Well, given that intentionalism just is, I’m sure you can guess my answer — but let’s look at the argument anyway:
Assume the following:
* Seller writes: I agree to sell this diamond ring for $10,000.
* Buyer writes: I agree to buy this diamond ring for $10,000.
* Buyer pays $10,000, and seller gives buyer a lump of coal.
Seller is a fraudster, and when he wrote “this diamond ring” he meant “this lump of coal.”
You are the judge. Forget what contract law actually says; we’re talking what ought to happen. Should there be an enforceable contract for the sale of the diamond ring?
My answer: of course. The seller agreed to sell the diamond ring.
The intentionalist might get to the same result, but in a different way. He will tell you that the seller did not agree to sell the diamond ring. He will tell you that the seller meant what he meant. Even though he said “this diamond ring,” if he really meant “this lump of coal,” then he meant what he meant.
However, the intentionalist will tell you that what the seller meant is a separate issue from how a judge should act. The latter is not a linguistic question, but a question of how the judge acts, once he has the answer to the question of interpretation.
And so an intentionalist might agree that a judge is entitled to treat this as a contract for the sale of a diamond ring.
No. An intentionalist will agree that if the judge is aware in advance of his ruling (the only way this hypothetical has any real force) that the seller meant “lump of coal” and decided to signal “lump of coal” with “diamond ring” — and he believes that the seller genuinely meant what he meant — then the judge will be able properly to interpret what the seller intended.
At which point the judge will have to decide if he believes the seller made a mistake in signaling intent; or if the seller intended to defraud.
In both instances, the judge knows what the seller meant when he entered into the contract. And what the seller meant hasn’t changed.
If the intentionalist agrees to that, I think we have achieved something quite significant. Namely, we agree that the judge is entitled to look the seller straight in the eye, and tell him: “I understand what you meant. But I am going to act as if you meant something different, because a reasonable person would interpret your language in that manner.”
I believe I touched on this yesterday, so I’m just going to repeat it here again and hope for the best:
Where people seem to get hung up […] is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it.
But again, the man putting together the shelving [in my earlier example of an ironically written instruction manual] would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.
More, had the original author really wanted his intentions known, he would have been more careful in signaling them. In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.
Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.
But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.
And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?
Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.
None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.
Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.
There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.
Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.
To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.
And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.
My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.
In Frey’s latest hypothetical, he again places the judge in the (unusual) position of knowing — and believing — that, when the seller signaled “diamond ring,” he really meant by it something completely unconventional, namely, “lump of coal.”
To say, therefore, “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant — at which point presumably he wouldn’t have entered into the contract” is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.”
In fact, in the first instance, you are holding the original intending agency responsible for failing to signal his intent — while allowing that he means what he means; in the second instance — the one supported by the theory of textualism (if not always in practice) — you are telling the original agency that what he meant or didn’t mean is not important, because consensus (as determined by convention) will tell you what you meant.
At which point all you’ve done is strip the original text of its meaning, turned it into a set of signifiers, and then, by your own act of intending, attached to that set of signifiers the signifieds you prefer, taken from the realm of “convention.”
Or, to put it another way, you have ascribed your own will to the marks in order to make them mean — and you have done so at the expense of the signs you were originally asked to interpret. The result being that you haven’t “interpreted” at all. You’ve merely rewritten — and so created an entirely new text.
And ruling in favor of the text you created is hardly the kind of dispassionate functionality one expects from a judge.
He seems to be crafting a version of dicentra’s hypothetical which better serves his own purposes and makes less sense.
Pat still thinks that intentionalism is an ex-post-facto method of getting away with something, that it permits the speaker to lie about what he meant.
Instead, intentionalism prevents the listener from lying about what the speaker meant.
And yes, geoffb, my example of the $50 Colombian pesos does exemplify very well what judicial activism does, even if I do say so myself.
What it does not do is explain intentionalism.
That honor goes to my latina woman saying to a young black man at the bus stop, “Boy, what time is it?” The young man hears racism, but she did not say anything racist.
Dicentra. Have you posted the example, as well as your thoughts on application over at Frey’s place?
In the long pdf I used to have linked here on intentionalism, I had a whole section on law. I can’t find the doc, though. Pity, because I’m pretty sure I dealt with the question of application, which is not adding to the original meaning, but is instead rewriting the text to make it something new and, so, else.
Patrick would be doing himself a favor if he were talking about criminal aliens instead. He’s pretty good at that. This? No. Patently ridiculous hypotheticals don’t help.
Once again, it seems as though the hypothetical is underdetermined (and at this point, it’s besides becoming a tread, it’s beginning to take on the odor of an intentional act).
The seller has heard the buyer, who also has an intention standing with his words “I’ll buy that diamond” (what diamond? “this” diamond.) What has the seller made of the intention of the buyer, who’s intention has the same standing as the seller’s intention. If the seller says, “the buyer meant this diamond” then he has understood (correctly interpreted) the intention of the buyer, and he now has a problem seeing the difference between the lump offered and the diamond desired. If the seller says “the buyer meant this lump of coal” then he has misunderstood (incorrectly interpreted) the buyer’s intention, and we take it no contract has been made.
Is it the “Culture6” pdf linked in this post?
It is, geoffb.
sdferr —
Precisely what I was getting at when I noted “To say, therefore, ‘I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless the buyer also knew beforehand what you meant — at which point presumably he wouldn’t have entered into the contract” is different from saying ‘I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.'”
The distinction is important because the latter, when institutionalized as a linguistically coherent rule (which it is not), leads to all sort of potential misuse — the kinds of things that happen outside of hypotheticals designed to weigh heavily in favor of “convention” as the locus of meaning.
“Instead, intentionalism prevents the listener from lying about what the speaker meant.”
Oh, don’t be too sure about that. You can’t keep a pathological liar from lying.
Pieces of it are quoted here too.
This may be redundant after your previous comment, but frankly, Jeff, I don’t know why you would even engage him on this ridiculous example. It’s a reductio ad absurdum argument that doesn’t have any relation to general real-life situations. “I agreed to sell you a diamond, but I really meant a lump of coal?” What?
I’m increasingly of the opinion that if Frey could be convinced intentionalism does sanction fraud, self-interest would lead him to embrace intentionalism.
Jeff:
I just posted this over there:
Oh, don’t be too sure about that. You can’t keep a pathological liar from lying.
“Insofar as you can prevent such things,” I amended. What it actually does is prevent the lying from being considered a legitimate form of interpretation, because the listener’s perception doesn’t trump the speaker’s intent.
Pat’s gone far, far afield with this, dragging it into his comfort zone instead of dealing with the issue as originally posited.
There’s nothing worse than a lawyer who can’t take his lawyer hat off.
I just read through the comments to one of the threads geoffb linked, and there’s some good stuff there. This comment of mine, for instance, seems on point.
I hope he fails.
I want to go on record as opposed to a notion that “intentionalism prevents”. I don’t think it does, really. Nor do I think it intends to do, on the whole, though it might help someone pause and through consideration, prevent themselves through what they’ve learned. But what it does do, I think, is describe, and it does this rather well. So, intentionalism describes…… a wide range, the whole range even maybe, of human communicative phenomena, and insofar as this is so, it must take fraud into account, though no sanction appends to that effort.
Yes, if adopted or understood. What it is we think we’re doing when we interpret has consequences. Which is why I have advocated not allowing for the institutionalization of linguistic incoherent methods as legitimate. These aren’t “alternate theories of interpretation.” They are linguistically incoherent methods that we have come to accept (and conventionally so, too! THE IRONY, IT BURNS!)
*golf clap*, Pablo.
frankly, Jeff, I don’t know why you would even engage him on this ridiculous example
Because too many otherwise reasonable people read Patterico, and following Pat’s logic, they fall back into the same stupid trap that most of the starboard side falls into, which is to say that they think that when the Left misinterprets them, the Left has a point.
I do it because it helps to highlight certain problems with the position it advocates for, Craig — while simultaneously giving me another opportunity to hit the lightswitch for someone who may be reading.
How and why the judge rules as he does matters. As I’ve said before, a person properly interpreting can get the interpretation precisely wrong, while a person rewriting a text can very closely match the intent of the writer, even as he claims that intent doesn’t matter.
The former is preferable — and not just because it is far less likely to occur than the latter. Rather, because it is logically and linguistically coherent.
Sorry. Should have just gone with “ibid.”
Hi everybody!
Jeff, I think your #8 really helps explain what it is you’re saying. You’re not saying that the seller isn’t a cockbag for misleading the buyer. You’re just saying that the seller MEANT “lump of coal” when he wrote “diamond ring” and that’s just how it is. Which is perfectly reasonable. Furthermore, if you KNEW the seller meant “lump of coal” and the seller KNEW the buyer THOUGHT he meant “diamond ring” – why not? we’re dealing in ridiculous hypotheticals anyway. Might as well add mind-reading to the process – then you’d have a clear case that the seller intentionally defrauded the buyer. Which I would think would serve the interests of justice in our fantasy world.
My thoughts throughout this entire thing is that it’s not a difficult concept to grasp, but it’s been going on so long now that some people are just arguing and making up stupid hypotheticals to be dicks.
Buck Rogers had a robot what went with “bidi” a lot it was really Mel Blanc but you were supposed to pretend it was the robot.
That last bit wasn’t meant as a criticism of anyone here, by the way.
I figured that – seeing as you guys don’t know me – I should clarify lest I be misunderstood.
I actually to a pretty decent imitation of that robot, hf.
And a fair Marvin the Martian, too. Maybe I’m in the wrong line of work.
We know you better than you think. And we know exactly how well you think we know you.
I just got a kick out your FAQ, Mr. Ninja.
bh – I had to go back and re-read my FAQs because it has been so long since I wrote that. I forgot I gave a shout-out to Jeff in that.
I’ve probably been reading this site over four years but I’ve only commented about a half-dozen times. You guys usually seem to say what I think of saying about ten minutes before I say it, so there’s generally no need for me to butt in.
If Jeff G. were a superhero, his nom de guerre would be “The Intentionalist”. His chief ability would be causing lawyers to beat themselves silly in amusing ways.
When I said “$10,000” I meant this piece of pocket lint and a deep tongue kiss from my Grandpa. Make with my coal, bitch! Grandpa doesn’t have all day.
Wow. Lawyers play like economists. How about we instead assume a contract wherein seller agrees to sell to the buyer in exchange for $10,000 payment in advance one diamond with a guaranteed future value of at least $150,000. Buyer pays seller $10,000 and recieves in exchange a 5 pound lump of coal and instructions to apply heat and pressure for 10 million years.
Let the intellectual circle-jerk commence. Bring your own poncho.
Caveat Emptor! Bitch
Buck Rogers had a robot what went with “bidi” a lot it was really Mel Blanc
I have just lost all respect for Mel Blanc. That was the most annoying robot EVAR. Just FYI, I once watched Buck Rogers dubbed into Portuguese in Oviedo, which is in Spain, where they don’t actually speak Portuguese, but in the northwest they DO speak Gallego, which is like a blend between Spanish and Portuguese.
If Jeff G. were a superhero.
If? IF!!!!!
Actually, in the northwest of Spain? Oviedo, Santiago de Compostela?
THAT’s where the rain actually falls.
Effing lying linguists.
That FAQ was nicely done, Bacon.
This is painfully fucking stupid and I feel like I am unlearning the subject at hand. The more I read of these arguments the more confused I am and the less certain I have ever understood anything about it.
If a seller would sell a “diamond ring” to a buyer for $10,000.00 and then hand him a lump of coal, arguing that by ‘diamond ring’ he intended to mean this lump of coal, it seems to me he has rather certainly demonstrated his intent to defraud.
His intent was to mean ‘a lump of coal’ all right, and his intent was that you should interpret it as something other than what it was, and that is fraud.
Which is a crime. Specifically, the crime in question, actually.
What does Frey think real fraud is, anyway, honest disagreement or misunderstanding? (That would be so handy to confirm my biases against lawyers).
Stop it, Ernst. You’re going to give somebody ideas.
I mean hell… of course he meant a lump of coal by ‘diamond ring’. Hence why he gave you a lump of coal.
Is the fuckin argument that he gave you the lump of coal by accident? If so, why doesn’t he say “Oh shit, sorry!” and give you the ring?
The very thing that makes it a crime is that he meant the lump of coal. And this is the crux of the argument of why it supposedly should not be illegal? Because it practically defines what the law expressly prohibits, it should not be illegal? Because… what.. the.. fuck.
You’d think so. And you can certainly make a good argument for such an interpretation of events. But for purposes of exploring the theoretics, we have to allow that a (highly unlikely, and perhaps even frankly unbelievable) mistake was made.
Naturally, these hypotheticals Frey is using are, well…let’s just say loaded. But as loaded as they are, the underlying reality of how the language is working remains unaltered — and would, even were I to run out of new ways to explain it before Frey runs out of new hypotheticals.
I’m with #38. Kinda wonder what stupid hypothetical a certain prosecutor is going to make next considering this one basically torpedoed his entire Ahab-like quest to win this particular discussion.
Maybe I should have said “harpooned” instead. Oh shit, THREATS OF VIOLENCE!!1!
Guess you’re gonna have to ban me now, Jeff. I made reference to a weapon.
And just when we were starting to get to know each other.
Actually there was a suicide reference in there too. Eh, no one reads my site anyway so I’m used to being a pariah.
Jeff, at least my hypothetical works on literal and ironic levels, and so I hope entertaining instead of exasperating.
Anyone know if excessive mental masturbation makes your brain fuzzy and your logic blind?
My answer: of course. The seller agreed to sell the diamond ring.
Whether or not the seller agreed to sell the diamond ring is entirely seperate from whether or not the seller ever actually intended to sell the diamond ring.
Which is the fricken crux of the issue of fraud.
But the way you address this, as if somehow such a ‘hypothetical’ were remotely possible as to make an actual mistake of such magnitude, AND have it be obvious that it was an honest mistake, despite the.. uh… magnitude…and obvious fraud…
Where people seem to get hung up […] is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it.
When you say you do not HAVE to be trying to determine ‘meaning’ in your ‘interpretation’, then have you not said before you are not interpreting but writing? To toss up interpretation as whatever serves your utility seems to me to be writing off language altogether.
It is not determinative in that you must interpret people’s intent, obviously many people do not do that. It’s not physically impossible to re-write a person’s meaning. But isn’t it a case that you always should interpret people’s intent? Or to be said to even be interpreting? If you know the meaning but do not regard it as determinative, or if you do not know the meaning and do not care to try to know, are you interpreting at all?
If you can discard the meaning as a function of utility, than nothing means anything and why bother with language or communication? Just get on with your bad monkey self and act on personal interest without needing to rationalize it.
Why bother with the “she said ‘excuse me’ and I interpreted that as ‘shove me on the ground and stick your penis in me'” charade?
Entropy:
Yes, if he meant “lump of coal,” he had the means at hand to write “lump of coal,” and he knew exactly how “diamond ring” would be understood by the buyer, but deliberately wrote “diamond ring” as a lie.
Concealing your true meaning behind words that mean something else in order to deceive another is the garden-variety definition of a LIE.
Which, even children get what a lie is.
Pat and Leviticus still have a hard time differentiating between the artificial world of the courts and everyday reality. It’s like a lit crit friend of mine who was trying to explain to our engineer friend that a man’s gaze can “take ownership” of a woman.
In the real world. I had to explain to the engineer that the gaze thing applies only in novels, not in real life, and that our mutual lit crit friend was full of it.
Anyone know if excessive mental masturbation makes your brain fuzzy and your logic blind?
If you’ve ever been to grad school in literary theory, you’d know the answer to that.
“If you’ve ever been to grad school in literary theory, you’d know the answer to that.”
I was in grad school in history during the hangover following the bachannalia known as the “literary turn.” Does that count?
Jeff,
Do you happen to have any referance or link in particular of where you get your take on Scalia’s views from? A place where he writes out and argues his theory of meaning through convention?
It’s like a lit crit friend of mine who was trying to explain to our engineer friend that a man’s gaze can “take ownership” of a woman.
I must ask:
1) Was this mutual friend a woman?
2) Was this a bad thing?
Of course you are trying to determine meaning. But you can still interpret it incorrectly while trying.
Saying you can interpret without believing the object you are interpreting has an intended meaning is something else entirely.
I hate this. I’m trying to get work done, but…
Both the lit crit friend and the engineer were male.
The engineer invented heat/light/pressure-sensitive ink that is suitable for a lithographic press. If you’ve ever gotten a check or prescription where you can make ink disappear with the heat of your thumb, that’s probably my engineer friend’s product.
The lit crit friend is a university professor.
Entropy, I’ve linked a couple of Scalia’s speeches in the earlier P-threads, 12 and 13, I think. You can look here for them.
There are several scenarios wherein the seller says “diamond ring” but means/intends lump of coal
*seller knows s/he possesses a lump of coal and intends (in his/her mind) to sell a lump of coal, but says “diamond ring” as a secret sign, unknown by the buyer (fraud)
*seller and buyer are in on the code of “diamond ring” as “lump of coal” but buyer backs out of deal (maybe this was a conspiracy towards a 3rd party fraud down the way)
*seller places ad for “lump of coal, $10” but a bored clerk in the classifieds types it up as “diamond ring $10,000”
* using di’s example, “diamond ring” is the English translation of “coal lump” in the seller’s native language of Wuhkafuksi.
A judge can consider all such evidence without ever stripping the seller of his/her original intent of “lump of coal”
At which point the judge will have to decide if he believes the seller made a mistake in signaling intent. Or that the seller intended to defraud
Like you said earlier, di – and like I maintained very early on and which Pat and followers took exception to – is Pat never leaves the office AT the office. Being a lawyer isn’t a job or even a career for him, it is a religious calling – right along with secret words, signs and rituals.
Here’s helpful tip:
If you have a lot of leftover thyroid medication (T4), and you decide to use it up before buying fresh meds, and the old stuff is past its expiration date by a few years, you prolly shouldn’t do it.
The meds have lost their potency and you’ll drag around all week like a dying carp.
That is all
So, in the case of the diamond/coal debacle, if we (ridiculously) decide we know that the seller did indeed intend to signify the lump of coal by ‘diamond ring’ without the intent to decieve, then it IS NOT fraud, eh?
The buyer certainly never (well let’s assume…) intended to buy a lump of coal. So it’s a case of either give the money back in exchange for recieving the coal back, or give up the ring in exchange for the coal, or you’re in violation of the contract (and by ‘contract’ I mean not some independant textual authority but the mutual agreement it represented). But it’s not fraud. It’s an arbitration issue, a contract law thing, and not a criminal matter. Fraud requires intent to defraud.
You can’t (or shouldn’t) ‘interpret’ the contract to mean something other than what you know it meant for the sake of legal utility. There’s no (desirable) opt out for a judge to know meaning but act as if it was something else, and have it be peachy so long as he knows what he’s doing. I am not sure if you are making this argument that he can, or trying to explain something different to Frey using some kind of ridiculous and confusing frame of referance he’s created.
Case in point, Frey says this is fraud. I have googled fraud and here is from http://www.lectlaw.com
The term ‘fraud’ is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. [Fraud may also include an omission or intentional failure to state material facts, knowledge of which would be necessary to make other statements not misleading.]
I don’t think Frey meant to imply, as Jeff is taking it, that the seller actually truly honestly MEANT to convey lump of coal. I don’t think he understands the issue/argument enough to see the difference such a distinction means. I think he has presented a case of fraud.
But to convict the dude of fraud you must first in fact acknowledge and demonstrate precisely that the dude did actually mean the lump of coal. If we accept he actually means to convey ‘diamond ring’ by ‘lump of coal’ then he has not comitted fraud, and there is no wiggle room for the judge to (rightfully) rule that he unintentionally has anyway. It’s just a failure to fulfill contractual obligations.
Which is part of why his example is so painfully stroke-inducing.
Bah. Back to [127,0,0,1] (there’s no place like home!)
The judge knows. That takes it out of the realm of “interpretation” entirely, and therefore the question of “intention” falls into a different domain — did the seller screw up, or intend fraud? Did the buyer enter into good faith, or was he too ignorant to pound sand? Those are the legal questions, and they have nothing to do with intentionalism as applied to interpreting the contract, because there isn’t any interpreting going on if the judge knows in advance.
Regards,
Ric
If we accept he actually means to convey ‘diamond ring’ by ‘lump of coal’ then he has not comitted fraud.
We would have to discover a reason to believe the chap. As Darleen said, “using di’s example, ‘diamond ring’ is the English translation of ‘coal lump’ in the seller’s native language of Wuhkafuksi.”
But if there’s reason to believe that the seller does in fact know the difference between the terms “diamond ring” and “lump of coal,” the judge gets to say, “too bad, so sad; if you meant ‘lump of coal,’ you should have written it,” and rule in favor of the buyer.
You wouldn’t have to prove intent to deceive, just that there’s no reason to believe that “diamond ring” meant anything else outside its conventional English meaning.
Ric
I’ve never been to [127,0,0,1] but I’m quite familiar with [127.0.0.1]. What did you intend? :D
We would have to discover a reason to believe the chap.
Oh, I can’t imagine any reason to believe him. I’d convict his ass of fraud.
But that was the hypothetical, no? At least as Jeff addressed it? We’re to start from the assumption he meant it sincerly?
If not… then it goes back to intent to defraud being the actual crime of fraud, not ‘having a disagreement in terms’ which Frey seems to be conflating with fraud. And then constructing the argument ‘according to intentionalists, intent to defraud shouldn’t be considered fraud’.
Which just gave me another stroke. Great. Now I can’t move either side of my face.
Those are the legal questions, and they have nothing to do with intentionalism as applied to interpreting the contract
I’m going to say something I think may apply to some other arguments about intentionalism in law.
I am not sure the actual text of a law or contract can be regarded as the law to be interpreted literally. (Literally speaking.. hah!).
By which I mean a law is more than a bunch of letters on a paper.
The way po-mo’s will talk about the ‘text’ being critiqued where the text can be anything and mustn’t even contain text… the ‘text’ being a song, or a performance-art dance, or a grilled cheese sandwich.
The text of a law is more than just the written words of the legislation, because the written word is not binding as law in an of itself, there is a whole process of authorship of the legal binding that makes it a ‘law’ – as opposed to an essay on the back on a napkin by someone who sometimes makes laws but isn’t currently. If there is a difference between a shopping list written by a congressman and a congressional mandate, there is a difference between a piece of legislation and a law.
So I do not think there are ‘legal questions’ that are applied independant of the contract. Or more accurately, I do not think the legal contract is a text limited to the paper that is to be interpreted apart from the relevant legal questions, as you might interpret a novel or a blog post.
And I am not saying this as a literary thing that written ‘texts’ be interpreted by more then just the text (in contrast to textualists), I am offering this as exceptional to the issue of interpreting law, that interpreting law is different than interpreting literature, even in accordance with textualism, because the text (in matters of law) is more than just the written legislation.
There is a whole process whereby the law becomes legally binding, carried out by different actors than just the author of the legislation, and they attach intent to the law. If the ‘law’ can be considered anything other than the text of the legislation, which I think it must be, because the legislation is not legally binding, and therefor is not law, until it goes through this process which contributes additional authors and intents.
In that way, there are two ‘contract’s. The contract – the literature on the paper which represents the contract; and the contract – the actual legally binding agreement between the parties, of itself. The latter is larger than the former.
So the law is larger than the letter. Questions of whether the buyer is ‘too dumb to pound sand’ etc, do not stand apart from the contract (as in the legal agreement), but are a part of interpreting what the contract means. If the buyer is so dumb as to agree to anything, any only objected to a lump of coal when his poor wife saw it, then perhaps the contract was mutually understood to mean a lump of coal and the emptor was not caveat. But if the buyer was not a retard, and the seller was a liar, then perhaps this is fraud. Of course if the buyer was an actual retard (and he’d almost need to be), there’s a question of whether the contract was legal in the first place.
It’s in this manner that I wonder about Scalia and ask for a source to read his views. These laws are ostensibly ratified by the people.
So in this case – as I have heard Scalia talk about it I agree with Scalia, appealing to the ‘consensus view’ at the time of ratification strikes me as a valid way of determining the meaning of the laws rather than just what the intent of James Madison meant in writing them (even if they are effectually the same thing), because he is in appealing to the ‘consensus understanding’, appealing to the consensus intent of the authors of it’s legal binding – the people.
If I thought that was a bit less propoganda and a bit more accurate in terms of government by consent, I’d like to say I’d find that to actually be the more appropriate way of determining the intent of laws.
I do wonder if perhaps pushing ratification by consensus of majority-appointed representation may be pushing it a bit, honestly.
But if there’s reason to believe that the seller does in fact know the difference between the terms “diamond ring” and “lump of coal,” the judge gets to say, “too bad, so sad; if you meant ‘lump of coal,’ you should have written it,” and rule in favor of the buyer.
No, not in a case of fraud. The buyer doesn’t have a favor – you’d rule for the State Prosecutor. Like I said … it would be failure to uphold contractual obligations. In contract court the judge could rule (as I’ve outlied above, allowing that the ‘contract’ is more than just the written words) in the favor of the buyer or along some other line between them.
But I think to prove criminal fraud you have to have intent to defraud. Unless ‘contractual negligence’ is a crime. Fraud in the 3rd degree. I do not think it is. Nor that it should be, if for some utterly preposterous reason you could actually prove the nitwit had made an honest imbecilic mistake.
In that matter it is like libel or defamation. It does not matter whether or not it is true or false, you have to show intent to defame. Else you could be penalized for having a (wrong) honest opinion.
Although as I understand it the burden of proof in defamation cases has risen to a point of nullification of the law… perhaps too much. Perhaps not.
You wouldn’t have to prove intent to deceive, just that there’s no reason to believe that “diamond ring” meant anything else outside its conventional English meaning.
In that you are right – that is a ‘reasonable doubt’ thing. That the man did this is proof enough in this stupid example. He’d have to outright prove somehow he was innocent or you could ‘reasonably’ convict him. Just like you don’t have to prove aliens DIDN’T abduct Scott Peterson’s wife and then frame him for her murder… because there’s no reason to believe they did.
Jeff, you should always treat a hypothetical as if it were loaded. It’s one of the basic rules of safe arguing.
You should probably go read through the earlier threads from this week so I don’t have to rehash this all again.
The law is not anymore special than other types of performative language: when I say “I do” and mean “I do” I meant I do. When I say “I do” and mean “I do” in certain circumstances, I have entered into a marriage contract.
I’m still using language. And I still meant what I meant. It’s just that under different circumstances, language can take on different consequences by virtue of how we’ve conventionalized it.
At any rate, you are not the first to take this “law is super duper language!” route. It isn’t, linguistically speaking.
Assume Patrick Frey is the deputy Gauleiter for the Feminazi state. Further assume that some poor schlub like me is hauled before him and charged with the thoughtcrime of sexism.
The plain facts of the case are these: Some bubble-butted woman was leading an exceptional specimen of the species Equus africanus asinus when she heard me exclaim, “nice ass!” Taking offense, she reported my crime to the authorities. In my defense, I say I meant the animal was a admirable ass. Deputy Gauleiter Frey assumes I’m lying, because if I had intended to praise the animal and not demean a member of the superior gender, I would have chosen a different word. Therefore I need to go to sensitivity training camp to learn how to say donkey. And should I happen to be repeatededly fucked up the burro while I’m there; well, that will just make the lesson stick.
I leave it to somebody more skilled than I to explain why linguistic/semiotic intent is not the same thing as men rea. Because I think that’s what’s tripping up Patrick and others.
This is all based on a bad assumption. The buyer wasn’t buying “this diamond ring.” He was either buying a pig in a poke, so to speak, as the diamond ring was not inpected previously or the buyer pulled a bait and switch, in which case he committed fraud.
Hard to understand how this devolved into an intentionalism supports fraud screed.
Dicentra, just leave those commas under a few kilobars of pressure at above 1000C for a million years or so, and the tails will fall right off :-P
What I continually see in Frey’s hypotheticals is the possibility of the originator of the text either lying or changing his mind. The originator says (after the fact) that his intent was different from whatever the text encodes.
That doesn’t impact intentionalism in any way. Whatever the actual intent was at the time of composition is what should be addressed.
“The moving finger writes, and having writ
Moves on; not all your piety nor wit
Will move it back to cancel half a Line
Nor all your tears wash out a word of It.”
Regards,
Ric
Sorry, Ric. But that poetry stuff is different.
This is law. It’s REAL WORLD shit.
Have you ever been in the shit? Well, lawyers have. And fuck you if you presume to have any idea what it’s like when you’re up to your waist in Latin briefs, and the enemies’ codicils are whizzing past your ears…
You should probably go read through the earlier threads from this week so I don’t have to rehash this all again.
At any rate, you are not the first to take this “law is super duper language!” route. It isn’t, linguistically speaking.
You may have to rehash them, if you wish me to understand.
I am not saying law is special or super duper language. I’m not arguing against intentionalism at all. I am arguing about what constitutes the text to be interpreted, not how to interpret it. And what constitutes the ‘law’.
So I am just saying, in response to what Ric said and also in something of defense of Scalia, in the case of law and legal issues, the ‘text’ of a law is more than just the literal text of the legislation or contract.
But my statement is about what constitutes the text, not how to interpret it.
If I say it is exceptional, I mean that along the lines of there being a debate about what constitutes the ‘text’ with actual text. I am neither espousing nor refuting a view that when reading a book, you have to take the fact that the author’s mother was a whore into account or some such to interpret it (vs. the view that only the literal text matters and previous texts or later reflections by the author are universally irrelevant). I have read such debates and I’m not picking a dog in that fight at this moment, but merely saying that at least with law the ‘text’ is more than the written document.
If you think I’m wrong, please tell me again and I care enough to review and try to figgure out where you think I went wrong and evaluate it. But I think you misunderstood what I was saying.
I’m honestly not sure what you mean by this. There is the text, and there are the conventions that we have to enact the text as law.
If I’m missing something, let me know.
I am not an expert on this but there is ‘text’ as I’d normally call it – literal text. ASCII characters on paper or on a CRT monitor.
And then there is ‘text’ as in “this thing we’re interpreting” which in the literary world can be a dance, a song, a sneeze, a sandwich, or whatever you’d like to claim had a meaning you wish to interpret.
That latter being “the text” we are interpreting, which may or may not be comprised of actual text.
What I am saying is when we interpret a contract, the text is more than just the words on the document. Like a song may have more to it’s meaning than just the words on the lyric sheet. And thus, some of these ‘legal questions’ are relevant to interpreting meaning and intent.
For instance, a contract may be verbal. The word ‘contract’ may describe a piece of paper, but when we’re talking about interpreting a contract in a court of law, what we should interpret is not just a piece of paper, but an agreement. We’re interpreting an agreement, of which the paper is part but not whole.
Beyond that it’s probably me being confusing because this is not my major. But I have read arguments – off hand 1 comes to mind, I think it was Umberto Eco arguing with Richard Rorty – about what material you go to to interpret when interpreting literature (literal ASCII text with letters and stuff), about whether you must limit yourself to just the text, the book, or whether you must incorporate all matter of ephemeral things like the author’s life story as relevant to it’s meaning. And all I am doing with that is wishing to distance myself from it as it’s besides my point as I see it.
But as an example, if we are to rule on this contract for a ‘diamond’/lump of coal, we have to look at for instance what the buyer thought he was buying as relevant to interpret the meaning of the contract.
The buyer is co-author and his intent is as relevant as the seller’s intent in determining the meaning of the contract – even if the seller actually wrote the legal document they both signed.
Like Ric’s example of a “legal question” that was not relevant to interpretation of the contract: Is the buyer too dumb to pound sand?
Well that question I think is relevant to interpreting the meaning of the contract. As a co-author of the agreement between him and the seller, the buyer’s intent (as in, his understanding of what he was buying) is part of what determined the agreements meaning.
There is the text, and there are the conventions that we have to enact the text as law.
Taking this away from a private contract and toward legislation – By ‘conventions’ do you mean the president signing it, for instance? Or congress voting?
I do not view these as conventions. They are authorial acts.
As a piece of literature, the meaning of the legislation was determined solely by it’s literal authors – the dude who wrote the thing out on paper with a #2 pencil.
But as a law, the meaning was not authored solely by the dude who wrote the thing (most likely some staffer or intern). That person hasn’t the authority to author law. He wrote a (proposed) bill, other people took that and made a law of it (or didn’t). He authored the language that was USED to author the law. But he did not author the law.
To determine the meaning of the law, at best said dude is partial-author, and his intent contributes to the meaning but is not the whole of it.
He may write a proposed law, just as he may write his grocery list, and neither has any legal binding weight until and unless all those other men go through those processes with it, with the intent of making it legally binding (as they understand it).
Since fraud requires intent, as a matter of law, the Lawyer should be aware that he’s created a circle of logic in his hypothetical.
have you guys asked baracky’s opinion on this matter?
I do not view these as conventions. They are authorial acts
excuse me for butting in … but as I understand it, “conventions” are, in simplest terms, “agreements” – which can also be a social or cultural norm or behavior accepted (ie agreed upon) by the majority of citizens.
The granting of authority – or the “authorial act” – in a democracy can’t be anything but a convention. Certainly the legislature or the president don’t derive their governing authority by Devine Right.
most likely some staffer or intern
Try lobbiest. They walk around with sheaves of written law, all neatly typed in legalese, to bail out the desperate staffer who isn’t sure what to write.
[PIMF if there was a Preview]
“Divine Right”
[slinking away to pour a drink]
lobbiest
Or “lobbyist”.
See what I mean about the thyroid meds? The expired stuff doesn’t work AT ALL.
The granting of authority – or the “authorial act” – in a democracy can’t be anything but a convention. Certainly the legislature or the president don’t derive their governing authority by Devine Right.
You’re right. The authority comes ostensibly from the people, which is why I say there is some logic to trying to determine the meaning of law from the concensus understanding, since the authority for the law lies in the collective, and their authorial intent is to author it according to their interpretative understanding.
I say ostensibly because how much of that is rhetoric and how much is true may be open to debate. How shall we interpret Obamacare? From whence did they get the authority to do that?
This, possible, for law, but not for literature. The vast hordes of readers are not the author of the novel. The author does not need to seek their approval and consent for how they interpret his words before he can publish them.
What is a law but a social compact? Who is the author of a social compact (especially in a democracy) apart from the majority concensus of society?
I am not refuting (I don’t think!) any aspect of intentionalism here. I’m interjecting in odd ways about who is the author and what is the text.
That is, in the bit that I have read of his writing, how I’ve seen Scalia explain it. But he did not, in what I read, expound any great deal into an argument about the origin of meaning.
But simply that sense the authority of the laws come from the people, their understanding of it is what the law is.
That the laws ratified by the masses, so what the masses intended it to mean is what it meant, since they are the source of it’s legitimacy. A 5 page legal document full of ‘thou shalt not’s is just a document full of thou shalt nots written by some fancy know-it-all. I can write 5 pages of that, and it isn’t law, it’s a statement. It’s language, it conveys my meaning and intent (and no one elses), and also, it’s not law. The people, by act of ratification, are what made it law. They are effectively it’s author, so it’s meaning is their (collective) intent.
And there is a distinction I am drawing between the literature and the law.
In this sense: There is a poem called “The Rime of the Ancient Mariner by Samuel Taylor Coleridge. Who is the author of the poem?
There is a song called “Rime of the Ancient Mariner” written by Steve Harris of Iron Maiden. The song is based on Steve’s interpretation of the poem, full of direct quotes from it.
Who is the author of the song?
Who’s the author of the film version of Frank Herbert’s Dune?
There is a piece of literature, essentially, who’s author is some lobbyist or legislator. And there is a law that was based on popular interpretation of that literature. The literature is not the law and the law is not the literature.
Did the legislator write the law? Perhaps so, but there is still a distinction between the two, it seems to me. 1 is not the other.
If we had a king, it would solve this problem.
Then when the king wrote a law, he’d be sole author, both of the speech of the legislation describing the law and the law. And there’d be no doubt the law meant what the king intended.
Why Intentionalism Cannot Determine Legal Interpretation — And Why It Matters…
I started composing a long point-by-point rebuttal to Jeff Goldstein’s latest post on intentionalism in legal interpretation, but I have decided to move that to its own page and cut to the chase. Let me instead explain my position, as simply as ….
Tens of thousands of words later…
“Let me instead explain my position, as simply as….”
HICA
Entropy, it’s amusing to me to see you use that as a nick — then dance around the implications.
Entropy (the concept in physics) is the basis of Time. It’s not a matter of “cause” and “effect”, although that’s part of it. Entropy says you can do, and you can re-do — but “undo” is a null concept. Once an event has occurred, it is permanently embedded in the time stream; it will always have occurred. (The classical example is unscrewing your girl friend.)
One possible “event” is the creation or production of a text. Once created, it exists, and that act of creation and the existence of the text are part of Time; they will always have been. Erase it; wipe it out; it still existed from the time of creation and the time of its destruction, and will always have done so; the value of entropy will never again be the same. The Universe in which it existed no longer exists, and so is not amenable to modification.
(Wandering from the main topic: this is why speech is “text”. Its creation and extinction are near-simultaneous, but once uttered it is a permanent feature of four-(or more)dimensional spacetime. It will always have been uttered.)
The creation of the text is an act. To perform an act, the actor requires volition, the intent to act. That intent is an “event” in the entropic sense — it will always have existed; it is no longer accessible for modification, but we can point to that kink in spacetime and say, “there it was.” If the intent, the volition, had not existed, the text would not exist. In a very real way, the text and the intent are the same thing seen from different viewpoints, with the text being the physical part and the intent the metaphysical.
That’s why Jeff says intent “just is”. That’s why a Catholic priest gives you two sins for the price of one — the intent to perform a sinful act is itself a sin; when you follow through on that intent, the act is a sin, also. (Protestants are intentionalists in that sense; the intent and the act are the same thing, seen from different viewpoints. That’s also close to Judaic theology on the subject, although the rebbe has a different view of the concept of “sin” than the preacher does.)
I’m the one who brought up “the text itself wouldn’t exist without intent” in the first place. Several people have objected that it’s trivial. It isn’t. I brought it up to counter JSchuler’s assertion that a legislature, full of log-rolling, compromising politicians, can’t have “intent”. Fooey. The text (the law) exists; there was, then, de minimis, an intent to produce a law. That intent can only be assigned to the legislature that did, in fact, produce a law — and if they can have that intent, further intent is certainly possible.
What concerns Frey, and others, is ex post facto declarations of intent. Such things are irrelevant to intentionalism. The intent produced the text; the intent is the text, and vice versa. When the producer later declares a different intent, it is the job of the interpreter (including a judge and/or jury) to discover whether the producer is lying or made a mistake originally; there are no other possibilities, and neither troubles analysis of the original intent in any way. The original intent will always have been there.
Regards,
Ric
He just can’t quit you, Jeff.
That’s classic.
;^)
Then there’s Patrick’s trackback… oh brother.
Jeff, you owe me a keyboard, BTW. Fujitsu LifeBook S series laptop.
Regards,
Ric
(did Romans wear briefs or boxers?)
Oh, and Patrick has greyed out my “Post Comment” box. Interesting.
Regards,
Ric
“When men are established in any kind of dignity, it is thought a breach of modesty for others to derogate any way from it, and question the authority of men who are in possession of it.”*
John Locke, speaking on Frey’s rhetorical use of Justice “Harvard Law grad, renowned Supreme Court Justice, and author of a book on interpretation” Scalia.
Ric,
Yeah, at times my dance around it is intentional. It amuses me, it’s my ironic in-joke. I enjoy it quite often, because you can relate it to so much, but usually prefer to avoid spelling it out explicitly.
In part because the conceptual understandings of entropy are so numerous, and it is so many very interesting things. It is a bit like e=mc2, where they say that only a few people in the world truly understand all the ramifications. Probably not near so exclusive, but it has many ramifications that almost seem like different applications. They are in fact all the same thing. But at some levels, seem quite different. Take IT Shannon entropy (unknown information or disorder/chaos) vs. thermodynamic entropy (ice in the glass/locked or unusable energy) vs. the Arrow of Time business, or von Neumann entropy (the inability to unscrew your girlfriend / the irreversability of the collapse of the wave function). On the surface they all seem almost like very different concepts, but are all manifestations the same concept.
At any rate… I do not know if your post was a response to something I said. I don’t disagree with anything you wrote there.
Like I said, I’m not disputing intentionalism or suggesting congress can’t have an intent. It’s a question of who is the author of a law, and what is the text of law.
It seems we’re not the only ones who’ve been deep in the weeds of language and sign and sussing out the meaning of legal texts. Over on the WaPo, Historian Joseph Ellis presented an op-ed deriding Originalism. For this he was well and thoroughly taunted by Ed Whelan and Matthew J. Frank of NRO’s Bench Memos blog. Some quotes relevant to the ongoing discussion:
Whelan first:
“Ellis attacks the ‘constitutional doctrine of original intent.’ He is apparently unaware that the original-MEANING approach [emph. add.] has long been dominant among originalists and that it is the approach that Justices Scalia and Thomas advocate. The original-meaning approach doesn’t look to the subjective intentions of the Framers, and it is thus immune from Ellis’s central attack [i.e. that the Framers disagreed amongst themselves, and that without agreement, there could be no meaning].”
And Frank:
“[T]he members of the founding generation disagreed with one another about lots of interpretive questions, and even changed their own minds at various times. [….] Here is something they all indisputably agreed on, however: that the Constitution actually has a meaning (just as any legal text does), that that meaning is fixed, and that the resolution of ambiguities in the text is to be achieved by reference to an original meaning that is accessible to interpretive reasoning and employs evidence both intrinsic and (if need be) extrinsic to the text. In other words, the existence of multiple disagreements over what the Constitution means, as well as over who has authority to interpret it in whole or in part, does not obliterate the equally compelling historical fact that all the founders were . . . originalists. ”
I did some light editing; mostly to make the relevant points clear, but also in the faint hope that someone will, without consulting the originals, accuse me a trying to impose my meaning on Whelan and Frank, thus showing me (and by implication, all intentionalists) to be a fraudulent fraudster.
Sorry no links. I don’t do html (another reason why I try not to comment too much). Head over to bench.nationalreview.com and scroll down until you find “Joseph Ellis’s Misconceived Attack on Originalism.”
I’m going to go now and turn my powerful masculine gaze on the wife and see if I can’t take ownership of the woman. Wish me luck fellas.
Comment by RTO Trainer on 5/7 @ 5:36 pm
Since fraud requires intent, as a matter of law, the Lawyer should be aware that he’s created a circle of logic in his hypothetical.
What he said. Once he labeled the guy a “fraudster” it seems kind of ridiculous to then grant him honest intentions.
Links for Whelan and Frank, mentioned by Ernst above.
What he said. Once he labeled the guy a “fraudster” it seems kind of ridiculous to then grant him honest intentions.
Shouldn’t Frey have said “suspected fraudster?” Although, the modifier does little to adjust the thumb on the scale of justice. Hence, Jeff’s arguments for intentionalism. Frey wanted to convey that the guy with the hypothetical problem was in fact guilty but then be allowed to structure the hypothetical with the guy having an out (not a fraudster). Doesn’t wash. He intended to push you to the guilty verdict and use it to bash the counter argument to dust, but having his thumb on the scale, the argument was ill-formed.
I think it pains the ADA cause, even if you use the “suspected” modifier, everyone knows that the thumb is there, and thus the hill is a little higher to climb for the truly innocent (or the idiot Rep entering the ring after surrendering the modifier to the opposition). Which is why Jeff’s insistence that this process be stopped. Conservatives automatically start at a disadvantage in the argument just as the “suspected fraudster” does… Unless Frey had always referred to him as “this guy Joe.”
A little modifying tilts the argument, even if Frey intended to clarify the players. The ADA doesn’t intend to tilt the scales of justice, but they are tilted. They just ARE.
Once you call someone or something any modifier, you have surrendered a little portion of the debate in that direction and it is one more thing that must be overcome.
Unless I’ve been reading Scrotie McBoogerballs and Jeff takes me to task for looking for some signifiers that weren’t there.
In which case, barf.
This might be the least illuminating use of a hypo I’ve come across. Seriously.
1. A guy commits fraud.
2. A judge somehow knows with metaphysical certainty that he intended fraud. How should he rule?
Am I missing something? Whether I agreed with it or not, where’s the possible epiphany? What’s the rhetorical payoff?
Here’s a hypo: A man puts change into a soda machine. No soda comes out. What should he do? Or: A woman develops a flat tire and upon checking the trunk finds she has no spare. Should she call AAA?
Well. I retired to the boudoir and found my recumbent spouse watching Jay Leno languorously. Standing in front of the television, I affixed her with my powerful masculine gaze. “What are you doing?” She said. I made no reply and continued to stare. After a few moments she said “Knock it off, you’re starting to bother me.” So I stared the harder. Minutes passed. And then she flushed. So I stared the harder still . A few minutes more and her breathing quickened beneath her heaving bosom. As the minutes continued to tick away, through my watery, burning eyes I could see her lips trembling in anticipation, and I knew it was time to make my move, claim my ownership of her person and write my text upon her medium.
Whereupon the squalling of our youngest, invoking her right of eminent domain, sent my wife flying from the room, leaving me without just compensation for my lost property.
Kids. Wha’dya gonna do?
Thanks for the links, bh
You’ve been robbed!
Yeah. Dicentra was right. That masculine gaze stuff is all bullshit.
Okay, here’s the reveal in that thread:
Oh, in case that wasn’t clear, that’s from Patterico.*
Here’s a circular peg and a hammer. Now fit the circular peg in the round hole that I’ve drilled for you. Now observe, on top of the circular peg, I’ve written “square,” because sometimes it makes sense for an audience to treat a circular peg as though it were a square one –even though they know that the circular peg is not intended to mean a square peg.
Voila! Through the power of prestidigitation, I, Patterico the Magnificent, Master of Delusion fit square pegs in round holes!
Jeff ought to just humbly admit that Patterico has the bigger penis, and then leave it him to decide if he’s being sincere or intending to decieve.
Quick thought before bed:
The disconnect, as far as I can tell, comes from intentionalism having an option that doesn’t fit comfortably within the legal system. An intentionalist, facing too few clues, can simply say “I don’t know, not enough evidence to confidently determine intent”. In some areas of the law, you need an answer though, whether you have enough data or not. So, strategies have evolved to fit these areas. The reasonable man standard, for instance. Or, even the idea of a jury. Or even the notion that the prosecution bears the burden of proof.
In my book, as long as these strategies are functional (“good enough” to not wreck society or make a mockery of justice) and honest (never taking precedence over the effort to determine intent in all areas where clues are available), fine.
Heh, read that chat.
Answer the question! Make Jeff answer the question! Repeat until silly.
Okay, ‘night.
An intentionalist, facing too few clues, can simply say “I don’t know, not enough evidence to confidently determine intent”. In some areas of the law, you need an answer though, whether you have enough data or not.
True. You can probably guess, but it is a problem. In law you need an answer of some sort. In law (and in all life, possibly only in law) a bad answer may be better than no answer.
Also, what do you do when you have mutually exclusive authorial intent on a text written by commitee? With a book, a book can have contradictory schizoid meanings inserted by different authors, and so be it. If it does, it does.
But as a matter of application, if a law tries to do that… it is problematic. I suppose you could just strike such laws down as being unreadable.
The text is a document of its own intent. All of it.
The difficulty in reconstructing meaning doesn’t negate the fact that, to interpret, that’s what we are trying to do. All the various and sundry individual intentions that go into the construction of a text only matter inasmuch as they are attached at the moment of enactment.
Ric gives a nice overview of why this is and how it works.
The problem people have is that they can’t conceive of a text having a singular intent that is the product of a bunch of varied intents. But that’s only because they don’t conceive of linguistic intent in terms of signification, but rather in terms of their own ideas of what intention means.
Signs are signs because they carry the signifieds of those who have turned them into signs. If this is one person or a legislature, it doesn’t matter. A single sign can carry with it a signified that encompasses several different referents. A sign can be intended ironically, and so can intend to hold opposite signifieds at once.
And so on.
The one thing I learned from last night’s chat is that I should probably start using the correct terminology. I understand others better when they’re breaking it down as, for instance, salt-signified/pepper-signifier.
“Does salt mean pepper?” just lends itself to confusion.
I’m not sure I still agree my #103, btw. No hobgoblins in this little mind, apparently.
(My problem, I think, is that I still occasionally think of intentionalism as an interpretive strategy.)
Signs are signs because they carry the signifieds of those who have turned them into signs. If this is one person or a legislature, it doesn’t matter. A single sign can carry with it a signified that encompasses several different referents. A sign can be intended ironically, and so can intend to hold opposite signifieds at once.
I think I am on board with that. It can have both meanings (contradictory) at once. If it does, it does.
And in terms of interpretation that would mean that the proper interpretation is the interpret it as having both meanings.
Where I hang up is, if 2 men both write a rulebook for a board game, and it says “If you land on a red square, you die”, and one of them meant that if you land on a red square, the game is over and you lose, and the other meant it as a joke – because you can’t die playing a board game. This is like monopoly, it’s a rentseeking/landlord simulation game and you can’t die in monopoly.
What do I do? If I wish to play according to the rules, do I quite playing?
The rules can mean 2 contradictory things at once But I cannot commit 2 contradictory acts at once.
How do you translate a schizoid text into a rational perscription for action?
I guess you cannot. Right? You toss the game in the garbage, or you alter the rules along some other criteria that privledges your own intentions about playing. You can properly interpret it’s meaning, but you cannot faithfully oblidge it in action.
Same as if 1 guy (1 insane guy) wrote a text that said to achieve true happiness and salvation, you must turn yourself into an ostrich.
I can interpret his meaning correctly. But I can’t do nothing with his reccommendation. So his text and meaning is perfectly valid… but his perscription on healthy living is the sux.
No?
So if congress writes a law that is schizoid…(or two parties sign a contract that is schizoid) throw it out? Invalidate it?
That’s not really a question of intentionalism (or interpretation of any sort) I suppose. We’ve succefully interpreted the text… now what do we do with it? It’s post-interpretation. A legal convention question. Am I following?
You can use a text as you see fit. If you want to keep playing the game, you’ll do whatever it is you need to do to play.
Just because a text means what it mean doesn’t mean that you’ll have all the cues necessary to divine original intent — particularly if, in your example, on of those intentions isn’t really signaled at all. So long as you interpret by appealing to intent, you’re going about the process of interpretation legitimately. You may not divine the text’s meaning exactly; but in this case, what you’re after isn’t really meaning, anyway. You aren’t looking to “interpret” the original meaning of the game. You’re looking for a way to make the text presented to you useful.
What you’ll do with it depends on your needs. What you can’t do is say the text “means” what it doesn’t mean as a justification for doing with it what you wish to do with it.
[…] what matters here is what you think you are doing when you interpret. To reprise the takeaway from an earlier post: To say […] “I know what you meant, but what you meant is signaled in such a way that it […]
[…] To say […] “I know what you meant, but what you meant is signaled in such a way that it couldn’t possibly be interpreted as consonant with your intent unless [the receiver of the message] also knew beforehand what you meant […] is different from saying “I know what you meant, but what you meant doesn’t matter, because convention says you meant something else, and your intentions are irrelevant when it comes to determining what you meant.” […]