Austin says a vow on stage is void. The jurists said some words bind even in jest. Who is right?
I sat as a sessions judge in Lahore for many years. Since retiring I have been reading Austin, and one of his remarks keeps returning me to my old law books.
Austin says a performative is "hollow" when said by an actor on a stage or as a joke. The marriage pronounced in a play makes no marriage. Seriousness looks like one of his felicity conditions.
The classical jurists did not agree, at least for some acts. A well-known hadith, reported in the Sunan collections, says that in three matters seriousness is serious and jest is also serious: marriage, divorce and taking back a wife during the waiting period. On that basis most of the schools held that a divorce pronounced in jest takes effect. Yet the same jurists also built a great deal on another famous principle, that actions are judged by intentions.
So we have a legal tradition that knows perfectly well that intention matters, and that deliberately removes the "only joking" excuse for a small class of declarations. Why?
My own answer is that the rule protects the other party. In acts that change another person's status, the speaker should not be allowed to choose afterwards whether he meant it. But that suggests felicity conditions are not facts about language at all. They are set by an institution, for its own purposes.
Is that a refutation of Austin, or exactly what he meant? I would like to hear from philosophers and from lawyers of other traditions.