Table of Contents:
Chapters:--
Introduction ……………………………………….….……………………..…………..4
Definition…….....................................................................................................5
Reason for the use of presupposition…………………7
Conclusion....................................................................................................9
Bibliography...................................................................................................10
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 first 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 the implicated content is not entirely specified 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) reflect 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 (a–b), 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 differentiates between the notion of semantic (or
conventional) presuppositions, which are elicited by specific 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 defined
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 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 specific 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 specific linguistic constructions, so-called presupposition triggers. Among the most commonly cited classes of presupposition triggers are definite 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 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 fleetingly can be shown to be rather important in the context of statutes and regulations
REASON FOR THE USE OF PRESUPPOSITION
Presuppositions
touch on two conflicting 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 find. 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
specific 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 first 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 supra-constitutional. 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 Majesty’s heirs and successors in the 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.
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 fulfils in the text, i.e. whether it is (a) referential,
(b) constitutive, (c) deontic or (d) expansive. Each of the functions
identified gives rise to specific constraints along which legislative
drafters can decide on the benefit 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 effect, 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
specificity of a statement that explicitly opens up a clause to further
options. An explicit statement is to be preferred if this lack of
specificity 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 camouflage the duties and
obligations placed on the subjects of a law and thus infringe on its
accessibility and its efficient and effective implementation.
BIBLIOGRAPHY
1.) http://codenlp.ru/wp-content/uploads/2014/01/Presuppozitsii-2523-ENG.pdf2.) http://www.indiankanoon.org/doc/111867/
3.) http://indconlawphil.wordpress.com/2013/08/12/what-is-sedition-i-the-kedar-nath-singh-case/
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