I’m going to reproduce part of a comment I left at Jeff Goldstein’s site, because I think it’s important to note our points of agreement on issues of interpretation:
1) Interpreters should try to divine the speaker’s true intent.
2) Intent is whatever the speaker meant.
3) The speaker is not necessarily the most reliable interpreter of his own words.
4) It is perfectly justifiable to tailor one’s presentation to suit the audience.
5) If you fail to communicate your position to the audience because you failed to signal your intent properly, you should clarify.
6) Speakers have no responsibility to self-censor to prevent unreasonable and bad faith misinterpretations of their words.
Jeff and I agree on all of this.
The differences, I think, lie in 1) debates over matters of degree in situations where there are no absolutes, and 2) differing interpretations of specific fact patterns.
This hardly seems like earth-shattering stuff, in terms of the applicable principles.
The debate, I think, starts when people try to apply these principles. You can mock hypotheticals, as Jeff repeatedly does, but I happen to think they are valuable for crystallizing the differences between people in an abstract way.
Not everyone agrees; such is life. Don’t want to answer the hypotheticals or consider them? You can move on to the next post. That’s fine with me. Offended by them so much that you hate the blog? That seems like a bizarre reaction, but if it’s yours, you can move on to the next blog.
I have enjoyed the discussions here occasioned by my hypotheticals, joined by people who wish to talk with me in good faith. Those are the people with whom I will continue to speak. I am going to stop talking to others; life is too short to speak with people whom you know are not going to debate you in good faith.
POSTSCRIPT DESIGNED TO DRIVE LAWYER-HATERS ABSOLUTELY INSANE: There is indeed a parallel to be drawn between analyzing intent in language and analyzing intent in criminal law.
Consider the defendant charged with attempted murder, where intent to kill is the issue. The prosecution must prove the defendant’s intent was to kill. The defendant will attempt to raise a reasonable doubt about his intent, by pointing to evidence that his intent was not an intent to kill (or gaps in the prosecution’s evidence on that issue).
Regardless of what the arguments are, his intent was his intent. Either he meant to kill or he didn’t. This intent was fixed at the moment of the act. It cannot be changed by subsequent interpretations. This is like intentionalism: the speaker meant what he meant.
In a courtroom, nobody can know the defendant’s intent with 100% certainty. All the jury can do is strive to learn his intent based on his actions. Often they can reach an interpretation that they are confident is right — and it may be one different from that offered by the actor. The jury might also agree with the defendant’s interpretation, if it appears reasonable in light of the totality of the evidence. And under the law, the actor gets the benefit of any reasonable doubt. If two interpretations are both reasonable, you choose the one that favors the defendant.
This is all true in the realm of interpreting words as well. You can’t ALWAYS trust the speaker’s interpretation. You make the best possible judgment you can based on the information available to you. And you should take the speaker’s intent into account — and if two interpretations are both reasonable, and one is offered by the speaker, you choose the one that favors the speaker’s stated interpretation. This is the principle of charity.
In either process, it’s critical to understand that any interpretation must strive to learn the actor/speaker’s intent. You can’t begin the analysis unless you understand that.
But once you understand that basic point, the real interest lies elsewhere — in how to use the available evidence to interpret intent.
That’s where the rubber meets the road. And that’s what I want to discuss with those of you who are operating in good faith.
There are lots of interesting nooks and crannies there to explore. And as long as I’m interested enough to write about them, and you’re interested enough to read and comment, we’ll explore them. Maybe not for “the rest of our [bleep]ing lives” — but for as long as the discussion remains interesting to the parties in this conversation.
And if it’s not interesting, there’s always going to be a post where I blast Obama and/or the L.A. Times. That’s the bread and butter of this site and I’m not giving it up.