May 5, 2010

Provocateurism 14: Originalism vs Textualism, continued

Patrick Frey’s latest attempt to address intentionalism as it functions in the realm of legal interpretation again falls short — first, because it miscasts my positions, and second, because it draws its conclusions from the very faulty premises it posits.

Writes Frey:

Goldstein argues that there is a distinction between what a law “means” and what a judge does with that knowledge. However, for Goldstein, judges should always enforce laws according to legislative intent, rather than how reasonable people would interpret the text on its own. He argues that, in the hypothetical, the judge should interpret the written text “$100,000? as meaning “$10,000? because that is what the legislature meant — and allowing the judge to interpret the term any other way places the power of lawmaking in the judge’s hands.

[my emphasis]

But of course, nowhere did I argue that a judge “should always enforce laws according to legislative intent.” Instead, what I argued was that in order to claim to be interpreting the law in the first place, a judge has to appeal to the intent of those who wrote it (and so created the signs the very act of “interpreting” presupposes must exist). In Frey’s (imaginative, but frankly outlandish) hypothetical, the judge is certain that the lawmakers in question meant what they meant. The dilemma as posited, therefore, is one in which the legislature has failed to signal its intent in a way the law relies upon (and in fact, signaled something else entirely, going by the conventional standards of legal language). And the question then became how should a judge rule.

But “enforcement,” I noted, is a question not of linguistics but of justice. Constrained by the provisions of Frey’s hypothetical — the judge knows the legislators’ intent, and recognizes that they have failed to signal that intent in a way that is consonant with the conventions of legal language — for the judge to rule that the law means something other than what the legislators meant by it is for the judge to replace his intent with theirs. Or, to put it another way, he’d be replacing their text with his own, knowing full well that he is doing so — and using convention as his rationale for privileging his won intent over theirs.

This is activism. Whether it is “good” activism or not is a value judgment — not a linguistic question.

And that’s because from a legal perspective, such a maneuver seems best, in this unusual case, to favor “fairness” or “justice.” But from a semiotic perspective, it makes no sense to lay claim to performing an “interpretation” of a speech act when what you’ve decided to do is take the marks before you, (knowingly) ignore how they were intended, and add your own meaning to them.

In this case, the judge has decided that the legislature’s failure to signal its intent properly problematizes the idea of justice. But what he hasn’t done is say that the legislation doesn’t mean what it means — except to point out that most “reasonable” people likely won’t see it that way because of problems with the way intent was signaled.
Which is only to say that the judge recognizes that reasonable people will likely be misled by intent poorly realized.

Frey continues:

ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intent to include this concept in the law.)

Under Goldstein’s argument, if we assume that this was the intent of the legislators who voted for ObamaCare, then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.

It wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition. It wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.

As long as we assume it to be the case that every legislator intended to pass such a prohibition, then under Goldstein’s view, their intent controls.

Yes. Their intent “controls” as to what the text actually means, if the conditions in Frey’s (again, completely unlikely) hypothetical hold. But just because something means what it means doesn’t suggest that it will necessarily be signaled in a way where a “reasonable” reader would readily (or even conceivably) be able to ascertain that meaning.

People make mistakes all the time. But a failure to signal what you mean to others isn’t a failure to mean. It is merely a failure to get others to understand what it is you meant.

Again, Frey’s hypotheticals are designed to give convention every opportunity to obtain as the locus of meaning. But language doesn’t work that way. Convention is merely an hermeneutic short cut we have developed to help divine intent. In this latest example, Obamacare still means what it means — to those who wrote it and, later, to those who try to interpret it as receivers of the speech act. The goal in interpretation is reconstruct the intent of the utterance. If the language of a speech act is such that the original intent cannot — in good faith — be reconstructed on the receiver’s end, that has not problematized intentionalism; it has simply highlighted the flaw in a system that relies on arbitrary representation, namely, the relationship between signifier and signified.

But none of that is to say, as Frey contends, that “it wouldn’t matter that the legislators couldn’t point to specific language that a reasonable person would read as including this prohibition,” or that “it wouldn’t matter even if opponents could point to specific language that a reasonable person would read as saying the exact opposite of what the legislators’ intent was.” Of course it matters. Because under those conditions, you’d be hard pressed to get anyone to believe that you intended what you intended — and you have virtually no chance of having your meaning properly reconstructed. Failure to signal what you intend has consequences.

What it doesn’t do, however, is change your meaning — or allow others to tell you what that meaning is. It does, however, go a long way toward explaining why they were unable to reconstruct that meaning — and why they’ve replaced that meaning with what it means to them.

In examples such as the ones Frey provides, it is easy to overlook the dangers in allowing “convention” to act as the locus of meaning — whereby the intent of the utterer is dismissed as irrelevant, or else the intent of receivers is to use “convention” as a justification to create their own texts and ascribe that text back to utterer. But the danger is very real when we don’t recognize what it is we are doing when we claim to be interpreting – and when we argue that a person’s failure to properly signal what he means is grounds for us to tell him he meant something else entirely, we have opened the (theoretical door) to all sort of misuses of language.

And no hypothetical — however loaded — will change that fact.

Posted by Jeff G. @ 11:08am
280 comments | Trackback

Comments (280)

  1. “…then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean. If the legislators intended the law to include a prohibition against denying coverage to children based on pre-existing conditions, then the law does contain that prohibition — no matter how the text reads.”

    Gotta admire the severely underdetermined conditional. Make believe whatever we must is the order of the day.

  2. I’d say the Legislature is responsible for saying what they mean. If they don’t, the most logical thing for an “interpreter” (commonly called a “reader”) to do is to assign the words the most broadly common meaning, since they can’t read the Legislature’s mind (assuming it has one) to determine that “shall not” actually “means” “well, mostly not”.

  3. When I say “Stop getting trolled by that racist madman,” I mean what those words conventionally signify.

  4. I’d say the Legislature is responsible for saying what they mean. If they don’t, the most logical thing for an “interpreter” (commonly called a “reader”) to do is to assign the words the most broadly common meaning, since they can’t read the Legislature’s mind (assuming it has one) to determine that “shall not” actually “means” “well, mostly not”.

    This is no different from saying we are all responsible for trying to signal what it is we mean if we wish to be broadly understood.

    A failure to signal what we mean will lead, in many cases, to a failure in completing the speech act as intended.

  5. psycho (the word, the pseudonym) keeps getting shorter. Which I find both entertaining and mildly alarming.

  6. then it doesn’t matter what words are in the statute — they mean whatever the legislators intended them to mean.

    What makes a word a word is its having been turned into a sign.

    So “words” in the statute are only words insofar as we see them as signs. Either we believe they were intended by someone else or they are signs by virtue of our own intent to signify.

  7. Or, to put it another way, he’d be replacing their text with his own, knowing full well that he is doing so — and using convention as his rationale for privileging his won intent over theirs.

    This is activism. Whether it is “good” activism or not is a value judgment — not a linguistic question.

    I disagree that, in Frey’s patently ridiculous hypo, this would be activism. Adhering strictly to convention when interpreting language that is also supposed to adhere to said convention is not activism. It’s just plain reading, unless “activism” has a linguistic sense with which I’m not familiar.

  8. I noticed that too bh, and have found myself wondering how he’s going to restrict his next name-line to a few pixels from the upper right corner of “p”.

    Have we been talking in circles around the question of the priesthood of the law (without ever exactly naming it as such), the function of priests as middlemen and etc.? It seemed like we almost got to the point in P-13, but fell a little short of an open declaration.

  9. Ah, the Cheshire psycho…

  10. The responses at Frey’s place are instructive. Intentionalism is mind reading. Only convention can determine meaning.

    Good luck, pussies.

    What? I was talking about my cats.

  11. Hey, I’m trying to run a clean browser here.

  12. If we are to be governed by legislative intent rather than the actual text of the legislation, how are we to determine what the intent actually is? Usually a few legislators will speak out about the intent of a particular piece of legislation, but I would hazard to guess that it is nowhere near a majority of the body. Attempting to discern intent from the comments of a small minority runs the risk of getting the intent of the legislature as a whole incorrect. Clearly what ought to happen is there should be some type of document where the intent is written in a clear, unmistakable, and understandable language, and then the legislature as a whole could vote on it. I was obviously under that mistaken impression that this was already taking place with the bill being the document in question.

  13. “…the intent is written in a clear, unmistakable, and understandable language, and then the legislature as a whole could vote on it. I was obviously under that mistaken impression that this was already taking place with the bill being the document in question.”

    Ha. That’s a good one. And yes, you were operating under a mistaken impression if you were to believe this to be always the case.

  14. sdferr:

    I do realize that’s not actually the case, but I think it should be the goal. If we do not use the actual text of the bill to discern the legislature’s intent what are we to use in its stead? Also, what is the purpose of the text of the bill if not to signal the intent of the legislature?

  15. “…I think it should be the goal.”

    So, who’s goal? This often doesn’t seem to be the goal of legislators. And ambiguity may very well signal the intent of the legislature, may it not? It may be they intend ambiguity to put power into the hands of an administrator they believe will work toward ulterior aims they harbor (more or less) in secret. No?

  16. Patterico’s site doesn’t load worth a damn. What’s up with that?

  17. The actual text of the legislation is the legislative intent, if in fact what we believe ourselves to be doing is interpreting. I can’t keep re-explaining intent each time someone new visits, but suffice it to say that for something to be language, it has to be intended as such. That intent comes either from the agency responsible for producing the speech act or those who receive the speech act and are charged with reconstructing it.

    If they have no desire to reconstruct the speech act — that is, if they dismiss the notion that what they received has implicit in it an intent — then they aren’t dealing with signs. They are dealing with marks and imbuing them with their own signfication.

  18. sdfer:

    You are correct in that this doesn’t seem to be the goal of the legislators. Ambiguity serves the legislators well, as it gives them plausible deniabilty. E.g. the can deny intent at a later time. “I didn’t mean to!”. They can also portray their intent as different from one group to another. Which expressed intent is the true intent of the law? How is a member of the general public to be expected to comply with the law, when all we have to go one is the printed text of it? For over 99% of the bills passed by the congress I have heard no intent imputed by any congressman. Unless I can rely on the text of the bill, I am unable to proceed with any alterations in my behaviour that might be needed in order to be in compliance with the statute as amended.

  19. The problem as you point out is inherent where the enforcement mechanisms/people are different than the authors of the law. The “production end” v. the “user end.” Textualism, places the burden upon the producers to make sure their product is used properly.

    Or, am I still full of crap?

    Cheers.

  20. I do realize that’s not actually the case, but I think it should be the goal. If we do not use the actual text of the bill to discern the legislature’s intent what are we to use in its stead?

    The actual text is made up of signs — and those signs are produced when the legislature intends.

    What you are saying is you want to use the actual text of the bill solely as it appears. Of course, following that example, how might you deal with irony?

    And the answer is, you assume laws aren’t written ironically; that is, legal convention tends to frown on irony, so we don’t read every law as if it may mean its exact opposite. And we certainly don’t rule on laws as if that were the case.

    But the point is, that could very well be the case from a linguistic standpoint.

    Also, what is the purpose of the text of the bill if not to signal the intent of the legislature?

    Well, I’m sure you can imagine instances where the intent of the legislature is to leave language intentionally vague, and therefore provide courts with some latitude in good-faith intepretive efforts.

    But in the main, of course the purpose of the text is to signal legislative intent. When the text fails to do so clearly, however, we don’t suddenly believe they had no intent, do we?

  21. Hal, have you read P-13, linked second from the top of this post, and taken into account the (impossible) hypothetical Patterico posited as a basis on which to carry out this discussion? So far as reaching back to the intent of the legislators goes, that reference might resolve some of the difficulty here, at least contextually.

  22. Unless I can rely on the text of the bill, I am unable to proceed with any alterations in my behaviour that might be needed in order to be in compliance with the statute as amended.

    To even believe there is a text, you have to believe it was intended.

    Where Frey has you confused is in suggesting that intent is determinative when it comes to what people must believe a text says. But of course, this is nonsense. If you asked if I liked a movie and I really did like the movie, but I signaled that to you with a thumbs down, you’d be forgiven for believing that I didn’t like the movie, because I made a conventional mistake in my signaling.

    But ask yourself: would that mistake commit me to not liking the movie, simply because that’s all you had to go on as an indicator of what I meant?

    Linguistically speaking, I meant what I meant. I used the thumbs down sign to indicate that I liked the movie. Conventionally speaking, such a signal runs counter to what I meant.

    You, as an interpreter, are given nothing to go on but my signal. As convention is shorthand for intent, you would reasonably conclude that I didn’t like the movie. But the fact remains that you are taking my signifier — the thumbs down — which I’d used as an unconventional sign for approval, and adding your own signified to it based on conventional usage.

    In good faith you have interpreted incorrectly, because you believe I meant something by my thumbs down signal.

    If, however, you knew I liked the movie and decided that because I’d signaled that with a thumbs down, you can maintain that I must necessarily not like the movie, you are replacing my meaning with a conventional meaning in order to make my sign mean what you say it means rather than what I meant by it.

  23. A failure to signal what we mean will lead, in many cases, to a failure in completing the speech act as intended.

    A protocol error, in other words. (in communications, “signaling” is how you get a bit from one end of a channel to the other. A “protocol” is a common understanding of what the bits mean when they get there.)

  24. One thing that is incredibly obvious to me is that if you do not do your best to appeal to the intent of the utterer, then you cannot truly be engaged in an act of communication. I would think that simple notion would be enough to end the argument, but of course it isn’t.

  25. 1535–45; earlier protocoll < ML pr?tocollum < LGk pr?tókollon orig., a leaf or tag attached to a rolled papyrus manuscript and containing notes as to contents.

  26. “Attempting to discern intent from the comments of a small minority runs the risk of getting the intent of the legislature as a whole incorrect.”

    Of course you will get the intent of the legislature as a whole incorrect, because such intent does not exist.

    Let’s go with the typo hypothetical: A bill is put forward to expand the Department of Education by 100%, but due to a poor understanding of math, the bill reads “Funding of 50% from the previous year.” Now, the entire house and every senator, save one, fails to notice this typo. The Senator who does notice the typo happens to not like the DoE. The Senate only has 49 votes in favor of the bill, each intending the DoE to have double the funds (the VP is also in favor of the bill, but can only vote in case of a tie).

    So, the one Senator who sees the typo and wants the DoE slashed, crosses over and votes.

    Now, what is the intent of the legislature there? Sure, 49% voted for the bill to double funding, but the deciding vote was cast with the intent to cut the funding in half. Who do you go with?

  27. Jeff G.:

    I would say that your argument with regard to the text of the legislation could just as easily be applied the all verbal commentary, (floor speeches, committee testimony, conversations), as well.

    After all, the dictionary is nothing but a cross reference of various symbols that have no meaning besides that which we infer.

    At this point I am left with nothing but the Descartes joke:

    Descartes goes to a cafe and orders a cup of coffee. The waitress comes by later, sees that his cup is empty and says: “Monsieur, a refill?” Descartes replies: “Merci, I think not.” — and disappears!

  28. After all, the dictionary is nothing but a cross reference of various symbols that have no meaning besides that which we infer.

    Yes. But they have a history of usage that provides the ground for what we call convention.

    Alternately, the very fact that conventions change and dictionaries grow suggests that we are able to will into existence ever more new ways to sign — that is, to mean in a way that is not yet conventionalized — some of which will then become conventionalized. And the corollary is that some conventions fall out of favor and so fall into disuse.

  29. Of course you will get the intent of the legislature as a whole incorrect, because such intent does not exist.

    If it did not, how do you know that the text before you is language?

  30. Oh. And finding difficulty reconstructing the collective intent of a legislature is not an argument that such an intent doesn’t exist collectively.

  31. Has Patterico gotten anything about intentionalism right? I’m wondering if he’s doing an exhaustive elimination of those things that intentionalism isn’t.

  32. Maybe because Jeff, in his infernal way, is using the word “interpret” to mean “decode,” whereas when a judge is sitting a case, his job is to “apply” the law to the case.

    Which, that involves interpretation of the law and statutes (written language) but is not limited to it. The judge also has to take other stuffs into account.

    If the judge sees that the written law mistakenly puts $10,000 instead of $100,000, and he knows for a fact that it’s a typo, he certainly can apply the law as written, using the $10,000 as a guide, and claim that he is bound by what is written there. Then send a note to the legislature telling the boneheads to hire a better proofreader. And then when the correction is made, reverse himself.

  33. Jeff G.:

    “Yes. But they have a history of usage that provides the ground for what we call convention.”

    I maintain that this is also the case for legislation and although it doesn’t have nearly the history of usage of the written word, it does have a fairly lengthy history of usage in its own right.

    If the written words in legislature are insufficient to be able to determine that legislative intent a better signaling mechanism needs to be found and implemented, as at the end of the day I am liable to comply with the court’s determination of legislative intent regardless of my ability to discern the same on my own.

  34. This is like watching someone argue that if hot air balloons are able to fly then gravity does not exist. I admire your patience, and persistence, Jeff. Pat’s? Not so much.

  35. So long as you recognize that’s what you are doing, Hal.

  36. finding difficulty reconstructing the collective intent of a legislature is not an argument that such an intent doesn’t exist collectively

    They wrote something down. They voted on it. They have the power to read what is written and determine whether it means this or that, and if it’s unclear, they can demand clarifying language.

    In the case of the AZ law, they used the term “lawful contact,” which has been ruled to be any contact between cops and public wherein the cop is not unlawfully detaining a citizen.

    Darleen and others objected because “lawful contact” is and can be interpreted too broadly. The legislators removed the term and clarified the language so that the inquiry into immigration status can be made only after lawful detention.

    It appears that the AZ legislatures used the term “lawful contact” to mean “lawful detention.” Had they not corrected the language, there may have been a suit brought against an LOE for inquiring about immigration after someone asked th officer for directions.

    The judge, in this case, what does he do? Does he say “I know that the intent of the legislation was to specify “lawful detention,” but the law uses the term “lawful contact.”

    The question, Pat, is not a linguistic question but a legal question. I assume that from a legal standpoint, the judge can rule that the officer acted within the law because the law says so, regardless of what the legislators ostensibly intended.

    An activist judge is not a textualist. If the judge rules that the LOE acted according to the law, he is not violating intentionalism. Because what if he didn’t know what the intent was? The legislators used the wrong words to specify what they meant.

    An activist judge tends to ignore both the plain meaning of words and the writers’ intentions entirely. In the case of the AZ law, an activist judge would ignore both “lawful contact” and the intended meaning, “lawful detention” and rule that all inquiries into immigration status are illegitimate because he hates those redneck bigots what h8 brown people.

  37. Jeff G.:

    “So long as you recognize that’s what you are doing, Hal”

    And here I am unable to discern the intent of what you have written. Are you referring to the requirement placed on me to comply with a law the intent of which I am unable to discern? I am not sure how the knowledge that I am doing that is of any benefit to me.

  38. It’s like pulling teeth, Nathan. Particularly over at Patterico’s, where somehow my position has been turned into whatever someone says they meant is what we all must bow to.

  39. “If it did not, how do you know that the text before you is language?”

    Ok, I’ll bite and say it is not language. It is a tool. It is wrong to say “the law means x,” but it is right to say “the law does x.” Laws aren’t spoken or written, but crafted. The intent of the craftsman is not important once the product is finished, only the intent of the one who wields it. The only thing a craftsman can do is make a tool more or less suited to a task, specialized or general, robust or disposable. The same applies to the law. It is important to craft laws carefully, with the assumption that the ones who wield them will do their best to abuse them and use them to cause mischief. For a legislator to believe that what he intends will have any weight on how a law is used is the height of wishful thinking, and such legislators should be tossed out. For a people to believe that what they intend the law to do matters is the height of madness, and they will find themselves enslaved by the products of their good intentions.

    “Oh. And finding difficulty reconstructing the collective intent of a legislature is not an argument that such an intent doesn’t exist collectively.”

    It’s more of an argument than has been put forward to defend the notion that collective intent does exist. Ok, perhaps that’s not entirely true. Um, it’s more of an argument than has been put forward to distinguish the notion of collective intent from the socialist touchstone of the “General Will.” As you are also arguing that recognizing collective intent is a palladium against progressivism, that’s a big issue. Especially as your argument in the last round highlighted how intentionalism introduces an additional arbitrary element into the justice system.

  40. Hal —

    I’m counseling you that, once you recognize how language works, you are unlikely to go about claiming that just because you can make something of the signifiers provided by others doesn’t mean their meaning has changed. It just means you have decided, for whatever reason, to privilege your own intent.

  41. Ok, I’ll bite and say it is not language.

    Then how can you read it?

  42. Pat’s problem is that he forgets what it is Jeff is combating. He forgets that Jeff objects primarily to the way malicious Leftists twist someone’s words and declare them guilty not because of what motivated the utterance but because of the Left’s insistence that “what I heard” trumps “what you meant.”

    Intentionalism means that no one is entitled to twist your words and use them against you after stripping their actual meaning away.

    It means that Sarah Palin can use words such as “battle plan” and “taking aim,” and if she does not intend to incite violence with those words, she’s not guilty of inciting violence, crazy people (and malicious Leftists) notwithstanding.

    It means that Joel Klein cannot legitimately claim that Glenn Beck and Rush Limbaugh are uttering “permission words” that only Joel Klein can detect.

  43. Jeff G.:

    Of course I privilege my own intent. It is the only one of which I can be certain. My main point here is that if the legislators have failed to impute their intent into the law, then I cannot be reasonably expected to infer it from the law. Yet according to the legal system that is the exact expectation placed upon me.

  44. @32 yes, dicentra. I have always defined interpret to mean just that. Applying a law is different than interpreting it.

  45. “Then how can you read it?”

    Same way I understand everything else that, by your definition of intentionalism, is not language (e.g. anything produced by Samuel “If I wanted to send a message, I’d use Western Union” Goldwyn).

  46. Hal, would you pass the salt?

  47. “what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions?”

    Ok,

    Lets stretch this little hypothetical a little further and reveal that the reason that the coverage was not written into the bill is because the cost would have factored into the GAO estimate for the cost of the bill and it would have been unlikely to pass.

    How should the Judge interpret the bill now?

  48. Of course I privilege my own intent. It is the only one of which I can be certain.

    There you have it.

    My main point here is that if the legislators have failed to impute their intent into the law, then I cannot be reasonably expected to infer it from the law.

    They have imputed their intent into the law. They just haven’t done so in a way that is conventionally recognizable. And this has consequences.

    Yet according to the legal system that is the exact expectation placed upon me.

    Which is why a judge can tell a legislature that their law doesn’t seem to signal what they want it to signal — and note that it is a convention of legal writing to use language that tracks with legal convention, and that any other use is likely to lead to misunderstandings.

    None of which troubles intentionalism.

  49. Of course I privilege my own intent. It is the only one of which I can be certain.

    This is in violation of Man Laws for Women #8: “If I say something to you that can be taken two ways, and one of those ways makes you mad or want to cry, I meant the other one.”

  50. I’d like to retract my above jab at Patterico. I think he’s doing much better in the way he discusses this kind of thing, and I don’t want to discourage that improvement.

  51. Same way I understand everything else that, by your definition of intentionalism, is not language

    My definition of intentionalism requires nothing more than the intent to mean.

    The rest of your comment doesn’t follow.

  52. sdferr:

    “Hal, would you pass the salt?”

    Sure.

    hands sdferr a container having a lid with several small holes at the top which is half full of a white crystalline substance, being unaware the contents are actually sugar having previously been replaced by another individual.

    Well, I intended to pass you the salt anyway.

  53. And funny thing, I’d have been asking for that self-same bottle with the sugar in it, yet you didn’t hand me the bread instead. Weird, huh?

  54. “My definition of intentionalism requires nothing more than the intent to mean.”

    And as I said, laws don’t mean, they do. Computer programs do not mean, they do, and yet they can be read.

    Still looking for that distinction between collective intent and the General Will. You must be working really hard on it as you haven’t said anything yet.

    It’s probably going to be a front page post of epic proportions, isn’t it? Can’t wait!

  55. And as I said, laws don’t mean, they do. Computer programs do not mean, they do, and yet they can be read.

    Laws mean AND do. Computer programs are presumably intended to do, and so they mean as well, in the sense that they’d be unable to do what they were designed to do if they didn’t mean what they meant.

    You are beginning to conceive of performative language: saying “I do” and meaning “I do” means “I do.” But under certain circumstances, it also means I’ve just been joined in a marriage contract.

    The fact that laws have enacting functions doesn’t make them somehow extralinguistic. Nor does it somehow strip them of meaning.

  56. I would argue that computer programs not only mean, they mean something so specific that barring a compiler error they can only be interpreted one way. Of course, I have had students who exclaimed that their program wasn’t doing what they meant, so they actually failed to signal their intent to the compiler properly.

  57. JSchuler, why not assume that though some of us may have heard of the General Will with which you are concerned, very many of us may not have done, and therefore it would be well if you tied your concern to particular expressions of an assertion of or definition of or instance of the General Will you have in mind? Plonk down some Rousseau and let’s have a look at it. Let’s see what, if anything, it has in common with the issues we’re dealing with here and fill-in the gaps that some of us may have in our knowledge of the thing as well.

  58. Still looking for that distinction between collective intent and the General Will. You must be working really hard on it as you haven’t said anything yet.

    It’s probably going to be a front page post of epic proportions, isn’t it? Can’t wait!

    Oh, I’m sorry. I must be avoiding your question, not trying to answer fifty different commenters over two sites while taking care of a sick kid and trying to run a blog.

    Okay, I see now what you’re referencing:

    It’s more of an argument than has been put forward to defend the notion that collective intent does exist. Ok, perhaps that’s not entirely true. Um, it’s more of an argument than has been put forward to distinguish the notion of collective intent from the socialist touchstone of the “General Will.” As you are also arguing that recognizing collective intent is a palladium against progressivism, that’s a big issue. Especially as your argument in the last round highlighted how intentionalism introduces an additional arbitrary element into the justice system.

    General will and collective intent are different in that the latter is constrained by the people actually doing the meaning — who then concretize that meaning in language by virtue of having signified.

    General will, as I imagine you are using it, is something attributed to a collective — and doesn’t require taking into account their actual intent.

  59. I will concede, however, that in any non-trivial program (assuming we exclude ourselves to one programming language) there is more than one set (or grouping) of signifiers that will result in a program that appears to work exactly the same from a user standpoint. I don’t think that changes the argument that the group of signifiers called a “program” means something, just that more than one program can be mapped (via a compiler) to the exact same intent.

  60. JeffG: “My definition of intentionalism requires nothing more than the intent to mean.”

    “JSchuler: “And as I said, laws don’t mean, they do. Computer programs do not mean, they do, and yet they can be read.”

    Something about the conventions of the legal profession makes it hard for those trained to think within those conventions to distinguish between intention and volition.

  61. “Computer programs are presumably intended to do, and so they mean as well.”

    A shovel is also intended to do, so it means as well?

    “Of course, I have had students who exclaimed that their program wasn’t doing what they meant, so they actually failed to signal their intent to the compiler properly.”

    But at no time does the compiler make an effort to understand your students’ intent. The existence or non-existence of intention or meaning is, well, meaningless to the compiler. Regardless of what your students might or might not mean, the compiler is right. Still, even after the compiler has finished stripping out all meaning and intention, I can decompile the program and, with a good deal of eyestrain, read it and understand it.

    sdferr, fair enough. I’ll dig around for my Rousseau and get back to it.

  62. I am beginning to be able to peg some commenters from the jump. I shall neologize this skill as “Pablovian”.

  63. A shovel is also intended to do, so it means as well?

    Okay, now you’re not even trying.

  64. Wow, patterico doesn’t know when to stop, does he?

    http://redwing.hutman.net/~mreed/warriorshtm/palooka.htm

  65. “A shovel is also intended to do, [sic] so it means as well?”

    See what I mean?

  66. But at no time does the compiler make an effort to understand your students’ intent. The existence or non-existence of intention or meaning is, well, meaningless to the compiler. Regardless of what your students might or might not mean, the compiler is right.

    The compiler carries on with the error. Which only makes the compiler “right” in the sense that it is following certain conventions for reading. If it ends up doing something that the people who wrote the code didn’t want it to do, it’s because they failed to signal what they wanted to the compiler.

    Still, even after the compiler has finished stripping out all meaning and intention, I can decompile the program and, with a good deal of eyestrain, read it and understand it.

    You can look at it and understand it as computer language. But it is likely you won’t be able to determine what the writer wanted it to do if he mis-signaled his intent at the outset.

  67. Though the thing is fairly vague to me at this point, didn’t Heidegger try to pull off that shovel deal with a pair of old shoes? Or, actually, wasn’t it a pair of old shoes as depicted in a Van Gogh made to jump to life on some poor peasant’s feet? But as I said, vague.

  68. If a program had no meaning, it could not be interpreted by a compiler to produce a working program. Programs have intent. One programmer can read another’s program code and divine the purpose and intent from that. If the program had no intent, that would not be possible.

    I think that you’ve made up your mind, however, and will not budge. Perhaps someone else will go round and round with you.

  69. I’d like to see a compiler handle a code that was written completely ironically.

    The thing would probably carry out the function the code appeared to demand, only to have all of us sneer knowingly at how unsophisticated the compiler is.

  70. I’m trying to come up with a good response to the concept of ironic coding, but so far, the well, she is dry.

    What could be worse would be a progressive compiler, which would always take your code but create the executable it wanted no matter what. Or a condescending compiler, which would patronize you with the error messages it generates.

  71. “Then “intentionalism” is a truism, and worth very little.”

    So, if truisms are worth very little because they are true, then those self-evident truisms in the DoI must be worth very little, eh? Or is that an unfair mis-read of the “worth very little” above?

  72. Let me refer any newbies to the “Greatest Hits” link on the left sidebar. The link 7th down from the top will bring up the posts on intentionalism. I think reading them would be very productive for anyone seriously interested in the topic.

  73. If it ends up doing something that the people who wrote the code didn’t want it to do, it’s because they failed to signal what they wanted to the compiler.

    Case in point:

    I once wrote code that passed an array in to a function. But because I cut my teeth on Fortran, I thought I was passing in the actual array, as opposed to a pointer to an array (which is what C++ does, using approximately the same syntax). Of course this function really wanted a float, and the array was a double, so my brilliant idea was to recast the array to float. Which is perfectly permissible in Fortran; you just convert the variable.

    But in C++? It’ll recast that pointer to doubles as a pointer to floats, which will make all of the (64-bit) data that pointer is pointing to get all cocked up, and no longer fit well into the IEEE 754 template, because we’re jamming the 64-bit floating point data into the 32-bit floating point hole.

    The result is, that my code locked up a piece of military hardware so that it could no longer function. And it did this every single time the processor was power-cycled. It was one big fail.

    So much for the compiler being “right”. It definitely got the last word on “right”.

  74. In the whole of the hypothetical and it’s discussion there is a “forgotten man” whose intent is also present in the bill/law. One whose intent could be that of the legislature or of the conventional reading of the law.

    The Governor/President who signed it into law.

  75. “You can look at it and understand it as computer language. But it is likely you won’t be able to determine what the writer wanted it to do if he mis-signaled his intent at the outset.”

    First, the fact that I cannot determine intent is irrelevant to the point this was to counter, and this is that one cannot read something that has no intent. Your first sentence appears to concede this point.

    But bring this back to the original subject of law; the judge can determine what the law (program) does via textual reading (compiler) without ever having to figure out or consult the intent of the legislature (frustrated students… although this is very imperfect). In other words, to interpret the law, there is zero need to “reconstruct the intent of the utterance” as Jeff asserts. “Compile” the law. It either works as the legislators wanted it work, or it doesn’t. Whether it does or not is inconsequential to the role of the judge.

    From what I saw, Jeff doesn’t assert that this cannot be done, only that it favors progressivism to do it this way. That’s where I need to pick through the Discourse on Political Economy.

  76. Uncomprehending or dishonest? Uncomprehending or dishonest? Uncomprehending or dishonest?

    OH, LAWYER! I get it now.

    Part of the problem is that “lawyer” isn’t just a language of its own that happens to apparently share words (homonyms, actually), but in fact is an entirely different subculture withe different assumptions, not only with regards to meaning, but a different epistemological process. I’ve worked a lot with lawyers, and awful lot, and ultimately while communication APPEARS to be happening, it usually isn’t.

    So, Jeff, you’re trying to explain something to someone who not only uses words differently than you do, but in fact the process of communication itself depends on different assumptions.

    In other words, if you ever plan to write a book on First Contact with an Alien Species, this is great practice.

  77. Pedantic moment: Fortran actually passes a pointer to the array, it just hides the pointers from the programmer. Or at least, it did in Fortran 77. I think Fortran 90 (or whatever came after that) might have pointers in it.

    As for your nightmare scenario: Yikes. So far I have not managed to do something that awesome, just the usual overrunning of arrays in C that sometimes broke and sometimes didn’t depending on what memory it tromped on in the process.

  78. What part of “intentionalism just is” is so hard to understand.

    Yes, it is a truism. Unfortunately, everyone from the New Critics onward have institutionalized the opposite belief, to the point where we believe that we can kill off the author and have the text to ourselves as our very own.

    That has a number of epistemological consequences, many of which I’ve spent years exploring on this site.

    Sometimes the simplest observations lead to the most profound discoveries.

  79. Programming is a black art anyway.

  80. I didn’t mean to drag this off-topic, I just thought that programming was a good example of an application of proper signaling of intent, since incorrect signaling will be quickly punished.

  81. First, the fact that I cannot determine intent is irrelevant to the point this was to counter, and this is that one cannot read something that has no intent. Your first sentence appears to concede this point.

    Not so. To read something is to treat it as if it is a sign. Signs are created only through the process of signification — a desire to mean or a desire to see meaning. Either you believe what you are looking at was intended as language (you believe it to be computer language); or else it could just be signifiers you decide are a computer language, in which case it is your intent to see as language something that was not language until your intent to signify made it so.

    But bring this back to the original subject of law; the judge can determine what the law (program) does via textual reading (compiler) without ever having to figure out or consult the intent of the legislature (frustrated students… although this is very imperfect). In other words, to interpret the law, there is zero need to “reconstruct the intent of the utterance” as Jeff asserts.

    Again, incorrect. To even conceive of the law as language, you must first conceive of it as having been intended — as being made up of signs. A judge who views a text as if it has no intent behind it is not looking at signs; he is dealing with signifiers. Therefore, he is himself now determining how best to resignify the signifiers to turn them into language. It is his own intent to signify that he is privileging, and he is using convention as the instruction set for his compiler.

    It makes no sense to say one is “interpreting” a text of one’s own making. Instead, one is writing a new text in which he is responsible for creating all the signs — and then attributing that text either to a legislature or to a piece of paper covered in marks that look like language.

    “Compile” the law. It either works as the legislators wanted it work, or it doesn’t. Whether it does or not is inconsequential to the role of the judge.

    And when conventions change — and so the instructions for how to compile change — the law will do something else, untethered as it is to any intent, and unfettered by a notion of interpretation that assumes intent.

    Hence, living law, which will change with context and convention (although constrained perhaps by precedent).

    From what I saw, Jeff doesn’t assert that this cannot be done, only that it favors progressivism to do it this way. That’s where I need to pick through the Discourse on Political Economy.

    Jeff asserts that it can be done, but that doing it is linguistically incoherent and dangerous, based as it is on an idea of language that anchors meaning to something as transitory as current convention — while bracketing the simple truism of language that you seem to find worth very little, namely, that for language to be language, it must be attached to intent.

  82. “Not so. To believe the language is a language you must believe that it was designed to perform such function. Or else it could just be signifiers you decide are a computer language, in which case it is your intent to see something as language that is not language.”

    Like a shovel, for instance?

  83. You know, we could save a lot of money if we just fired Congress and let the Justices interpret new law from the old as needed. I mean, we already got a shit load on the books for them to pick and choose from, do we really need more?

  84. I sometimes speak shovel, Ernst. But generally only in the spring.

  85. I’m a rake what speaks hoe myself.
    Or is it ho? I’m always getting those mixed up.

  86. “To even conceive of the law as language, you must first conceive of it as having been intended”

    Which is why I decided that you were right, and therefore law was not language. Which got us to the whole “how do you read it” thing, and on and on.

    “It is his intent to mean that he is privileging, and he is using convention as the instruction set for his compiler.”

    Except it’s not “his” compiler. It’s not a compiler that he chooses because it fits his predilections. The compiler is convention (and here is the key, as many people mentioned this in the previous thread, including me) AT THE TIME THE LAW WAS WRITTEN. In other words, the “intent,” if you will, comes from neither the legislators nor the judge, but from a third source (one of the commentators in the previous thread described this is a very well documented and rigorous procedure). It is not “current” convention, which you like to keep throwing in there. So, no, there is no changing of the law as language changes, no living law. That need not be the case from a textual reading. Again, repeating from the last time, you wouldn’t take source code that was written in BASIC and put it through a compiler for C++.

  87. Ho, ho, ho, green giant.

  88. ho ho ho green jobs czar

  89. Which is why I decided that you were right, and therefore law was not language.

    So. Law is just code fed into a compiler. Not language. That is your position?

    And who writes this code? Based on what? In order to do what? With what presuppositions in mind?

    Who reads it? How? Based on what? With what presuppositions in mind? If it isn’t language, how does the “compiler” know to “read” it in the first place?

    You keep wanting to get to the point where convention gives a judge the “right” reading of a code that exists beyond language. Like a Platonic ideal of Law. To do so, you’ve now gotten yourself to the point where law is not language — it is not a series of signs intended to mean something — but rather it is some special thing that mimics language, uses signs, communicates, is produced by an agency (or collective agency) but is, in effect, a kind of shovel.

    Or if you prefer, it is a “code” filtered through a compiler and read into the record by a trained monkey.

    Now, I take it that that’s how you want law to function. And I take it that, because law is a form of performative (in that it enacts a contract), the desire to make that law as clear as possible, by sticking as closely to convention as possible, is the most desirable set of circumstances.

    But just because that’s how you want it to act — and how you think it should best act — does not mean that’s how it works. Conventionalized fetishizing of convention as the source of meaning is merely a legal fiction, a convenience used to constrain the breadth of possible interpretations in a system where the signifier and the sign are arbitrarily connected.

    As I noted at the outset of this latest round of discussions, for the most part the textualist and the originalist will reach the same conclusions because both will privilege the most conventional readings of a statute first. However, in cases where the statute is vague, the intentionalist will try to suss out what exactly the legislators meant; whereas the textualist has given himself permission to pretend that the law isn’t language — that it doesn’t really mean so much as merely instruct a code how to function — and in so doing he is forced to tweak the compiler based on what he thinks is meant by the ambiguity rather than attempting to reconstruct what the legislature intended when they were “crafting” the language stuff that carries consequences but isn’t language and doesn’t mean.

    Both are treating the law as language. Only one pretends not to.

  90. Strawmen are getting seriously fucked up in that other thread. They just never stood a chance, did they?

  91. It… was a massacre. And some rape was involved.

  92. I thought it is being used as a means to perfect their techniques in argument by sneer bh. That Leviticus dude is getting pretty good at it, what with all the practice.

  93. I wonder if Leviticus realizes how he comes off to others? When I come across someone who can’t accurately recapitulate another’s position without bias, I sorta chuckle at them and move on.

  94. Along the lines of other things being language, rather than tools, I’ve occasionally argued that accounting is a form of language, in that the classification of financial transactions into accounts which later form the basis for financial statement presentation reflects a communication of a company’s financial operations, and the author’s intent to convey a certain financial picture can be discerned from those classifications. Accounting is an odd language in that its conventions are continually revisited and revised by several recognized boards and groups, so that a detailed knowledge of current conventions is imperative to have any hope of legitimate communication between company and statement user.

    Companies can misuse convention accidentally or purposefully, and whether it intended to communicate a false financial picture or not (to use convention to lie) can be the determining factor for jail sentences for management. Unfortunately, the users of financial statements often privilege their intent upon their reading of the statements, claiming that a company intended to deceive when future results don’t correspond with the prior financial picture even though proper conventions were followed and intent to present fairly can be clearly established.

    There is generally no penalty for these users to privilege their intent, which is why most companies are immediately sued any time they announce earnings that vary substantially from forecasts or prior results. Unfortunately, the constant revision of conventions in the accounting language only serves to make it more difficult for the average user (who is an amateur in the language) to determine the authors’ intent (who are experts in the language), and therefore miscommunication is more likely to occur.

    And this is true even though every standard audit opinion couches its intent to “present fairly, in all material respects,” the financial position of the company.

  95. Strawmen are getting seriously fucked up in that other thread. They just never stood a chance, did they?

    I couldn’t answer two threads at once. What did I miss? Anyone holding down the fort, or is it now just a “Goldstein is a silly ninny whose theories are ridiculous” kinda thing?

    Re: Leviticus. I only saw the one early response: he had some idea of multiple signifiers or some such, but frankly he wasn’t making much sense. I tried to answer.

    Oh well. Seems to me that Frey’s readership has been led back to “intentionalism is reading people’s minds” kinda stuff. And I don’t have the patience to keep correcting that over and over again.

  96. “And who writes this code? Based on what? In order to do what? With what presuppositions in mind?”

    All questions that are inconsequential.

    “Who reads it? How? Based on what? With what presuppositions in mind? If it isn’t language, how does the “compiler” know to “read” it in the first place?”

    How do ribosomes know to read RNA? That’s probably the better example than programming language, which does, afterall, need someone to write it. DNA exists without intention, a complete accident of chemistry and environmental pressures. At no point does anything involved in reading, replicating, altering, or executing it have even the capacity for intent. Still, to an extent we can read it and understand what it’s doing. If we want, we can even intend to change it and have it do something else. But, intent is not necessary for DNA to function as a means for storing, conveying, and even creating information.

    Anyway, for your other questions, reading and understanding the law should be based on conventions at the time the law was written. Just because those conventions may be difficult to recover does not mean textualism fails.

    “Or if you prefer, it is a “code” filtered through a compiler and read into the record by a trained monkey.”

    You say that like it’s a bad thing. Come on, you can’t tell me that the picture of Justice Kennedy as a chimp in a black robe doesn’t bring a smile to your face.

    “But just because that’s how you want it to act — and how you think it should best act — does not mean that’s how it works.”

    I was unaware that this was a positive discussion of the law. If so, I mistook it for normative.

    “what he thinks is meant by the ambiguity rather than attempting to reconstruct what the legislature intended”

    Which should discourage ambiguity, as the more ambiguous a statement is, the less likely legislators will have the results of the law match their intent, as their intent cannot be considered. Textualism isn’t just about getting judges to read laws a certain way, it’s also about getting the legislature to write laws a certain way.

    “However, in cases where the statute is vague, the intentionalist will try to suss out what exactly the legislators meant”

    Or perhaps the intentionalist simply sides with those legislators who more closely match his own biases. So, one pretends law isn’t language, and the other pretends its giving the intention of the legislators a fair shake. You can have your fantasy, I prefer mine.

  97. It’d take more time than it’s worth to relate to you… or for you to read. I think you’re pretty well served just replying to Frey’s posts with your own posts when you feel like it. With the comments there’s just too much silliness from too many people. “Shovels” is my new term for that.

    Oh well.

    Yep.

  98. “And who writes this code? Based on what? In order to do what? With what presuppositions in mind?”

    All questions that are inconsequential.

    See? Shovels.

  99. On the plus side, David Obey is still retired and a bartender poured me a scotch the size of my head at what should have been a boring dinner meeting.

  100. “See? Shovels.”

    Been hit too many times over the head with them?

    If you’ve been paying attention, my entire argument is that, when it comes to the law, who wrote it to do what with what understandings and for what reasons really is inconsequential to the job of judging. All that the judge gets to deal with is the text and the conventions at the time it was written. It is the heart of where Jeff and I disagree. Why would i suddenly change position and say that such questions are worth answering?

  101. You pushed away from the adult table with your petulant and sarcastic tone at #54, JS. You must have me confused with someone who can’t discern tone.

  102. JSchuler, if we might leave aside the linguistic argument for a moment, could I ask, from a political point of view (or aim) where it is you want to go? Is there a vision (more or less) that has set out what you believe to be a best political order, and if so, what would that be?

    I linked awhile back, a lecture on Hayek (video) by John Tomasi (print) , in which he elucidates Hayek’s notion of spontaneous order (cosmos) vs. made order (taxos). In light of your reference to ribosomes tracking RNA, how do these concepts (cosmos and taxos) sit with you, vis a vis our political orderings?

  103. How do ribosomes know to read RNA? That’s probably the better example than programming language, which does, afterall, need someone to write it. DNA exists without intention, a complete accident of chemistry and environmental pressures.

    I wasn’t aware law was a complete accident of chemistry and environmental pressures. I thought it more of a set of rules and contracts that constrain a social compact — and that those laws are decided upon and crafted by sentient beings with a purpose.

    But that’s my hangup, I guess.

    Or perhaps the intentionalist simply sides with those legislators who more closely match his own biases. So, one pretends law isn’t language, and the other pretends its giving the intention of the legislators a fair shake. You can have your fantasy, I prefer mine.

    So misusing intent negates its existence as the anchor for meaning. Leaving all anchors for meaning equal.

    You’re right. Nothing progressive in that.

  104. “Both are treating the law as language. Only one pretends not to.”

    You better keep your muzzle off the ontological curtains of the legal profession Toto. You keep pulling at ‘em like this and you might provoke and epistemic crisis. The wizard won’t like it.

    Or maybe you better leave the epistemic curtains of the legal profession alone, lest you provoke an ontological crisis.

    Either way, the wizard won’t like it.

  105. I wonder why people read The Federalist Papers in relation to the Constitution?

    No, actually I don’t wonder that. I wonder why other people don’t wonder that.

  106. I’m a tenacious little mutt, Ernst. What can I say?

    Oh. Incidentally, just saw Leviticus’ responses. All’s I can say is, I tried responding throughout patiently and in good faith.

    So having worked hard to belittle me for no reason, that little cunt can fuck himself, I think. With a big wooden lawgivers scroll.

  107. No, actually I don’t wonder that. I wonder why other people don’t wonder that.

    There’s no place like home…there’s no place like home…there’s no place like home.

  108. Is Leviticus still the house lefty over there? He’s a smart kid (and he is a kid) but he’s completely unafraid to get in way over his head and pretend that he can swim.

  109. sdferr:

    I’m very big on cosmos for society. I believe that human action does not have a stable equilibrium point. It’s much like the Mississippi, where the course of the river changes constantly, and attempts to hold steady one section results in much greater variations in other sections (there’s a term for this that eludes me at the moment). Taxos will not persist in a society that allows human action. A system that is designed to provide for the needs of a people at a particular point in time will affect that people, changing them so that the made order is no longer in balance with the population. So, like Hayek, I reject the idea of social justice (at least as pursued through government), as it requires the strict suppression of human action. Worse still, social justice requires the suppression of ALL human action, not just those in a single country, as areas of cosmos will move to compensate for the loss of freedom in the areas of taxos (think of things like brain drain and competitive advantage, for starters).

    bh:

    “You pushed away from the adult table with your petulant and sarcastic tone at #54, JS.”

    But it was the petulant and sarcastic tone which got the response, while the repeated respectful attempts to get the point addressed went ignored. That’s ok, though. I like sitting with you. Chairs are a bit small over here, though, aren’t they?

  110. Worse still, social justice requires

    no equal justice no peace

  111. I live every day inside of Patterico’s hypothetical.

    My wife has MS which has affected the fine motor control on her right side. This causes her speech to be… ah, different at times. Add to that the fact that because I have spent 40 years of working in a very loud environment so my hearing is bad.

    Our conversations can consist of a lot of back and forth to make her meaning clear to me. She always means what she says, she has a clear intent. The physical apparatus which converts that intent to express a thought, into speech and the apparatus which then reconverts the speech into a thought in my mind are both flawed.

    Those flaws do at times prevent me from ever knowing what she means but that she intended to express precisely something is indisputable.

  112. I believe the progressive approach would be to assume she’s mostly saying she wants you to watch sports and drink beer every night, Geoff.

  113. “I wasn’t aware law was a complete accident of chemistry and environmental pressures.”

    Jeff, your logic is now circular and you are arguing in bad faith. You pose a challenge to find a language that does not have intent. I highlight a language that does not have intent, and you reject it as an example because it has no intent.

  114. Actions would then speak louder and clearer than any words bh.

  115. Are molecules symbols for themselves? Where’s the level of abstraction that characterizes language?

  116. Heh, there’s the catch, Geoff.

  117. Forget I asked that at #115. The odds of constructive discourse are probably vanishingly small.

  118. “You pose a challenge to find a language that does not have intent.”

    Huh? I hadn’t quite got this idea myself, though maybe I missed it somewhere. Rather, I though you JS, had suggested that law was not writ in language, whereas Jeff countered, no, of course it’s written in language. We are speaking of human law making and interpreting, after all, not chemical assemblies done through algorithmic processes. Is language a problem as such, as a sort of combined cosmos-order and taxos-order? Or are we back to the priesthood problem, which seems a power struggle more or less?

    Oh, and hypotheticals still blow, most especially underdetermined hypos of the sort that got this going.

  119. Information transfer is not language. I don’t talk to my calculator.

    Well, unless it really fucking pisses me off.

  120. body language is often unintentional

  121. I highlight a language that does not have intent, and you reject it as an example because it has no intent.

    If you’d like I can find several billion people to disagree with your premise.

  122. That’s what I’d expect a limey to say.

  123. quite

  124. sdferr: See comment #29.

  125. You’re pointing to “If it did not, how do you know that the text before you is language?” ?

  126. “Information transfer is not language.”

    If you say so. The point is, information can be conveyed without intent, either from the transmitter or the receiver. That means that human beings can design a system where the intent of the transmitter or the receiver does not matter, which it seems to me is what Pat is talking about in a normative sense.

  127. Yes, sdferr, but let’s summarize accurately:

    “If [intent does not exist], how do you know that the text before you is language?”

    In other words, language requires intent.

  128. And if so, how isn’t that a reiteration of the question, “why don’t you treat the text as though it’s puffy clouds passing by, with no more linguistic weight than a jumble of sticks fallen from a tree in a storm (neither of which would you treat as language, no matter what order you might be able to wring from their existence)?”, as opposed to a demand for a language without intent?

  129. DNA exists without intention, a complete accident of chemistry and environmental pressures

    BWHAHAHAHAHAHAHAH!

  130. BWHAHAHAHAHAHAHAH!

    If you say that out loud, it doesn’t at all sound like what it means.

    Try it.

  131. you won’t be able to determine what the writer wanted it to do if he mis-signaled his intent at the outset.

    Of COURSE he’ll be able to determine it. Programmers are well-known for their meticulous comment lines that specify exactly the purpose of each module and subroutine. Furthermore, project documentation lists and defines every variable, every input, every output, and every routine that each module calls.

    This is so that if the programmer is hit by a bread truck, another programmer can step into the project and pick up exactly where he left off, without skipping a beat.

    For this reason, programmers spend months and months on the front-end of the project, planning everything down to the last byte, so that they don’t waste their time tearing out ill-planned code that doesn’t conform to user specs.

    And then unicorns and faeries dance around the break room, skittles fall from the sky, and supermodels mob the programmers.

  132. I’d like to see a compiler handle a code that was written completely ironically.

    The thing would probably carry out the function the code appeared to demand, only to have all of us sneer knowingly at how unsophisticated the compiler is.

    Jeff wins the thread.

  133. It doesn’t much matter in terms of outcome, sdferr. I would have gotten to DNA either way, which still makes it in bad faith to ask the question but not want an answer. I know it’s “language” because it transmits information. “Language” is in quotes because I honestly don’t care what anyone wants to call it, which is why I agreed to say it wasn’t language in the first place.

  134. And then unicorns and faeries dance around the break room, skittles fall from the sky, and supermodels mob the programmers.

    Damn your dry wit, I can’t tell if you’re being facetious or not.

  135. maybe pheremones make a more better example

  136. “Of COURSE he’ll be able to determine it.”

    I don’t think decompiled code includes comments. In fact, I’m pretty sure comments do not survive the compilation process. Plus, we were talking about just looking at the code itself, so looking at outside documentation would be cheating.

  137. As a college freshman, I took a course in Fortran 77.

    On punch-cards.

    And I had the delightful experience of dropping them all in the rain.

    Stupid experience; great story.

  138. compilers probably like tacos. there’s intent in there i think

  139. Damn your dry wit, I can’t tell if you’re being facetious or not.

    I’ll have to tell you about the time I had to write a technical white paper for a new product. It took four hours of “demo” by the project managers (both programmers) before I got what they were on about.

    Then it took me five minutes to explain the product to my tech writer co-workers.

    This is why I, a tech writer, have a job.

  140. I took a course in Fortran 77

    talking heads ’77

  141. Sometimes a half empty coffee cup means you want more coffee, and sometimes it just means you have enjoyed whoa bout half a cup of coffee. This bothered grandmother. It was imprecise, and too often led to pourings of unwanted coffee into cups what had been made just right, or worse, it was a waste. Grandmother could not abide waste. So she would put a folded napkin or a coaster on her cup after taking a sip, then take take it off to enjoy another sip, then return the napkin the top of the cup. I heard her explain this system to waitstaff peoples a hundred times. She lived to be 93, and sadly that was too little time for her system to become widely accepted.

  142. *to* the top of the cup I mean

  143. Sometimes a half empty coffee cup means you want more coffee

    old people are like that. me i like tea its patriotic. axs hil ms. clinton’s intent

  144. who wrote it to do what with what understandings and for what reasons really is inconsequential to the job of judging. All that the judge gets to deal with is the text and the conventions at the time it was written.

    That’s not TOO far from Jeff’s argument. Law tends to be a kind of pact, and the terms of the pact are what they were intended to be at the time the pact was made.

    Here’s an oft-used (by me) example of what Jeff is fighting against:

    I hire you to perform a task for $50,000.00. We put it in writing and sign it. You perform the task. Then you come to me for payment.

    I say, “Well, in Europe, that comma is a decimal point, so that’s $50, and the $ can refer to Colombian pesos, so here’s fifty Colombian pesos.”

    Which aren’t worth the paper they’re printed on.

    Activist judges do similar things by getting cute with the language in the way that the imaginary me did in the above example. They’re being arbitrary with what the signs mean.

    Roe v. Wade is justified by “the right to privacy,” which exists not in the text of the Constitution but in “emanations” and “penumbras.” Because the Constitution doesn’t address medical decisions by private citizens, SCOTUS should have just demurred, saying that the Constitution is silent on the issue and turn it back to the states.

    Also, we can also compare code to the paper roll that a player piano uses (which is, after all, a precursor to computer programming). Where there’s a hole punched in the roll, the piano plays a note.

    The paper roll is simpler than computer code, in that it has a mechanical relationship to the piano rather than an electronic one.

  145. The paper roll is simpler than computer code

    same as ibm punch cards in fortran 77. just switches open/closed

  146. I gotta tell you all, it’s been highly frustrating for me to read this all while at work and not be able to answer. I couple of times I caught myself talking to the monitor.

    I tried to distill some of my reactions down and just posted this at Pat’s place:
    *****************************

    Inherent in my question is the assumption that a judge can only enforce the law as he interprets it. So if he says: yes, I understand the legislature meant x, but I am going to interpret it as y — that’s where he gets his authority to enforce it as if it says y. The question is whether such a legal interpretation could be considered legitimate

    Again you are confusing how language works with how legal convention works in the legal realm. That the judge would have to cite an authority at odds with the intent behind the law is a legal convention that would not exist in any other realm.

    For instance, do you remember the scene in “It’s a Wonderful Life” where the young George Bailey realizes the pharmacist has made an error and risks getting beat up to point it out to him? Regardless of the pharmacists authority, Bailey knows he is in error and isn’t intending to poison the recepient. There are any number of scenarios where following something one knows is in error (and at odds with what was intended) makes the person culpable in any harm that is a consequence of that error.

    If a doctor makes an error in recommended care and the RN knows the error wasn’t the intent of the doctor – DO YOU EXPECT THE RN TO FOLLOW THE ERROR?

    The legal convention of attempting to make law as concise as possible, including a “no tolerance” for error does, indeed, seem to preclude looking at intent in many instances. It is a tough standard and I understand it is to try and mitigate instances of mischief from legislators or judges with agendas. However, language (unlike law) allows for things like irony, sarcasm, parable, metaphor, analogy, parody…all manners of speech that demand of the receiver to know the intent of the speaker when interpreting the language AND privileging the speaker’s intent. The receiver can reject or argue against the speaker, but s/he cannot rewrite the intent and then start arguing against THAT.

    Without the speaker’s intent there is no meaning except what the receiver makes up. It’s language as a tortilla with random scorch marks that the receiver observes and shouts “It’s the face of JESUS!”

    Now, I understand that’s how the “living Constitution” folks view it, but it’s not how language works.

  147. And then unicorns and faeries dance around the break room, skittles fall from the sky, and supermodels mob the programmers.

    lordy, di, you had me going (yes I took programming, too) which made your punchline all the sweeter.

    (just tried it out on my even geekier husband and he almost fell off his chair)

  148. Well Mr Schuler, you’ve lost me. That is, I don’t follow your aim. There’s too much that’s inconsequential” or “it doesn’t much matter…etc.” going on for me to be able to make any sense of the point of the whole thing.

    I mean, I have a naive notion that judging is fundamentally about achieving justice, and that law writing is fundamentally about setting social conditions for the achievement of justice, so, given my naive stance about politics and political doings, I’m going to keep on thinking that it matters a great deal what’s what. That it matters a great deal that judges not be issued license to arbitrary decision making, untethered to intent in either law or constitution. Nor license to re-write law as they see fit. Nor lawmakers to write law that’s incoherent and self-contradictory, nor unjust or unconstitutional. And so on.

    Now, I don’t think that you’ve intended to end up anywhere else than I’d intend to end up with respect to our political organizations, but I can’t put the two positions together satisfactorily at this point. So, as I say, you’ve lost me.

  149. DNA exists without intention, a complete accident of chemistry and environmental pressures. At no point does anything involved in reading, replicating, altering, or executing it have even the capacity for intent.

    There are an awful lot of assertions there that belong to the metaphysical realm rather than the linguistic. “A complete accident of chemistry and environmental pressures”? You don’t know how this rodeo started and neither do I. So your argument is invalid.

    Also, I’d call DNA more of a template than a language. It’s purely mechanical, as far as we know.

    But given that critters have been discovered to adapt much faster than we thought possible (not what you’d expect from random mutations and random natural selection), and now that we’ve discovered “meta-DNA” (identical twins: one is autistic and the other not. How?), no one can say for sure that there isn’t an “intending” agent inside the cell.

    It’s just not our own cerebrum or anyone else’s.

  150. Let’s back off a bit.

    There is the text — or the automobile, or the building, or the ice cream sundae — right before you. It exists because it was made. Intent therefore existed, somebod[y|ies] intended to produce that text, that car, that dessert. To argue that a legislature had no intent because the intent is diffuse or even indeterminate is to miss the point. Without intent, nothing gets made — no texts are produced unless the producers intend to produce a text, no cars are produced unless the producers intend to produce a car, and so on. That’s why Jeff says “intent just is.” The product exists; it is before you; therefore somebody had the intent to produce it.

    The whole line of argument regarding errors ($100K or $10K?) is a Clupea pallasii rosaceae of finest hue. Frey brings it up because it’s his job and normal practice to use whatever smoke, mirrors, and lures it takes to get a conviction. The Lege (as we call it here in Texas) intended to make a law (see previous paragraph). They screwed up the wording — but that does not in any way change the fact that they intended legislation in the first place. (This is especially true of the Texas Legislature, and is a major reason why we only give them 140 days every two years to commit screwups. It keeps the total number of screwups down.)

    All language is convention. There are a near-infinite, certainly very large, number of possible marks, including the transient marks (“phonemes”) of spoken language. There are a very large number of concepts. A language is a mapping, one of many possible, between marks and concepts. When a mark is conventionally assigned to a concept, linguistics calls it a sign and the concept pointed to is the signified. At this point in the analysis the subtle distinction between “sign” and “signifier” can be glossed over. By convention, the mark “cat” is a sign which signifies a mammal of the family felidae — in English; in Spanish, the marks assigned by convention to that mapping are “gato”. At the most basic level, given intent to produce a text — a message, a law, a speech, this post — the producer selects the marks which, by convention, signify the concepts which are to be communicated; that is, the language. And, at that level (once again) the very existence of the text requires intent to produce it.

    Now, it is perfectly possible to produce random text, text that signifies nothing, whether or not it is filled with sound and fury. If we discover by inspection that the text is not random, that it contains signifiers pointing to concepts according to the convention(s), that text is using language. If the text employs language, it must be that the producer of the text intended to communicate concepts — one can certainly imagine cases where that isn’t so, but that’s definitely the way to bet. By convention, in linguistics, the word “text” is taken to mean the only-somewhat-limited subset of all possible text-like things which do in fact employ language, and therefore in linguistics the existence of the text demonstrates the intent of its producer not only to produce a string of marks but to communicate concepts to the receiver/reader/interpreter of the text.

    Legalese is language — that is, it is marks which conventionally map to concepts; “words” that “mean”. Specifically, legalese is a restricted subset of the general language; English legalese restricts the mapping of marks to concepts to a much smaller set of mappings than the language as a whole employs. But any language is a mapping of marks to concepts; legalese just maps fewer and more restricted concepts to any particular mark (“probable cause”) than English as a whole does. A law written in English legalese is still a text in the linguistic sense, and its existence demonstrates the intent of its producer(s) to communicate concepts. If it is interpreted without regard to the intent of its producer, it communicates nothing; the “interpreter” in that case is choosing a different mapping of marks-to-concepts than the producer, and because a different mapping is a different language — perhaps only subtly different, but different — the result is a new text not related to the original. The fact that the marks are the same changes nothing.

    Conventions change with time. When we require looking to the intent of a text, it is shorthand for sussing out the mapping of marks to concepts used by the originator. An inescapable part of that is trying to determine what convention, what language was used at the time the text was produced — what mapping from marks to concepts was used by the producer.

    Textualism is either a trite synonym for intentionalism or a cynical attempt to end-around it. If the textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name. If the textualist, in claiming to go by the “plain meaning” of the text, is substituting current mappings of marks to concepts for the original, he or she is making a new text using the old marks. This is what Jeff and I object to.

    Errors — choosing the wrong mark(s) to map to the desired concept(s) — make interpretation more difficult, but don’t change the linguistic analysis in any way. Concentrating on what happens when errors occur is dragging irrelevance into the discussion, and cynics like myself tend to assume that the purpose of such tactics is to derail the discussion.

    Regards,
    Ric

  151. In fact, I’d call machine code a template, too, just a more complex one.

    IF x THEN y.

    C++ and such is a language that bridges human linguistic needs with a machine’s need for a template.

    Laws and statutes exist to say that “if you do x, then you will suffer penalty y,” but rarely is it that simple. There’s MOTIVE, which differentiates between first- and second-degree murder, manslaughter, reckless indifference, etc.

    MOTIVE:ACT::INTENT:LANGUAGE

    In law, you judge the act by its motive, insofar as you can determine it.

    And if you’re God, you look at the heart of the person who killed another, and you know exactly whether the person is a murderer, a careless person, or someone who accidentally ran over his own kid in the driveway.

  152. in music recastings of the same text are nifty

  153. I highlight a language that does not have intent, and you reject it as an example because it has no intent.

    No. I reject it because it is an analogy to human language, and a bad one, given that we can’t speak to its being a language at all except in our determination to analogize it as such for the purposes of this discussion.

    In your attempt to find a language that does not have intent, you’ve begun reaching for metaphors.

  154. “…and just posted this at Pat’s place:”

    It seems to be a bit slow on the uptake over there Darleen, as it still hasn’t shown up yet so far as I can tell, unless that is, you posted in another thread than the one linked at the top of Jeff’s post?

  155. Textualism is either a trite synonym for intentionalism or a cynical attempt to end-around it. If the textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name. If the textualist, in claiming to go by the “plain meaning” of the text, is substituting current mappings of marks to concepts for the original, he or she is making a new text using the old marks. This is what Jeff and I object to.

    Errors — choosing the wrong mark(s) to map to the desired concept(s) — make interpretation more difficult, but don’t change the linguistic analysis in any way. Concentrating on what happens when errors occur is dragging irrelevance into the discussion, and cynics like myself tend to assume that the purpose of such tactics is to derail the discussion.

    That’s pretty much it, yes.

  156. Now, it is perfectly possible to produce random text, text that signifies nothing, whether or not it is filled with sound and fury.

    Well, yes. There’s all those post-modern journals with analyses that don’t signify the way regular language does: that is, the lexicon, syntax, and organization mean nothing. The essay’s existence means that the writer hopes to be accepted by his peers as a right-thinking, interesting, deep person.

    And to get tenure.

    For that reason, there are at least two random generators on the Internet today that call the emperor “buck-nekkid.”

    http://www.elsewhere.org/pomo/
    http://www.gingko.ch/cdrom/jwrandom/postmodernism/text2.html

  157. sdferr

    That’s weird. It’s showing up on my browser as #82 posted at 7:51, yes in the linked above thread…

  158. The last comment I can see is Pat’s #81 at 6:30pst. and I just reloaded it now from Jeff’s link.

  159. Not Language

    Bird tracks on the beach
    Scratches on your CDs
    Cloud formations
    Thunder

    Language

    Spoken words
    Sign language
    The one-fingered salute
    Light passing through Venetian blinds and falling on an actor’s face in film noir
    Morse code
    Facial expressions and body postures (often unconscious but result from human thought)

  160. Not really what I was talking about, Dicentra. Those are attempts to create a new language or language subset — that is, a new mapping of marks to concepts. Going the other way, there is neologism, the creating of a new mark to map to a concept the originator wants to introduce, or possibly to split off from a more complex concept-set.

    There are probably several people who could write a computer program to produce random “text” — something that obeyed the conventions and statistics of a real language, but did not employ any mappings. (I could have at one time, but I got old.) I used to think “lorem ipsum” was such, but lookit. That Cicero, such a joker.

    Regards,
    Ric

  161. No, dicentra, the items you have listed under “language” are marks. The mappings from particular marks to particular concepts are language.

    Regards,
    Ric

  162. I used that Lorem ipsum generator just last week at work.

    TO MAKE A TEMPLATE!

    FULL CIRCLE!

    Also, I have two posts after yours so I’m not sure which one you reference.

  163. Also, @156, I was being sardonic.

    Your phrase, “it is perfectly possible to produce random text, text that signifies nothing, whether or not it is filled with sound and fury” reminded me of grad school, and I couldn’t resist.

  164. No, dicentra, the items you have listed under “language” are marks

    I disagree. I listed examples of languages to contrast with examples of non-linguistic marks. The first group contains marks that are not created by any intent to signify; the second group very much does.

    Unless YOU were being sardonic and referring to the list itself as mere marks.

  165. sdferr

    htom just posted #83 at 8:23 … can you see that?

  166. yep, your’s is up at 11:34 by my most recent reload.

  167. That’s 11:34est

  168. #

    Spoken words
    Sign language
    The one-fingered salute
    Light passing through Venetian blinds and falling on an actor’s face in film noir
    Morse code
    Facial expressions and body postures (often unconscious but result from human thought)

    Those are all examples of marks. The fact that they are (mostly) transient doesn’t change that. If you erased this post, it still would have existed at one time — written marks are just as transient as spoken ones, they just take longer to evaporate.

    What makes them language is the mapping from mark to concept; a mark which is thus mapped is a sign which signifies. Passing arguments by passing pointers.

    Regards,
    Ric

  169. “Well Mr Schuler, you’ve lost me. That is, I don’t follow your aim. There’s too much “that’s inconsequential” or “it doesn’t much matter…etc.” going on for me to be able to make any sense of the point of the whole thing.”

    Because a lot of this doesn’t matter. But, if you want, here’s the outline of my argument.

    -Individuals have intent.
    -The intent of individuals cannot be summed to create a whole, as the individual intents behind a collective action often conflict.
    -The legislature is a collective body, and a particularly fractious one at that, and so cannot be said to possess intent. Only its members have intent.
    -Laws, while emerging from the intent of individuals, do not have anything that you can pin your hat on and say “This is the intent of the law”
    -Fortunately, intent doesn’t matter, as information can be conveyed without intent.
    -Without that intent, judges should interpret the law according to convention at the time the law was written.
    -If judges pretend there is intent, they open the door to multiple possible interpretations of what that intent is, which may be adopted arbitrarily, plus the ability to arbitrarily decide to enforce the letter of the law, or the spirit of the law.
    Now, you may not agree with this, and you may find the whole argument hard to follow, because there were a lot of threads I was pulled down that really had nothing to do with my core argument (e.g. does language need intent, is the law language, etc). But, let’s move on to your next statement:

    “I mean, I have a naive notion that judging is fundamentally about achieving justice, and that law writing is fundamentally about setting social conditions for the achievement of justice, so, given my naive stance about politics and political doings, I’m going to keep on thinking that it matters a great deal what’s what. That it matters a great deal that judges not be issued license to arbitrary decision making, untethered to intent in either law or constitution. Nor license to re-write law as they see fit. Nor lawmakers to write law that’s incoherent and self-contradictory, nor unjust or unconstitutional. And so on.”

    Ok, this whole thing boils down to the choice between intentionalism and textualism, and I will say that neither are a perfect match for the above. However, textualism says there is only one method to determining how the law should be applied. Intentionalism says there are two ways, one of which is by determining the intentions of the lawmakers, and the second of which is the textualist approach (as they are permitted to say “even though you meant X, the law is written poorly and says Y, which is what I find I must be bound with”). Which is more arbitrary?

    And while I want society to be governed by cosmos, government must be taxos. It must be defined by procedure.

    “There are an awful lot of assertions there that belong to the metaphysical realm rather than the linguistic. “A complete accident of chemistry and environmental pressures”? You don’t know how this rodeo started and neither do I. So your argument is invalid.”

    I don’t know that the world didn’t start yesterday at 3:47 AM GMT, and all my memories and experiences of time before that is an artificial construct. But, since all evidence points to the world actually starting several billion years ago, I’ll accept that as truth for the purpose of argumentation, simply because i don’t want to start out every debate with a hundred years of metaphysical naval gazing.

  170. dicentra, to your #164:

    Spoken words are just grunts, clicks, and hisses unless a mapping exists between that particular sound and some concept.

    Suppose you see on the door: PUXE. The person who is with you pronounces it: POOSH-e (the “e” is a schwar). What do you do?

    Sign language is just handwaving unless, again, there is a mapping. AMESLAN maps a different set of gestures to concept than the British version, for instance. Thumbs got accents!

    The one-fingered salute is “language” in only a limited set of cultures; your friend who can pronounce “puxe” correctly would have to learn it — it doesn’t occur in his/her language.

    Light passing through Venetian blinds and falling on an actor’s face in film noir — again, strictly a convention unique to Western culture, and to the subset who know what “film noir” is all about, to boot.

    Morse code — tell it to a Russian. A set of (transient) marks, associated with “letters” by convention.

    Facial expressions and body postures (often unconscious but result from human thought) — probably closer to having a universal (across human beings) set of mappings, but still marks.

    What makes a mark a “sign” is mapping it to a concept, and that mapping is language.

    Regards,
    Ric

  171. (btw the word “puxe” is Portuguese. It means “pull”.)

    Regards,
    Ric

  172. Mr. Schuler again misses the point, but the Burger King is closing and I can’t post from home.

    G’night, all.

    Regards,
    Ric

  173. God bless you and Burger King bof… their chicken sammich, I cannot hab it just now. That’s cause it is very tasty.

  174. as information can be conveyed without intent

    Nope.

    Fatal error. All else following, therefore, is flawed.

  175. judges not be issued license to arbitrary decision making, untethered to intent in either law or constitution. Nor license to re-write law as they see fit.

    Then you don’t allow judges to privilege their own meaning of a law by reading the text as they see fit even when they know the intention.

    as I just wrote on Pat’s thread:

    Law is still written by people. That means it was intended. Now in legal convention IF you want to punish the intenders when they don’t signal their intent correctly, or when the clerk typing up the bill makes a techical error – fine. I understand both the convention and why it is necessary in the narrow realm that law resides in. But law has no meaning that someone didn’t put there – either the creator or the receiver. If the law was written precisely then the “plain meaning” clearly reflects the creators’ intent. If it contains errors, technical or negligent, and “plain meaning” means the receiver interprets the law different than what the creator intended the receiver can ignore the intent or rewrite the meaning according to the receiver’s own intent.

    There is no meaning berift of intent. If a particular law means “X” that meaning was PUT THERE either by the creator of the law or the receiver of the law. “X” cannot stand alone.

    [Pat writes: My view is that the judge is authorized only to enforce what he believes the law means.] If he “believes” something at odds with intent, then he is rewriting the law – activism. If he acknowledges the intent but believes the law doesn’t rise to the convention of being precise enough (technical error or errors of negligence or malice) he can reject the law – and he can cite as his authority that said error DOES INDEED fail to apprise citizens what is required of them, which doesn’t substitute HIS meaning for the legislatures. He can, in essense, penalize the law makers for their failure to clearly, precisely and in plain language, signal their intent

  176. “The intent of individuals cannot be summed to create a whole[.] The legislature is a collective body … and so cannot be said to possess intent.”

    “WE, therefore the Representatives of the UNITED STATES OF AMERICA, in General Congress, Assembled, appealing to the Supreme Judge of the World for the Rectitude of our Intentions, do in the Name, and by the Authority of the good People of these Colonies, solemnly Publish and Declare, That these United Colonies are, and of Right ought to be, FREE AND INDEPENDENT STATES …. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

    “What was it all about Tom?”
    “Fuck if I know Ben.”

  177. What I’ve learned today is that law isn’t language, RNA “speaking” to ribosomes is, language can function without intent, convention is a compiler (with a fixed set of interpretive commands that, when fed the non-linguistic code of law, spits out the correct “interpretation”, even though convention can hold competing usages at once, and even though interpretation presupposes an intended message), and one cannot conceive of the intent of a group that votes to ratify what something means, and with that vote animates law (probably because they aren’t voting on language, and so aren’t concerned with what they crafted “meaning” anything at all).

    All in all, I must say I’m not convinced. But it has been eye opening.

  178. Jeff,

    Here is my question: If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?

    How can any interpreter know if his interpretation is true to the intent of the author?

  179. But it has been eye opening

    I’m more than convinced there are an awful lot of people like Pat who think they are too special to be constrained by intentionalism.

    Funny how lawyers and Leftists overlap in this regard

  180. I ain’t laughin’. Must be my funny bone is broke.

  181. “How can any interpreter know if his interpretation is true to the intent of the author?”

    You could ask him if that’s what he means.

  182. JSchuler writes:
    -Laws, while emerging from the intent of individuals, do not have anything that you can pin your hat on and say “This is the intent of the law”
    -Fortunately, intent doesn’t matter, as information can be conveyed without intent.
    -Without that intent, judges should interpret the law according to convention at the time the law was written.
    -If judges pretend there is intent, they open the door to multiple possible interpretations of what that intent is, which may be adopted arbitrarily, plus the ability to arbitrarily decide to enforce the letter of the law, or the spirit of the law.

    I don’t know how to answer that other than to say, as I said before, that the legal profession has a hard time distinguishing between intent (linguistically speaking) and volition.

  183. “You could ask him if that’s what he means.”

    Then the the author would have to interpret the interpreter’s interpretation of the author. How would the author now that his interpretation of the interpreter’s interpretation is true to the interpreter’s intent. You still have the same problem.

  184. Which is probably why there are such things as amicus curiae.

  185. You still have the same problem.

    No, you have the problem. If you find it that difficult to communicate, I suggest you confine yourself to an island somewhere where you won’t have to wrestle with such a problem.

  186. “Which is probably why there are such things as amicus curiae.”

    If this is in response to me, I don’t understand your point.

  187. Darleen,

    What’s with the attitude? I’m not trying to be flippant.
    I’m sincerely interested in Jeff’s reply to my question to him. If you have an answer, I’d be interested to hear it.

  188. Yeah, Darleen’s right. Consider your interaction with your dog. You’ve taught him to bark, wiggle, nuzzle you in exchange for a variety of things, whether they be food, praise, or to be let out to pee and bark at the neighbor cat. When your dog barks and wiggles at you, and you try to let him out, you’ve assumed his intention. If he stares at you, then barks again, you then try food. If he sniffs it and looks at you quizzically, you try petting him and praising him. He wiggles and shows his happiness.

    Sure, it took a while, but you’ve derived his intent. The back and forth was communication.

  189. He: “That’s not what I MEANT.”
    She: “Well that’s what you SAID.”
    He: “That’s what you chose to HEAR.”
    She: “I’m going to bed. ALONE.”
    He: “GOOD.”

  190. So, you’re saying that when a judges interprets a law, he sends the interpretation to the legislative body that created the law and asks if the interpretation is correct?

  191. what does the little president man’s dirty socialist Associated Press intend for you to take away from this:

    The government’s explosive borrowing has hit a turning point: It’s expected to drop 18 percent this year after last year’s record high.

    The brighter picture is due to higher tax revenue and less government spending as the economy has improved.

    The Obama administration still expects this year’s deficit to set another high: $1.56 trillion. Even if, as expected, that number declines a bit when the administration issues a revised estimate this summer, it isn’t likely to drop below $1.4 trillion. That would match last year’s all-time record.

    The stronger economy is boosting federal tax revenue and lowering emergency spending needed to stabilize the financial system and invigorate the recovery. As a result, the Treasury Department has trimmed its estimated borrowing needs for this budget year to $1.459 trillion. That’s down 18.3 percent from last year’s record $1.786 trillion.

  192. I believe #150 answers #178.

  193. What’s with the attitude? I’m not trying to be flippant

    Really? Your infinity-mirror statement smacked of something a smartmouthed ten-year old would come up with, not something an adult who actually followed the debate and maybe did some reading of the links in the sidebar would ever say.

  194. Fred (if I may call you Fred)

    You’re over-problematizing the ambiguity inherent in any communicative act. Most of the time, it seems to me, we can “suss it out” as Jeff, Ric et. al. say. It becomes a problem when we have to deal with people who rely on ambiguity (politicians) or who rely on specialized vocabularies designed to eliminate ambiguity on the one hand, and, on the other, to exclude from conversation the participation non-members of the guild (e.g. lawyers).

  195. If humans could mindmeld like Vulcans, we’d KNOW the other’s intent and meaning

    but we are left with language, imperfect but we keep working at it, ever expanding our vocabulary in search of all the ways to better communicate our meaning to others or better listen as to correctly interpret the meaning from others.

    Communication is a two way street, but meaning resides with the creator of the meaning, regardless of imperfection

  196. Darleen,

    I have been following the debate. If you read the P-13 thread, you will see that I was involved in the debate.

    I just checked a little earlier and seen that Jeff answered my comment from yesterday. I didn’t want to respond in that thread, assuming Jeff wouldn’t see it. So, I asked him my question in this thread.

  197. “So, you’re saying that when a judges interprets a law, he sends the interpretation to the legislative body that created the law and asks if the interpretation is correct?”

    Is that not why the court enjoys the participation of amicus curiae? Is that not why the court listens to the testimony of witnesses, refers to past precedent, and observes the circumstances when the particular law was passed? Perhaps the legislators themselves cannot be subpoenaed, but the courts should and have a tendency to avail themselves of every other resource first 1) to derive intent when intent is in question and 2) consider what is necessary in the application of justice once intent is determined. Whether they privilege their own intent upon meaning is an entirely different consideration.

  198. Maybe try answering your own question Fred, though do it with your best effort to capture what you have made out of Jeff’s intentions with regard to the argument he has been making. If you can do that, you just may have offered yourself an answer. If you can’t, and can recognize that you can’t (and how would that happen?) would that tell you something else?

  199. Did any of you actually read my question to Jeff? It had to do with Scalia and textualism. Obviously judges go through a process to interpret the law. And in the end, the judge has to conclude his interpretation is correct. My question was why shouldn’t textualists conclude their interpretation is correct?

  200. I read it. Though I’d discount the Scalia part of it, unless you want to cite Scalia’s own writings on his methods and query that. But you posed two questions didn’t you? Yes, I think you did. Did you read them?

  201. Why do you keep bringing up amicus curiae? You could have multiple friend of the court briefs, with each having a different interpretation. How does that inform the judge his interpretation is correct?

  202. Blockquote fail.

    Did any of you actually read my question to Jeff?

    Yes I did.

  203. “I read it. Though I’d discount the Scalia part of it, unless you want to cite Scalia’s own writings on his methods and query that. But you posed two questions didn’t you? Yes, I think you did. Did you read them?”

    Jeff used Scalia in Tuesday’s post as an example of a textualist in interpreting law. So why should I discount him?

    Yes, I posed two questions. And, the first question, the one relevant to the topic of this thread, was the main question I was interested in Jeff’s answer. That’s why I asked that question first. I added the second question to see if the answer was different than the first question.

  204. “So why should I discount him?”

    I didn’t say you should discount Scalia. I said I would discount that question, as it seems to me best addressed to Scalia’s own account of his methods and if to Jeff at all only secondarily from my point of view. On the other hand, if you wish to continue to avoid answering your own question(s) from Jeff’s argument, whether including what you would make of Jeff’s answer to the Scalia question or not as well as what he would make of your follow-on question, that is your choice to do.

  205. geoffb,

    I didn’t realize #150 was the comment with my question, so I didn’t go to #178. My mistake. But, no, it doesn’t answer my question.

  206. Why do you keep telling me to answer my own question? I’m interested in Jeff’s answer. If he wants to tell me he’s already answered it, or that I should know his answer, or that I’m an idiot for asking the question, fine. But, I’d rather him tell me that.

  207. I thought that if you were interested in Jeff’s answer, at least to the extent that his answer would follow from the argument he has been offering lo these many years and recent days now, you might have understood his own meaning or intent in offering that argument well enough to recapitulate it before Jeff needs to speak to it himself. It’s a sort of measure of your seriousness, I think. But maybe not. As you wish.

  208. “Why do you keep bringing up amicus curiae? You could have multiple friend of the court briefs, with each having a different interpretation. How does that inform the judge his interpretation is correct?”

    Hence the distinction, “Judge”. A judge interprets intent and justice. Much like I interpreted that my dog actually needed to go out and pee rather than be scratched on the butt, and whether he is deserving of such.

    Compare this to the realm of valuations which are essential to divorces, estates, and contractual law. Valuations are espoused by “experts”. I say quotingly so, because I am credentialed as such, and I know my limitations. Some experts are credentialed, some are not. With credentials, a judge knows that one expert is following one set of rules imposed and enforced by a particular body. Without, that expert is not bound by them. But that judge may be persuaded by either expert, depending on his testimony as applicable to the case before him.

    If the non credentialed expert explains his assumptions convincingly, points out the flaws in the other expert’s assumptions, and proposes a valuation that is in line with reasonable assumptions, should this not be predominant? Or at least weigh upon the judge’s mind in making an interpretation?

    The point being, the ultimate goal is always to derive intent, consciously or otherwise. And in metering justice according to that intent, the judge appeals to witness, precedent, and experts to explain interpretation and outcome, because the judge is aware that he is not omniscient.

  209. I’m not trying to be sarcastic, I’m really not. But, are you saying when ever I ask a question of Jeff I should include what I think his answer will be? That instead of asking open ended questions, the question should be “is it true you believe this?’? Even when I’m not sure what Jeff believes, which is why I’m asking the question?

  210. wahsatchmo,

    If you would stop treating me like I’m some kind of idiot, you would realize you’re missing the point of my question. Of course an interpreter uses a method or process that can utilize one or more resources to do his interpretation.

    My question concerns what happens after the interpreter has made his interpretation. Your answer seems to be that the interpreter should assume he is correct. If so, then why shouldn’t Scalia believe he is correct using textualism if he thinks textualism will result in reaching the intent of the author?

  211. I’m not trying to be sarcastic, I’m really not. But, are you saying when ever I ask a question of Jeff I should include what I think his answer will be? That instead of asking open ended questions, the question should be “is it true you believe this?’? Even when I’m not sure what Jeff believes, which is why I’m asking the question?

    Nope, I’m sure not, at least not “when ever”. This, unless I’m mistaken, is the first time I’ve suggested such an approach to anyone, let alone to yourself. But in this instance, it does seem as though Jeff has articulated his position well enough and copiously enough that at least in theory, it ought to be possible for such a one as yourself, holding to a different theory of interpretation of law than he, to make a decent stab at his probable response, again, given the arguments he has made and taking the probable response as consonant with or flowing from those arguments.

    The particular reason I was skeptical about your Scalia question was what I read from Scalia himself with regard to intent. You asked:

    If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?

    Scalia said:

    […] The theory of originalism treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.

    Which I read as more or less “I don’t give a flip about “intent” [“you don’t care about the intent”]. So it seemed an odd question from the get-go.

  212. sdferr,

    I was basing my understanding of Scalia’s view on textualism from the Wiki link in Jeff’s P-12 post. Scalia’s quotes were more nuanced about intent–at least in my interpretation.

    But, you’re right. According to the quote you provided, Scalia directly states he is not concerned with intent. Thus, my question as written would be illogical.

    Again, the reason I asked the question was to continue my discussion with Jeff from the P-13 thread. I will have to think of a different way to respond to Jeff’s response to try and make my point.

    Thanks for engaging with me so that I could realize my error.

  213. Fred, to say the honest truth, from my point of view, Scalia is incoherent about intent, so any confusion on that score is his own fault and no-one else’s. Still, he plopped that one right out there. Here’s the link. When four paragraphs or so later, he’s talking about what the founders believed with regard to the Bill of Rights, he says:

    Every day, in every way, we get better and better. Now you know that Pollyanish attitude is not the attitude that is possessed by people who adopt a bill of rights. People who adopt a bill of rights know that societies not only evolve, they also rot. And they are worried that future generations may not have the integrity and the wisdom that they do, so they say, “Some things we are going to freeze in, and they will not change.”

    It looks a lot to me like he’s talking about their intention to try to prevent rot! But he doesn’t use the term, gotta give him that.

  214. My bold

    #178 Here is my question: If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?

    How can any interpreter know if his interpretation is true to the intent of the author?

    #150 A law written in English legalese is still a text in the linguistic sense, and its existence demonstrates the intent of its producer(s) to communicate concepts. If it is interpreted without regard to the intent of its producer, it communicates nothing; the “interpreter” in that case is choosing a different mapping of marks-to-concepts than the producer, and because a different mapping is a different language — perhaps only subtly different, but different — the result is a new text not related to the original. The fact that the marks are the same changes nothing.

    Conventions change with time. When we require looking to the intent of a text, it is shorthand for sussing out the mapping of marks to concepts used by the originator. An inescapable part of that is trying to determine what convention, what language was used at the time the text was produced — what mapping from marks to concepts was used by the producer.

    Textualism is either a trite synonym for intentionalism or a cynical attempt to end-around it. If the textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name. If the textualist, in claiming to go by the “plain meaning” of the text, is substituting current mappings of marks to concepts for the original, he or she is making a new text using the old marks. This is what Jeff and I object to.

    Errors — choosing the wrong mark(s) to map to the desired concept(s) — make interpretation more difficult, but don’t change the linguistic analysis in any way. Concentrating on what happens when errors occur is dragging irrelevance into the discussion, and cynics like myself tend to assume that the purpose of such tactics is to derail the discussion.

    Regards,
    Ric

    #155 Comment by Jeff G. on 5/5 @ 9:19 pm #

    Textualism is either a trite synonym for intentionalism or a cynical attempt to end-around it. If the textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name. If the textualist, in claiming to go by the “plain meaning” of the text, is substituting current mappings of marks to concepts for the original, he or she is making a new text using the old marks. This is what Jeff and I object to.

    Errors — choosing the wrong mark(s) to map to the desired concept(s) — make interpretation more difficult, but don’t change the linguistic analysis in any way. Concentrating on what happens when errors occur is dragging irrelevance into the discussion, and cynics like myself tend to assume that the purpose of such tactics is to derail the discussion.

    That’s pretty much it, yes.

  215. “Textualism is either a trite synonym for intentionalism or a cynical attempt to end-around it. If the textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name. If the textualist, in claiming to go by the “plain meaning” of the text, is substituting current mappings of marks to concepts for the original, he or she is making a new text using the old marks. This is what Jeff and I object to.”

    The way I understand Scalia, he agrees with OWH: Textualism is often associated with originalism, and is advocated by Supreme Court Justices such as Hugo Black and Antonin Scalia, who staked out his claim in his 1997 Tanner Lecture: “[it] is the law that governs, not the intent of the lawgiver.” Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used … We do not inquire what the legislature meant; we ask only what the statutes mean.”[2]

    http://en.wikipedia.org/wiki/Textualism

    Which means the “textualist is attempting to read the text according to the mapping used by the producer, it is simply intentionalism by another name.” But, Jeff says that Scalia isn’t engaging in intentionalism.

    Maybe I don’t understand “mapping”.

  216. …Jeff says that Scalia isn’t engaging in intentionalism.”

    Scalia claims not to be so engaged. And insofar as Scalia expresses his desire to have some solid rock or anchor to which to tether his interpretation, we’ve all some measure of sympathy for him, for after all, that’s what we want too. But the difference, as I see it, is that Scalia is uncomfortable with what I called the “fixed indeterminacy of an author’s (or multiple author’s, to make the whole business even more complex and indeterminate) intent”, whereas we, based on the analysis (phenomenological or otherwise) of language, find that the truth of the matter can be found no-where else than precisely in that “fixed indeterminacy”. In a sense, it’s some ground truth that we’re all after, Scalia, the textualists, and the rest of us nominal intentionalists. The textualists believe the hardness of the document, the unyielding ever the same-sayingness of the text is the best ground truth attainable. But analysis of speech acts leads the rest of us to doubt that, since it cannot but be that the agent of meaning creation has acted intentionally in production of his speech act, once and fixedly, if indeterminately, forever, and if that’s the truth of the thing, then I guess we’re happy to be stuck with it.

  217. “Textualists are intentionalists by the very act of accepting that the text they are interpreting is, in fact, a speech act aimed at encoding law.”

    “Or to put it more simply, the textualist has given himself permission to allow his own intent to use convention act as the guiding principle in determining meaning, when where he should be looking is toward original intent.”

    The above two quotes are from Jeff in P-12. Aren’t those contradictory, that textualists are intentionalists but textualists aren’t looking for original intent?

  218. The way I think these would be reconciled is this, with commentary in brackets: “textualists are intentionalists [who do not recognize themselves as such but would, under questioning, be forced to acknowledge that “by the very act of accepting that the text they are interpreting is, in fact, a speech act aimed at encoding law” they are after an intention, be it the original author’s or their own, insofar as they would replace the intention of the original author with their own intention] but textualists aren’t looking for original intent [as they have chosen to bypass the analysis of language production, and hence can also fail to recognize that they are re-writing the texts upon which they work]?”

    It’s clumsy, but then, I’m clumsy that way.

  219. But, that makes no sense to me. By that logic, anyone who interprets a law, no matter what method of interpretation they use, would be an intentionalist, due to the fact that they accept that they are interpreting a law. What am I missing?

  220. “anyone who interprets a law”

    Anyone who uses a language, which would cover just about everybody, is a sneaky secret intentionalist.

  221. Which is why it’s so insidious. They doos it to themselves. heh

  222. If we’re all intentionalists, then intentionalism doesn’t mean anything. My understanding was that intentionalism meant interpretation to determine the original intent. Not any intent. After all, any interpretation has intent. I thought intentionalism was concerned with orginal intent only.

  223. Well yes, sure, it’s aiming at the originary producer of intent in interpretation, and stresses that the interpreter bear foremost in mind that the agent of the production of that original intent meant to communicate something particular, though the manner may have be carried out well or in some instances may have been faulty (thanks god, fewer than morer). But if we weren’t actually intentionalists, we’d have no hope in sending our own communications out into the world with any expectation of success, would we? But that isn’t the case, since we do succeed for the most part and often enough, spectacularly so (as witness the duration of the Constitution for around about a hundred years). It’s a reciprocal deal though, like justice itself. We want it, we gotta give it.

  224. Comment by Jeff G. on 5/5 @ 10:50 pm #

    All in all, I must say I’m not convinced. But it has been eye opening.

    Told you. They’re like aliens.

    I’m trying to imagine the state of mind that asserts that law does not have an intent, or for that matter any form of communication. Also, the assertion that groups cannot share an intent is fairly special as well.

    I could go on, but I’ve just decided that textualists need to experience the consequences of their ideas, so I’m assuming from here on out that their signs have no intent.

  225. I’m rereading P-12. Intentialism used to determine the origninal intent is orignialism. So, the debate is between textualism and originalism. This main part of the discussion got lost in the fog of my mind.

  226. I’ve been working with the understanding that intent applied to the specific intent of the law, not the general intent to create a law. Who is disputing that the law wasn’t intended to be a law?

  227. “Who is disputing that the law wasn’t intended to be a law?”

    No-one that I’m aware of. The question, I thought, was rather, what was the intent in creating the Constitution, or the law, or the regulation, or the ordinance, and was the determination of that intent of any use to the judge as he ruled? And the stoutest example of the contention that, in effect, — no, any such intent was immaterial to the judge as he ruled (and a good thing too!) — was best put by Mr Schuler at 169 and at a few other comments of his somewhere up there.

    It does seem to me though, that I’ve run into laws with an intent written right up front, in a sort of preamble if you will, stating what it is the legislation is aimed to accomplish. But I’ve no idea whether that is the usual practice or only an occasional one.

  228. In the OWH quote there is the assumption that either the “conventions” of legal language never change or that the changes can/should be be disregarded. This is where “textuailism” departs from originalism.

    Language is an attempt by a mind to place it’s thoughts unaltered into the mind of another displaced in space and/or time. The conventions of reading a text change over time. That they change slower in the legal realm than in regular English does not mean that they do not change. To look at this to an extreme attempt to read Chaucer in the original text using modern conventions of English language. Doing so turns Chaucer into childish nonsense, unreadable drivel written by an idiot. Yet this is what the OWH textualist is doing.

    No, we may never know that we have sussed out the precise thought that the author meant when he wrote a text. It is the attempt to read it as, in the way, in the context in which it was written that makes the difference not whether we have completely succeeded in doing so. Do your best is the whole of it.

  229. Damn if the sun isn’t rising. Bugger all this day, I reckon. More coffee Mabel.

  230. I think I know what question to ask Jeff.

    When it comes to interpreting laws not concerning Constitutional issues, it’s less important on the interpretation method used, since the legislative body can correct any errors in interpreting original intent. And, yes, I know that the legislative body changes each election and, thus, may not be willing to correct an interpretation error if if likes the error.

    When it comes to Constitutional issues, it’s much more important for the interpretation to be true to the original intent/meaning. To correct problem interpretations you need the court to reverse itself or have itself reversed by a higher court, or amend the Constitution.

    Now, here is my question: Defining an activist decision as a decision that that enacts the judge’s policy preference, do you think that activist decisions are usually made by judges who use orginalism or textualism? Does anybody know if this has been studied in any way?

  231. “In the OWH quote there is the assumption that either the “conventions” of legal language never change or that the changes can/should be be disregarded.”

    OWH:“We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used …”

    Look at the quote again, specifically the last part. Like Scalia says, the conventions used by the textualist are the conventions that were used when the law was written.

  232. Don’t know of any such studies Fred, though the manners of interpretation extend beyond originalism and textualism into methods partaking of neither, and where that’s the case, any correspondence between the intent or the text and the ruling set down would be more or less a matter of accident, wouldn’t it?

  233. Ignore #232, I just realized I misread your response.

  234. “To look at this to an extreme attempt to read Chaucer in the original text using modern conventions of English language. Doing so turns Chaucer into childish nonsense, unreadable drivel written by an idiot. Yet this is what the OWH textualist is doing.”

    No, the textualist isn’t. The textualist tries to use the same conventions that the author used.

  235. sdferr,

    One of the primary debates as I understand it, is that orginalism should be used instead of textualism. With either method, you have to start with the text. With orginalism, you also use additional documentation. That means, under originalsim, you have to interpret the additional documentation, also. So, my point is, in originalism, is it possible that the extra interpretation allows for more chances of activism?

  236. Help out with an enrichment of the concept of activist or activism if you will, Fred.

    Your definition has “…an activist decision as a decision that that enacts the judge’s policy preference…” without the additional qualifier that the judge’s preference might, by happenstance, align with the law as applied to the case, though the judge doesn’t consult his preference in the least (assuming still that he has such a preference). Where he finds for his preference, having consulted within himself about that preference, and rules in favor of his preference against what the intent of the legislature holds in law or against what a textualist holds on the merits of the text alone read conventionally, here, we’d say we have an activist, (right?), one who rules to obtain an outcome he desires but which outcome he may not be able to justify well on other grounds? Or how would you put it?

  237. sdferr,

    Let’s take Jeff’s definition of activism, as I understand it, where a textualist ignores information, other than the text of the law, that should give him a different interpretation. Also, making the interpretation fit your policy preferences when the facts don’t support your policy preference.

  238. Scalia drops a few bombs on what seem to be activist sorts in this address.

  239. That’s what I get trying to comment and read previous comments during a late night run to the bathroom. My mistake and I still need 2 more hours sleep.

  240. The textualist tries to use the same conventions that the author used

    that’s not the way I’m understanding textualism as Pat is describing it… “plain meaning” IE take the words as they stand in the here and now with no outside reference.

    once you attempt to understand the context in which the creator of the text wrote, you are appealing to intentionalism… IE you accept that meaning comes from the creator of the text, not the reader of the text.

  241. “Scalia offers two antidotes to this epidemic of judicial lawmaking: textualism and originalism. “Textualism” is just what it sounds like. As Scalia puts it, “The text is the law, and it is the text that must be observed.” The only democratically binding feature of a statute is its literal language, because that language alone has been ratified by both houses of Congress and the president in accordance with the Constitution. “Originalism,” as Scalia defines it, is a species of textualism particularly relevant to constitutional interpretation. Its adherents tether their interpretations to plain meanings as they were understood when the text was first penned. Originalists believe, as Scalia puts it, that a constitution’s “whole purpose is to prevent change–to embed certain rights in such a manner that future generations cannot take them away.””
    http://slate.msn.com/id/2960/

    The above is a quote from a review of Scalia’s book on interpretation. Notice how “plain meaning” is described.

    The part that is confusing me now, is Scalia considers himself an originalist and a textualist.

  242. “Originalism,” as Scalia defines it, is a species of textualism particularly relevant to constitutional interpretation. Its adherents tether their interpretations to plain meanings as they were understood when the text was first penned.

    Oliver Wendell Holmes, Jr., although not a textualist himself, well-captured the philosophy, and its rejection of intentionalism: “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used … We do not inquire what the legislature meant; we ask only what the statutes mean.”[2]

    Both these quotes seem to be similar. However OWH is saying that laws should be read as a normal English speaker of the day the law was written would read them. That the law means what the people see it as meaning, the “notice” given, not what the legislature in legal language crafted it to be.

    The Scalia quote concerns itself with only the Constitution which he sees as being written in plain of the day English not in legalese and to be read for meaning by looking to what those who wrote it considered it to mean in their other writings and speeches.

    So they are different statements indeed.

  243. How do ribosomes know to read RNA?

    Doesn’t matter; they just do. But the thing is: RNA is unambiguous. Ribosomes read it the same way every time, and if they ever make a mistake, it’s just a transcription error, not an error in what the RNA really meant by that.

    And the ribosome reading the RNA isn’t furthermore saddled with any burden of having to consider the consequences of its actions, or whether the RNA is compliant with the US Constitution.

    “Compiling the law” is a lot like this. If you could write a compiler that could take a given set of legal proscriptions and predict the resulting unanticipated results, well, you’d have a compiler that is a lot smarter than humans. Or IPCC weather models.

    Instead of compilers, we have judges. If you want to think of those judges as human compilers, fine, but that’s not a good fit, because C++ code doesn’t generally have to hire an attorney and petition SCOTUS to get compiled.

  244. Scalia: “…as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the framers of the Constitution had some SECRET MEANING in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words.” [emph. added]

    There’s that intent/volition thing I keep talking about. Maybe it has something to do with the way the law uses the latin mens, mentis (mens rea, non compos mentis).

    If I understand Scalia, what he’s arguing is that he doesn’t give a damn if, for example, the Congress (or some part of it) thought it was guaranteeing the individual states the right to form militias, or if it (or some part of it) thought it was guaranteeing individual citizens the right to possess flintlock boomsticks, swords, pikes etc. when they adopted the Second Amendment of the Bill of Rights. Nor does he give a damn what the legislatures of the separate states thought they were guaranteeing when they ratified the same. What he cares about is applying some kind of eighteenth century “reasonable man” standard to the text of the Second Amendment. In other words, the locus of meaning (I think I’ve seen that phrase before), resides with the recipient; the “reasonable man” gets to decide what the text of the law communicates, not the author(s). Most of the time, this won’t be a problem because the reasonable man will understand the law the way its author(s) meant it to be understood. (Wishful thinking? Perhaps.) Jeff’s point, in those cases, where there is a problem, rare though they be, is that as an “interpretive” convention, Textualism becomes ontologically unsound.

    I’m going to attempt to explain why by referring to my earlier he said/she said exchange. Once you decide that MEANING lies in what the Hearer HEARD rather than in what the sayer SAID, you’ve stopped interpreting, that is, mapping the marks to the underlying concepts (thanks, Ric), and started “interpreting,” or using the marks to create a new map. Once you start down that road, why not keep going? Or, to bring it back to Scalia, Textualism, and the Second Amendment, since we’ve already decided that the eighteenth century “reasonable man” understands the meaning of the Second Amendment better than those who wrote, adopted and ratified it, WHY NOT let the twentyfirst century “reasonable man” have a crack at it? If we’re not bound to respect the intent of the author, why should we be bound by the understanding of earlier interpreters (or “interpreters”)? The textualist can’t answer that sufficiently.

  245. Ernst, have you any idea what possesses Scalia that he’s worried about a “secret meaning” in the minds of the founders vis a vis the political framing they were making? They seem, on the contrary at a casual glance, some of the most open writers imaginable and further, possessed in themselves no obvious aim to conceal the intent of the work of their hands and minds, declaring openly Independence from the British power that had ruled them, in order that the world should know their reasons, and then after failing at fashioning their first government (though they met in secret in Philadelphia so that their deliberations would be free from the immediate pressure of the polity as they attempted to reconcile the various interests of the states in a national unity pact), they promulgated and exposed to serious critical back and forth the proposed Constitution they had crafted in answer to the crisis the Confederation had brought about.

    Is his bug-a-boo actually not about the framers but about a later generation of American thinkers he hasn’t bothered to name, some sect of secret teachers of secret doctrine that’s insinuated itself into American lawmaking? It’s a puzzle.

  246. what the RNA really meant by that

    RNA doesn’t “mean.” It’s a template. Templates just are.

  247. sdferr,

    Not really. I’ve been trying to noodle this out by thinking about my city’s snow removal ordinance: during a Snow Emergency, no parking on the street until it’s been plowed curb to curb; parked vehicles not moved will be towed and impounded and you’ll be fined and fee’d. Now, assume the councillor who cast the deciding vote did so because his brother-in-law owns the towing company. The intent of the law is to get me to move my car so the city snow plow can clear the snow. But because the intention (what I’ve been calling volition) of the councillor in casting his decisive vote was to make sure his sister’s idiot husband could support her, the legally minded among us seem to think that this iundermines the law in some way. Obviously there’s some disconnect between the way Jeff, Ric, et. al. use intent and the way Paterrico, JSchuler et. al. use intent(ion).

    My best guess is that at the end of the day, all lawyers are instrumentalists –the law does what we can make it do.

    Regards

  248. “…the law does what we can make it do.”

    This echos Hobbes notion of the possibility of knowing as well. You’ll know what you can make, and nothing else.

  249. RNA doesn’t “mean.”

    [Johnny Carson]I did not know that.[/Johnny Carson]

  250. Not that anyone cares anymore, but I think I’ve noodled this out. The lawyers (because they’re instrumentalists?) mistrust appeals to authorial intent because they don’t believe that intention can miscarry, that should it somehow miscarry, someone must be entitled to judicial relief, and appeals to intent are final and unassailable (i.e my intent card trumps all the cards in your brief, so I win, ha-ha).

  251. Okay. Just now catching up. Thanks to all who’ve kept the conversation going, particularly Fred, whose questions I take to be in good faith, and who in the course of those questions has teased out most of what he needed to have teased out.

    Sdferr and others have been particularly on point in their responses, so I’ll just amplify or clarify where I can.

    First

    Jeff,

    Here is my question: If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?

    How can any interpreter know if his interpretation is true to the intent of the author?

    To take the latter first, the answer is, no one can ever know for certain. Because, to bring by my irony example, it is always possible in theory that a text is presented completely ironically, such that it’s author means precisely the opposite of what conventions tell us the text says. An interesting example would be, say, the instructions for putting together an Ikea bookshelf, say. If, after you read and interpret, you have a perfectly put together bookshelf, you will (naturally) assume you have gauged the manual writer’s intent correctly and so interpreted his instructions perfectly. That is, you have understood precisely what he meant.

    But imagine that the manual writer was being ironic, and every sign actually meant — to him — its opposite. You will have interpreted what he wrote in good faith — assuming that he was using the conventions of language and context (convention tells you that rarely are shelving manuals written in anything other than straightforward, simple language), and the fact that you came away with the shelf, which you assumed to be the purpose of the manual, would further convince you that you’d interpreted properly.

    But of course, in reality — from a linguistic perspective — though you followed all the rules for interpretation (you assumed what you were reading was language, and so intended; you paid attention to convention, both for plain meaning of terms and for the general purpose of manuals of the type you were engaging; you ‘checked your work’ at each stage by seeming to match the manual’s directions with your results, etc), you interpreted incorrectly: the manual writer meant what he meant.

    Now, you have no way of knowing this, most likely; and the fact that you got what you want out of the engagement with the manual leaves you content. But in this (highly unusual) instance, the fact is, though you’ve done everything correctly as an interpreter, you didn’t correctly interpret what the manual writer meant.

    Now, why does that matter?

    It matters because, in an infuriating way, it illustrates how language functions in terms of where meaning resides, how meanings are transferred, and what happens during the various stages of interpreting a speech act. To wit: the manual writer turned signifiers into signs through the process of adding signifieds. The resultant text is a document of his intent, his meaning fixed at the moment of signification. If, in this example, we now know that he signs mean precisely the opposite of what convention tells us they mean, we realize that we missed the writer’s meaning — that we interpreted him incorrectly.

    This is potential failing in all communication based around arbitrary signifier/signified relationships.

    The problem comes, though, when we notice the failing and try to “fix” the issue by taking intent out of the relationship. And that’s where I’ve tended to concentrate my attentions, because the fix — while it may certainly feel right — is linguistically incoherent, and the ramifications for accepting the assumptions that “allow” for the fix are far reaching and dangerous.

    So to get back to your original question, “If a textualist like Scalia interprets a law using the conventions and limits himself to the text of the law, why should he not conclude that his interpretation represents the intent of the author?”

    If Scalia concluded such — and used as a rule that his interpretations best matched what he believed to be the intent of the author — he would be acknowledging the intentionalist that he is, and that we all are. As I’ve said several times now, intentionalism just is — meaning problems only arise when people like Scalia, or the New Critics, or Derrida, or De Man, or Gadamer, etc., try to will their way out of the relationship whereby original intent is the locus of meaning in a speech act if what we are after is to interpret that communication. To do this — to assert their preeminence as readers in the relationship between author and receiver — they have come up with a number of places to privilege the anchor of meaning other than with the original author: convention, code, reader response, dialogical webs, historical moment, etc.

    But try as they might, they cannot make language function in the way they describe.

    Scalia, worried about “secret meanings” (to go back to my example of the shelving, the author’s insidious “irony” has problematized our ability to interpret him correctly — though we don’t much care, having gotten what we wanted out of the engagement), wants to say that, because authors can mean what they don’t appear to mean, we are justified in dismissing intent as a function of intepretation.

    But of course, Scalia never does dismiss intent. He simply replaces the emphases of intent, and privileges his own agency over that of the author(s).

    Simply by virtue of accepting that what he’s charged with interpreting is language, Scalia is accepting that he is dealing with a text, with signs, signifiers that have been signified. Were he not, he’d have no reason to try to “interpret” to begin with, because there would be nothing to interpret: signifiers are marks or sound forms; they don’t “mean” anymore than do bird tracks that resemble language, or cloud formations that resemble horny lambs. And so from the outset — and despite his protestations to the contrary — Scalia has marked himself as an intentionalist. And that’s because he has no choice.

    Again. Intentionalism just is. Problems arise only when we pretend we can interpret outside that truism.

    Now, Scalia — knowing as he does the potential pitfalls of language, recognizes that, at least potentially, lawmakers could have given him a document that resembles straightforward and conventional legal language, but attached to it might be some insidious secret meaning that is not readily apparent from a conventional engagement with the signs during the course of normal interpretation. That is, Scalia recognizes that the lawmakers may have hidden their intent in language that doesn’t readily make that intent apparent — and yet there it lies, this intent, like soldiers inside a Trojan horse ready to unleash fury once the law has been accepted into usage.

    So Scalia’s response is to say that, to avoid such concerns, intent is no longer to be considered — that the “plain text” of a statute, as judged by convention, is what the law means.

    But he’s wrong. What the law means is what it means. And you can’t lay claim to interpreting law if you aren’t interpreting it for what its writers meant.

    Where people seem to get hung up, though, is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it.

    But again, the man putting together the shelving would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.

    More, had the original author really wanted his intentions known, he would have been more careful in signaling them. In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.

    Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.

    But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.

    And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?

    Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.

    None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.

    Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.

    There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.

    Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.

    To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.

    And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.

    My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.

  252. perhaps I’ll just make the preceding a post.

  253. The sneerer inhabiting Patterico’s thread certainly isn’t impressed by anything that might be simply the case Ernst. Some true thing is disturbing, I guess. Earlier, I refrained from picking on Fred’s proposition “If we’re all intentionalists, then intentionalism doesn’t mean anything.” simply on rhetorical grounds, but any number of simple substitutions would bring to light the feebleness of such a complaint, would they not? If we’re all born viviparously, then being born viviparously doesn’t mean anything. Tell that to the hatchlings. And so on.

  254. Pingback: Textualism and originalism, a follow-up

  255. Can’t say that I know what you’re talking about sdferr, as I don’t waste my time over there.

  256. Earlier, I refrained from picking on Fred’s proposition “If we’re all intentionalists, then intentionalism doesn’t mean anything.” simply on rhetorical grounds, but any number of simple substitutions would bring to light the feebleness of such a complaint, would they not?

    Yes. After all, we’re all human. Mammals. Bipeds.

    Plus, he gets intentionalism mixed up with other things. The intent of the reader is kind of beside the point, I think.

  257. Pingback: Patterico's Pontifications

  258. Pingback: Patterico's Pontifications

  259. Pingback: Shedding Weight Through High Protein Diet | Health and Fitness

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  262. oh jaysus h keerist

    ANOTHER nonsense hypo from Pat…

  263. Though the hypothetical’s details are often nonsensical Darleen, stepping back from them, the sense is made pretty plain: Pat is obsessed with poking at Jeff and will go to any length necessary to make him as uncomfortable as possible.

    Pat will say something like – I just want to understand — or the like, but it’s clear he isn’t at all interested in that. Had he applied the energy and effort he’s put in poking at Jeff, into reading the sources in linguistics for himself, by this time he could be teaching the stuff. Yet he seems to believe no-one can see all this. It’s a strange position for a man of his age and presumptive stature to put himself into, but there it is.

  264. sdferr

    I agree. I reposted my reply to his hypo from last night. Let’s see if he sticks it into moderation or not.

    I have to admit, though, I’m learning quite a bit about how language works from this. It’s kinda like taking an anatomy class explaining HOW the body works, then having someone in the back row going — Hey what if …?? and coming up with stuff that makes try and explain to them – just sharpens your own knowledge.

  265. See, this is why this topic looks so much the post-mortem battered horse. Wake me up when we get to the “A three-headed monkey walks into a psychic and says he wants to communicate with Darwin, but what he meant was…” hypo.

  266. Here’s Stanley Fish on textualism.

    I had a chat with a steamed dumpling about this, and noted at the time that Fish was being cagey, because Scalia — while claiming not to care about intention — of course does just that. So the problem is with Scalia’s misunderstanding of his own method.

    Pass it on!

  267. What I don’t get is if somebody like JD (not ours), for instance, doesn’t understand what it is I’m saying, why not ask questions here? Am I really that unapproachable?

    I mean, it seems to me I go out of my way to answer people’s queries, even as I’m the one consistently put on the defensive, asked to “defend” what simply is.

  268. And it doesn’t help that I can’t seem to get my comments to post on Frey’s site, so slow is the loading.

    I guess I just give up.

  269. Huh?! Did I do something?

  270. Not that JD, it seems.

  271. No, not you, JD. The JD posting in the Frey thread.

  272. Where were you on the night of May 3rd, JD?

  273. I do not know what you are referring to. Please advise? Or link? I simply do not recall what comment you are referring to, or at least point me to the thread.

  274. @258, JD.

    By the way, my post from yesterday preemptively answered the Frey post linked at 258.

    Here’s the relevant section from my follow-up:

    Where people seem to get hung up, though, is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it.

    But again, the man putting together the shelving would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.

    More, had the original author really wanted his intentions known, he would have been more careful in signaling them. In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.

    Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.

    But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.

    And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?

    Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.

    None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.

    Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.

    There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.

    Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.

    To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.

    And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.

    My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.

  275. Rewriting is what is being done by those who talk about the “living Constitution” and ask, “Why should we be constrained by the dead hand of the past?” This makes no more sense than asking, “Why should we be constrained by wills and contracts?”

    The answer is that without that constraint handed down by the past, law and predictability disappear and are replaced by irresponsibility and the exercise of power. If you can just make it up when interpreting the Constitution, you can also make it up when deciding whether or not to honor your contractual obligations, and so can everyone around you. In fact, if your question is “What do I want it to mean” rather than “What did they mean by it?” you can dispense with “it” and “them” entirely and just go right to the fashioning of the meaning you prefer.

    Seems to have a recent familiar flavor on the tongue, eh?

  276. Ironically, geoff b., it was in reacting to Fish and his earlier reader-response theoretics (as they were being taught at the grad school level) that I tightened up my thinking on intentionalism. (To wit: a reader’s experience of the text created a meaning to him or her in the absence of any appeal to authorial intent, and so wasn’t an interpretation so much as a rewriting. Such a use for a text can be rewarding. But what it isn’t is “interpretation.”)

    Hearing Fish speak as a willing intentionalist, therefore, took me for a loop, back when this essay appeared.

  277. I can’t access his site. Which, cool, I’m busy today.

  278. BTW:

    I like the point made by The Monster in the next thread to the effect that…

    All the apparatus is to make one thing happen. To take a thought that is in one mind and transfer it, as faithfully as possible, to a mind displaced from it in space and/or time.

  279. Pingback: Patrick Frey: “Does Intentionalism Sanction Fraud?”

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