Advice to an egret, revisited
Were I to answer a certain egret’s concerns, I would say that we are not talking past each other, and that I know that even though we started off speaking about interpretation and have now moved on into application or enforcement or implementation, the principles of intentionalism are nevertheless still determinative.
To wit, let me restate it this way and see if it makes a difference: the “interpretive” standard used by the textualist is “what can a ‘reasonable man’ make out of a given set of signifiers, keeping in mind that he is constrained by the conventions of a given historical context but not by authorial intent?” For purposes of application, however, the question he should be asking is “what part of the text’s intent can a ‘reasonable man’ not possibly glean from the way it has been signaled in that given historical context?”
Those are different questions, not least because they imply different things about how language works.
To go back to an earlier example: If dicentra says to you “pass the salt” and means “pass the pepper,” when you try passing her the salt she will let you know that she didn’t intend you to pass her the thing you passed her. If then (after a few more misfires) you pass her the pepper and she thanks you, you will know that, for dicentra, “salt” means “pepper.” That is, you will have understood her signification, and so understood her signs and consequently what she intended.
A few minutes go by. Once again, dicentra asks you to pass her the salt. What do you do? You know that by “salt” dicentra means “pepper.” You also know that dicentra is signaling her intent in a manner that runs counter to conventional signification. Do you pass her the salt again, because convention tells you that’s “allowed” — and then insist to her that “salt” is what she must have meant, or at least also meant, regardless of what you already know her to mean? Or do you pass her the pepper because you know that’s what she means by “salt”?
One thing you may wish to do ultimately is to point out to dicentra that, conventionally, “salt” doesn’t “equate” to the pepper she wants. You might explain to her that, if what she aims to do is signal her intent more clearly and consistently, it is important that she try to adhere to conventional usage, particularly if she wishes to be immediately understood. But you have also just proven that convention doesn’t dictate what she meant. Her intent does.
In this interpersonal instance, you were able to solve the problem of application by trial and error: eventually you came to understand what dicentra meant, and so you were able to give her what she wanted. But the problem arises in those situations where you cannot further query the intender, and yet you are impelled to act with a limited bit of information.
Most likely, you’ll do exactly what you did when you were first asked to pass the salt. But you will have done so because you believe that’s what was being asked of you — not by convention, but by the person signifying. You believed, in other words, that you were honoring an intent.
In those (exceedingly) rare theoretical instances where you know the intent at play and so are no longer interpreting (dicentra says salt but she means pepper, and you haven’t had time to inform her as of yet that she is signaling in such a way that will confuse those who rely heavily on convention to help glean intent) — and in the interim you are asked to rule on whether or not a third party (who doesn’t share your interpersonal experience with dicentra, and so doesn’t know her intent beforehand) is justified in believing she meant “salt” — no intentionalist would deny that the third party is indeed justified in believing exactly that.
But that’s not because dicentra meant salt, or because her text also means salt. It is because there’s no way a third party could possibly know from her text alone that she meant pepper when she signaled “salt”.
She has failed to signal her intent to that third party, even though she was able earlier to signal it to you. She still means what she means; but because the third party couldn’t possibly know what she meant, you find that they are justified in having misinterpreted her — not because they can make “salt” mean salt (at that point, they would no longer be misinterpreting; they’d be rewriting), but because in trying to reconstruct her intent, they couldn’t have known that salt meant pepper to her.
Particularly in the realm of legal language, where it is conventional to write and read in a way that intends first and foremost to apply the most conventional usages of terms, problems of the kind raised in your hypotheticals are rather unlikely, or else entirely beside the point where intentionalism is concerned.
Even so, the meaning of a text hasn’t changed simply because it doesn’t adhere to convention. The adjudicator has simply ruled, for purposes of enforcement, that the third party could not possibly discern the intent from the marks provided.
This is, as I’ve been saying, a different ruling than one that says the text, conceived of as existing beyond intent, also means “salt” because convention says it can — even if the two rulings accomplish the same goal.
It matters how you get there. Because the former adheres to the rules of language; while the latter uses a linguistically incoherent set of rules to reach the same destination.
The problem is, those linguistically incoherent rules then come to be seen as legitimate, and it is not difficult to see how the notion that “a text means whatever a reasonable person, having dismissed original intent, can do with a set of signifiers and an up to date dictionary” is not something we wish to institutionalize as an interpretative rule.
update: Just to clarify. Writes Frey-as-egret:
[...] receivers are sometimes (not always, but sometimes) justified in assessing the speaker’s intent, reaching a correct interpretation of that intent, but enforcing or applying or implementing a different interpretation of the speaker’s words (or, to you, “marks”) — namely, one in accord with the reading that a reasonable person would give to those words (or, to you, “marks”). Frey has asked you several times whether you agree with this assertion, and frankly, your answers haven’t been very clear.
I don’t know how my answers could be any more clear, frankly.
First of all, said “reasonable” people, if they know the writers’ intent but ignore it, aren’t applying a different interpretation. They are applying a different text — their own — and attributing it to the author. And that’s because it makes no sense to say “I know what you mean, but I’m going to say that you mean something else because I can show with your marks that you might have, even though we both concede that you didn’t.” Such a statement is both dishonest as representative of the author’s meaning and linguistically incoherent as an instance of interpretation.
— Which is why I keep noting that it matters what you think you are doing. If you recognize in that instance that you are ruling on the basis that a misinterpretation of intent was all but guaranteed because of the faulty signaling, you are ruling that a proper interpretation could not have conceivably been reached given the limited information provided.
This is a different animal entirely from one that maintains that a text “means” whatever a reasonable man can argue it means having first dismissed the intent of the author (and so dismissed what makes a text language to begin with) as irrelevant. Which is what textualism maintains it is doing.