–By Mihir Govande, II BA LL.B, ILS Law College, Pune
Law at a glance seems too obvious or simple, when it is devoid of its practical and scholarly embroidery. This frequent experience has been the embryo of the current topic. The idea of a promise is a very mundane, hardly interesting topic, used casually and ordinarily in our day-to-day lives. Here is a crude attempt to understand how two diverse and discrete fields of law and linguistics view a concept as simple, yet fundamental, as promise’.This write-up will primarily focus on the linguistic part of the topic as it is assumed that the readers have or do have an opportunity to have the relevant knowledge of legal aspect i.e. the law of contract.
The concept of ‘Promise’ has been around for as long as communication has been.
Here an attempt has been made to understand how two discrete fields of law and linguistics constitute the idea of a promise. It is intended to examine how both these disciplines -independent of each other’s influence- have come up with the idea of an efficient promise and necessary conditions for the same. Linguistics adopts the lens of Speech Act theory to determine rules and principles based on which efficient promises can be made. The law of contract essentially revolves around agreements, which are nothing, but promises made, accepted and thus enforceable under the eyes of law. Linguistics, through speech act theory, focuses on the syntactic and semantic structures and the efficiency they lend to a promise. Contract law, in addition to the structure of agreements, also examines the legality of the object. It also inquires into the intention of the parties to a contract and what ought to be achieved through it. Hence the objective of law is more expansive and diverse from that of the linguistics regarding promises.
Speech act theory is an extension of the field of pragmatics in linguistics. Pragmatics can be loosely defined as words and their meaning in context.
For a better understanding, let us take a simple statement and see how its meaning transcends through these three acts. Let’s say that someone in a room says ‘It’s so hot in here!’.
1. A locutionary act: the performance of an utterance: the actual utterance and its apparent meaning, comprising any and all of its verbal, social, and rhetorical meanings, all of which correspond to the verbal, syntactic and semantic aspects of any meaningful utterance.
Example: The above given statement would be a locutionary act wherein the actor has expressed his observation that the ‘weather is hot’ or ‘the temperature in the room is high’.
2. An illocutionary act: the active result of the implied request or meaning presented by the locutionary act.
Example: if the locutionary act in an interaction is the statement “It’s so hot in here!” the implied illocutionary request is “Can you please turn on the air conditioner/fan?” or any such implication suggesting some action in reference to the locutionary act.
3. A further perlocutionary act: the actual effect of the locutionary and illocutionary acts, such as persuading, convincing, scaring, enlightening, inspiring, or otherwise getting someone to do or realize something, whether intended or not.
Example: For the statement the perlocutionary act would be the hearer’s response to the statement. If upon hearing the locutionary act and understanding the illocutionary act, the listener goes on to turn on the air conditioner, that physical act would be considered a perlocutionary act.
Constatives and Performatives
Constatives: They are basically statements which describe. They are descriptions and are qualitative in nature. Many times they speak on the existence of an entity by asserting whether an event/entity is ‘true’ or ‘false’.
Performatives: Performatives are utterances, which do not distinguish an entity, or an event based on its truthfulness or falsity, neither does it provide qualitative descriptions of evidence at hand.
Austin in his work, ‘How to do things with words?’ describes performatives by attributing two conditions as given below:
1. They do not describe, report or constate anything at all, are not true or false and,
2. The uttering of the sentence is part of the doing of an action, which again would not be described as saying something,
E.g. Imperative statements conveying orders or requests. Linguistics considers the act of promising as a performative.
For the next part where the action of a promise being made will be examined let us assume the following scenario: speaker S makes a statement conveying promise P to a listener/receiver H, having the consideration/essential E to perform or abstain from performing a future action A.
Conditions for a Speech Act to be a Promise:
According to linguist John Searle, a performative can constitute an act of a promise being made if it fulfills the following conditions:
1. Normal input and output conditions are obtained
The communication must be clear and articulate.
2. S expresses the proposition that E in the utterance of P
The speaker mentions the consideration (i.e. the object), which will be transferred by the means of the promise.
3. In expressing that E, S predicates a future act A of S
The whole idea of making a promise is suggesting a future action. Any kind of promise would result in the promisor/speaker predicting some action that he’ll commit in the future (and not in the past).
4. H would prefer S’s doing A to his not doing A, and S believes H would prefer his doing A too, rather than his not doing A
Idea of a valid promise always requires the promisee/hearer to be in consensus with the proposition P of the speaker.
5. It is not obvious to both S and H that S will do A in the normal course of events
The consideration of the promise should be unique and not something which could anyway be realised in the normal course of events, in absence of a promise.
6. S intends to do A
A promise essentially requires S to be sincere regarding his end of promise.
7. S intends that the utterance of P will place him under an obligation to do A
In a valid promise the Speaker expresses that he wishes to be under obligation for his proposition of E by making the promise itself. This idea of S being under obligation may be put explicitly or implicitly.
8. S intends that the illocutionary act of proposing P (i-1) to produce in H the knowledge (K) that the utterance of P is to count as placing S under an obligation to do A. S intends to produce K by means of the recognition of i-1, and he intends i-1 to be recognised in virtue of (by means of) H’s knowledge of the meaning of P
This rule provides that, whether explicit or implicit, the very fact that the promise is being made S intends to be put under the obligation to carry out the promise.
9. The semantical rules of the dialect spoken by S and H are such that P is correctly and sincerely uttered if and only if conditions 1-8 are fulfilled.
A promise P is effectively made if the above rules are followed.
The Legal take:
Firstly, it is essential to understand that a contract is defined as an agreement, which is: Agreement = Offer + Acceptance.
Hence an agreement cannot be seen as a promise but rather a dual/two-way promise.
It is an interesting observation that the same idea of promise, which when materialises as an agreement in the field of law, carries with itself the same amount of basic syntactic and semantic rules. The law of contract also lays emphasis on the same set of ideals for the structure and the meaning of the contents of a contract. It is seen that law and linguistics share certain common ideals while understanding a promise and an agreement. The above given conditions of an efficient promise can be briefly summarized in five rules. Let us now see the comparison between the legal and linguistic provisions for a promise. Hereinafter, ‘Indian Contract Act, 1872’ would be referred to as ‘the Act’.
Searle’s Five Rules
Searle gives five rules for an efficient promise based on the aforementioned nine conditions.
Rule 1. Propositional Content rule (derived from the propositional content conditions 2 and 3)
P is to be uttered only in the context of a sentence (or larger stretch of discourse) T, the utterance of which predicates some future act A of the speaker S.