describing law. 1.1 Judge-made law In all legal systems, judges are required to declare how the law should be interpreted and applied in circumstances which are not covered by existing law and which may not have been envisaged by the legislator. In this sense, the judges may be said to have an “interstitial” legislative function (Holmes, 1881). In the common law system, according to the rule of precedent (or stare decisis), the judges are bound by earlier decisions given in courts of the same level or above. In theory, such decisions are said to constitute binding precedents, having force of law Thus judicial as well as legislative declarations have the function of creating new legal rules.5 Where the common law precedents appear to lead to injustice, they may be avoided in various ways. Like statutes, they may be reinterpreted in order to obtain a more acceptable result. Alternatively, the judge may claim that the rule stated in the earlier case was not part of the ratio decidendi, but only obiter dicta (or passing remarks), in which case it will be considered not as binding but as merely persuasive. In addition, he may “distinguish” the earlier case, by showing that the (new) facts are different in some material way. This latter technique allows the judges to develop exceptions to the general rule, without necessarily rejecting the underlying principle. In this way, they are able to preserve the previously existing law, while restricting the conditions required for its valid application. Where the principle itself is no longer found acceptable, higher courts have the right, under certain conditions, to overrule the earlier decision, whether in order to correct regrettable decisions or to adapt the common law to changing social needs. To overrule an established precedent, which may have been followed in a series of cases, amounts to a declaration that the law is no longer as it was hitherto understood to be. Such decisions are often seen in retrospect as constituting historical turning points in the law. This judicial function is often stated to be a necessary feature of the legal system: “The whole of the common law is judge-made and only by judicial change in the law is the common law kept relevant in a changing world.” (Kleinwort Benson v Lincoln CC 1998, per Lord Browne-Wilkinson) As common law judgments are given by the judges orally, in open court, the performative nature of such declarations may seem to appear even more clearly than is the case with primary legislation, in which the written form predominates, the utterance act being merely symbolised by an official declaration.6 However, this view of the common law is in contradiction with the view conventionally attributed to the general public, according to which the function of judges is simply to state and to apply pre-existing law. 2 The typical US (Federal) equivalent is “Be it enacted by the Senate and the House of Representatives of America in Congress assembled. 3 The Royal assent is given in the third person, and in old French, in the form: “La reine le veult”. 4 See also Austin (1962: 19): “Only the still widespread obsession that the utterances of the law, and utterances used in, say, ‘acts in the law’, must somehow be statements true or false, has prevented many lawyers from getting this whole matter much straighter than we are likely to.” 5 In practice the “rule of precedent” can be applied in different ways, and thus functions as a guiding principle, rather than as an absolute rule. 6 In practice, as this procedure now appears antiquated, it tends to be preserved only in the higher courts. In the lower courts (especially in the US), the parties are more likely to receive the opinions by mail. Commentators often speak of American judges as “writing that ...”, rather than “declaring that ...” In common law jurisdictions, even where the judgments are given orally, the written reports are still referred to as authority. However, this is because the report functions as an authoritative record of what was said For them to do otherwise would be to assume an unacceptable level of discretion. Judges are therefore reluctant to be seen to overrule, and avoid doing so where it is not strictly necessary.