May 14, 2010

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.

Little help?

Posted by Jeff G. @ 9:26am
197 comments | Trackback

Comments (197)

  1. Egrets?
    I’ve had a few.
    But then again
    They’re good with ketchup.
    –my wife

  2. Chokoloskee Chicken‘s tasty too, they say.

  3. Writes Frey-as-egret:

    This shows that 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.

    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.

    Little help?

  4. Good Lord, man, NO ONE except small children have ketchup with fowl.

    Or did you mean catsup? Either way, ick.

  5. Sorry, Jeff. You are ploughing the sea. I had a class of sophomores like that, once.

  6. Only one of two things are happening in the egret scenario.

    One. The egret contrary to all knowledge of the species is a thinking being that can communicate in written English in which case a conversation can commence once the receiver/reader is convinced that that is what is happening. Much like the dicentra pepper/salt scene Jeff G. wrote about.

    Two. The egret is simply an egret and the receiver/reader is having an internal dialogue, talking to himself, while projecting one side of the dialogue onto an external object which is in someways quite insane.

  7. This shows that 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 think this more or less amounts to the question “why do we treat criminals as criminals, contrary to their intentions, that we treat them as truth tellers and their falsehoods as truths?”

  8. power.

  9. So he’s asking that you ask someone in all seriousness the answer to a particular problem and the person responds with a sarcastic or otherwise deliberately misleading response AND YOU KNOW IT, is it still appropriate to act on that response as if it were literally true? To deliberately, in other words, treat the user’s statement as if it were true because the words suggest it even though you know it means something else?

    If a smartass electrician tells me to test whether a socket is live by sticking a fork in it and I know he’s kidding but do it anyway, I certainly don’t think I get to sue his ass when I get electrocuted.

    Is Frey even asking a good-faith question?

    P.S. I’m an idiot, so don’t tell me to stick a fork in the socket.

  10. And to answer my own question, the detail where the devil lives is how do I prove I know he was kidding then justify doing it anyway? Doesn’t that just sort of prove I’m a dumbass or someone who values making a point over my own well-being?

  11. Little help?

    Sure. Very little.

    What it means and what to do with it. These are two different things. The latter does not affect the former, at all. finis.

    So easy a caveman an egret could do it.

  12. First off, these are still cool, even if the seller is a bit of a prong for laughing at my offer.

    Second:

    What it means and what to do with it. These are two different things. The latter does not affect the former, at all.

    While I know what Pablo is saying here, I’d like to clarify. What you do with it will affect what it means if your justification for doing it affects what comes to count as meaning.

    So while in a clinical sense, meaning isn’t affected, people’s ideas about what comes to count as meaning (and why) can be affected, and the effects of that can be profound. As, eg., Tony Snow or Bill Bennett or Rush Limbaugh, et al., all found out — and as the tea partiers continue to find out on a daily basis.

  13. What you do with it will affect what it means if your justification for doing it affects what comes to count as meaning.

    Two more different things. But you knew that.

  14. Two more different things. But you knew that.

    Sure. But let’s try to think “practically.” It’s all the rage!

  15. Oh, and just so you know that I’m not exaggerating? The jean seller literally answered my email with “ha”.

  16. Or did you mean catsup?

    No, she only uses ketchup. Anything with the word “cat” in it she can’t bear to eat because kitty-cats are so cute and cuddly and eating something that makes her think of kitty-cats would make her cry.

    She is 44 years old.

  17. Catsup goes good with mayonnaise.

  18. “Or do you pass her the pepper because you know that’s what she means by “salt”?”

    You apply good Social Egretiquette and pass them both ;^)

  19. NOW we finally understand the reasoning behind “never divorce the salt and pepper.” Avoiding intentionalist arguments.

  20. Quick OT announcement in case I can’t make a more formal one:

    I will be on my way home in the next few days. Right now I am scheduled to get into Baltimore the evening of the 19th and will probably spend the night there. Send me an e-mail at dangerdaveoc at gmail dot com if you might be in the area and I’ll keep you updated.

    That is all

  21. You can lead a horse to water, as they say, but you can’t make it drink, Jeff. The horses over at Patterico’s have licked up so much of that alkali slop of a mis-caricaturisation Frey is perpetrating that I fear they’re beyond hope.

    Anyway, true story: a while ago I asked my three year old what he wanted for lunch.

    “You want peanut butter?”

    “No”

    “Peanut butter and Jelly”

    “No”

    “A Punch in the Nose”

    “Yes.”

    Anyway, this got me thinking about a new hypothetical. You offer a three year-old a knuckle sandwich and he accepts. What would an intentionalist do? What would a textualist do? Explain your answer using nothing other than your understanding of the way language works.
    (extra credit points if you know the source of the phrase “licked up that alkali slop”)

    Is it worth working through? Or a waste of time?

  22. If you are talking to egrets, your problems are likely bigger than the average person’s. That is all.

  23. As long as you don’t call your three-year-old “boy” within earshot of a black man, you should be okay.

  24. “Is it worth working through? Or a waste of time?”

    It might be better to simply read the Theaetetus, Sophist and Statesman trilogy, for the fun and the exercise.

  25. Catsup goes good with mayonnaise.

    Eating something that makes me think of mayonnaise would make me cry.

  26. Just so we remember to keep our eye on the ball:

    1) From the perspective of the textualist, what is a “word”? How are words made? How do they mean?
    2) From the perspective of the textualist, what is a “text”? How are texts made? Can a text exist independent of intent?
    3) Envision the following: you receive what looks to you like three identical “texts”, each appearing to say “pass the salt.” The first, it turns out, was created by a few egrets walking around in wet sand; the second was carved in a very old rock; the third was written on a slip of notebook paper. Are these three texts the same? How would you “interpret” each? Or would you even bother? Why or why not?
    4) When you interpret, what exactly is it you believe yourself to be doing?
    5) What is convention? How does convention come to supplant intent as the locus of meaning?

  27. “Or do you pass her the pepper because you know that’s what she means by “salt”?”

    What I do is echo, “Salt?”

    To which she replies, “Salt!? Are you deaf!? I asked for the pepper!”

    To which I respond, “Do you want to schedule you a CAT scan or should I take care of that?”

    And she’ll say, “Catsup!”

  28. “…for the fun and exercise.”

    I thought about breaking my boycott of Patterico’s and positing my hypothetical over there. My thinking was that it would appeal to the “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”)” ratiocinating going on over there. Moreover, I was hopeful that, if you could actually get them to engage the hypothetical, one might actually be able to show why Frey’s argument is wrong, even though it seems to work. But the realist in me believes that it’ll just be ignored. And the cynic in me figues I’ll end up arguing with a talking egret.

  29. I have many egrets.

    And although I wanted salt and/or pepper in the past, what I’m actually interested in is the butter.

    Or perhaps the red plum jam. That’s good stuff, Maynard.

  30. I have many egrets.

    And although I wanted salt and/or pepper in the past, what I’m actually interested in is the butter.

    Or perhaps the red plum jam. That’s good stuff, Maynard.

  31. She is 44 years old.

    46. Keep up.

    And I do prefer the “ketchup” spelling over “catsup,” but not because it reminds me of cute kittehs. I prefer it because “catsup” is gay.

    Also, there is a large artificial pond outside my office. We’re about 10 miles south of the Great Salt Lake, so the migrants come through.

    Three birds added to my life-list this week. Three.

    Least sandpiper (“Peep”)
    Yellow-rumped warbler (Audubon form)
    Western Kingbird

    In.
    Your.
    Face.

    And if there were fish in the pond, we might even get egrets.

  32. She is 44 years old.

    46. Keep up.

    And I do prefer the “ketchup” spelling over “catsup,” but not because it reminds me of cute kittehs. I prefer it because “catsup” is gay.

    Also, there is a large artificial pond outside my office. We’re about 10 miles south of the Great Salt Lake, so the migrants come through.

    Three birds added to my life-list this week. Three.

    Least sandpiper (“Peep”)
    Yellow-rumped warbler (Audubon form)
    Western Kingbird

    In.
    Your.
    Face.

    And if there were fish in the pond, we might even get egrets.

  33. 46. Keep up.

    Not talking about you. Keep up.

  34. …though I’m sure my wife would like you.

    I actually went looking for products that still bear the name “catsup” recently, and found none. So you may be right. NTTAWWT.

  35. We’re about 10 miles south of the Great Salt Lake

    Which valley, BTW?

  36. Look, I saw my name in the main post and skimmed down. Then I saw “she.”

    I don’t know why y’all would be talking about anyone but me.

  37. I’m just west of the SLC airport. Salt Lake County.

  38. Jeff:

    Not sure why you would need to buy something like that on eBay. All you need is a pair of old comfy jeans (or new comfy ones), some patches that they sell somewhere on the ‘tubez, the floor of your garage, and a spinning tire.

  39. Not the same, dicentra. I could buy a pair of raw selvage premium denim in the proper wash and try to replicate the process, but it would still cost me quite a bit. And I don’t have the skills to pull off repair work that looks haphazard and unselfconscious, but in reality is quite meticulously designed and carried out.

    …Or did you mean pepper?

  40. I may be wrong, but I think the only way for the “reasonable man” argument to work the text has to exist completely without context. That’s pretty much impossible. Also a “reasonable man” has to be some kind of Platonic form.

  41. (extra credit points if you know the source of the phrase “licked up that alkali slop”)

    What the Old Ranger of “Death Valley Days” says when one of the mules of the “20 Mule Team Borax” Wagon just up and dies enroute from the alkali flats?

    “He musta’ licked up that alkali slop!”?

  42. Incidentally, can someone please help me out with the “plain meaning” of “decent offer”? The seller keeps insisting I’m wrong about what he meant by “decent offer” — even though I keep assuring him that, conventionally speaking, I am well within my rights to insist he accept the amount I have decided is decent. The bastard just doesn’t get this whole application thing.

    Quick. Somebody find me a textualist judge.

  43. Also a “reasonable man” has to be some kind of Platonic form.

    So a “reasonable man” isn’t allowed to fuck? Where’s the fun in that? I’ll stay unreasonable, thanks!

  44. Dunno about the plain meaning of decent offer, though it looks like an offer with its clothes on, but here’s the plain meaning of “Boogity-boogity-boogity, let’s go extraterrestial boys!”

  45. Easy. “Decent offer” is Esperanto for “More than you want to pay.” It’s a sliding emphasis scale. Best, Good, Nice, Great, Decent. But essentially, they all mean the same thing.

  46. John,

    Exactly. Try to find one.

  47. You should try using an egret to broker the sale Jeff. I hear they’re indefatigable hagglers who never ever lose out on a sale.

  48. Di, have you been billed yet for your police protection? Is it as bad as some of the commentary I’ve seen about it makes it sound?

  49. “What the Old Ranger of “Death Valley Days” says when one of the mules of the “20 Mule Team Borax” Wagon just up and dies enroute from the alkali flats?”

    Not the answer I had in mind, but I’ll give you quarter-credit (2500 pts) for creativity. Full credit if you can sight episode and airdate for me.

  50. T minus five.

  51. Re; the jeans. Since he has a minimum bid of $500 I’d let it go and see if anyone comes up with it at the end. If there is someone willing to pay $500 or more they will show up at the end. If not then he will probably list it again with a lower minimum or perhaps no minimum. E-mail him with your maximum offer, if you haven’t maxed the one already, just before the auction closes if he has had no bids.

  52. He’s already re-listed it. At the same price it didn’t sell for the other times he listed it.

    That’s okay, though. My backup plan — which is quite well thought out, if I do say so myself — is not to buy the jeans.

  53. Full credit if you can sight episode and airdate for me.

    Sheeesh. everyone knows it was at least in one episode airing on the same date as “Howdy Doody” #251. But just in case you’re going to try to catch me up in another technicality, I don’t think that Rosemary DeCamp ever mentioned it – after all, she was trying to sell the damn soap, not teach people how to poison Mules.

  54. If a smartass electrician tells me to test whether a socket is live by sticking a fork in it and I know he’s kidding but do it anyway, I certainly don’t think I get to sue his ass when I get electrocuted.

    Well, if you really are electrocuted then you won’t be thinking anything, much less suing anyone. The dictionary definition of the word “electrocute” is to kill by electric shock.

    Of course, many people use “electrocute” and “shock” interchangably. So we have to see in context what you really mean, eh wot?

  55. The dictionary definition of the word “electrocute” is to kill by electric shock.

    IIRC, the initial coinage is “electrocution,” as in “electrical execution.” “Electrocute” is an enverbenation of the original made-up noun.

  56. At this point, the reasonable observer is left wondering if expressing the answer in any form more complex than a dirty limerick would even be acknowledged by the egret.

  57. In the mean time, the only way I’m going to be comfortable in my jeans is to either buy another size up or lose some weight. Of course, I’ve already bought one size up in the past six years, so that methodology is fraught with peril. Decisions, decisions.

  58. Vintage jeans is something I know nothing about. I just wear jeans for working and comfort after they break in. The whole area reminds me of a story I read years ago by IIRC Tom Wolfe? that concerned the intricacies of the world of high end, hand tailored men’s suits.

  59. cranky-d,

    I know what you mean. I have about 10 pair of nice hardly worn jeans that fit me until I was laid off last year and gained a size that hasn’t come off. They cry to me to lose the weight and wear them. Maybe this Summer I will be able to do it.

  60. The plaintive isolation of the ill-fit jean is just as bad in the other direction. No amount of belt tightening abdominal strangulation could keep my old jeans above my non-existent hips. Or, why god made suspenders, eh?

  61. I’m not sure if I offer help, but I do have some questions. The problem of intentionalism is fully revealed when third parties enter the scene. What happens if, instead of dicentra asking me for “salt” when she intends “pepper,” we entered into a written contract. (dicentra–pardon me for using you in the example, I’m just playing with the post’s hypothetical.) The document provides that I will pass her “salt.” Let’s assume that I do not know she intends “pepper.” If I pass her the “salt” and she brings suit for breach of our contract, how would a third party interpret that exchange? Did I agree to pass the “pepper”?

    Now, if I know that when we entered the contract for me to pass the “salt” she meant “pepper,” but I pass her the “salt” anyway, I think everyone would agree that I have breached our agreement. However, dicentra will have to prove that I knew that she meant “pepper” when she said “salt.” As an evidentiary matter this is not impossible, but it has to overcome certain conventions. The most important of these is that contracts are interpreted to effectuate the mutual intent of the parties–one parties’ undisclosed subjective intent is therefore immaterial. But, if she can prove that I had reason to know that she meant “pepper,” then our mutual assent encompasses that understanding and it would bind me.

    As I understand it, the situation that Frey-as-egret describes arises often in contract law, particularly where you have bargaining assymetry, such as where a sophisticated party on one end of the transaction, and an unsophisticated party on the other. In this context, a court will often construe the contract “in the interest and justice” to protect the weaker party’s “reasonable contract expectations.” Those expectations are measured from the perspective of an objective, reasonably prudent person. It’s not always a bad thing, either. If I bought fire insurance from an insurer, but the insurance contract has so many loopholes and boilerplate language so as to effectively make coverage nonexistent, the court would be warranted to protect the premiums that I have paid over the years by using this concept. If both parties are sophisticated, however, and there was considerable negotiation over each term, this practice is dubious, to say the least.

    I agree with you Jeff. This is an exercise of power. But when you’re using a third party neutral to resolve a dispute over the meaning of a text, that third party has to have the power to make binding decision. In the context of contract this is not necessarily offensive because the parties agreed to the terms of a transaction and consented to be held to their agreement before the dispute arose. The convention here, effectuating the parties’ mutual, objectively manifested intent, solves the problem of construing the meaning of text a where you have two parties signaling their intent through the same marks, and where they have agreed to be bound to that meaning.

  62. Andrew –

    Let’s assume that I do not know she intends “pepper.” If I pass her the “salt” and she brings suit for breach of our contract, how would a third party interpret that exchange? Did I agree to pass the “pepper”?

    I believe that’s answered in the post, thus:

    If [the third party] recognize[s] in that instance that [it is] ruling on the basis that a misinterpretation of intent was all but guaranteed because of the faulty signaling, [the third party is] ruling that a proper interpretation could not have conceivably been reached given the limited information provided.

    Or in other words, the third party is not compelled to find secret meanings privy only to dicentra and rule that others should necessarily have found them in the course of interpreting the text.

    Dicentra, therefore, would be crazy to bring suit — particularly given that the conventions of the legal system, which as a matter both of convenience and interpretive efficiency tend to favor the most conventional usage of language for purposes of interpreting, militate against her potential for success.

    If, however, that third party is convinced that you and dicentra were using your own special language in the contract (that is, dicentra convinces the objective third party beyond doubt that you knew what she intended and had agreed to it), for that third party not to find in dicentra’s favor at that point is to reward your dishonesty — here, manifest in your decision to appeal to conventional language for relief, even though you hadn’t used such conventional language when you agreed on the contract.

    That is, the third party favoring convention in that instance would be favoring neither of the two principles’ actual meanings — and would be ruling on a text of its own design. It would be favoring convention for convention’s sake — and dicentra would be screwed as a result.

    Make sense?

    Good question, though. Thanks.

  63. Did I agree to pass the “pepper”?

    Not if the two of you don’t agree on what the word “pepper” or “salt” means. There was no “meeting of the minds” if you insist on having different definitions for the words. You use the same marks on paper or sounds in the air, but in Jeff’s terminology, you have different “texts”. (Personally, I don’t know if I like that terminology that well, but he has made clear what he means when he uses the word, and provided he remains consistent, no problem.)

  64. Oh, and as I’ve pointed out before on this subject, absent that “meeting of the minds” there simply is no contract. You have two independent parties emitting sounds and marks, but no actual communication is taking place.

  65. I don’t know if I like that terminology that well, but he has made clear what he means when he uses the word, and provided he remains consistent, no problem.

    I assure you I use “text” no differently than, say, Stanley Fish did recently in the NYT piece. And I doubt Fish borrowed that usage from me.

  66. PC

    Eugene Volokh • May 14, 2010 3:39 pm

    A tip for lawyers (and others): The standard phrase for certain kinds of unsigned court opinions is “per curiam,” not “per curium” — except perhaps in science fiction stories involving decisionmaking by artificially intelligent radioactive-element-driven quantum computers.

    A quick Westlaw search through Allcases (date > 5/1/2010) confirms that “per curium” is still nonstandard: “Per curiam” gets 1427 hits, “per curium” only 10. (Usage among judges is probably the best yardstick for lawyers to measure themselves against, since judges are the people whom lawyers are trying to influence in their filings.) Yet “per curium” is common enough to be warning people against: A search through the Brief-All file (date > 1/1/2010) reports 88 instances of “per curium.”

    link

  67. Thanks, Jeff. I should’ve read your post more closely. It appears we agree.

    Now let me introduce a new variable. Suppose the contract for the “salt” was the twenthieth such contract. The previous 19 times I had passed the “pepper” and dicentra did not complain. On number 20, I pass the “salt.” She sues. I’m sure we can agree that I lose because there is objective evidence of our secret meaning that the third party can point to when it tells me to go to hell and, oh by the way, please pass the “pepper.”

    Now, if I understand you, the question at issue isn’t so much can the third party find “salt” or “pepper” meaning, as can it find “tabasco” in the text? If that’s correct, then I agree, these are two separate inquiries. What’s more, finding “Tabasco” would, as is sometimes said, do violence to the text. If my understanding is not correct, then I’m afraid I’ve missed the point.

  68. That’s about it, Andrew. Although my main objection is that they’ll find Tabasco and justify the finding because it was disguised as “salt.”

  69. Further advice to an egret: don’t quit your day job.

  70. Btw, why won’t Leviticus answer the third question?

    Let us all note this and perhaps make some harrumphing noises.

  71. “why won’t Leviticus answer the third question?”

    Because, like a good lawyer (or legalisticly minded at least) he won’t answer a question he hasn’t already asked?

    There’s a couple of questions he won’t answer, so in addition to a harrumph, an arched eyebrow is in order.

  72. Consider it arched, sir.

  73. Professor Charles [bh] Kingsfield is not to be trifled with.

  74. But Jeff, the bottom line is we can never divine intent, unless somehow specified. It’s a hall of mirrors that ends in a closet somewhere.

  75. Your silver is missing, so it’s all gold for us.

  76. I don’t get the hard-wired perception. I guess that’s why my interpretation tends to be elastic. So for me, language is like an exchange, complete with implicit bets for it and against it.

  77. But Jeff, the bottom line is we can never divine intent, unless somehow specified. It’s a hall of mirrors that ends in a closet somewhere.

    Oh, we divine intent all the time.

    And the fact that, as the texts become more complex and removed, the intent becomes (potentially) more difficult to divine doesn’t mean that we can simply pretend intent ceases to ground meaning.

  78. Plus, aren’t these freaking awesome?

  79. It’s like you’re trying to embed a crystal in a jello mold. It breaks the crowns.

  80. How do you know for sure what people mean or intend? I have more or less followed this feud have never understood that.

  81. The more you work at it, the better your odds are, cynn.

  82. I’d rather discuss the truly boss jeans. It’s been a long week.

  83. What do you mean by that, Pablo? Do you even know what you’re talking about?

  84. There is a better bass player than Les Claypool. True or false?

    The jeans are growing on me.

  85. How do you know for sure what people mean or intend? I have more or less followed this feud have never understood that.

    You ask them to clarify. You pretend you’re a shrink and say, “I hear you saying that you believe X,” and if they agree then you’re pretty sure you’re interpreting correctly.

    Or, you post “innocent questions” in public, implying the most unsympathetic meaning you can think of, and then, as LBJ once said, “Make the son of a bitch deny it.”

  86. Well, these are more my price range. But as I said I am no connoisseur. Have no idea what I would need to know to become one or where to obtain the knowledge.

  87. You’re full of shit. A legitimate question. Call me out if you want. Just do it right.

  88. What do you mean by that, Pablo? Do you even know what you’re talking about?

    Did you try to answer either of those questions before you asked them, cynn? Because that’s what I’m talking about.

  89. If, by “full of shit,” you mean that I’m astute, stunningly handsome, and a generous lover, then I’d say you’re right.

    And if you’ve really been following the feud from the beginning, you’d know that my LBJ example has nothing to do with you, and everything to do with a certain small white heron.

  90. P’raps cynn needs some Velveeta to go with that box wine…

  91. It’s getting funny again in Freytown.

  92. From Pat:

    For people who are supposed to be unwedded to convention, these folks are absolutely beholden to the conventions of terminology in discussing these very concepts.

    !akske skwle doddweiy, asE*

  93. Oranges are apples and visee versee, see.

  94. There’s more:

    And I’ll be damned if I am going to be forced to discuss this in some rarefied terminology that ordinary people need to pore over to understand.

    Why? Leviticus had it from Jump Street, he says. So have you, you say. Do you think your readers are so very slow? I don’t.

    Signified. Signifier. Sign. Text. Intent. Not that many words. No shocking meanings attached.

    Of course, I’m sure that no one has discussed the law without any of that related jargon over there. Let me do a quick google search…

  95. For people who are supposed to be unwedded to convention, these folks are absolutely beholden to the conventions of terminology in discussing these very concepts.

    Well, if he’d like, I can say “salt” instead of text. But that would probably lead to more aggressive misunderstandings and strained hypotheticals, and I just really don’t have the patience for that, I don’t think.

  96. Not a single windmill is safe. This is becoming clear.

  97. Intentionalism is both a blindingly obvious truism and a subject fraught with the most arcane jargon and attended to by an inscrutable priesthood.

    At the same time.

    Nice trick.

  98. And I’ll be damned if I am going to be forced to discuss this in some rarefied terminology that ordinary people need to pore over to understand.

    Unlike, say, legal terminology. Which is completely straightforward. If you’re John Milton. Or a medieval monk.

    Honestly. We haven’t gone beyond some very basic terms. Intent as the agent of signification; the sign and its constituent parts (signifier + signified); the text as a collection of signs when intended, signifiers when not; interpretation; speech act.

    No homodiegetic or autodiegetic narratives; no deictics; no gnomic code or metalepsis; no narremes or prattons. I’ve kept it as simple as possible in fact because frankly, a lot of the more formal stuff isn’t useful when discussing the basic process by which language becomes language and is used to communicate meaning.

    Let them just declare some sort of victory and move on. For me, the highlight of the week was having Leviticus talk about “utilitarian meaning” and then essentially brushing off Stanley Fish as a linguistic know-nothing (whether Fish realizes himself to be or not!)

    If there’s some question or concern the textualists have that I haven’t responded to or addressed, let me know. But to be quite honest, I think I’ve done a pretty good job making this stuff as clear and accessible to a general audience as possible while at the same time working to make sure I remained precise in the way I used the necessary terms.

    YMMV.

  99. I’m not sure. To properly play to the crowd, I think Ernst and I need to harrumph and arch our eyebrows some more over unanswered questions.

    Later, I’m going to seize the high ground by affecting some more civility.

  100. Leviticus is a good man. And it hurts me deeply when he’s wrong.

  101. Oops. bh beat me to it.

    It’s all good, though. I mean, if this post is somehow too difficult to follow, there’s really not much more to say, is there? As for the “jargon,” I consistently define my terms. And as I pointed out earlier today, it’s doubtful Stanley Fish, writing in the NYT the other day, borrowed the terminology from me. Which should tell you this is pretty standard stuff for talking about how language works. I mean, he published in the NYT, not Diacritics. And the people who read this site and have managed to follow the argument are, for the most part, not connected to the fields of linguistics, semiotics, or rhetoric.

    So.

  102. There’s another similarity between nishi and Frey. They are never able to actually insult us.

    It’s like that scene in Pulp Fiction where the guy comes out of the bathroom and misses Jules with a full clip.

  103. Frey is now playing at being confused over something he says he’s always understood. (He is actually joking. The joke is on his readers. Who aren’t able to understand. Because they’re dumb, we’re left to assume.)

    He’s playing to the crowd. It’s what he does. He’s always been just this transparent.

  104. An attorney and an armadillo walk into a bar and sit down. The bartender comes over, looks at both of them and says “You know we do have rules about who we serve here.”

    The attorney says “I know that by using the lens of convention my companion here appears to be an armadillo, however he tells me that it is his intention to be a writer of some renown so can’t you…”

    The bartender cuts him off, “You are not interpreting my words correctly.”
    “The rule here is we don’t serve lawyers.”
    “When they drink you never know what shit will come out of them and they tend to leave a mess behind.”

    He turns to the armadillo and asks “What’s your pleasure.”

    The armadillo replies “Got any single malt.”

  105. Not to half his readers he isn’t transparent.

    They are never able to actually insult us.

    The question is, why does he feel the need to try? Have I not tried seriously to engage him? Have I not painstakingly gone through his hypotheticals? Did I not spend time this morning answering Frey-as-egret?

    Whatever. I can’t do more than respond each time I’m questioned. If we’ve gotten to the point where the guy assuming the role of an egret is not happy with the way I’m responding (using terms specific to the discussion), that’s a sign he’s found himself with a bad hand.

    Going to watch some horror movie or other. Later.

  106. And then an egret stabs both of them.

  107. Wait, Jeff. Whatever we do, we must not discourage Frey’s forays into stylism. He might become discouraged.

    And, c’mon, admit it. You find it as alluring as I do. Meta-egretics await.

  108. If Leviticus were to attempt to interpret his Biblical namesake, what common conventions would he use?

  109. What I learned , cynn, is you can talk as loud as you want to a deaf person and they still can’t hear you.

    Mother Shoveler. I like the way that sounds.

  110. Never go South of the river eh, bh.

  111. How do you know for sure what people mean or intend?

    Even “complicated” people aren’t that complicated. And just because you may often have no idea why you say things (let alone anybody else), doesn’t mean the rest of us are in the same boat.

  112. Patterico:

    And I’ll be damned if I am going to be forced to discuss this in some rarefied terminology that ordinary people need to pore over to understand.

    First, note that this statement was made by a lawyer, so is eminently laughable.

    Second: this statement translates loosely as: too many words.

  113. Not to mention it’s like saying that you’re very interested in discussing how car engines work — and wish to debate just how they work — but you don’t want to have to use rarified terminology like “carburetor” or “spark plug” or “piston” or “alternator” or “air filter.”

  114. “rarefied”?

    I have only have basic college english classes to my name, but it didn’t take me that long to understand what “sign” and “signifiers” means in the linguistic realm.

    and yeah, a lawyer that can toss around Latin legal phrases should sniff at a handful of linguistic terms…

    unbelieveable

  115. Please teach me physics, but please don’t bother me with pettyrarefied concepts like “force” or “momentum” or “mass”.

    WHY CAN’T YOU EXPLAIN THIS TO ME IN TERMS THAT I CAN UNDERSTAND?

  116. “Why can’t you explain this to me in terms that I can understand?”

    It seems to have gotten to be far more precious than that Slart. At this point he dwells on others taking his uses of the terms as he intends them:

    This is part of the reason the discussion is so frustrating. You and I and MD in Philly use a word like “text” according to its ordinary definition. To us, there are words written on a computer screen. No matter how they are interpreted, the words — the text — doesn’t change; only the interpretation does. We would say that an interpretation that is inconsistent with the speaker’s intent might be an interpretation that is WRONG, but it is still an INTERPRETATION.

    But to the intentionalist, the words “text” and “interpret” have specialized meanings that are unconventional and confusing when not fully explained. To an intentionalist, the relation between the words on the screen and the intent of the speaker is PURELY ARBITRARY (the Humpty Dumpty school of language), and so, if you interpret the words in a way that is inconsistent with the speaker’s meaning, you are not even “interpreting” a “text” that hasn’t changed — instead, you are creating a new “text” . . . a process that they deny is even interpretation.

  117. But to the intentionalist, the words “text” and “interpret” have specialized meanings that are unconventional and confusing when not fully explained. To an intentionalist, the relation between the words on the screen and the intent of the speaker is PURELY ARBITRARY (the Humpty Dumpty school of language), and so, if you interpret the words in a way that is inconsistent with the speaker’s meaning, you are not even “interpreting” a “text” that hasn’t changed — instead, you are creating a new “text” . . . a process that they deny is even interpretation.

    And he keeps saying he understands….

  118. Comment by sdferr on 5/15 @ 1:48 pm

    unreal. Just unreal.

    It really is about power.

  119. And too, SW, he’s complaining after he has been invited and refused the invitation to provide answers to precisely his own definitions to many of these terms and their relationships, to wit:

    1) From the perspective of the textualist, what is a “word”? How are words made? How do they mean?
    2) From the perspective of the textualist, what is a “text”? How are texts made? Can a text exist independent of intent?
    3) Envision the following: you receive what looks to you like three identical “texts”, each appearing to say “pass the salt.” The first, it turns out, was created by a few egrets walking around in wet sand; the second was carved in a very old rock; the third was written on a slip of notebook paper. Are these three texts the same? How would you “interpret” each? Or would you even bother? Why or why not?
    4) When you interpret, what exactly is it you believe yourself to be doing?
    5) What is convention? How does convention come to supplant intent as the locus of meaning?

    Odd, no?

  120. I don’t believe ‘this’ (encompassing the entire set of events that have unfolded in the interval of time since last December to the now) has a damned thing to do with language or the interpretation thereof.

    Some people just can’t take a whipping.

  121. And he keeps saying he understands…

    Well, he has to walk the tightrope of both saying that he understands it while maintaining an angle to misrepresent it to his audience. As you can see, this leads to incoherent statements.

  122. Odd, yes, sdferr.

  123. This is part of the reason the discussion is so frustrating. You and I and MD in Philly use a word like “text” according to its ordinary definition. To us, there are words written on a computer screen.

    That is a text. So what’s the problem?

    If he knows them to be words, he knows them to be intended. Simple, really. Anybody frustrated yet?

  124. This is part of the reason the discussion is so frustrating. You and I and MD in Philly use a word like “text” according to its ordinary definition. To us, there are words written on a computer screen.

    The fact that you recognize that they are words (are what an egret leaves scratched into the sand “words”?) means you understand that you are dealing with language that was intended as such.

    You can turn those egret scratches into a text by intending to read those marks as language.

    No matter how they are interpreted, the words — the text — doesn’t change; only the interpretation does. We would say that an interpretation that is inconsistent with the speaker’s intent might be an interpretation that is WRONG, but it is still an INTERPRETATION.

    That would depend on whether or not the “interpreter” is appealing to what the author intended. Trying to recover intent is the object of an interpretation. You can have interpretations that are wrong.

    However, when you claim, as someone like Scalia has, that intent doesn’t matter, then you are saying that the signs before you, intended as they were by someone who meant, are not signs at all. Because a sign is a mark plus the thing it refers to. Take away intent, you take away the thing the mark refers to and are left with only the mark. That is a signifier. And it is no more “language” at that point than those egrets scratches.

    You can intend to see it as language — and that move, to then add references back to those marks (let’s say you decide to add to those marks those referents most conventionally used) — is the move whereby you create your own text by dint of adding your own intent to signify to the signifiers you “borrowed” from the original author.

    Again: you haven’t borrowed his signs — in fact, you’ve said up front as a matter of textualist principle that his signs don’t matter — but rather you’ve kept his marks and have resignified them to suit your own desires.

    And yet you wish to maintain that those signs are still his.

    If you aren’t interested in dealing with the message the author intended, by what lights are you interpreting his text?

    But to the intentionalist, the words “text” and “interpret” have specialized meanings that are unconventional and confusing when not fully explained.

    Oh, I think they’ve been fully explained, and they weren’t too specialized to appear in the NYT.

    But rather than complain about rather traditional usages of those words as they operate in the area of intellectual endeavor you keep insisting you’re interested in pursuing, why not just define what a “text” is to you? What it means, from your perspective, to “interpret” — as well as what it is that you believe can be interpreted, and what has to happen in terms of where and how meaning is addressed in instances of interpretation?

    That a lawyer would complain about so-called specialized language is funny. But whatever. We can work around that. It is silly however to suggest that what is meant by things like sign or interpret or text haven’t been explained — because I’ve explained them over and over and over again, and as Stanley Fish’s NYT piece shows, I’m not using those terms any differently than they are ordinarily used in such discussions.

    To an intentionalist, the relation between the words on the screen and the intent of the speaker is PURELY ARBITRARY (the Humpty Dumpty school of language),

    You can’t have “words” without intent. What is arbitrary is the joining of the signifier and the signified: why did the mark “cat” come to mean what it generally signals? Most words aren’t onomatopoeiatic. The sound form chosen to represent them is attached arbitrarily to the thing to which they refer. That’s what “arbitrary” means.

    and so, if you interpret the words in a way that is inconsistent with the speaker’s meaning, you are not even “interpreting” a “text” that hasn’t changed — instead, you are creating a new “text” . . . a process that they deny is even interpretation.

    Not true. If you interpret incorrectly you have interpreted incorrectly. If you strip a message of its intent, take only its marks, and then decide what it should mean based on those marks, you are turning marks into language.

    And at that point — because it is YOUR intent to signify that is creating that text — it makes no sense to pretend that you are trying to understand what the writer meant. You aren’t interpreting. You’re showing what you can do with the marks somebody — or, hey! even an egret! — left for you to play with.

  125. in fact, you’ve said up front as a matter of textualist principle that his signs don’t matter — but rather you’ve kept his marks and have resignified them to suit your own desires.

    Hmmmm…. Carrie using a tampon to blot her lipstick.

  126. A strike?!? He didn’t even swing! And don’t make me tell you again. I have 2 balls, no more no less.

    So, who’s winning?

  127. A speaker causes words to appear on a page, which constitute a law. A judge is charged with enforcing the law. There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.

    I read an old Zen type deal back when I was younger about how there were only a limited number of ways to hit a target, but an infinite number of ways to miss.

  128. Textualist: Um, in yesterday’s 5 problem pop-quiz you gave me no points for #3 …

    Algebra Teacher: Yes.

    Textualist: but x=8 is the correct answer?

    Algebra Teacher: Technically, yes. But I said to “show your work”.

    Textualist: but my answer was RIGHT! That’s what matters! Right here, on this paper I wrong x=8 and THAT’S the ANSWER.

    Algebra Teacher: Sorry, but there is more to math then just getting the right answer, you have to know and understand the process of how math works …

    Textualist: Process, schm-ocess. I GOT THE RIGHT ANSWER. That’s all that matters in the “real world”. All those fancy mathy terms you throw around don’t mean anything to normal people outside of this classroom.

    Algebra Teacher: Yes they do matter, because it shows whether you are really doing math or just engaging in guesswork.

    Textualist: I was too doing math! I got the right answer! That’s the important thing. My right answer CLEARLY demonstrates I can solve an algebra problem!

    Algebra Teacher: …and the four other problems you also “solved” as “x=8″?

  129. Damn shame. The guy had the opportunity to learn a whole lot about language, how it functions, and why what we think we’re doing when we interpret matters.

    Instead, he’s decided to complain about terminology, see if he can find ways to argue against what simply is, and look for loopholes to wriggle out of the position of denying the obvious and embracing the incoherent that he’s publicly embraced.

    It’s really sad. Honest to God sad.

  130. oh, heck…typo at line 5

    should read: Right here, on this paper I wrote x=8

  131. I put my “Conversation between a Textualist and an Algebra Teacher” in Frey’s comments.

    Wonder if it will stay.

  132. well, Pat didn’t like my sarcasm at comment #2 now in moderation:

    2.I always suspected that egrets had no clue.

    Whether that is bug or feature is another mystery.

    [I have placed your comment in moderation because it is just an insult with no content. That is the sort of comment that causes a thread to degenerate. If you have an argument to make, feel free to make it. If you merely want to hurl contentless insults, there are other sites that are more welcoming of that sort of thing.

    Until this comment, I have noticed that, in recent days, you have done a good job of making arguments instead of merely throwing out insults — at least, in your comments at THIS site. And while I haven’t had time to respond to them all, I have read them, and appreciated the fact that you were coming here and making an argument. — P

    Countdown on the next

  133. A speaker causes words to appear on a page, which constitute a law. A judge is charged with enforcing the law. There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.

    First, if a judge is charged with enforcing the law, he assumes the law was intended to do something. He also knows that he didn’t write the text now before him, and so he knows that what it intends to do isn’t something that comes from him. And he doesn’t think a speaker “causes words to appear on a page” accidentally, presumably. Therefore, if he tells you he doesn’t care about what the legislators intended, he’s either lying or mistaken, because he couldn’t see the law as law if he didn’t believe it was intended as such.

    He may not care what those who crafted the law intended as a matter of stated methodology — textualists like Scalia have adopted such a linguistically incoherent stance — but that redounds to what he thinks he’s doing and how he (erroneously) describes what he’s doing, not to what he actually does as a “textualist.” Intentionalism, as I keep pointing out, just is. Either the judge tries to reconstruct the intent of the legislature, or he applies his own intent to marks that he has borrowed from the original intending agency.

    In both cases, he is an intentionalist. But in the latter case, he isn’t an intepreter.

    Beyond that, all I can say is that what I’ve been saying: it matters how you get there. To say it is legitimate to ignore someone’s intent and yet still lay claim to interpreting their text doesn’t make sense. To misinterpret someone’s intent is not the same thing as saying that their intent doesn’t matter — but they’re still responsible for whatever meaning you can attach to what they didn’t mean. What you have, once you bracket intent, is the noises made or the squiggly marks drawn by someone who meant something, with that something being captured in the signs they used to signify their meaning. Your insistence that you can rid yourself of that intent, then take those noises or squiggly marks you’re now left with and insist that the people whose intent you’ve dismissed as irrelevant meant what YOU SAY (whether by appealing to convention, or consensus, or to your own special language) THEY MEANT because of what YOU ARE ABLE TO SAY THOSE SOUNDS OR SQUIGGLES SIGNIFY, is not only dishonest, but it is a move designed to usurp meaning.

    Period. End of lesson.

    Unless and until Frey and the so-called “textualists” define what they mean by word, convention, interpretation, text, etc., there’s really no more reason to discuss any of this. It’s just bad faith piled onto bad faith.

  134. Instead, he’s decided to complain about terminology, see if he can find ways to argue against what simply is, and look for loopholes to wriggle out of the position of denying the obvious and embracing the incoherent that he’s publicly embraced.

    Those are just tactics. It’s not as if he’s interested in figuring any of this out. In fact, he probably has, but that’s not what he’s after. Which is still sad.

  135. Well, yeah, it’s sad but I still enjoy watching him act out like this. Maybe I’m a bad person.

  136. I’m a big fan of schadenfreude, bh. But as far as this one goes, I’m just…tired. YMMV.

    I went over there, which I usually don’t do, and it made my head hurt. I actually started writing a response and then I checked myself and clicked the little x on that tab. I can’t find a good enough reason to do it.

  137. bh, I sent you an email in the form you asked for, let me know if it worked.

  138. I hear you, man. It’s gone on far longer than I could have ever guessed.

    What keeps pulling me back in is the way he’s continually putting his finger on the scale. He really does seem to think he’s surrounded by morons. That no one notices.

    It’s kinda like watching a little kid lie. Just cracks me up.

  139. Sucess, Geoff!

  140. Might have missed a C up there.

  141. I’m sticking with what I said Wednesday night.

    Sometimes the intent is to be intentionally, stubbornly obtuse.

    Like the kid who always replies to everything said to him with “Why”. Not to learn anything but to provoke an exasperated reaction from the adults.

  142. Not so feeble then, good.

  143. One more coming everything else is either to far back or not meaningful this much later.

  144. Thanks, chief.

  145. You know, the intentional screwing with language and intent can be used to comedic effect –

    In this clip of My Big Fat Greek Wedding go to 6:06 where Toulah’s jokester brother is teaching a Greek phrase to Ian that the brother claims meaning “Let’s all go into the house now.”

  146. I have placed your comment in moderation because it is just an insult with no content.

    That’s the way he interpreted it, any way.

  147. …as long as he does not pretend he is interpreting the legislators’ true intent…

     I am still trying to figure out what that is supposed to mean.

    Or what it actually says, just to be fair.

  148. hmm…. My use of “My Big Fat Greek Wedding” is not sitting well with “nk”

    17.That’s a rotten example to interpret from one language to another.

    I believe he just saw why Pat’s been wrong from the beginning.

  149. I am still trying to figure out what that is supposed to mean.

    Or what it actually says, just to be fair.

    I believe he means there are times a judge can say, “Well shit, man. I don’t know what the fuck those tools in the legislature meant. But we need a ruling, so I hereby decree the law means X — not according the legislature and not according to me, mind you. But according to the text itself, which exists as its own willful being.”

    How the “text itself” comes to gain a voice outside of the one provided it by some agency’s intent to signify (and so to mean), is left unexplained. After all, somebody has to chose to privilege “conventional usage” over whatever usage the people who crafted the message intended as the locus for that text’s meaning. But it is only in such a scenario — one in which the text itself is responsible for its own signification — that “textualism” makes any kind of linguistic sense. Which is to say, it doesn’t.

    All the more reason to pretend all those strange rarefied terms — the very terms that describe the constituent parts of words and texts — serve to confuse rather than to illuminate.

  150. By the way, there actually was someone who went over and addressed each and every question. For his efforts, he was repeatedly insulted. The line to get treated like him forms right over there!

    I am assuming Mr Frey is referring to Leviticus in this thread, but I am at a loss to find where Leviticus in fact addressed “each and every question”, or where he was “repeatedly insulted”. This language business must indeed be trickier than I thought, as I don’t think Mr Frey is using these words in the conventional, everyday sense. Perhaps he is employing some technical, non-standard forms of these words?

     

  151. SW, it helps to realize up front that Patrick Frey is a shameless liar. Once you’ve got that bit of info in hand, his intent is much easier to discern; he’s deceiving.

  152. But it is only in such a scenario — one in which the text itself is responsible for its own signification — that “textualism” makes any kind of linguistic sense. Which is to say, it doesn’t.

    A “textualist” judge true to his ideas on language would jail, for public obscenity or some other verbal crime, someone afflicted with Tourette’s, an intentionalist wouldn’t.

  153. Again, the legal system is unique in that laws are written by those who are paid to write them according to legal convention and they are then applied by those who are paid to do so, expecting those texts to hold to that same convention, where intent and plain meaning are one and the same. The rest of the world doesn’t work that way, with the exception of technical writing. In these narrow venues, if the created text doesn’t carry with it an obvious meaning then the author is at fault. Which still doesn’t change the meaning of the text, but it does make it impossible to use as intended.

  154. Pablo, I think there must just be some rules of convention that I am unfamiliar with. I will scour the lexicon to better apply these conventions to his “words on a computer screen”, entirely devoid of any appeals to his intent, such as a reasonable person might. In that way, communication between us is assured.

  155. SW, that or you might find this a useful reference.

  156. Thank you, Pablo, I may just try that, but at only 67 pp, I think it might be selling itself short. I exceeded that myself only last week.

  157. Yes, Leviticus showed up, called the readers here goons, insulted me, then provided (rather poor) answers to some of the questions. I responded by addressing his arguments one by one, and asking follow up questions. Leviticus didn’t return.

    I have repeatedly answered Frey’s hypotheticals. I’ve responded in the comments at his site. I joined in a live “chat” in which I was being routinely insulted by a couple of douche bags (before they were disallowed). But when it came time for Frey and his “textualist” readers to answer a few questions here that would have helped ease communication, they decided again to play wounded and put upon champions of civility. They stayed away. They bitched about “specialized” and “rarefied” terminology. They bitched about the language of semiotics being unfair to their persistent misunderstanding of it. And now their claim for staying away is that Levitus was “repeatedly insulted” — which is true, if by “repeatedly insulted” is meant “shown to be both ill-equipped and wrong in his attempts to honestly engage.”

    Once again — as last time — Frey is creating a narrative of my supposed malfeasance and bad faith. Pure projection. Sad. Very sad.

  158. I’d ask for links to those insults, but why bother? And this:

    They bitched about “specialized” and “rarefied” terminology.

    …coming from a lawyer, is utterly hilarious. And sad.

  159. I wonder if Frey was honest enough to mention that some of the feedback Leviticus received was actually pure mockery of Frey’s own debate style. (Answer the question!)

    Nah, I’m kidding, I don’t wonder that.

  160. Frey is playing a prosecutor’s game, looking for any chink in your defenses in which to insert a leveraging tool, in order to break you down. For whatever reason.

    Beware piranhas with crowbars.

  161. <ak4mc looks at his arsenal of crows with piranha bars>

    Dammit.

  162. Textualist Court.

    Judge, looking at sworn affidavit, “It says here you called a police officer a, quote, ‘fucking douchbag asshole mother’…etc.”

    Defendent, “Your honor, those very sounds did come from me while looking at the police officer, however I have Tourette’s syndrome and it was not my intent to say anything like that to the officer you damn suck-head weasel.”

    Since the defendant admits to uttering those words and has in addition insulted this court I find him guilty as charged and add a count of ‘contempt of court’, sentencing will be tomorrow at 9 am.”

  163. It must be good for traffic. That’s the only charitable explaination left.

  164. “the words written”From thin air they have sprung, fully formed. The coalescence of radiative emissions from some evaporating quantum blackhole no doubt. Or perhaps they are a page from one of the numberless books in “The Library of Babel”, letters without end, signifying nothing.

    Lettered emptiness, ’til the intent of an intelligence should pour meaning into them. Which mind shall do so is the question, and which does, should, have the right to do so.

  165. jesus… Pat jumps from post to post and sniffs NO ONE GIVES ME A DIRECT ANSWER. (heh)

    But I’m playing along with that latest idiocy and have left the following two replies:

    Statute: Meet my friend, JesusFace of the scorched tortilla, cause just like him, I wrote myself and I’m whatever the person reading me decides what I mean.

    Statute: by the way, think of all the money we can save by firing the legislatures. I mean, if I’m creating myself and I’m whatever a judge says I am, then heck what do we need legislatures for?

    eh, but what do I know? I’m just one of the “PW hive mind”.

  166. whoops…didn’t close a bold tag properly there ….

  167. Or PF’s been drinking again. The explainations getting increasingly uncharitable from here.

  168. Oh, btw, everyone wave to Pat Frey who is monitoring the comment section here.

    Hi Pat!!

    He’s annoyed I called his latest post “idiocy”. Not knowing if or when my response will be deleted, I’ll repost it here

    Pat

    Pretending statutes WRITE THEMSELVES is indeed idiocy. It is dismissive and mocking of the patience shown by JeffG and dicentra and many others in attempting in good faith to engage you here in YOUR space over continued mis-descriptions of intentionalism.

    I’m serious – Text is NOT text without intent. If human agency created marks in order to communicate then it is entirely different than scorch marks on a tortilla that looks like the face of Jesus or mountain shadows on Mars that look like and alien face or marks in the sand made by egrets that resemble “pass the salt”.

    You can guess at answers on a algebra test and maybe get some right, but that is not DOING algebra. You can do whatever you want to marks on a page but either your are interpreting them by trying to find out their meaning (and only the creator gives it meaning) or you consider those marks on the page the same as guessing on a test or finding the face of Jesus on a tortilla and you put your OWN meaning on the text.

    (the “you” in the above is the universal “you” as in “one puts his/her own meaning”)

    There is nothing to stop you/one from rewriting the text before you; but then it ceases to be interpreting and the responsibility for the meaning resolves to YOU, the new writer, not the original creator.

    Thus Maureen Dowd can say she “heard” Wilson “really say” You lie, BOY and then stand there and hold Wilson responsible as the racist.

  169. When one takes an incorrect position, and really digs in, it’s hard to back away from it.

  170. Whoa. This thread is still LIVE.

    no deictics

    I found out something interesting about deictics the other day, on Scientific American Frontiers (with Hawkeye Pierce):

    They were doing a test wherein the experimenter puts a treat under one of two cups, without the subject seeing where, then presents the two overturned cups. The experimenter then points at the cup with the treat under it.

    Not surprisingly, toddlers readily understand that the treat is under the cup that is pointed at.

    Chimpanzees, on the other hand, do not. Goes right over their heads. They have no concept of what the pointing finger means. They find the treat at random.

    However, DOGS unerringly choose the cup that is pointed at. They reason that because dogs and humans have been together so long, dogs have learned how to interpret human deixis.

    no narremes or prattons

    And no zits! No zits or worches! The good times are OVER!

  171. I’ve just taken to deleting the trackbacks now.

    Frey gave up having a discussion when he complained about the standard usages of terminology deployed in semiotic analysis while refusing the invitation to define his own terms.* He’s playing to the chorus over there. Unfortunately, any in the chorus who buy what he’s peddling will be dumber for it — as I believe is evident from the regression they’ve shown while commenting with respect to intentionalism. Not only that, but as “conservatives” who adhere to a conception of interpretation that “democratizes” a text by handing it over to the public (and that’s what convention is, a public expression of the breadth of prior meanings a given “culture” has come to recognize) — even if only while doing legal interpretation — he and the rest of his coterie are lending credence to a linguistically incoherent (and yet increasingly institutionalized) view of language that, because it claims to be interpreting without appealing to intent (even if in practice it merely hides its usurpation of that intent), promotes an idea of language wherein the interpretive community not only determines meaning, but it does so while claiming it is interpreting the author’s meaning — having first dismissed his intent as irrelevant.

    This is lazy thinking compounded by a refusal to surrender the power over the meaning of others they rely on to show just how cleverly they can play with signifiers.

    We’ve seen the practical effects of such a mindset — in the (often disingenuous) outrage aimed at Bill Bennett or Tony Snow or Rush Limbaugh or guys with male dogs who walk too close to some suspicious old Negro gentleman and say the “wrong” thing.

    The short term effect is to silence those who fear that a given interpretive community will likely rob them of their meaning; the long term effects are to give meaning to whatever group shouts its claim the loudest — and to turn truth into a battle of group wills: might makes right, and the ends justify the means.

    This is the left’s goal. Congrats on giving them the cover they need to lay the road that will lead directly to that end.

    *and yes, I realize that he never really wanted to have a discussion to begin with — that this has been but a long exercise on his part to try to rehabilitate his own earlier arguments. That he’s gotten to the point now where his arguments consist mainly of complaints that he doesn’t agree with the way semioticians have defined the terms of semiotics — and that in the “real world,” a “text” is what he and MD and philly and daleyrocks, etc., have always thought it to be (helpfully defined as “words on a page,” though how and why those words came to be there is carefully bracketed) — shows how very unserious he is: it would be like me going into court, insisting that I act as my own counsel, then telling the judge that I don’t accept his ruling because I’m not happy with how he’s defining “contract” or “statute,” given that me and my buddies use those words differently in “the real world”.

  172. “Through the Looking Glass” now. Appropriate.

  173. Cleanup on aisle Frey!

  174. Hi Pat, are you lurking? Cuz I really think YOU know what intentionalism is but you don’t like the idea that as a “listener” or “receiver” you can’t do what you want to someone else’s words AND hold THEM responsible for ‘em.

    You want power but no responsibility.

    That’s just sad, Pat.

    Like I said – you want a real life example of a judge fucking up because he figured his OWN agenda was more important than figuring out real intent go google “Robert Lemkau”.

  175. Pingback: could someone please try posting a comment

  176. Oy vey!

  177. Again, just so we remember to keep our eye on the ball:

    1) From the perspective of the textualist, what is a “word”? How are words made? How do they mean?
    2) From the perspective of the textualist, what is a “text”? How are texts made? Can a text exist independent of intent?
    3) Envision the following: you receive what looks to you like three identical “texts”, each appearing to say “pass the salt.” The first, it turns out, was created by a few egrets walking around in wet sand; the second was carved in a very old rock; the third was written on a slip of notebook paper. Are these three texts the same? How would you “interpret” each? Or would you even bother? Why or why not?
    4) When you interpret, what exactly is it you believe yourself to be doing?
    5) What is convention? How does convention come to supplant intent as the locus of meaning?

  178. “Yields a falsehood when appended to its own quotation” yields a falsehood when appended to its own quotation.

  179. Don’t mind me, just testing…

  180. Burma Shave

  181. What would you like me to say? There is an underlying reason lawyers are reviled and considered not trustworthy. Everyone has a right to their opinion, not their own facts.

  182. No matter what Stephen Green tells you, vodka eye shots are bad for you.

  183. Passing through on the way to work…

  184. (Start of Threat Posting Test)

    Let’s see: to recap, we seem to be witnissing an ongoing and it seems never ending ‘attack’, if you will, from what I deem a scheming LA DDA who, not getting his way (for the first time, I wonder?), withdraws for a while (post his December meltdown) then resumes this long-ongoing ‘feud’ (for lack of a better descriptor).

    “WHY?” is the question I pose. What is Frey’s deep intent? Does he even recognize the appearance of…strangeness…that also has an overlay of stalk?

    (End of Thread Posting Test)

  185. Wow. “Threat” should be “thread” in the first sentence.

    Or should it ?

  186. Hello test, test, one, two , three…

  187. Retest

  188. Hi Pat, are you lurking? Cuz I really think YOU know what intentionalism is but you don’t like the idea that as a “listener” or “receiver” you can’t do what you want to someone else’s words AND hold THEM responsible for ‘em.

    You want power but no responsibility.

    Well, that, and he also doesn’t want to have to walk back more than a year’s worth of clever hypotheticals, devastating arguments, and high-ground posturing.

    What kind of lawyer ever admits he’s wrong?

    ¡Gulermo! ¿Qué hubo? (or “kyubo,” if we want the actual pronunciation).

  189. His vorpal blade went snicker snack. He left it dead and with its head he thought the Red had bled instead.

  190. Jeff,

    Unfortunately I didn’t get a chance to respond to in a timely fashion, so I hope you don’t mind if I do it here so it doesn’t languish in a dead thread.

    The answer is, you use everything at your disposal, from convention to historical situatedness to specific context to inter- and intra-texts to biography to formal and structural cues, ranging from punctuation to syntax to narrative stance to ironic / parodic cues. Or, to put it more simply, you use all the tools of intepretation, because to interpret is to try to reconstruct intent.

    I completely agree with this as far as it goes. The problem I see is that it doesn’t go far enough. While an examination of all the evidence is necessary, it is NOT sufficient. We also need an set of “impartial/objective” rules/guidelines for determining how much relative weight/importance to assign to each type (if not specific piece) of evidence. Without such guidelines there is not only FAR too much room for exactly the kind of creative interpretation that you decry, the human tendency towards confirmation bias practically guarantees it will happen.

    I think it’s hard to overstate that point. In the real world evidence is often fragmentary & contradictory. Without a set of “impartial/objective” rules it is simply FAR to easy, even natural, for people to selectively over-value evidence that confirms their inherent biases regarding the intent of the author, discount evidence that disconfirms it, and then construct post-hoc rationalizations to justify it.

  191. I could have sworn I closed that anchor tag…damn it

  192. The “rules” you want are already available. The legal field will, in unambiguous instances, simply assume the legislature has produced a text using common and conventionalize usage.

    None of which changes the fact that intent still carries, and that those who believe themselves to be “textualists” are merely intentionalists who misidentify what it is they do when they interpret — and in so doing, have championed a methodology that is linguistically incoherent, to our great detriment.

  193. Pingback: Once again, Patterico misunderstand intentionalism

  194. Pingback: On lawyers and meaning

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