Books by Izabela Skoczeń
This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking beh... more This book proposes a novel, descriptive theory that unveils the linguistic mechanisms lurking behind judicial decisions. It offers a comprehensive account of the ongoing debate, as well as a novel solution to the problem of understanding legal pragmatics.
Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable (without substantial modification) to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making.
Papers by Izabela Skoczeń
International Journal for the Semiotics of Law, 2024
It is rather uncontroversial that gender should have no influence on treating others as equal epi... more It is rather uncontroversial that gender should have no influence on treating others as equal epistemic agents. However, is this view reflected in practice? This paper aims to test whether the gender of the testifier and the accused of assault is related to the perception of a testimony's reliability and the guilt of the potential perpetrator. Two experiments were conducted: the subjects (n = 361, 47% females, 53% males) assessed the reliability of the testifier in four scenarios of assault accusation, in which the only difference was the gender of the people presented. During the study, we have observed dependencies of gender and ascription of reliability, but only marginal differences in guilt attribution. The results of our research may constitute an argument for the existence of different epistemic status endowed on people depending on their gender and existing gender stereotypes. Our results suggest that gender bias may be situated at a deeper level than the linguistically triggered representation.
Ars Interpretandi
We aim to contribute to the solution to the "garbage problem", namely, how to distinguish knowled... more We aim to contribute to the solution to the "garbage problem", namely, how to distinguish knowledge from garbage, and why, despite the fact that most of the time people are agile at the distinction, they fail in high stakes cases. We discuss this problem in the context of jurisprudential discussions over the concept of testimony. In section 2 we focus on traditional solutions in the law: burdens of proof and expert testimony. Section 3 focuses on the distinction between knowing-how and knowing-that; Section 4 addresses the role of biases in decisionmaking and connects this to the garbage problem; Section 5 concludes by analysing the relation between knowledge and the types of thinking that can generate biases. In a nutshell, our claim is that identifying the relevant biases and types of knowledge helps identify garbage transmission.
Leiden Journal of International Law, 2023
One particularly intense critical debate over interpretation in international law concerns the ro... more One particularly intense critical debate over interpretation in international law concerns the role of moral factorsspecifically, the degree to which such factors influence legal interpretation, and how the law should deal with them. A formalist approach argues that moral considerations should be excluded as non-legal; a critical legal studies approach suggests they are an inevitable part of the functioning of international law and must therefore be acknowledged; and an inclusivist approach would suggest their influence is permissible, albeit only under certain circumstances. In this article, we are concerned with the question of whether moral factors influence interpretation at all, taking international treaties as the object of study. To address this question, we take a novel approach, proposing an experimental linguistic framework to test whether linguistic categorizations (originally developed for the analysis of everyday language) can be successfully applied to treaty interpretation, relying on both laypersons and experts as participants. Although some caveats must be made, the experiments deliver clear results: both groups are influenced by morals in their interpretation of international treaty norms. On this basis, we draw conclusions regarding (i) how the process of interpretation of international law operates; and (ii) what the institutions managing that process, such as courts, should factor-in when deliberating their decisions. By adopting this novel perspective, we also contribute to linguistic and experimental approaches to international law at the methodological level.
In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valen... more In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability-a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting.
This essay aims to criticize Dworkin's and Greenberg's interpretivism using one concrete example,... more This essay aims to criticize Dworkin's and Greenberg's interpretivism using one concrete example, namely, the interpretation of rules of criminal law pertaining to intentionality ascriptions. In fact, some judicial interpretations of criminal intention can be explained according to interpretivism as practices that depart from the legislative communicated content to implement moral principles. We distinguish between a Kantian and a consequentialist approach to criminal intention and claim that the judicial practice can be viewed as an implementation of the consequentialist approach which pulls apart the Kantian criteria communicated by the legislator. However, we argue that, in doing so, judges open the door to folk biases, political pressures, and stereotypes that produce distorted and unfair results. To deal with this objection, interpretivism would have to claim that the judicial practice is erroneous and provide a theory of objective moral truth, which it fails to do.
Cognition, 2022
In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valen... more In a series of ten preregistered experiments (N=2043), we investigate the effect of outcome valence on judgments of probability, negligence, and culpability – a phenomenon sometimes labelled moral (and legal) luck. We found that harmful outcomes, when contrasted with neutral outcomes, lead to increased perceived probability of harm ex post, and consequently to increased attribution of negligence and culpability. Rather than simply postulating a hindsight bias (as is common), we employ a variety of empirical means to demonstrate that the outcome-driven asymmetry across perceived probabilities constitutes a systematic cognitive distortion. We then explore three distinct strategies to alleviate the hindsight bias and its downstream effects on mens rea and culpability ascriptions. Not all are successful, but at least some prove promising. They should, we argue, be taken into consideration in criminal jurisprudence, where distortions due to the hindsight bias are likely considerable and deeply disconcerting.
Synthese, 2023
Legal and moral luck goes against the basic principle of criminal law that responsibility ascript... more Legal and moral luck goes against the basic principle of criminal law that responsibility ascriptions are based on the mental state of the perpetrator, rather than merely the outcome of her action. If outcome should not play a decisive role in responsibility ascriptions, the attempt versus perpetration distinction becomes more difficult to justify. One potential justification is that we never know whether the attempter would not have resigned from pursuing her criminal intent even at the last moment. However, this paper argues that resigning from criminal intent and trying to stop the criminal outcome, which is called the renunciation defense, can be just as subject to outcome luck as the attempt versus perpetration distinction. And yet the availability of the renunciation defense in court is outcome dependent. I show with a series of experiments (N=479) that outcome dependence for the renunciation defense is perceived as unjust and discuss the implications for the renunciation defense as well as attempt versus perpetration distinction.
German Law Journal, 2022
The article argues, based on results from massive online survey experiments, that, just as the ut... more The article argues, based on results from massive online survey experiments, that, just as the utterances from ordinary conversation, legal rules can convey a surplus meaning, which is more than just the amalgam of the meanings of the words which are employed in the legal rule's formulation. More precisely, the experiments check whether a typology of the types of this surplus meaning-pragmatic typologydescribes adequately the psychological processing of, not only everyday speech, but also legal rules. In two experiments-total N = 733-we find that in morally neutral cases the pragmatic typology adequately describes the psychological processes involved in the interpretation of a legal rule. However, we also find that in morally valenced cases, it is rather the moral inferences carried by participants that shape the pragmatic inferences than the other way around.
N. Goodman and A. Stuhlmüller made an experiment to empirically confirm a model that predicted th... more N. Goodman and A. Stuhlmüller made an experiment to empirically confirm a model that predicted the probability of implicature formation in contexts where speaker and hearer do not have full knowledge of the situation. However, there remained the question whether the effects were cross-linguistic or rather confined to the semantics of the English language. In our paper we present the replication of the above-described experiment in the Polish language. The data depicts differences that may point out to differences in the pragmatics of the Polish word for some, namely ‘niektóre’, since the scalar implicature is not cancelled in incomplete knowledge contexts.
Intercultural Pragmatics, 2021
N. Goodman and A. Stuhlmüller's experiment (2013) provided empirical support for the predictive p... more N. Goodman and A. Stuhlmüller's experiment (2013) provided empirical support for the predictive power of the Rational Speech Act (RSA) model concerning the interpretation of utterances employing numerals in uncertainty contexts. The RSA predicts Bayesian interdependence between beliefs about the probability distribution of the occurrence of an event prior to receiving information and the updated probability distribution after receiving information. In this paper we analyze whether the RSA is a descriptive or a normative model. We present the results of two analogous experiments carried out in Polish. The first experiment does not replicate the original empirical results. We find that this is due to different answers on prior probability distribution. However, the model predicts the different results on the basis of different collected priors: bayesian updating predicts human reasoning. By contrast, the second experiment, where the answers on the prior probability distribution are as predicted, is a replication of the original results. In light of these results we conclude that the RSA is a descriptive model, however, the experimental assumptions pertaining to the experimental setting adopted by Goodman and Stuhlmüller are normative.
International Journal for the Semiotics of Law, 2021
I investigate: (1) to what extent do folk ascriptions of lying differ between casual... more I investigate: (1) to what extent do folk ascriptions of lying differ between casual and courtroom contexts? (2) to what extent does motive (reason) to lie influence ascriptions of trust, mental states, and lying judgments? (3) to what extent are lying judgments consistent with previous ascriptions of communicated content? Follow-ing the Supreme Court’s Bronston judgment, I expect: (1) averaged lying judgments to be similar in casual and courtroom contexts; (2) motive to lie to influence levels of trust, mental states ascriptions, and patterns of lying judgments; (3) retrospective judgments of lying, after being presented with the state of the world, to be incon-sistent with previous judgments of communicated content: participants hold the protagonist responsible for content she did not communicate. I performed a survey experiment on the Qualtrics platform. Participants were recruited through Amazon Mechanical Turk (N = 630). I employed standard Likert scales and forced-choice questions. I found that: (1) average lying judgments are similar in casual and court-room contexts; (2) motive to lie decreases trust ascription and increases lying judg-ment; (3) judgments of lying are inconsistent with previous judgments of communi-cated content: participants hold the protagonist responsible for content they did not communicate (effect size of the difference d = .69). Perjury ascriptions are incon-sistent. The Supreme Court’s worries expressed in the Bronston judgment are well founded. This article helps reforming jury instructions in perjury cases.
W niniejszym artykule argumentuję przeciwko tezie o niemożliwości epistemicznej obiektywizacji or... more W niniejszym artykule argumentuję przeciwko tezie o niemożliwości epistemicznej obiektywizacji orzekania ex aequo et bono. Najpierw dokonuję przeglądu regulacji prawnych dotyczących orzekania według tego, co słuszne i dobre. Następnie argumentuję, że decyzje podejmowane na wspomnianej podstawie orzekania nie są subiektywne z trzech głównych powodów. Po pierwsze, struktura argumentacji prowadzącej do tego rodzaju decyzji jest analogiczna do struktury argumentacji w tak zwanych " trudnych przypadkach " (ang. hard cases). Po drugie, teorie praktycznego rozumowania oraz hybrydowego ekspresywizmu dostarczają ramy teoretycznej dla tego rodzaju mechanizmów decyzyjnych. Po trzecie, kontekst argumentacyjny dostarcza istotnych ograniczeń dla dyskrecji sędziego.
Jaka jest definicja semantyki i pragmatyki? Od kilkudziesięciu lat odpowiedź na to pytanie pozost... more Jaka jest definicja semantyki i pragmatyki? Od kilkudziesięciu lat odpowiedź na to pytanie pozostaje źródłem licznych sporów i kontrowersji. Istnieje wiele różnych definicji obu terminów. W zależności od przyjętego wyjaśnienia, granice pomiędzy semantycznymi i pragmatycznymi elementami języka mogą przebiegać w bardzo zróżnicowany sposób. Z tego względu praca ta posiada trzy główne cele. Po pierwsze, przytoczone zostaną możliwe definicje pragmatyki oraz ich bezpośrednie konsekwencje dla definiowania semantyki. Po drugie, przytoczone zostaną kontrowersje związane z przebiegiem dokładnej granicy pomiędzy zjawiskami pragmatycznymi i semantycznymi. Wreszcie, spróbuję pokazać, dlaczego przesuwanie granic zjawisk pragmatycznych w sposób redukujący zakres zjawisk semantycznych może być interesujące dla teoretyków prawa.
In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semanti... more In this paper I will tackle three issues. First, I aim to briefly outline the backbone of semantic minimalism, while focusing on the idea of ‘liberal truth conditions’ developed by Emma Borg in her book ‘Minimal Semantics’. Secondly, I will provide an account of the three principal views in legal interpretation: intentionalism, textualism and purposivism. All of them are based on a common denominator labelled by lawyers ‘literal meaning’. In the paper I suggest a novel way of viewing this common denominator as almost identical to the Borgian ‘liberal truth conditions’, at least at a conceptual level. In the third section I will focus on the conceptual similarities between the two ideas. I intend to depict that, although legal theorists do not admit it explicitly, they treat literal legal meaning as minimal propositional content that can be ascribed liberal truth conditions. There are two main objections to liberal truth conditions: their under-determinacy and unintuitive character. Both objections can be applied to ‘literal meaning’. However, the idea of liberal truth conditions gives an adequate account of what lawyers call literal meaning and is helpful in explaining the mechanism of understanding of provisions and reasons leading to the necessity of statutory interpretation.
The purpose of the present paper is twofold. First, I investigate the question whether the evalua... more The purpose of the present paper is twofold. First, I investigate the question whether the evaluative component of thick concepts is an implicature, a pragmatic enrichment or is part of the semantics of language. Second, I argue that debating the evaluations adopted by thick concepts will not be decisive in a discussion about the correctness of attitudes usually expressed with the use of a moral predicate. This is because, the ‘dictionary’ evaluations adopted by those concepts are conventional assumptions that reflect merely the majority views and opinions on morality, ethics and normativity in a society. It is true, that the majority usually adopts a definite evaluation for some reason. If this reason convinced so many, then it probably is a reason worth examining. Nevertheless, this does not entail that it could be a decisive reason in the debate about ethics or normativity.
Grice founded his theory on the assumption that the speaker conveys not only what he says, but al... more Grice founded his theory on the assumption that the speaker conveys not only what he says, but also what he pragmatically implicates. This is possible because of the context shared by the utterer and the hearer as well as some common rule-like assumptions called maxims of conversation. Grice's theory concentrated on a communication oriented at the exchange of information between speaker and hearer. The main objections against it were that it is narrow, as the informatively oriented communication occurs rarely in human interactions. Consequently, the content of maxims as designed by Grice could not apply in many legal contexts. This paper aims at considering only one of the multiple contexts in the realm of law the relations between the legislature and the judicial powers.
Abstract. Legislative deliberations among various democratic bodies result most of the time in so... more Abstract. Legislative deliberations among various democratic bodies result most of the time in some sort of compromise. Consequently, this compromise is often a major source of law in democratic countries. But what exactly does it mean “to reach a compromise” and, more importantly, how does this phenomenon affect the quality of the regulations issued by a democratic body? Do the regulations issued as a result of compromise differ importantly from those resulting of a unanimous decision? And if so, is the difference perceivable only at a purely linguistic level or does it entail further consequences? Shall we then avoid compromise or rather resort to it as often as possible? Finally, is compromise a source of interpretation? This paper is an attempt to provide at least a partial answer to most of the questions posed above. The answer seems not only a riddle at the theoretical level, but also has numerous practical consequences. It can affect the quality of the regulations issued as well as the level of legal certainty (or predictability) in a particular society, especially in those governed by continental (positivist) legal systems. Let’s start this analysis with an attempt to define this complex and mysterious notion of legislative compromise. There exists numerous definitions of what compromise could be, but there is one that seems particularly interesting: let’s take a closer and critical look on Andrei Marmor’s definition.
Keywords. Law, Language, Open texture, Interpretation, Compromise.
Talks by Izabela Skoczeń
The present poster proposes an experimental linguistic framework to test in practice what the ind... more The present poster proposes an experimental linguistic framework to test in practice what the indeterminacy thesis claims at the linguistic level of interpretation of international law, namely that extra-legal considerations influence interpretation. Although some caveats must be made, experiments undertaken with laypersons and international law experts deliver clear results that both groups are influenced by morals in their interpretation of international treaty norms. The poster then draws conclusions from this experimental confirmation of core elements of a critical legal studies approach to interpretation in international law. It simultaneously also adds to linguistic and experimental approaches to international law at the methodological level.
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Books by Izabela Skoczeń
Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable (without substantial modification) to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making.
Papers by Izabela Skoczeń
Keywords. Law, Language, Open texture, Interpretation, Compromise.
Talks by Izabela Skoczeń
Linguistic pragmatics is based on a theory created by Paul Grice, who observed that people usually convey more than just the amalgam of the meaning of the words they use. He labeled this surplus of meaning a “conversational implicature.” This book addresses the question of whether implicatures occur in the legal language, firstly illustrating why the classic Gricean theory is not applicable (without substantial modification) to the description of legal language and proposing a novel approach based on a modification of Andrei Marmor’s “strategic speech.” Subsequently, it analyzes neo-Gricean theories and their limited use for describing the mechanisms of legal interpretation, and discusses the possibility of pragmatic enrichment of legal content as well as the notion of completeness of a legal proposition. Lastly, it illustrates how the developed theory works in practice, with examples from penal and civil law cases. The book is helpful to legal practitioners, since it provides insights into the reasons for and linguistic mechanisms behind courts’ decisions, but also to philosophers of law, philosophers of language, linguists and non-experts wishing to better understand the mechanisms of legal decision making.
Keywords. Law, Language, Open texture, Interpretation, Compromise.
In both cases, the lucky and the unlucky one, John has the same quality of the will: he initially intends a criminal outcome, yet later, on second thoughts, desists from his criminal intent and does everything he can to prevent the criminal outcome. While his actions are intentional, the outcome is accidental as it is not fully under John’s control – it is subject to causal luck.
If one believes that it is one’s quality of the will rather than an accidental outcome of an action which should determine, for instance moral and legal, responsibility, then irrespective of the outcome of John’s action, he should be held equally responsible in both cases. Moreover, if quality of the will is to be decisive for responsibility, then John is surely more culpable than someone who never even undertook lighting a fuse in order to kill an enemy. However, John is less culpable than someone who would not entertain second thoughts and would not even try to stamp out the lit fuse. This stance could be labeled internalism about responsibility and culpability, as it goes along Kantian lines of reasoning.
By contrast, if one thinks that external factors, such as for instance the outcome of one’s action, should determine one’s responsibility or culpability, then John in the lucky case is less culpable or responsible than John in the unlucky case, as only in the latter the enemy dies. However, given that the outcome of John’s action is not under his control, but is subject to outcome and causal luck, an externalist, consequentialist approach to culpability and responsibility is unfair.
If one looks at the general rules governing criminal intention (mens rea) ascriptions in legal systems around the globe, these rules are largely Kantian (internalist), rather than consequentialist (or externalists). After all intention is a necessary prerequisite of culpability. However, surprisingly, both common and civil law systems treat the lucky and unlucky cases differently. If John is lucky and stamps out the fuse, John commits merely an attempt (one can ‘attempt’ only if one fails to achieve the goal). Consequently, he can use the so-called renunciation defense in court. This defense consists of a mitigation of punishment due to the fact that John completely and voluntarily desisted from his criminal enterprise. By contrast, if John is unlucky and the fuse cannot be stamped out due to the harsh wind, then John is taken to be a perpetrator, he cannot resort to the renunciation defense, even though he did everything he could to stamp out the fuse and, as a result, receives the full punishment. Yet are these rules the expression of reflective, all things considered views on legal responsibility? Or rather, are they the result of a bias arising out of the fact that in real life we never see the relevant counterfactual? In other words, juries and judges see either the lucky or the unlucky John separately, they never compare the two cases.
In order to test the bias hypothesis, we performed a series of experiments (total N=800). We employed a between subject and a within subjects’ experimental design. In the between subjects’ design, participants are presented with either a lucky or an unlucky renunciation case. Next, participants are asked questions about moral and legal responsibility (blame, wrongness of action and punishment), probability of the outcome occurring (subjective and objective) and mental states. We also performed the same experiment in a within subjects’ design.
We found that (i) outcome influences moral and legal responsibility ascriptions; (ii) the influence of outcome is mitigated in the within subjects design as compared to the between subjects design (effect size of the difference in between subjects d = .87; versus effect in within subjects d = .35); (iii) probability mediates the relation between outcome and mental state ascriptions.
Based on our results, we point toward the conclusion that the folk concept of fair and just responsibility requires that agents are held responsible only for outcomes that are under their control. Since legal rules on the renunciation defense in common and civil law systems run counter to this claim, they should be reformulated.