You are on page 1of 10

Dr.

RAM MANOHAR LOHIYA


NATIONAL LAW UNIVERSITY,
LUCKNOW

LANGUAGE OF LAW
Final Draft
Role of presupposition in understanding legal
text
SUBMITTED TO :
SUBMITTED BY

Mr. Manvendra K. Tiwari


HIMANSHU SINGH
Asst. Professor (law)
Semester 2nd
Section A, Roll No. 60

pg. 1

ACKNOWLEDGEMENTS:
I would like to extend special thanks and gratitude to my
subject teacher Mr. Manvender K. Tiwari who gave me the golden
opportunity to work on this wonderful research topic " Role of
presupposition in understanding legal text ". Throughout the
research period I have been time and again guided my by teachers
whenever I faced any hurdles or was in a state of stupor not being
able to figure out the intricacies of the subject.
I would like to thank my university Dr. Ram Manohar Lohiya National
Law University for giving me the chance to be a part of a unique
research oriented curriculum which indeed boosts the understanding
of the subject.
I would also like to thank my parents, mentors and well wishers who
have been a constant support and have time and again reviewed
my work and have provided their insights on the matter.

-Himanshu
Singh

pg. 2

Table of Contents:
Chapters:-

Introduction ....

..4
Definition...................................................................................................................

5
Reason for the use of presupposition...

...7
Conclusion..........................................................................................................................

9
Bibliography.......................................................................................................................
10

pg. 3

INTRODUCTION
The king of France is bald.
Ever since Russell and Strawson discussed this sentence in their respective essays on
denotation, it has become the classic example of a statement that includes a presupposition.
The argument goes that, explicitly, the sentence asserts that the king of France is bald and,
implicitly, it presupposes that there is a king of France in the rst place. The sentence thus
serves to illustrate the general nature of presuppositions as preconditions that are implicitly
taken for granted by certain linguistic expressions (or rather by the speakers uttering them).
The phenomenon of presupposition has been studied extensively from the perspectives of
formal semantics, pragmatics and the philosophy of language. According to the definition
presupposition is said to be a thing tacitly assumed beforehand at the beginning of a line of
argument or course of action. It may also be defined as an implicit supposition about the
world or background belief relating to an utterance whose truth is taken for granted in
discourse. Semantically encoded implications and/or presuppositions are relevant in the legal
context just as they are in ordinary conversation. Communicative commitments that derive
from the meaning of the expression used are normally part of what the law prescribes, even if

pg. 4

the implicated content is not entirely specied by the meaning of the legal utterance. A
presupposition must be mutually known or assumed by the speaker and the addressee for the
utterance to be considered appropriate in context. The aim of the present study is to link this
theoretical insight to the practice of legislative drafting, using examples from Swiss
constitutional and administrative law. 2 In particular, I will (a) identify some of the most
common and consequential presupposition triggers in legislative texts, (b) describe the
functions that the respective presuppositions serve in these texts, and (c) reect on the
phenomenon from the perspective of legislative drafting, i.e. ask how legislative drafters can
distinguish between good presuppositions and bad presuppositions. The approach I take
in this study is thus primarily descriptive (ab), but it is complemented with considerations of
a more prescriptive nature, viz. questions relating to principles of good practice in legislative
drafting (c).

DEFINITION
Presupposition is the phenomenon whereby speakers mark linguistically the information that
is presupposed or taken for granted, rather than being part of the main propositional content
of a speech act. Expressions and constructions carrying presuppositions are called
presupposition triggers, forming a large class including definites and factive verbs. The
article first introduces the range of triggers, the basic properties of presuppositions such as
projection and cancellability, and the diagnostic tests used to identify them. These involve
accommodation, which occurs when a hearer's knowledge state is adjusted to meet the
speaker's presuppositions; presupposition failure, which occurs when a presupposition is
(known to be) false; the interaction between presuppositions and attitudes; and the triggering
problem, i.e., the problem of explaining why presuppositions occur in the first place. The
literature dierentiates between the notion of semantic (or conventional) presuppositions,
which are elicited by specic linguistic expressions, and a broader conception of pragmatic
(or conversational) presuppositions, which include a wide range of general background
knowledge activated and alluded to in communicative interactions. If conceived in the
aforementioned way, presuppositions are usually dened by a set of prototypical linguistic
properties that distinguish them from at least two other types of implicit content: entailments
and conversational implicatures. In brief, (a) presuppositions are preconditions that must be

pg. 5

taken for granted for a statement to be felicitous, (b) entailments are facts that logically
follow from a statement, and (c) conversational implicatures are conclusions at which the
hearer arrives on the basis of the assumption that the speaker is cooperative and follows the
usual conversational maxims. The following example illustrates these three types of implicit
content:
(1) Joe has stopped working on Sundays.
a) Joe used to work on Sundays. (presupposition)
b) Joe does not work on Sundays anymore. (entailment)
c) Joe has not given up working completely. (convers. implicature)
For the statement that Joe has stopped working on Sundays to make sense, one has to take for
granted that Joe used to work on Sundays: (1) presupposes (1a). In contrast, the fact that Joe
does no longer work on Sundays is not a precondition but rather a logical consequence of Joe
having stopped working on Sundays: (1) entails (1b). Finally, the conversational maxim of
quantity (Make your contribution as informative as is required for the current purposes of
the exchange) may, in a specic situation, lead the hearer to assume that the speaker would
have said so if Joe had not only stopped working on Sundays but had given up working
completely; the hearer may thus infer that Joe has in fact not given up working completely. In
such a conversational scenario, uttering (1) implicates (1c).

Presuppositions are typically elicited by the semantics of specic linguistic constructions, socalled presupposition triggers. Among the most commonly cited classes of presupposition
triggers are denite descriptions (e.g. The king of France presupposes There is a king of
France), proper names (Jimmy Carter is going to give a speech presupposes There is an
individual by the name of Jimmy Carter ), factive verbs (Nancy knows that it takes eight
hours to get to Rome presupposes It takes eight hours to get to Rome), aspectual verbs (Joe
has stopped working on Sundays presupposes Joe used to work on Sundays), implicative
verbs (Luke failed to solve the puzzle presupposes Luke tried to solve the puzzle), manner
adverbs (The tortoise overtook the hare slowly presupposes The tortoise overtook the hare),
iteration adverbs (Anthony did it again presupposes Anthony had done it before), cleft
sentences (It was the president who decided the matter presupposes Someone decided the

pg. 6

matter ) and temporal clauses (After the company went bankrupt, all employees were made
redundant presupposes The company went bankrupt ). The classical triggers listed above
were mostly collected from narrative discourse; not all of them also play a role in legislative
texts. Conversely, certain presupposition triggers that have been considered only eetingly
can be shown to be rather important in the context of statutes and regulations

REASON FOR THE USE OF PRESUPPOSITION


Presuppositions touch on two conicting principles of legislative drafting: conciseness
and transparency. On the one hand, presuppositions provide a means to pack extra
content into a single linguistic expression, thus allowing for shorter texts. On the other
hand, the implicit content transported by a presupposition may remain hidden behind the
content asserted explicitly and thus be hard to nd. In the worst case, using
presuppositions may amount to what Rosenbaum in his legislative drafting guide calls
applying a trick: If you can do things in a clever way or a simple but somewhat longer
way, choose the simple way. Legislative drafters will have to decide on a case-by-case
basis whether in a specic context the advantage of using a presupposition, conciseness,
prevails over its main disadvantage, lack of transparency. The reasons for the use of
presuppositions are:
a) Their use can be associated with several possible reasons. A rst reason for the
use of a presupposition may be found where the respective institution is not
actually established by the constitution but rather considered to be supraconstitutional. This may be observed in the preamble of the Constitution of
Australia, which refers to the Queen and states that [t]he provisions of this Act
referring to the Queen shall extend to Her Majestys heirs and successors in the

pg. 7

sovereignty of the United Kingdom. As the Constitution of Australia is in fact an


Act of the Parliament of the United Kingdom at Westminster, the Queen, even as
she becomes the head of state of the entity created by that constitution, appears as
a super-constitutional institution in the text.
b) A second reason for the use of a presupposition may be the fact that, in reality, the
institution to be established by the constitution already exists. Even though the
respective institution would cease to exist were it not for its mentioning in the
new constitution, the use of a presupposition conveys a notion of constitutional
continuity.
c) A third reason for the use of a presupposition may be found in the idea that the
establishment of certain institutions appears to be self-evident, that in fact these
institutions do not fully owe their existence to the text of the constitution but
somehow pre-exist in the sphere of natural law.
d) Lastly, the use of a presupposition may simply be a matter of constitutional
tradition, i.e. an element of style that marks a text as a constitution in the
respective language.
In Indian legal context there are also several cases in which an attempt was made to survive the
constitutionality of the statute. Therefore presumption of the constitutionality of statute
prevailed. In this Section 124A of the Indian Penal Code which makes sedition an offence is
constitutionally valid. Though the section imposes restrictions on the fundamental freedom of
speech and expression, the restrictions are in the interest of public order and are within the ambit
of permissible legislative interference with the fundamental right. There is a conflict on the
question of the ambit of s. 124A between decision of the federal Court and of the Privy Council.
The Federal Court has held that words, deeds or writings constituted an offence under s. 124A
only when they had the intention or tendency to disturb public tranquillity to create public
disturbance or to promote disorder, whilst the Privy Council has taken the view that it was not an
essential ingredient of the offence of sedition under s. 124A that the words etc, should be
intended to or be likely to incite public disorder. Either view can be taken and supported on good
reasons. Lastly, the use of a presupposition may simply be a matter of constitutional tradition,
i.e. an element of style that marks a text as a constitution in the respective language.

pg. 8

CONCLUSION
The research has shown that a broad range of linguistic constructions can introduce
presuppositions into legislative texts. As presuppositions transport implicit content that, just like
the content asserted explicitly, forms part of what the law prescribes, it is vital that legislative
drafters recognise and assess them properly. They must weigh the main advantage of using
presuppositions, conciseness, against the main downside, reduced transparency. The present
study has argued that the details of such an assessment depend on the function the presupposition
fulls in the text, i.e. whether it is (a) referential, (b) constitutive, (c) deontic or (d) expansive.
Each of the functions identied gives rise to specic constraints along which legislative drafters
can decide on the benet and detriment of using a presupposition. In contrast, the use of
presuppositions for constitutive purposes mainly seems to be a matter of convention and
constitutional continuity. It can help keeping the texts concise and avoiding stating the obvious.
The most problematic type of presuppositions are those that have a deontic eect, i.e.
presuppositions that impose new obligations on the subjects of the law. The more independent
the presupposed content is from the asserted content, the more imperative it is that it is expressed
explicitly rather than hidden as an implicit precondition. This is the case, in particular, if the
presupposed content and the asserted content do not have the same addressee. As a general rule,
all obligations must be made transparent. Finally, presuppositions triggered by focus adverbials
such as in particular, i.e. presuppositions with an expansive function, are usually unproblematic.
However, legislative drafters must be aware that such presuppositions sometimes lack the
specicity of a statement that explicitly opens up a clause to further options. An explicit
statement is to be preferred if this lack of specicity can lead to legal uncertainty. In summary,
the present research shows that, if administered carefully, presuppositions can be a useful
stylistic means to keep legislative texts free from unnecessary clutter that merely elaborates on
the obvious; however, it also suggests that, if applied wrongly, presuppositions can camouage
the duties and obligations placed on the subjects of a law and thus infringe on its accessibility
and its ecient and eective implementation.

pg. 9

BIBLIOGRAPHY
1.)

http://codenlp.ru/wp-content/uploads/2014/01/Presuppozitsii-2523-

ENG.pdf
2.) http://www.indiankanoon.org/doc/111867/
3.) http://indconlawphil.wordpress.com/2013/08/12/what-is-sedition-i-thekedar-nath-singh-case/
4.) Volume 1 interpretation of statues course material of RMLNLU.
5.) VOLUME 1 language of law course material of RMLNLU.

pg. 10