June 16, 2012

Assertion: when it comes to interpretation, it matters what it is we think we’re doing when we interpret

Darleen sends this bit along:

A new book co-authored by Supreme Court Justice Antonin Scalia and legal writing expert Bryan Garner accuses judges – including some on the Supreme Court – of loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.

“The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning,” the authors state. “Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts.”

I’ve noted before that Scalia, by calling himself a “textualist,” is actually disavowing (and inadvertently mislabeling) his own intentionalist interpretive stance.  But be that as it may, the fact is, Scalia uses the foundational ideas of intentionalism in his interpretative maneuverings — albeit he expressly relies on an understanding within the legal interpretive community that conventions for signaling intent are important, and that a failure to properly signal intent can lead to trouble with respect to recovering original meaning.  And that makes him an intentionalist in the sense that I use the term.

Originalism, as expressed by Ed Meese, eg., is the legal position that best captures the idea of intentionalism:  it acknowledges that the laws it is interpreting are actual things with actual meanings established at the time of their passage by the collective agreement of legislators who claim to have understood what it is the authors of those texts meant by them. It is a kind of corporate intent manifested in signs.

Which are, therefore, fixed in a very important way.

This needn’t be a controversial assertion, and in fact it isn’t:  as I’ve written a million times here, intentionalism just is, despite anti-foundationalist sophistry arguing the contrary.   Those who pretend to eschew intentionalism have (as I’ve shown here on numerous occasions) already necessarily adopted it:  they’ve merely decided to change the locus of whose intentions come to count in the course of the intepretive chain. And it is there where the problem of interpretative integrity lies.

If there is no stable thing one can lay claim to interpreting — that is, if we don’t allow that the text is a fixed thing we’ve agreed to interpret with the aim of reconstructing its meaning through a second order system of representation (the arbitrary signifier connected to the signified) —  than what we’ve institutionalized as legitimate is a linguistically incoherent process.   Merely playing with the constituent signifiers that make up the visual marks of a text, removing from them the idea that they have an originary meaning attached (via the signified, which is what makes them signs, and language, to begin with) to some real-world agency, then re-arranging them in order to lay claim to having found the very thing we’ve implicitly denied exists outside of our own intentions to see it, is not interpretation in the sense we mean it:  it is a personalized engagement with marks that lead to an intentionally realized reading of those marks — but because it doesn’t concern itself with how the original authors signified those marks, it doesn’t, therefore, concern itself with what the text means outside of one’s own personal interpretative bailiwick.

— Which wouldn’t matter much had we not institutionalized and legitimated the process, then “agreed,” by way of such institutionalization, that such a procedure comes to count as a binding lawful interpretation once enough people either agree with it or — and here’s the authoritarian kicker — pretend to agree with it in order to will it into being.

The left, as is its wont, uses the high-minded sounding “democraticization” of interpretation to sell this sleight of hand.  But what it is is a kind of mob rule / might makes right idea of language.  It’s a form of theft — rationalized as a kind of empowerment.   And yes, it is undermining the very epistemology that we rely upon to order our social system.

–Whereas (conversely) from the perspective of authorship and meaning and interpretation as such, what we desire as a end of the interpretative process-- and what is essential within any epistemological system that lays claim to a coherent form of logic protected by the machinations of language is a form of individual sovereignty granted to the originating text:  your meaning is yours, and, while it can be misinterpreted (whether the fault is yours or not), what it can’t be is re-decided upon and coopted by some motivated group of potential usurpers (who will oftentimes turn around and lay the gist of their own re-imaginings at your feet, claiming you are responsible for, say, the “racism” they themselves have created from the signifiers you have ordered) and still be considered yours.

When Scalia and Garner argue that “[o]ur legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts,” what they are arguing in essence is that we must agree as a matter of necessity to interpret the same text throughout the entirety of the interpretive chain.  And that is done by adopting the commonsense and linguistically obvious precept that the text, as written and then passed by a legislature, contains within it a specific and fixed intent.

Some over the years have chided me for concentrating on such seemingly arcane matters here with respect to language and interpretation. Linguistic concerns are “fundamentally unserious” when what politics boils down to are the more important matters of, eg., making sure Mike Castle is re-elected.

But as should be more and more apparent to conservatives and classical liberals, it is the control of language — and the assumptions about how that language works — from which all else follows.

If we don’t fix the foundation, it matters not who has temporary control over the house and its rent.

Discuss.

Posted by Jeff G. @ 10:12am
17 comments | Trackback

Comments (17)

  1. But what it is is a kind of mob rule / might makes right idea of language. It’s a form of theft — rationalized as a kind of empowerment.

    This.

    What is the Left except declaring individuals as mere participants of the collective and, hence, everything from property to diet is subject to [Collective, Elite, State]‘s controlling and final decision based on their own interpretation of “common good” or “best interests of all” or “for teh childrens!”?

    Even language must fall before the interpretations by the Left to serve the Bestest Ideology Evah!

  2. A couple of days ago we were talking about systema and schemata, and in the course of looking at how Liddell-Scott dealt with them I happened to look into the term “to symbolon???????? , ??” again (I don’t recall why).

    Anyhow, there I came upon a link to a passage in Herodotus [Bk6.86A - 86B - 86C -86D] where the term was used in its ordinary sense or context of ‘token of trust/proof’.

    But interesting — I think — for our purposes here is the further particular context of that Herodotean passage, namely a ‘story’ about a deposit of silver for safekeeping (with the ‘symbol’ tokens) by a Milesian and the temptation to stealing suffered later by the deposit taker (Glaucon) when presentation of the proper ‘symbolon‘ is made and recovery of the deposit was attempted by the sons of the Melisian. (Glaucon goes to the Delphic oracle to see whether the God thinks he should just keep the loot.) It’s good food for thought on the question of interpretation as meaning stealing, is my gist (or all stealing, actually). Turns out to even involve what it might mean to think one can ‘fool’ the God. [I leave aside altogether what we would call the "meta"-context in which or for which the story is told in the first place, and what Herodotus might mean to teach there.]

    Check it out, the story isn’t long.

  3. What Scalia seems to want to do is to corral the language of the law into being its own special case to assure continuity of meaning over generations. A cart before horse method which may work but it will impose, for better or worse, limits on what thoughts, intentions, can be expressed in the special restricted agreed upon language.

    In a search for something else the other day I came across a comment which, for me at least, has a perfect distillation of Protein Wisdom.

    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?

  4. The crazy thing is, going back to the text is far more democratizing in my opinion than any other approach. The text is there for anyone to read — as are, in many cases, discussions by the authors as to their own intent in writing the text, if the bald text isn’t plain enough in its meaning.

    The purpose of interpretation when it comes to law is actually very narrow: to determine first whether, and then how, the intended meaning of the text covers the facts of a given situation. If the answer to whether is that, yes, it does, then the interpreter may move on to how. If the answer is no, then either the interpreter is looking at the wrong text, or the facts simply aren’t covered.

    There has always been an unfortunate tendency to take a principle specific to a given discipline — such as law, or science, or politics — and try to apply it to other, very different disciplines. Hence we get people trying to make the law work like quantum mechanics (where the will of the observer affects the event being observed), and science operating politically, with a governing consensus developed by excluding everything that doesn’t fit the narrative.

  5. Distortion, obfuscation and purposeful misinterpretation of language has always been a preferred mechanism of attack on the right by the left.

  6. When you get judicial interpretation piled on judicial interpretation, what you get very quickly is a game of Telephone. Which is why it took so long for the courts to figure out that “the right of the people” in the Second Amendment means the same thing it does in the First.

  7. It’s the ‘going back’ part that most folks aren’t actually all that thrilled to do that often seems to me to be a foot catch. Well, that and the spirit in which it needs to be done, I guess. Shit. The whole booger gets troublesome, don’t it?

  8. “…a Republic, if you can keep it.”

  9. “….or a freakin’ drum circle if you can’t.”

  10. It’s the ‘going back’ part that most folks aren’t actually all that thrilled to do

    Yep. And it’s an aversion I have never understood. I can’t remember a time when I wasn’t inclined to try to understand things by starting at the beginning. Reading the text. Watching the video. Finding out WTF happened.

    When I was blogging I often dropped an entire post topic because by the time I’d chased down all the facts there was no there there — only a provocative headline. If I couldn’t at least get a “fun with ______ headlines” post out of it there was no point.

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  12. Very happy to see Scalia collaborating with Garner. Garner has been the leading legal writing guru promoting plain English for lawyers for the last two decades. When I was a fledgling lawyer, he taught me how to write rather than to emulate the wordy nonsense machines lawyers had been since the magna carta. Plain English. Clarity. These tethers of effective rhetoric are the enemies of the dissembling deconstructionist. Well met.

  13. But as should be more and more apparent to conservatives and classical liberals, it is the control of language — and the assumptions about how that language works — from which all else follows.

    Particularly when that language is the law. It was over the minute they found that Congress having the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” meant that the Congress has the power to stop you from growing food for your own consumption.

    Bastards.

  14. Jeff, this is when you are at your very best and unfortunately also why you are shunned by the nonexistent GOP establishment and their established republican mouth pieces on the internet. Mark this as shared as widely as I can. Sorry I don’t have the capacity to add more to the conversation.

  15. “Sorry I don’t have the capacity to add more to the conversation.”

    Man, that’s a shabby cop-out if you ask me.

  16. But Jeff, how else will they be able to explain that our chocolate ration has been increased from 300 grams to 200 grams?

    Doubled, in fact!

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