Patterico's Pontifications

5/7/2010

Does Intentionalism Sanction Fraud?

Filed under: General — Patterico @ 6:54 am

For what it’s worth, I believe the answer to the question is “no” — but the reasoning is instructive as to why one’s choice of words matters.

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.

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.”

This means that there are situations where an audience is entitled to say to a speaker:

Yes, you meant what you meant. Your meaning is not changed by your choice of words. That’s quite true. And you know, it’s wonderful that you meant what you meant. I think that’s just lovely.

However, I will now proceed to act just as if you meant what a reasonable person would take you to mean.

The reason I am doing is is simple. You knew how others would reasonably understand your utterance. You nevertheless deliberately chose your words in a way that you knew would convey a different message than you truly intended. Therefore, while I fully understand what you meant, I am going to act in accordance with what a reasonable person would understand you to mean.

And that approach would be perfectly proper — in certain situations. I am not saying it would always be proper, or that it would usually be proper. But it would . . . sometimes.

Sometimes a speaker could be told: we, the audience, are going to act in accordance with what a reasonable person would understand you to mean, as opposed to what we know you intended.

And then the question becomes: when is it appropriate to do that?

Thoughts?

P.S. The usual “no personal attacks rule” applies.

UPDATE: The words “to convey” have been removed from the end of this sentence: “You nevertheless deliberately chose your words in a way that you knew would convey a different message than you truly intended.” Their inclusion was an error. Thanks to roy.

58 Responses to “Does Intentionalism Sanction Fraud?”

  1. Not being a lawyer (see, the Gods are merciful) I’m not sure about “intentionalism.” However, if the seller says “this diamond ring.” it is obviously a specific object, i.e., a ring with a diamond mounted on it and the contract is in fact enforceable.

    If the seller said “a diamond ring” then it is conceivable that he “meant” a ring with a piece of coal mounted on it but again the common man or prudent person would interpret it differently. The judge in this case, would have to go along with the “diamond” meaning because even though the seller “meant” a lump of coal mounted, the properties of the two are very obviously different. That is to say, coal won’t cut glass, has no clarity, is not the same specific gravity etc., etc.

    If he said “a diamond” then he could possibly have meant the lump of coal but again, the specific differences when you say “a diamond” vs. “a future diamond possibly” and the chemical/physical properties of the two objects would force me to believe that the judge would have to agree that it is fraud and enforce the contract as stated, not as intended by the seller.

    So, as I see it, as Rush says; “Words matter!”

    Where did I go wrong (other than attending Psychology grad school at St. Mary’s rather than Law School at St. Mary’s?)

    GM Roper (a0b04a)

  2. Past intention must be established by citing some contemporaneous written document. So why not let the legal document trump claims of intent, like a last will and testament would?

    Amphipolis (b120ce)

  3. Maybe I should rescind the no-attacks rule. Sure, it would be highly unpleasant. But at least people would pay attention.

    On a more serious note, I think this post gets at what Leviticus is talking about: we can accept for the sake of argument that utterances mean what the speaker intended them to mean — but in the real world the more practical question becomes: must they always be *treated* in accordance with intent?

    I think this post proves that the answer is no.

    And the example is hardly outlandish.

    Patterico (1a3023)

  4. Since I answered this hypothetical at the end of the last thread, I will repost my comment here:

    Pat writes: Intentionalists? Care to weigh in?

    You might as well say “mathematicians, care to weigh in?” Intentionalism is description of a process, not a judgment of how people behave.

    Did the “diamond ring for sale” appear in the paper like the face of Jesus on a tortilla? No? Then it was written by a human and the meaning is located in the person who wrote.

    You state the person defrauded by selling a lump of coal and I agree because the conventions surrounding how sales are conducted are fairly clear (even as there still exists caveat emptor), regardless of what the creator meant.

    JeffG writes

    Where people seem to get hung up, though, is on the belief that what a law means — no matter how that meaning is expressed — is determinative for how we must interpret it. […]

    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.

    Funny thing, if you try and say that this fraudster didn’t mean what he meant – ie strip him as the creator of the advertisment, where then is his responsibility?

    A “reasonable man standard” is but another convention … a tool as it were, in helping the receiver interpret the creator, but it still doesn’t transfer the meaning from creator to receiver.

    JeffG

    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

    I will now add that even as the meaning stays with the creator, it doesn’t obligate the behavior of the receiver that such meaning is legitimate. Obviously the fraudster seeks to commit fraud because he was outside convention in saying what he was selling. Just like any bait-n-switch scheme.

    Just as a government can either secure an individual’s rights or ignore them but rights remain inherent to the individual, so meaning resides with the creator of that meaning, not with receivers or groups of receivers.

    Darleen Click (fe8e8e)

  5. So why not let the legal document trump claims of intent, like a last will and testament would?

    My argument is that written text often should trump claims of intent — and this is not ONLY because intent can be difficult to ascertain in practice.

    What I am trying to find out is whether the intentionalists agree — at least if the issue is not characterized as a linguistic issue.

    Patterico (1a3023)

  6. So it’s clear, I was joking about allowing personal attacks. I have actually been very pleased at the way these discussions have proceeded with a strict no personal attacks runs in place.

    Patterico (1a3023)

  7. Pat’s hit upon the largest business lawsuit that was settled primarily on the interpretation of the intentionalism of the significance of a handshake

    Not only taking spoken intentionalism to a higher plane but also that of body language

    EricPWJohnson (554c4e)

  8. The more difficult question, Patterico, is whether the judge may rule the same way even if the mistake on the part of the seller was not intentionally fraudulent. I think he still may. An intentionalist might disagree.

    Leviticus (30ac20)

  9. This sentence threw me for a loop:

    Your nevertheless deliberately chose your words in a way that you knew would convey a different message than you truly intended to convey.

    If I know what “diamond” conveys, and I choose to use the word, then isn’t that what I truly intend to convey? It isn’t a problem of whether to enforce the original intent, it’s a problem of how to discern original intent because I lie about it afterward.

    roy (0692a4)

  10. mmm, maybe the buyor or seller is actually superman, so they expected to crush it into a diamond…

    but your point is well taken and indeed similar to mine a few days ago.

    I think if you drill down deep enough you guys actually agree that intent controls, but Jeff seems to want us to go for the subjective intent. and you want to go for the objective intent.

    I mean let me give you an example. Imagine the legislature writes a law that says, “a defamation suit shall only lie if malice can be proven.” But malice means one thing in conversation and another thing in law. but we would assume that the legislature intended for the legal definition to apply. so the intention matters, but we are still taking an objective approach to determining intention.

    at least that is how i understand these points.

    A.W. (e7d72e)

  11. I claim an exception to the “no personal attacks” rule.

    The schoolyard bully walked up to me and loudly proclaimed that he was going to pound me to into a pulp. His words were still in the air when I knocked him on his can and then made sure he wasn’t able to get up anytime soon. Crying, Billy claimed he was only joking around.

    When the Principal announced my punishment for throwing the first punch, he wanted to know why I’d picked on Billy Johnson. I defended my actions by explaining that I had taken Billy at his word, and acted accordingly. Nothing more.

    ropelight (2b194e)

  12. I would have to dust off the old contract’s law book, but technically, I don’t think you would have an enforceable contract, as the parties did not have a true meeting of the minds, if seller’s initial intent was to hand buyer a lump of coal.

    However, the buyer would probably prevail on reliance theory, as it would be reasonable for the buyer to rely on the common definition of a diamond in accepting seller’s offer.

    JD [but not the regular JD] (e20075)

  13. There would be a greater appreciation for the meaning of words, and their proper use, perhaps,
    if we used lawyers less in settling these disputes, and Everlast Mdl.3003 more.

    AD - RtR/OS! (044556)

  14. “You really do seem eager to want to take the power to mean away from the individual and hand it over to the group by way of convention — and pretend that what you are doing is “interpreting” a communication, for purposes of enactment, that you know was intended.”

    – Jeff G

    The difference is that we acknowledge the role of a reasonable listener in interpretation, and you do not. You treat language like a little kid playing with Legos in his room: the only important thing is attaching one thing to another with some purpose – no matter how inscrutable – in mind. It doesn’t matter whether anyone else can tell what the hell the little kid made – the important thing is that the kid himself knows. After all, he meant what he meant.

    That’s all well and good when it comes to Legos, but it’s not an advisable standard for serious communication.

    Leviticus (f0f166)

  15. Wrong thread, kinda.

    Leviticus (f0f166)

  16. I both denounce and attack myself for having nothing more to add than written text must always trump intent, except when sarcasm or irony are employed.

    GeneralMalaise (3d45b5)

  17. Does Intentionalism Sanction Fraud?

    No. Congress does that.

    quasimodo (4af144)

  18. Pat, you’re missing the point, seeing intentionalism as a way of getting away with something, as a loophole for fraudsters and other liars.

    In other words, as a way for the speaker to lie about what he himself said.

    But that’s not the point of intentionalism. Intentionalism prevents the listener from lying about what the speaker said or the reader from lying about what the writer wrote (insofar as such things can be prevented).

    Example: Luz Marina is a recent immigrant from Latin America. Standing at the bus stop, she asks a young black man in her best English, “Boy, what time is it?”

    In Latin America, it is perfectly acceptable for an older person to address a young man as “muchacho,” so Luz Marina is just translating directly from Spanish.

    However, the young man (and other bystanders) think they hear a racial epithet, and not unreasonably so.

    Did Luz Marina say something racist? No, she did not. It only sounded racist, but because the utterance was not motivated by racism, it was not a racist utterance.

    However, the Left would pillory Luz Marina anyway, even if they knew good and well why she said “boy,” because there are more of them than her and they yell louder and they’re better sophists and besides she deserves it for voting Republican.

    In other words, they would insist on a “democratic” method of interpretation, wherein the group gets to decide what Luz Marina’s words meant, regardless of what she actually meant.

    This is NOT about what you can prove in a court of law or even in the court of public opinion. Luz Marina’s statement wasn’t racist, regardless of what others may have perceived, because it just wasn’t.

    The Left privileges the listener’s perception over the speaker’s intent as a means to bully you, as a way to prevent you from saying something contrary to their views. Whatever you say, whatever you mean, THEY become the arbiters of your words’ meaning, and thereby exercise power over you.

    Your example better serves as an illustration of judicial activism, with the person offering the coal as the activist judge who disingenuously rules that the lump of coal can legally be termed a diamond ring because they’re both made of carbon, only a few million years of pressure and heat separating the two.

    The judge does so not because he’s got a reason to believe that what he says is true or valid, he does it becuase it suits his political predilections.

    dicentra (11fc6c)

  19. “Pat, you’re missing the point, seeing intentionalism as a way of getting away with something, as a loophole for fraudsters and other liars.

    In other words, as a way for the speaker to lie about what he himself said.

    But that’s not the point of intentionalism. Intentionalism prevents the listener from lying about what the speaker said or the reader from lying about what the writer wrote (insofar as such things can be prevented).”

    – dicentra

    It may not be the “point” (dare I say “intent”?) of intentionalism, but it’s a foreseeable consequence of a dogmatic adherence to intentionalism as an interpretive standard.

    I think we can all appreciate the desire to maintain the integrity of linguistic communication; and in that sense, intentionalism is a good reminder to all of us to debate in good faith and to diligently seek intended meaning. But (as you note) an adherence to intentionalism doesn’t really “prevent” anything; and when an intentionalist mindset leads one to one to eschew something so valuable as a “reasonable man” standard of communication, I think it does more harm than good.

    Leviticus (f0f166)

  20. “it’s a foreseeable consequence of a dogmatic adherence to intentionalism as an interpretive standard.”

    It’s only foreseeable if you misunderstand intentionalism as persistently and thoroughly as this crowd seems to.

    dicentra (11fc6c)

  21. This was settled a couple of thousand years ago: “Let your ‘yes’ mean ‘yes’ and your ‘no’ mean ‘no.'”

    In all areas we should be honest with each other. If the first guy says ‘diamond,’ and the buyer says ‘how many carrats?’ the truth would be, ‘none.’

    TimothyJ (8fb937)

  22. when an intentionalist mindset leads one to one to eschew something so valuable as a “reasonable man” standard of communication

    And this reasonable man is who, again? A posited composite of a community of readers, right?

    When you’re dealing with Leftists, who are decidedly not reasonable, they will go ahead and posit a “reasonable man” who sees a “right to privacy,” which justifies the legality of abortion, in a document that mentions neither abortion nor medical procedures nor privacy.

    The hypothetical that Pat presents is reductio ad absurdum. Everyone can tell that the dude who claims that he wrote “diamond ring” to mean “lump of coal” is a douchebag. If he meant “lump of coal,” he had the means at hand to write “lump of coal.” As a speaker of English, he knows the difference, and to claim otherwise is an obvious lie and worse sophistry.

    You misunderstand intentionalism and misunderstand what it’s fighting against. Pat has in the past asserted that intentionalism provides people with the means to assign their own private meaning to the words they use.

    IT. DOES. NOT.

    I realize that not everyone can parse Jeff’s prose, so I’ll parse it for you.

    The “reasonable man” standard is used in courts of law because it needs to. And although the legal arena has real-world consequences, the court must by necessity operate by rules that differ from ordinary reality. (Far too many lawyers lack the ability to differentiate between their specialized professional constructs and the world the rest of us live in. Don’t know if you’re one of them, but Pat appears to be.)

    “Reasonable man” is needed in court, but it’s an invitation to disaster elsewhere, because it leaves open the question of what “reasonable” is and who gets to decide between reason and illogic.

    The Left has in the last half-century managed to arbitrate what is true and what is not by being loud and repetitive. The starboard side has acquired the bad habit of thinking that if the Left misinterprets what you say and shrieks about it loudly enough, it’s because they have a point, and we need to be careful about what we say.

    This is bullsplat. We mean what we mean. They don’t get to use the power of their numbers and loudness to say that we’re racists when we’ve said nothing racist.

    Otherwise, we have to concede that attending a Tea Party is an act of racism, even when you’re black.

    dicentra (11fc6c)

  23. It isn’t a problem of whether to enforce the original intent, it’s a problem of how to discern original intent because I lie about it afterward.

    Roy gets it!!!!

    libarbarian (90bd00)

  24. “In all areas we should be honest with each other. If the first guy says ‘diamond,’ and the buyer says ‘how many carrats?’ the truth would be, ‘none.’”

    Have to disagree (but I do it agreeably) Carats and carrots are pronounced differently. If the seller said carrots, then the answer, in truth, would be none. On the other hand, if he said “points” (with 100 points being a carat,) you could say 1200 (assuming you can see the diamond and you’ve earned 5.5 million dollars last year as POTUS. :)

    GM Roper (a0b04a)

  25. I don’t have much time to reply; suffice it to say that I am not sure I have said all the things attributed to me above, and I understand certain things that I have been accused of not understanding.

    dicentra, if it’s important for you to characterize my position, I ask you to do it with links and quotes. But I would prefer even more to just have you ask me what my views are.

    What I am trying to avoid is endless rounds of “no, that’s not what I said” and so forth.

    I’ll try to elaborate more later, but please read my post based on the assumption that I do understand what Jeff is saying (and what he is fighting) but that I am making a different point. Namely: once you accept that people mean what they mean, what do you DO with that information? And is one ever entitled to treat an utterance consistent with the reasonable understanding of the audience, despite knowing that the actual intent of the speaker is something else (as in the fraud example)?

    If you try that and still think I don’t understand, feel free to explain why with examples.

    Patterico (1a3023)

  26. Even if intentionalism’s main benefit is combating the listener’s lies, it must account for the speaker’s lies. In other words, if the speaker intended x but intended to convey y, we must understand his intent as x — and perhaps even his meaning as x — yet be entitled to respond to his utterance as if he intended y.

    If intentionalists accept that, then we have achieved much agreement.

    Patterico (1a3023)

  27. Who wants to buy this diamond ring?
    She took it off her finger now, it doesn’t mean a thing
    This diamond ring doesn’t shine for me anymore
    And this diamond ring doesn’t mean what it did before
    So if you’ve got someone whose love is true
    Let it shine for you

    Obviously Gary Lewis and the Playboys were using this song as a means to introduce the concept of intentionalism.

    The singer proffered the ring to his betrothed thinking it was a symbol of a promise. She, on the other hand, changed the meaning of her intention to fulfill the promise concurrent with acceptance of said ring.

    Gary continues:

    This diamond ring can mean something beautiful
    And this diamond ring can be dreams that are coming true
    And then your heart won’t have to break like mine did
    If there’s love behind it

    Ultimately, the question of intent is resolved in the song by the love that is behind the offer and acceptance of the ring. But to be sure, the two parties to the betrothal cannot surely be possessed of the same “dreams that are coming true” even “If there’s love behind it.”

    The songwriter ultimately resolves the conflict with recourse to the concept of “love” when he concludes:

    This diamond ring doesn’t shine for me anymore
    And this diamond ring doesn’t mean what it did before
    So if you’ve got someone whose love is true
    Let it shine for you

    Thus, the only recourse for restoring the shine to the diamond is a futile appeal to “someone whose love is true,” signaling a despairing appeal to hope for someone whose love is true, thereby evading the realization that we are all, in the end, doomed.

    Jimbo in KC (662006)

  28. “…intentionalism provides people with the means to assign their own private meaning to the words they use…”

    Now, I don’t care whether or not Pat said that, but I do know that the remarkable Daniel Patrick Moynihan said:
    “Everyone is entitled to his own opinion, but not his own facts.”

    I think the principle applies here as well.

    AD - RtR/OS! (044556)

  29. ““Reasonable man” is needed in court, but it’s an invitation to disaster elsewhere, because it leaves open the question of what “reasonable” is and who gets to decide between reason and illogic.”

    To me this sounds like a bunch of bullsplat. When marks become words that reasonable people understand have common meanings, communication should occur. Dealing with dishonest folks on the left or right twisting messages is not a new phenomenon explained away by linguistic theory IMHO. Dishonest receivers of communications are dishonest receivers of communications, whether written or oral. I don’t see the law as any second order communication system. It exists alongside other oral and written forms of communication which have their own conventions, which may include satire, parody, etc.

    Various Democrats, including Obama, promised at various phases of the health care reform debate that there would be no federal funding of abortions, but examination of the bill revealed that was not the case and required a Stupak amendment to hold true to that promise if they intended to fulfill it. What was the intent? Was the communication flawed?

    daleyrocks (1d0d98)

  30. “Leftist’s have to lie about what they propose to do.
    If they told the truth, nobody would support them.”

    AD - RtR/OS! (044556)

  31. “The hypothetical that Pat presents is reductio ad absurdum. Everyone can tell that the dude who claims that he wrote “diamond ring” to mean “lump of coal” is a douchebag. If he meant “lump of coal,” he had the means at hand to write “lump of coal.” As a speaker of English, he knows the difference, and to claim otherwise is an obvious lie and worse sophistry.”

    Indeed. He is a fraudster. He intended one thing, but intended to convey another.

    An intentionalist will insist he meant what he meant (a lump of coal). What I want to know is: will an intentionalist support a judge treating the fraudster’s utterance in a manner consistent with what the fraudster intended to convey (a diamond ring), as distinguished from what he intended/meant?

    Patterico (1a3023)

  32. “Far too many lawyers lack the ability to differentiate between their specialized professional constructs and the world the rest of us live in. Don’t know if you’re one of them, but Pat appears to be.”

    I will leave the comment but ask you to refrain from further personal attacks as per the rules of the thread.

    Patterico (1a3023)

  33. Those of us accustomed to dealing with contracts in everyday life, even though we are not lawyers, become comfortable with the concepts embodied by legal language and if there turns out to be ambiguity or dispute, with the legal system to resolve those ambiguities or disputes. The concept of a contract spelling out the duties of each party to an agreement, whether it is the purchase goods or services, insurance, a landlord-tenant relationship, a debtor-creditor relationship, is a common form of communication. If it does not clearly spell out the intent of the parties to the agreement trouble usually ensues (perhaps Democrats blame Wall Street loan sharks for duping innocent borrowers for undertaking loans they could never pay back even though they mandated GSE’s buy them). This is not rocket science. Claiming a fall back of the agreement was not my intent does not hold water when the recourse should have been not to sign the agreement in the first place, especially with a typical clause saying this contract embodies the entire agreement.

    daleyrocks (1d0d98)

  34. Isn’t it obvious by now that “intentionalism” amounts to nothing more than it’s asserted opposite – a pseudo-intellectual cover to what is really nothing more than a self-centered insistence that “Things means whatever the heck I say they mean”.

    If I agree with the author/speaker’s claims regarding his intent than they mean what the speaker says they mean. If I don’t, then they mean whatever alternate meaning I wish to assert was the secret true intent of the speaker/author.

    If this wasn’t true then we would already have moved beyond this to discuss methodologies for best determining the intent of someone given the available, empirical, evidence.

    libarbarian (90bd00)

  35. I quoted Humpty Dumpty a few posts back, and I’m becoming convinced that that is the nub of the argument: which is to be master.

    htom (412a17)

  36. All the libs have to do is keep the crazy 9th circuit shopping spree open all over the nation, and continue to have their libtard bureaucracies implement the congressional “intent” with soggy, half baked, manipulative language, and then have one of their ten thousand activist open society lawyers take it up with the courts or the tenth grand jury that finally does their insane will, and the USA will be what it already is now.
    That’s why textual interpretation, intention, and rule of law implementation matter.
    The reason why this is a discussion is because the demolibs already have control of baking the word pie into anything they want it to be.
    We see now this current fraudster in the white house has a whole crew of word smithing lemmingbots that make their characterization edicts LAW, that require some (or all) of the 2.5 million federal workers to libspeak the controlled utterances or suffer a fate under big lib brothers hateful hand.
    We’re already there.

    SiliconDoc (7ba52b)

  37. I deal with this crap all the time.

    People sign a contract for us to build and install for them X, Y, Z as per plans and specifications…. and then they say/whine that they thought or “intended” to get T, U, V, and W.
    So I write them individual change orders and amend the contract.
    I’ve had clients who had very clearly and persistently articulated their intent to have a pool house and a pool during the budgeting process… but they did not have the money in their budget for it as the cost of the main house, guest house and garages did not allow for them to afford the pool/pool house.
    Usually these clients can actually afford the pool etc, they just don’t want to pay for it. They are punching millions into what amounts to a vacation home and are often great business minds, and so they insist their intent all along was to get more than they actually agreed to in writing.

    At this point it is a battle of “intent” and
    I intend to not giving them a pool for free

    On a larger scale as a consumer of government services, I intend to pay everything they have written into law and I do not intend to pay them more than they have signed on for.
    If they intended to get more and screwed it up then amend it.

    Steve G (7d4c78)

  38. Or I could intend to not give them a pool for free….

    Steve G (7d4c78)

  39. “You misunderstand intentionalism and misunderstand what it’s fighting against.”

    – dicentra

    No, I don’t – at least not based on anything you’ve said here thus far. I’ve acknowledged the futile nobility of your little crusade, while simultaneously pointing to its uselessness as a governing standard for human conduct (as evidenced by the continued inability of any intentionalist adherent to answer Patterico’s repeatedly posed question about what we should actually do in this situation, armed as we are with our devastating intentionalist rhetoric).

    daleyrocks has pointed out that same uselessness -the dishonest will be dishonest, no matter how frantically you wave your arms and demand that they Respect Your Authoritay (sic).

    It’s got nothing to do with Goldstein’s “prose”. Yeah, it’s dense – it make take a second, but I can understand it just fine. It’s got everything to do with the fact that we are apparently talking at cross purposes: the intentionalists in empirical terms, and everyone else in normative ones.

    Leviticus (30ac20)

  40. *may* take a second

    Leviticus (30ac20)

  41. I think we are dealing with tautologies, or their opposites.

    “You knew how others would reasonably understand your utterance. You nevertheless deliberately chose your words in a way that you knew would convey a different message than you truly intended.”

    If Seller did do that, then it is clear that he said what he meant, and that he meant to lie. That is, he meant for Buyer to think that the diamond ring was being sold. So, “intentionalism” doesn’t come into play.

    “Sometimes a speaker could be told: we, the audience, are going to act in accordance with what a reasonable person would understand you to mean, as opposed to what we know you intended.” (Emphasis added.)

    This sounds like a fraud in reverse. If the Buyer knew that the Seller meant that coal was being sold when the Seller was writing the word “diamond,” then Buyer had the duty (assuming there is a duty of good faith) to say, “Check that, I think you meant coal.”

    Ira (28a423)

  42. (as evidenced by the continued inability of any intentionalist adherent to answer Patterico’s repeatedly posed question about what we should actually do in this situation, armed as we are with our devastating intentionalist rhetoric)

    Two points.

    First: Leviticus, the sarcastic tone doesn’t help. It invites ugliness in response and I don’t want that. As you know, I have been hypervigilant in these intentionalist threads to keep the tone ultra-civil, and I would appreciate your cooperation in that regard.

    Second: I am relieved that I am not the only one who noticed that I keep asking a particular question and that it is rather pointedly not being answered.

    I take another stab at getting an answer in my point by point rebuttal to Goldstein’s latest post, here.

    Patterico (c218bd)

  43. If Seller did do that, then it is clear that he said what he meant, and that he meant to lie. That is, he meant for Buyer to think that the diamond ring was being sold. So, “intentionalism” doesn’t come into play.

    Sure it does. Intentionalism ALWAYS comes into play. One area where I agree with Goldstein is that law is language. Whether you have legal language, or language uttered by a lying speaker, or any other kind of language under the sun, you always have the concept that the utterer meant what he meant.

    My point is, and always has been, that this observation does not answer the interesting questions — which have to do with how one should put that knowledge to use.

    Patterico (c218bd)


  44. “Sometimes a speaker could be told: we, the audience, are going to act in accordance with what a reasonable person would understand you to mean, as opposed to what we know you intended.” (Emphasis added.)

    This sounds like a fraud in reverse. If the Buyer knew that the Seller meant that coal was being sold when the Seller was writing the word “diamond,” then Buyer had the duty (assuming there is a duty of good faith) to say, “Check that, I think you meant coal.”

    Here, I mean the audience is the judge, not the buyer. Sorry for any confusion on that point.

    Patterico (c218bd)

  45. I quoted Humpty Dumpty a few posts back, and I’m becoming convinced that that is the nub of the argument: which is to be master.

    Amusingly, the argument of the intentionalists is exactly like that of Humpty Dumpty.

    A word means just what they (as speakers) choose for it to mean. Nothing more, and nothing less.

    Patterico (c218bd)

  46. “…A word means just what they (as speakers) choose for it to mean. Nothing more, and nothing less.”
    Comment by Patterico — 5/7/2010 @ 7:37 pm

    And, They’re Wrong!

    AD - RtR/OS! (044556)

  47. “Leviticus, the sarcastic tone doesn’t help. It invites ugliness in response and I don’t want that. As you know, I have been hypervigilant in these intentionalist threads to keep the tone ultra-civil, and I would appreciate your cooperation in that regard.”

    – Patterico

    Sorry, sorry, sorry. It’s just that it gets tiresome, being consistently told (in a passive-aggressive manner) that you’re just a little too dumb to understand the complexity and magnitude of this hyper-parsed something-or-other. I feel I do understand it – better now than ever – and it pisses me off that my skepticism of its utility and merit is treated as a default Dunce-Cap by its advocates.

    Leviticus (30ac20)

  48. Just as Scalia’s apparent skepticism of it warrants the Dunce-Cap, as you point out elsewhere.

    Leviticus (30ac20)

  49. Leviticus,

    It took me a lot of discussion and debate to understand it completely, but I now do, completely and utterly. I’m not sure I completely buy it, but I certainly get it.

    I initially was inclined to deride the concept myself, but as time has passed I have grown to believe that there may be a point to understanding the concept — although I do have several reservations about it, or ironic observations about it. For example:

    1) Intentionalism is often cited as an effective weapon for fighting the tactic of other people rewriting what you say. However, once you understand the distinction between intent and interpretation — and you realize that the speaker owns his own intent but not necessarily his own INTERPRETATION — you realize that the value of intentionalism is rather minimal against the aforesaid tactic. Because if someone wants to rewrite what you say, they can easily do so consistent with principles of intentionalism, as long as they phrase it correctly. They need only say that they are better interpreters of your intent than you are — and nothing in intentionalism prevents them from making that argument.

    2) I have noticed that, while intentionalists supposedly allow the speaker to define his own terms, intentionalists tend to be fairly persnickety about making you use their jargon correctly. Just try mixing up the terms “mark” and “sign” and see how they react — even if your intent in using the word is clear.

    3) As we have been discussing lately, intentionalism’s complete divorcing of text from convention has the result of putting the speaker in the position of Humpty Dumpty. All sorts of ironic consequences can flow from this. No further elaboration is needed as it is the topic of this series of posts.

    I have enjoyed your participation greatly; it has kept me from those feelings that I am wasting my time. I hope your interest in the topic continues.

    And it’s worth having the discussion purely on the plane of ideas. It can be tough, sometimes, but it’s worked over a series of several posts. As long as I can control the tone and evenhandedly police it from both sides, I think it fosters a free exchange of ideas.

    Patterico (c218bd)


  50. Just as Scalia’s apparent skepticism of it warrants the Dunce-Cap, as you point out elsewhere.

    Yeah, apparently Scalia just doesn’t understand what he’s doing. He’s a FAIRLY bright fellow — but just, you know, not quite THAT bright. He doesn’t quite understand interpretation the way WE do.

    You’d think people would think twice before making that argument about him.

    Patterico (c218bd)

  51. For what it’s worth, Leviticus, I am not generally a fan of Argument from Authority. I once saw dicentra arguing that I should just submit to Jeff’s superiority on language because he is supposedly the expert and I supposedly am not. I didn’t really buy the argument then.

    However:

    Even putting aside the issue of whether a lawyer is a non-expert on language …

    … one wonders if she would accept the same argument when comparing Jeff’s expertise to Scalia’s. Somehow I think she would shift away from the Argument from Authority if those were the personalities involved.

    Patterico (c218bd)

  52. It’s just that it gets tiresome, being consistently told (in a passive-aggressive manner) that you’re just a little too dumb to understand the complexity and magnitude of this hyper-parsed something-or-other. I feel I do understand it – better now than ever – and it pisses me off that my skepticism of its utility and merit is treated as a default Dunce-Cap by its advocates.

    If you don’t like passive-aggressive, I’d be glad to switch to flat-out aggressive, but Pat has asked that his commenters not do so.

    I will, however, state categorically that neither you nor Pat understand intentionalism, and I base that assertion on the very arguments and hypotheticals that you pose.

    Intentionalism is not “a governing standard for human conduct.” It’s a description of how language works, to wit: “The locus of meaning is in the intent of the speaker, not the perception of the listener.”

    “…as evidenced by the continued inability of any intentionalist adherent to answer Patterico’s repeatedly posed question about what we should actually do in this situation, armed as we are with our devastating intentionalist rhetoric.”

    You’re not getting an “intentionalist” answer to your question because your question doesn’t ask where the locus of meaning is (which is the question that intentionalism answers). You’re asking instead what a judge should do in a particular situation.

    Apples. Oranges. No assembly required.

    If some moron decides to make an ex post facto claim that he wrote “diamond ring” to mean “lump of coal,” the judge should laugh in his face and rule that the contract has been breached.

    (There, I answered the question.)

    The only mitigating circumstance would be a brain injury on the part of the seller that prevents him from properly using written language. In that case, he could in fact intend to sell a lump of coal but his brain injury compels him to perceive “diamond ring” as the written representation of said coal.

    A detailed medical history could be produced to support the claim, but the seller still has to give back the money (or produce the ring) because there’s no earthly reason for the buyer to think that “diamond ring” means “lump of coal,” unless he has the same brain lesion.

    In this latter case we have a misunderstanding; in the former (sans brain lesion), we have a laughable attempt at fraud.

    Levi, neither you nor Pat have carried intentionalism to its logical conclusion; you have merely posited a situation and then applied the term “intentionalism” to a whole different thing: whether a judge should believe the guy who claims that he meant other than what he said.

    Legal question, not linguistic.

    What say we leave the legal questions to the lawers and the linguistic questions to the litcrits?

    Deal?

    dicentra (5fbaa0)

  53. Aw fer the sake of Pete, Pat. I don’t do Argument from Authority.

    Though I may have argued that Jeff’s understanding of linguistic theory is superior to yours.

    And in the case of Scalia vs. Goldstein, I’d let Scalia hold forth on law and Goldstein on language.

    Fair ’nuff?

    dicentra (5fbaa0)

  54. dicentra:

    Join our chat.

    Patterico (c218bd)

  55. And in the case of Scalia vs. Goldstein, I’d let Scalia hold forth on law and Goldstein on language.

    Law is language.

    Let’s discuss it in the chat!

    Patterico (c218bd)

  56. We don’t bite!

    Go here.

    Patterico (c218bd)

  57. ….Intentionalism is often cited as an effective weapon for fighting the tactic of other people rewriting what you say….

    …while intentionalists supposedly allow the speaker to define his own terms…

    …intentionalism’s complete divorcing of text from convention has the result of putting the speaker in the position of Humpty Dumpty…

    THIS is why I say you don’t understand intentionalism: you keep misrepresenting it.

    Intentionalism is not a tactic or a technique. Jeff expounds on intentionalism to help people understand that the Left doesn’t get to decide what your words mean via mob rule and hysteria; ergo, when they twist your words, you’re entirely within your rights to call them on it.

    Otherwise, people think that when the Left pillories you for what you say, it’s because they have a legitimate point. And so you need to watch what you say in case you accidentally say something “racist” (while being devoid of racist motives).

    This is how the GOP has acquired battered-wife syndrome: they think that if they just have dinner ready on time (they avoid saying “the wrong thing”), the beatings will stop.

    All Jeff has done is point out that the beatings aren’t a result of the wife doing something wrong, they’re the result of the husband’s malice.

    It’s not a technique. Not a trick. Not a strategy. Just an observation of fact.

    There is no divorce, complete or otherwise, of intent from convention. If I want you to pass me the salt, and I say “oye, pásame el salero,” you won’t know to pass it to me unless you speak Spanish.

    And if you don’t speak Spanish, then I’ve poorly signaled my intent, and I will remain saltless until I think of a better way to communicate my intent to you.

    Jeff has ALWAYS explained that it is possible for someone to badly signal their intent. If I say “pepper” when I wanted salt, then I can hardly complain when the pepper comes my way, can I? It is incumbent upon me to clarify what my intent was, NOT for everyone else at the table to read my mind.

    Hence the AZ legislature’s amending of that law: they realized that they had poorly signaled their intent, so they changed the language to better express that intent. And in the hands of a judge, the poorly signaled intent is not the judge’s problem. His job is to read the law as written, not wonder whether the legislators properly signaled their intent.

    Yes, he interprets it according to the conventions of written texts and dictionary definitions and specialized terminology and case law and all that. What else is he supposed to do? Use a Urim and Thummim?

    And NO, NO, NO! Nobody gets to play Humpty Dumpty. If I insist on my own private meaning for words, then I’m going to be misunderstood right and left, and I pretty much get what I deserve if I refuse to play by the rules of communication.

    If I nod my head to mean “no” and shake it to mean “yes,” knowing full well that the convention is just the opposite in this culture, then I will be misunderstood by all and sundry, and if I curse them out for not knowing what I meant, they are within their rights to tell me to pound sand.

    What will it take to shake you loose from the notion that intentionalism permits the speaker to decide and determine the meaning of a word, independent of custom and convention?

    dicentra (5fbaa0)

  58. You seem to have left out the very part of my response from today that addresses what you are calling the “practical question” (to me, the “practical” question is does what you think you’re doing when you interpret a speech act hold up to logical scrutiny, but to each his own). To wit:

    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.”

    Given that the first option is how an intentionalist would deal with the loaded hypothetical, is it not clear how the judge will rule? And why?

    Pat writes:

    It took me a lot of discussion and debate to understand it completely, but I now do, completely and utterly. I’m not sure I completely buy it, but I certainly get it.

    I initially was inclined to deride the concept myself, but as time has passed I have grown to believe that there may be a point to understanding the concept — although I do have several reservations about it, or ironic observations about it. For example:

    1) Intentionalism is often cited as an effective weapon for fighting the tactic of other people rewriting what you say.

    Intentionalism isn’t a tactic. It just is.

    Knowing how interpretation works — what it is and what it isn’t, where meaning rests, how intent works with respect to language — is simply arming yourself with the knowledge of how language functions so that you can counter illegitimate uses of language.

    However, once you understand the distinction between intent and interpretation — and you realize that the speaker owns his own intent but not necessarily his own INTERPRETATION — you realize that the value of intentionalism is rather minimal against the aforesaid tactic</Because if someone wants to rewrite what you say, they can easily do so consistent with principles of intentionalism, as long as they phrase it correctly. They need only say that they are better interpreters of your intent than you are — and nothing in intentionalism prevents them from making that argument.

    Except that they have to make a cogent argument, appeal to your intent, and back up their reading. Which is far more difficult to do than saying “You may not have meant to say something racist, Tony Snow, but ‘tar baby’ has been used in racially-charged contexts in the past, and therefore it carries with it the weight of all its past conventional usages, all of which you are responsible for ‘meaning’ by virtue of having elected to use those signifiers.”

    Simply by knowing how language functions, one is able to readily dismiss such a (common type of) charge — and have the linguistic wherewithal to support their dismissal.

    2) I have noticed that, while intentionalists supposedly allow the speaker to define his own terms, intentionalists tend to be fairly persnickety about making you use their jargon correctly. Just try mixing up the terms “mark” and “sign” and see how they react — even if your intent in using the word is clear.

    Intentionalists dont’ “allow a speaker to define his own terms.” The arbitrary relationship between signifiers and signifieds used to make a sign allows such a thing.

    All that needs be done is to add a signified to a signifier to form a sign. That is, all one needs to do to “define ones own terms” is intend.

    But nowhere have I said that such a creation of unconventional signs will — or must — be correctly interpreted. Instead, I’ve stated the obvious: if you want to know the meaning of the person who created those signs, you’ll need to figure out what he intended by them.

    3) As we have been discussing lately, intentionalism’s complete divorcing of text from convention has the result of putting the speaker in the position of Humpty Dumpty. All sorts of ironic consequences can flow from this. No further elaboration is needed as it is the topic of this series of posts.

    Huh?

    Where are you coming up with “intentionalism’s complete divorcing of text from convention”? Intentionalism merely points out that meaning rests with the intent to signify — manifested in signs. Convention is often crucial to understanding what someone means. As are things like context, biography, formal cues, syntax, and on and on and on.

    What intentionalism makes clear, however, is that convention is a second-order system built up around communication to aid in understanding intent — to aid in discerning meaning.

    I have enjoyed your participation greatly; it has kept me from those feelings that I am wasting my time. I hope your interest in the topic continues.

    That you keep making the same mistakes in describing what intentionalism is — even as you claim you know it thoroughly — is what many of us find so maddening.

    Jeff G (929040)


Powered by WordPress.

Page loaded in: 1.0312 secs.