May 6, 2010

Textualism and originalism, a follow-up

A number of interesting questions arose overnight concerning intentionalism as it obtains in the realm of legal interpretation, a few of which I’ll try to address here. This post was originally written as a comment, so allow for some haste of thought.

Still, as a way to spur discussion further, my responses my prove useful — particularly inasmuch as I’ve tried to circle back to the linguistic questions that provide the impetus for the legal questions raised as a result.

First, Fred C Dobbs writes

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 back 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. 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 his 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.

Fred writes:

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.

“Interpretation” of a speech act presupposes intent; and that’s the point: any interpretation has intent, as you say; but not everyone recognizes this, and as a result, they don’t believe they are privileging intent when in fact they are. Whose intent they are privileging, however, is the important observation. If they are privileging the author’s intent, they are interpreting. If they are privileging their own intent, they are not.

Given that in both cases the receiver lays claim to interpretation, I disagree with the conclusion you draw that, all of us being intentionalists, “then intentionalism doesn’t mean anything.” In fact, it means everything. The problem is not with intentionalism. It is with those who believe they’ve been able to escape it.

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.

Posted by Jeff G. @ 12:32pm
58 comments | Trackback

Comments (58)

  1. If this doesn’t explain how intentionalism relates to the law, I don’t think anything else will.

  2. Subverting the subversive Or Two Intentionalists at Work on an Intentionalist at Work on Intentionalists.

  3. Pingback: Cranky-D » Textualism and Originalism

  4. “If this doesn’t explain how intentionalism relates to the law, I don’t think anything else will.”

    Seriously. Jeff, you simply couldn’t have made it any more plain. In my humble opinion, any misunderstanding at this point is purposeful.

  5. Thanks for the detailed response, Jeff. I believe I have a much better understanding now. Not complete understanding, but better.

    A question on convention. If the author doesn’t use convention, but uses cues within the text to denote how to interpret the “unconventional”, wouldn’t a textualist like Scalia still interpret, not “interpret”, the text? And if so, the only instance Scalia would “interpret” instead of interpret is when convention is not used by the author and the text doesn’t have the necessary cues/hints/etc within the text to denote “unconventional”?

  6. If the author doesn’t use convention, but uses cues within the text to denote how to interpret the “unconventional”, wouldn’t a textualist like Scalia still interpret, not “interpret”, the text? And if so, the only instance Scalia would “interpret” instead of interpret is when convention is not used by the author and the text doesn’t have the necessary cues/hints/etc within the text to denote “unconventional”?

    Well, most of the cues are also conventional — clues to signaling intent that have been well established, and as such are conventional signals — and so are part and parcel of what we consider when we interpret.

    But just so I’m clear, when you use “interpret” and interpret, which is which?

  7. I think you have overlooked a possibility, one that laws happen to realize: texts whose actual authors are trying to convey not their own intentions, but the intentions of other people. The author of a law does not speak for himself; he speaks for the sovereign, which in the USA means the citizens as a body. Therefore a law ought to be interpreted according to the citizens’ intention, not the legislator’s, if those disagree; not because group consensus is the locus of all meaning, but because, for a law, a group’s consensus is the intention the signs are meant to convey.

    A legal text is much more like the instruction manual example you gave than you seem to recognize. The manual’s author is conveying not his own intention, but the intention of the bookshelf’s designers, exactly as the legislator conveys the citizens’ intention rather than his own. If we supposed that a legislator wrote a law ironically, saying A in its text but meaning B in his secret heart, the discovery of his secret meaning after the law went into effect would have exactly the same effect on the courts’ behavior that discovery of the ironical manual writer’s secret meaning would have on its readers; which is to say, none whatever. The courts would enforce A, and be right to do so, because A is the meaning the citizens agreed to by enacting the law. As B was not conveyed at the time, it has no relevance in court.

  8. The takeaway here is to keep in mind that our reliance on convention is a reliance on a construct we’ve adopted to aid us in doing what is necessary, namely, reconstructing intent.

  9. I think you have overlooked a possibility, one that laws happen to realize: texts whose actual authors are trying to convey not their own intentions, but the intentions of other people. The author of a law does not speak for himself; he speaks for the sovereign, which in the USA means the citizens as a body. Therefore a law ought to be interpreted according to the citizens’ intention, not the legislator’s, if those disagree; not because group consensus is the locus of all meaning, but because, for a law, a group’s consensus is the intention the signs are meant to convey.

    What you are saying is merely that the legislature’s role is to capture in their crafting of the law the will of the citizenry — or at least, the will of that portion of the citizenry that supports the legislation (in itself a debatable proposition: what is the “conventional” wisdom on the role of the legislature? To act as a phenomenological conduit for the desires of those they represent? Or to act as a trusted proxy for the people they represent, voting on their behalf but, insofar as they consider themselves more informed than those they represent, ultimately given to voting their own consciences?)

    But while that is the goal they set for themselves, they still must nevertheless express that goal in the language they use to craft the law — and that language, once it is signified, is the record of whatever the intent is of those who brought it into existence

    A legal text is much more like the instruction manual example you gave than you seem to recognize. The manual’s author is conveying not his own intention, but the intention of the bookshelf’s designers, exactly as the legislator conveys the citizens’ intention rather than his own. If we supposed that a legislator wrote a law ironically, saying A in its text but meaning B in his secret heart, the discovery of his secret meaning after the law went into effect would have exactly the same effect on the courts’ behavior that discovery of the ironical manual writer’s secret meaning would have on its readers; which is to say, none whatever.

    How it effects the court’s behavior with respect to the particular law is not what this is about, necessarily. If the court is now aware that the text of the law means B — and that they in good faith misinterpreted what the legislators meant — they are in a coherent position to point out that their interpretation was done in good faith, that it assumed the legislature had an intent and that they, as a judicial body, tried to discern that intent using the text, legal conventions, and all manner of cues necessary to make their determination.

    Therefore, they can tell the legislature that, if what was meant differs from the good faith interpretation of what was meant as decided upon by the court, the legislature needs to amend the law to make signal that intent more clearly.

    Conversely, if the court began by treating the legislation as if intent didn’t matter, they have merely written their own legislation. As such, they would be responding to the revelation of the legislature’s now revealed intent by telling them it doesn’t matter either way what it intended; because the court is responsible for providing a statute with its intent.

    That is not the proper role of the court – nor is it the proper role of anyone claiming to interpret. In both instances, we have the same practical effect. But in the former, we maintain a coherent notion of language that doesn’t legitimize an idea of interpretation that is not interpretation, and so it doesn’t hijack individual meaning and turn it over to the collective as a rule.

    The courts would enforce A, and be right to do so, because A is the meaning the citizens agreed to by enacting the law. As B was not conveyed at the time, it has no relevance in court.

    The courts would enforce A because A is a legitimate product of intepretation. And as such, B has less standing than it would if what we were left with was a competition between a judiciary who “wrote” its own law pitted against a legislature who first intended.

  10. This entire discussion is based on the notion that the primary purpose of language is communication. It is not.

    Before you can ever use language to communicate an idea (of any complexity above the direct perceptual level), you must first use it to think of that idea. So even when our ultimate goal is to communicate in a language, we first must think in it. But we also use language all the time to think about ideas we never communicate to anyone else.

    As you’re working out a strategy for hunting, planting, or modern business; a design for a tool; a chemical reaction… you are thinking using symbols that represent ideas. You don’t necessarily need to use the same symbols the same way as I do, but you must choose meanings for those symbols that are consistent within your own usage, or you won’t be able to think clearly.

    When someone comes along and redefines the meaning of words that I may not even be using to communicate to anyone else, or was using within a limited community of people who share the context in which I use them, they display an arrogance that is truly breathtaking. They claim to tell me what I am thinking.

    I believe the greatest damage done by these pricks is to our ability to think. It is 1984 come to life; people like Cont(essa) Brewer are simply incapable of forming Politically Incorrect ideas in their brains; the programming is so powerful.

  11. to act as a trusted proxy for the people they represent, voting on their behalf but, insofar as they consider themselves more informed than those they represent, ultimately given to voting their own consciences

    This one. I consider the legislator’s job to vote according to a system of values, such that if I were sitting in his office with him reading all of the research his staff brings, listening to all the testimony in the committee hearings, etc., we would vote the same way on the legislation. I don’t have time to do all of that; I’m hiring him to do it for me.

  12. Seriously. Jeff, you simply couldn’t have made it any more plain. In my humble opinion, any misunderstanding at this point is purposeful

    Not really. I’m just thick.

  13. Sorta OT but would someone please go back to Pat’s post and see if my comment posted at 6:51 am #93 is there?

    It was posted from my home ‘puter this morning. I got to work and it wasn’t there, only a rather off-putting message from Pat at 6:45 explaining he put two comments in moderation

    95.I put only two comments in moderation, and neither is offensive per se; A.W.’s is a “can’t you guys learn to disagree” sort of comment, and the other (unnamed) commenter’s comment was, I thought, just a touch dismissive in tone, which I fear could lead us down a counterproductive road.

    Obviously I’m the “unnamed” commenter and I have no idea what was “a touch dismissive in tone”.

    I’m home now and I can see my comment on my home ‘puter but I have no idea whether its in moderation or has been released.

    Very annoying. Oh and here’s what Pat objected to:

    93.What gives the judge the right to take a law, duly passed by the legislature, and void it when he knows its meaning?

    Pat, your own stated standard “the written law fails to apprise citizens what is required of them“. It contains a fatal flaw. Just as an RN rejects a legitimate doctor’s order if s/he knows the order is in error.

    Contrary to what Leviticus is saying, intentionalism isn’t a philosophy. It is a method of describing communication. HOW does “meaning” get from one human brain to the other?

    In most circumstances, humans can communicate in a back and forth manner until the meaning is clarified between creator and receiver to the satisfaction of both. IE I hosted Japanese exchange students for six years. They came to America in the summer specifically to hone their conversational English. The huge stumbling block at first for them is the very informal way we speak – clipped sentences, idioms, slang. I had to shift my way of speaking for at least a few weeks to be much more precise and correct in order for my student to understand what I was saying. But at no time did it shift my meaning to her. She couldn’t just “make up” a meaning for my words just because she didn’t quite understand them. My signs are my own, even if I’m not signaling correctly.

    For practicality and in protection of the mass of people the law will affect, the convention of a formal procedure of how law will be reviewed within the legal realm. That doesn’t negate how language works. Meaning comes from the creator, even if the creator fails at clearly communicating it.

    But if you DO accept the premise that unexpressed intent governs the law’s meaning, regardless of the words used in the text

    You keep referring to a descriptive process as if the description is a judgment. It is NOT. The words in the text have meaning. WHO puts that meaning there? The person/people who wrote them or the person/people who reads them? Once you honestly answer that THEN you can move onto judging whether the meaning was clearly communicated or not.

    I don’t know how we got from technical error to unexpressed intent (? what is unexpressed intent?). Certainly a judge has a lot more than the mere text of the law under consideration. As has been pointed out on JeffG’s thread, that’s what amicus curiae is for …

  14. It’s there, D.

  15. Wait, was that a death threat?

  16. Been alerted to another post on the subject from Mr Frey. If he raises any points I haven’t covered, or offers any new arguments I haven’t dealt with and that you’d like to have me tackle here, let me know and I’ll be happy to do so.

    Judging from the tepid response to this post though, it seems many of you are tired of the subject.

  17. It’s been pretty dense, for a blog. I think at least some people may be off letting it digest a bit, sort of like the afternoon after Thanksgiving dinner.

    Regards,
    Ric

  18. Judging from the tepid response to this post though, it seems many of you are tired of the subject.

    Nah. What you have done here is (as #1 and #4 said) made things so perfectly clear that there is little to say. Bravo Professor.

  19. For myself, I just don’t have much of anything worthwhile to say.

    The posts are interesting to read though and many of the comments are as well.

  20. It really is okay to be tired of the subject. I know I am.

  21. Well, let’s say it might be done for now, and that I don’t think further discussion will enlighten the unenlightenable.

  22. thanks, bh

    I guess sometime later this afternoon whatever I said that annoyed Mr. Frey had lessened and he took the comment from moderation.

  23. Well, if Leviticus is commenting freely, I’m puzzled how your comment could have given any offense, D.

  24. JeffG

    If I’m tired of anything, it’s every new hypothetical Pat conjures up that keeps missing what you are explaining.

  25. What is bothersome is that the hypotheticals he’s using are rather…well, outlandish, as instances of supposedly plausible legal documentation in need of interpretation — and yet the posts are designed to show how intentionalism gets problematized in “real world” situations (where, according to some textualists who’ve bothered to reply, law is not even considered in language).

    In this post, I used an equally outlandish hypothetical (the ironized shelving manual); but I did so to show that even with outlandish hypotheticals weighted in favor of “convention” over intent, intent still holds as the locus of meaning in a speech act.

    Beyond that, the example is designed to show how (and ultimately why) one needs to accept certain preconditions about intent to even engage in an instance of “interpretation” — and why that matters, even if the interpretation they arrive at is entirely wrong.

  26. Anyhow, I’m tired. Taking care of a sick kid is draining; and so I think I’ll just watch a 70s flick and drift to sleep.

    G’night all.

  27. Ready for some dummy talk? Here goes:

    Intentionalism is physics. The various versions of legal interpretation are competing schools of chemistry. Choose your favorite frame at that level but it’s always physics when you look deeper. May as well pick a frame that doesn’t immediately yield to the most obvious reductionism.

  28. Later, chief.

  29. We had the “F” lectures, these are the “G” lectures.

  30. Book coming. “Surely You’re Joking, Mr. Goldstein!”

  31. This might be the time to ask Ernst Schreiber to please continue commenting beyond these sorts of threads. You’re a clever fellow.

    Speaking of which, psycho is now a mere dash. I’m curious to see what happens but I’m not sure I’ll be perceptive enough to notice it.

  32. “Intentionalism is physics. The various versions of legal interpretation are competing schools of chemistry. Choose your favorite frame at that level but it’s always physics when you look deeper. May as well pick a frame that doesn’t immediately yield to the most obvious reductionism.”

    It’s all ball bearings these days bh ;)

  33. Only half-clever, bh. But thank you for the compliment.

    I comment when I find the topic interesting and I think I have something to add. (I mean c’mon, how many people do you need to slap nishi around like that hysterical woman in Airplane! No need to get in that line.) I stopped commenting because I though Michael Brazier’s comment above resolved my issue re: the legal mind and linguistic intent on the one hand and mental intention/volition on the other.

    And besides, I have this unfortunate habit of showing up at the end of dead or dying threads. It’s like being the socially awkward kid who somehow wrangles an invite to the party, only to show up after the party’s moved elsewhere.

    Oh wait.

  34. Book coming. “Surely You’re Joking, Mr. Goldstein!”

    Isn’t there already a Book of Leviticus?

  35. Jeff–Does your analysis change if you consider that there is no genuine authorial intent in legislature? For example, assume an ironic legislator, who writes a law that says something other than what he means. But, his is not the final word. Assume further that the bill becomes a law without modification of the proposed language. It still has to clear several committees, and then pass the whole body my a majority vote. Because the speaker is the entire legislature, not the individual legislator, the drafter’s intent is meaningless. What matters is what the legislature, as a whole, understood the law to mean. The simplest way to determine that is “plain meaning.”

    This is a convention, yes, but it is necessary for two reasons. First, it priviliges representatrive democracy. The whole point of the exercise is to have our representatives create laws that bind us. The convention therefore ensures that the majority will (as demonstrated by the legislative roll call) is upheld. Second, it is necessary to make stable something that is inherently indeterminate: language. Most of legal interpretation is predictive; the basic question is how do I model my behavior to comply with the law? The inquiry them becomes, what will a court say the law means? To ask what did the lawmaker intend is to begin that inquiry. If the law is subject to secret meanings, irony, etc., legal analysis cannot be predictive. You could drive 55, but how could you be sure that the ironic legislator didn’t mean 55kph? Or 65mph? Or 35mph? Absent fixedness, law becomes mere words. This is a naive notion of language, but it is functional: law is a tool, not a meta- playground. The conventions of statutory interpretation privilege not the writer or the reader, but the polity. I would not advocate interpreting poetry with these conventions, and I think it’s a mistake to do the reverse.

  36. This is a convention, yes,

    Full stop right there, Andrew.

    As has been argued by many throughout these exchanges is that convention is useful but it doesn’t trump where meaning originates.

    For instance, My right to my own life is inherent in me. My right to my life isn’t granted or created by the state or by other individuals or groups. Now the state can secure and protect my right, or it can interfer with my right (either by due process or maliciously) but my right always originates with me.

    The path that makes creation or locus of “rights” the state or any other group is dangerous. Why would making “meaning” the property of the receiver or groups of receivers of the message any less dangerous?

  37. Andrew –

    The intent I speak of is at the moment of enacting. Various intentions of the legislators are being used for convenience in this discussion, but as I’ve explained in the past, where you place the intent really doesn’t much matter, for linguistic purposes. What matters is the fact of it.

    Again, the problem with Scalia’s results aren’t at issue. He doesn’t believe he’s appealing to intent, but he is (which is why his own description of his method, as others have pointed out, is rather uneven).

    My concern is that what he thinks he’s doing is something he’s okay with being done — namely, allowing that intent doesn’t govern meaning. Because others will use that same formulation in a way that Scalia likely wouldn’t in order to usurp meaning from the intending agency and call it “interpretation.”

  38. What about your right to property? Is that inherent in you, too? Does your right to claim a patch of land and exclude others from it originate from your own creation of meaning? If the receiver is the source of meaning here–as opposed to a community–then there’s nothing to stop such a receiver from taking another’s property.

    When I spoke about the legislature, I was assuming the interpretive task concerned a statute. The same is true with any other legal authority or document, be it the coomon law, the constitution, or a contract. (Wills are different, because their is only one author, but their premise is similar, I.e., effectuating the speaker’s will). All if this reveals that legal interpretation is a mode of being-at-hand. It’s functional. Ignoring the conventions undermines functionality. Indeeed, the legal opinions that read like literature are the hardest to apply because the meaning is open and indeterminate. It’s difficult enough to apply abstraction to concrete circumstances without subverting the meaning of the text. Plus, laws that are passed by a legitimate legislature deserve respect. A receiver that undermines such laws is, well, a douche that would probably be better suited to inquiring about marginal things, like the meta-meaning of parentheses.

  39. Why “ignoring the conventions”? (After all, it’s Scalia who claims to be do the ignoring, vis a vis the intentions of the writers.) Taking conventions into account doesn’t mean stopping with them does it?

  40. I assume you’re responding to Darleen, Andrew, but allow me to jump in. Nowhere have I ever said anything about ignoring conventions. In fact, I said specifically in this post that if you want your meaning understood, you’d be best served by adhering to convention.

    Conventional word usage, syntax usage, etc., is one cue we use for divining intent. There are others — context, for instance, or formal aspects of the construction — but all lead us to one end, if what we are doing is interpreting: trying to determine intent.

  41. Oops. See that sdferr beat me to it.

    It seems I’ve noted all this before. That people are consistently coming to the same objections means I’m either doing a bad job of explaining my position, or else someone else is.

  42. There’s a third option that has more to do with faulty receiving.

  43. Well, I’ve had ample opportunity to correct mistakes on the receiving end, Pablo. In fact, that’s the part about doing this on a blog I like: I can react, respond, answer, clarify, etc.

    In theory, I mean.

    In practice, I’m left with things like “Does intentionalism sanction fraud?”

  44. You can only lead a horse to water, Jeff. Else you could be blogging at HuffPo and resolving all of America’s political differences.

  45. As for that thing, he’s just throwing shit at the wall as he seems to think that if you’re still talking, you couldn’t have lost the argument. You’ve done your part well, and you’re under no obligation to clean that mess up.

  46. “…he’s just throwing shit at the wall…”

    Not that I intend to be disagreeable Pablo, but I view him as throwing shit at himself, at this point, and become quite besmeared with it.

  47. Hey, look! It stuck! ;-)

  48. What about your right to property? Is that inherent in you, too?

    The right to property originates with the right to your own life. “Own”, you own yourself if not then someone owns you. Physical property is an extension of this as it needed to maintain your life and it is through the efforts of “you” that the physical property is acquired.

    Society simply affirms and protects this right and provides for orderly transfers of property. Or it does not and provides for slavery and theft by the most powerful to be the order of the day.

  49. What about your right to property? Is that inherent in you, too? Does your right to claim a patch of land and exclude others from it originate from your own creation of meaning? If the receiver is the source of meaning here–as opposed to a community–then there’s nothing to stop such a receiver from taking another’s property.

    Ok, maybe I signaled insufficiently. I was attempting as analogy – “meaning” belongs to the creator of it as rights belong to the individual.

    It just is

    And mischief and madness lie along the path that would pretend otherwise.

  50. Jeff, Darleen, Sdferr, et al.:

    Please allow me to clarify. When a legal practitioner engages in interpretation, the practitioner is the locus of meaning. The act is, itself, the creation of meaning. What is more, the practitioner is (generally) called upon to apply abstract, imperative norms to concrete, factual circumstances. In one sense, the practitioner is a receiver of meaning–after all, the practitioner did not originate the imperative norms. In another sense, however, the practitioner’s interpretation creates meaning by putting the imperative norm at play.

    This suggests two things. First, the imperative norms come from somewhere else. Some positive rights, like copyright or patent, were created by the Sovereign, who may act through legislation. Other rights are based on tradition and custom, like riparian water rights. The acceptance of these norms is usually a function of politics or efficacy. A law that is enacted by a Sovereign is obeyed if it is legitimate (a value determined by various concepts, e.g., consent of the governed, divine right, etc) and/or because the Sovereign’s threat of violence compels obedience. A tradition or custom is followed for as long as it “works” and it is not overtaken by current events (e.g., horse-and-buggy rules-of-the road). Second, and as a consequence of the first, the practitioner’s legal interpretation is subsidiary to the imperative norm. However, certain interpretations, like judicial decisions or significant legal commentary, can become convention, in the sense of a Gadamerian tradition, because they will guide later practitioners’ interpretations of the particular imperative norm at issue to other factual circumstances.

    Because the practitioner is aware that his or her interpretation can become convention, special care must be taken in the interpretive task. Take, as an example, section 1 of the Sherman Antitrust Act of 1890: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” 15 U.S.C. §1. This particular statute, unlike many, does not define any of the terms it uses. Practitioners must therefore define each term through interpretation. Interpretive meaning, arising from various acts over the years, steadily gloms on to the statute, such that it begins to control the meaning of the text.

    But this accretion of meaning is in tension with, if not contrary to, the premise of legal interpretation. Instead of applying the imperative norm to the circumstances, practitioners begin to apply convention. The political legitimacy of such practice is arguable. (Some might argue that the interpretive norms are “living” and must change and adapt, but that a particular interpretation is wrong, while others might argue that by subverting the statute, the legal practitioner is a usurper, insofar as he or she does not enjoy the same legitimacy as the Sovereign). As such, it is important to ground the interpretive act epistemologically and politically. The ideologies of statutory interpretation, i.e., textualism, orginalism, contextualism, developmentalism, arise out of such needs.

    For example, a textualist seeks to determine the meaning of a law from an exegesis of it text, and applies sub-conventions (the canons of construction) to arrive at the meaning. The textualist refuses to look to sources of authorial intent not included in the text itself, because the drafter of the law is not always the Sovereign, especially where there is a collective body of law makers. The textualist also attempts to restrain interpretation out of deference to the Sovereign. While this method privileges some texts above others (and indeed, the recipient-translator’s interpretation above others), the reason for such privileging is to purchase epistemic and political legitimacy.

    What is more, if the canons of construction are epistemologically sound, use of those conventions maintains the functionality of interpretation. That is to say, if all practitioners are using the same rules to guide their interpretations, it follows that they will understand each other, even across time and space. This increases the utility of interpretation as convention, but perversely reifies the interpretive acts’ subversive position to the imperative norm. The perceived value of such acts is contingent on whether one accepts the imperative norm as legitimate in the first instances. So, for example, if one believed that a norm was illegitimate, an interpretation that subverts the norm would be legitimate.

    At the end of the day, a theory of legal interpretation is ideological, insofar as it must be politically and epistemologically legitimate, but it must also be useful, given that legal interpretation is a practice that is intended to resolve or prevent disputes. Convention, more than merely a way to make oneself understood, is vital to both aspects.

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

  52. I think Andrew and Darleen are talking past each other. Andrew is talking about the community as the originator of meaning, rightfully expecting its meaning to be understood. Darleen is talking about the community as the a recipient of meaning wrongly empowered to decide for itself what the originator(s) meant regardless of the intentions of the originator(s). Andrew is worried about malfeasance on the part of an agent empowered to speak on the community’s behalf (when I authored the revision of the traffic code, I meant Meters Per Hour suckers!). Darleen is worred about malfeasance on the part of an agent empowered to (re)interpret meaning on the communities behalf (This court finds, relying on international standards, scottish common law and the desires of the Carter administration, that henceforth “miles” shall mean “kilometers”, and the bitter clingers can suck it!)

    Andrew’s point is that the legal profession has a convention that works. Jeff, Darleen et. al. are just pointing out that the convention is a structure, and if you aren’t aware of the foundations upon which that structure rests, some gypsy contractor from the Frankfurt School of Critical Engineering is going to talk you into knock out the walls of your basement.

    And if I’m wrong, at least I’ll have brought Andrew and Darleen together in piling upon me.

  53. knocking! knocking out the basement walls. Damn you lazy editing eye!
    I’m going to start surfing porn so I have an excuse.

  54. At the end of the day, a theory of legal interpretation is ideological, insofar as it must be politically and epistemologically legitimate, but it must also be useful, given that legal interpretation is a practice that is intended to resolve or prevent disputes. Convention, more than merely a way to make oneself understood, is vital to both aspects.

    Convention is vital when you want to be understood and you are using a sign system that is arbitrary. It is not vital where meaning is concerned. And it is not essential to making your meaning understood.

    Recognizing that — and what the distinction is important — is, well, important.

    For reasons Ernst hints at when he talks about the Frankfurt School.

  55. Pingback: Patterico's Pontifications

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  57. And whoosh. Again.

  58. Pingback: It’s 3 am, conservatives. And the phone is ringing…

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