Patterico's Pontifications

5/7/2010

Why Intentionalism Cannot Determine Legal Interpretation — And Why It Matters

Filed under: General — Patterico @ 7:24 pm



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 I know how, and why it matters.

Simply put, let’s say you accept everything the intentionalists say about the meaning of language, in theory. It still doesn’t tell you anything about how to make real-life decisions about how a judge should rule when litigants disagree in their interpretations of legal language.

Take the situation I discussed this morning, where a thief is trying to defraud a buyer who is trying to purchase a diamond ring. We can discuss all day long what the thief meant when he said this phrase or that phrase — but in the end, who cares? We’re still not going to let him get away with defrauding the buyer.

And so, it may be a wonderful intellectual exercise to discuss what the thief “meant” when he offered to sell “this diamond ring.” But the results of that intellectual exercise have absolutely nothing to do with how a judge should rule on the question when someone presents the contract to him. All the judge cares about is: “what do the terms of the contract say?”* and “did the buyer have any reason to think the seller was selling a lump of coal?” and “did the seller have any reason to know the buyer thought he was buying a diamond ring?”

And so if the contract was for the sale of a “diamond ring” and the buyer had no reason to believe he was buying a lump of coal, and the seller knew the buyer thought he was buying a real diamond ring, the judge is not going to let the seller get away with saying “I meant to refer to this lump of coal” — even if he is telling the truth.

Because, for the judge’s purpose, he doesn’t care what the seller meant if it was different from what the seller meant to convey.

Things get even uglier when you’re talking about legislative intent, because you’re looking at the intent of a body of people who might not even have an intent — other than “I am voting this way to get re-elected.” Most of these clowns haven’t even read the words that their intent is supposedly so critical to interpreting. Some legislators’ intent is going to be at odds with others’. Some will have traded favors or spent political capital negotiating a change to the text — and it is the height of insanity to tell such people that their negotiated TEXTUAL modifications are null and void because a majority of legislators happens to unreasonably read that same text in a way different than most reasonable people would.

And so the point boils down to this: to the intentionalist, the meaning of words written on a page is wholly determined by what the writer intended them to mean. But in the real world, when a judge has to decide how those words are going to be ENFORCED, he is going to start with the text — and he may very well end with the text. If he is looking at a contract where the seller is a scam artist, he won’t really care what the seller subjectively intended to sell. And if he is looking at statutory language, then — like Justice Scalia — he may not give a rat’s ass what the legislators subjectively intended.

That Scalia believes this does not mean he does not understand what he is actually doing, as Goldstein has argued. Instead, Scalia, the Harvard Law grad, renowned Supreme Court Justice, and author of a book on interpretation, presumably is fully aware of what he is doing. He just happens to disagree with the intentionalists when it comes to legal interpretation.

As do I.

*Goldstein, of course, argues that a contract can’t “say” anything on its own, and that the words of the contract only have meaning when a speaker imbues them with that meaning. This abstract argument aside, I am confident that the average reader understands what I mean when I use the phrase “what do the terms of the contract say?”

P.S. If you’re still interested in the point-by-point response to Goldstein’s post, it’s here.

P.P.S. As with all these intentionalism posts, I am instituting my strict no-attacks and no-ugliness rule. Let the arguments fly; keep the insults to yourselves.

48 Responses to “Why Intentionalism Cannot Determine Legal Interpretation — And Why It Matters”

  1. That Scalia believes this does not mean he does not understand what he is actually doing, as Goldstein has argued. Instead, Scalia, the Harvard Law grad, renowned Supreme Court Justice, and author of a book on interpretation, presumably is fully aware of what he is doing. He just happens to disagree with the intentionalists when it comes to legal interpretation.

    And were Scalia to apply First Amendment analysis to every statute it would not ever be an issue.

    nk (db4a41)

  2. Forgive me, Patterico, but were I ever to start an intentionalism discussion about a law, like you have been doing here, he would hit me on the head with his gavel and I would not blame him in the least.

    nk (db4a41)

  3. The law is a practical thing and neither a philosophical nor grammaticall exercise.

    nk (db4a41)

  4. about a law *with a judge*

    nk (db4a41)

  5. It’s funny to me to see people like Ric Locke say that I am talking about ex post facto declarations of intent in these posts of mine. If he actually read them, he would see me saying again and again that I am not talking about post hoc declarations of intent; I am asking people to assume that the intent ACTUALLY WAS “x” and then talk about why and to what extent that matters to the PRACTICAL QUESTION of how a judge should rule.

    And as many times as I pose that practical question, I haven’t seen a clear answer to it yet.

    Patterico (c218bd)

  6. Anyway, while it’s clear that there are some people I am not reaching, there are some — like Leviticus — who are following this quite well.

    Y’all are the ones who make it worth it to write about this.

    Patterico (c218bd)

  7. Pardon me, but there’s a word for that, and the word is “balls”.

    In the diamond ring example, intentionalism says there are three possible cases (in the logical sense) here:

    1) The seller deliberately misrepresented; he knew what “diamond ring” and “lump of coal” meant, and intentionally substituted the one for the other. That’s easy. That’s fraud.

    2) The seller unintentionally misrepresented; perhaps, as a commenter at PW suggested, the words “diamond ring” mean a lump of coal in his native language, and he got confused. That’s almost as easy. The buyer and seller didn’t agree to the same contract, because the words in the language(s) aren’t the same. The contract is null and void, and the correct adjudication is return to status quo ante.

    Both of those assume that the buyer did not know that the seller intended “diamond ring” to mean a lump of coal. If he did know that, we get the third case — the contract is valid and both parties have performed. A judge will never see that one, of course; there’s no reason for complaint in it.

    In all of this, you are reading both too much and too little into “intentionalism”. In a very real sense, the intent and the text (the law, in this case) are the same thing — the text is a physical realization of the intent that created it. If the creator, or anyone else, comes along and declares ex post facto that the intent was different, it is the job of the interpreter (the judge, in law) to determine whether that’s a lie or the producer of the text (law) made a mistake. Neither troubles intentionalism in any way, because the original intent, as embodied in the text, is a permanent feature of the past that will always have existed. Later declarations or expostulations can’t modify it, because that moment in time is past and gone.

    Regards,
    Ric

    Ric Locke (68d968)

  8. Hrm. I have read your site for a while but never commented. I value both your opinions as well as Goldstein’s although I would tend to view you as authorities on different subjects.

    As has been pointed out in the comments to the PW article you linked here and tracked, fraud cannot be fraud without intent to defraud.

    To say that the judge would rule on a matter of fraud based solely on the text is frankly innacurate. He must determine the seller’s intent if he is to convict in a criminal case for fraud, because an aspect of fraud is proving intent to defraud.

    There is no, that I am aware of (at least not in Illinois) fraud in the 3rd degree, or ‘contractual negligence’. It is like defamation. You cannot defraud someone by accident. For it to be fraud, you must intend it.

    So the text of the contract is never more than part of such a ruling. You must demonstrate that by writing “diamond ring” while intending to deliver coal, the seller fully intended to deliver a lump of coal, and fully intended to decieve the buyer with his use of the words “diamond ring”.

    Intent must be established. The crime of fraud is unenforceable without practiced intentionalism within the courtroom.

    Furthermore, as a matter of contract dispute, the text of the contract is not the sole authority in such disputes. Things like typographical errors or absurd clauses are routinely struck out of contracts and not enforced by the court (often on account of things like eye witness accounts, recordings of meetings, email communications, etc.) all of which goes to the intent of the parties who entered the agreement.

    In regards to interpreting statues or criminal laws, judges do follow a philosophy of textualism, which I feel is not entirely inappropriate. As I’ve argued in the PW comments this can be reconciled with intentionalism, for largely the reasons the legal system has adopted it in the first place.

    But in regard to contract law, the judge does not interpret or abjudicate the written contract – assuming there is one! – so much as the agreement itself (as I’ve also argued extensively in Jeff’s comments). And it revolves around what the parties intended to enter as an agreement.

    Although the first ruling is from Quebec, and is therefor suspect of being cheese-eating-surrender-monkeyesque and therefor invalid, and the 2nd is English, a very quick google (these items are from the first page of a Bing search for “contract law intent”) produces examples of what I am speaking of in a legal context related to contract law.

    http://www.edilex.com/edilexpress/index.php/the-primacy-of-the-intent-of-the-parties-over-the-written-contract/

    http://en.wikipedia.org/wiki/Balfour_v._Balfour

    Recall that the fundemental purpose of the written contract (where a written contract is even used, although not all contracts are written, or verbal, think of an “implied contract”!) is simply to provide a record of the agreement for posterity. What is binding is the agreement. The purpose of the contract and of interpreting and abjudicating the contract is in determining the intent of the parties in entering the agreement. And since an agreement is voluntary, it matters greatly what both parties intend to agree to when they enter a contract.

    http://www.rnoon.com/law_for_laymen/contracts/parolevidence.html

    http://www.scribd.com/doc/239253/Implied-Terms-and-Interpretations-in-Contract-Law

    From the abstract: This chapter examines the economic arguments for textualism and contextualism, the two primary methods used by courts to determine the intentions of contracting parties with respect to their obligations.

    How do you apply textualism to a case of a verbal contract?

    Or better still, an implicit contract?

    And I can tell you many of the reasons textualists reject intentionalism in law (including Scalia) does not apply to contract dispute.

    Scalia, with good reason and a good point, says that memos or records from conferance meetings among senators cannot speak to the intent of the laws because we cannot know that the memos of one particular senator speak to the intent of the whole of congress, for instance. It privledges the few whom left these extra-textual clues. Only the law itself has been passed. And this is assuming 100 senators can even be said to have a single non-contradictory intent behind their laws to begin with.

    This critique is not relevant to contract dispute, where the parties are clearly defined.

    In Illinois at any rate, I can tell you the letter of a contract is absolutely not enforced as though it were some sort of gospel. The understanding of the concerned parties matters, and the courts are forgiving toward ‘fine print’ clauses, often not even read by consumers, that attempt to sieze souls or some such ridiculous business like wanting 50% interest compounded weekly on late payments.

    Writing that you want 2% interest monthly may be upheld. Writing into a contract that you want 50% interest compounded weekly will get you 0% when it’s tossed out.

    Entropy (685a0b)

  9. Pardon me, but there’s a word for that, and the word is “balls”.

    In the diamond ring example, intentionalism says there are three possible cases (in the logical sense) here:

    1) The seller deliberately misrepresented; he knew what “diamond ring” and “lump of coal” meant, and intentionally substituted the one for the other. That’s easy. That’s fraud.

    2) The seller unintentionally misrepresented; perhaps, as a commenter at PW suggested, the words “diamond ring” mean a lump of coal in his native language, and he got confused. That’s almost as easy. The buyer and seller didn’t agree to the same contract, because the words in the language(s) aren’t the same. The contract is null and void, and the correct adjudication is return to status quo ante.

    Both of those assume that the buyer did not know that the seller intended “diamond ring” to mean a lump of coal. If he did know that, we get the third case — the contract is valid and both parties have performed. A judge will never see that one, of course; there’s no reason for complaint in it.

    Ric,

    I agree with the legal effect of all three examples.

    If you read the hypo I wrote (did you? it appears not), you would know that I told you what was happening: the seller was a fraudster. So we’re in situation #1 — I already stipulated that.

    And then I asked the question that I keep asking: as a PRACTICAL matter, is the judge obligated to rule in accordance with the interpretation offered by the thief?

    And I answered that, even if LINGUISTICALLY one must conclude that the thief “meant” a lump of coal when he wrote “this diamond ring,” that does not obligate a judge to RULE consistent with the speaker’s interpretation.

    MEANING, that there are times when an audience (here, the judge) can look at a speaker (here, the thief) and say; “Yes, you meant what you meant. Have a cookie. Now watch me RULE ON THE CASE AS IF you meant what a reasonable person would conclude you meant.”

    And the judge would be right.

    In all of this, you are reading both too much and too little into “intentionalism”. In a very real sense, the intent and the text (the law, in this case) are the same thing — the text is a physical realization of the intent that created it.

    In my example, the text is very different from the intent. The text says diamond ring. The liar’s intent says lump of coal.

    Yes, yes, I know, the text (according to you guys) can only mean what the writer meant. You know what I mean when I talk about the text: the meaning that the text would have to a reasonable observer unfamiliar with the speaker’s unexpressed intent.

    If the creator, or anyone else, comes along and declares ex post facto that the intent was different, it is the job of the interpreter (the judge, in law) to determine whether that’s a lie or the producer of the text (law) made a mistake. Neither troubles intentionalism in any way, because the original intent, as embodied in the text, is a permanent feature of the past that will always have existed. Later declarations or expostulations can’t modify it, because that moment in time is past and gone.

    That’s a wonderful and very true observation that has nothing to do with my hypo. Because my hypos CLEARLY STIPULATE that the intent we are concerned with is the ACTUAL INTENT of the speaker at the time of the utterance.

    Patterico (c218bd)

  10. In the diamond ring example, intentionalism says there are three possible cases (in the logical sense) here:

    YOU say there are only three possible cases here. How can that be? That is the entire point. If we devolve into multiple interpretations and mind reading, there can’t be a finite delineation of ANYthing.

    Yes, there will always be close calls. Reasonable men can reasonably disagree. However, if I say 2 + 2 = 4, there can be no “intentionalism” or any other twisting of this mathematical fact. Someone else may wish to create a new system of math and allow for 2 + 2 = I. That’s fine. But it isn’t the math that is accepted by the entire world.

    10K is 10K. Coal is coal. A diamond is a diamond. Black is black. White is white.

    If someone wants me to sit in judgment as a juror and allow that simply because of his/her ignorance of basic english or math that they ought to be given a pass or a break, they are insulting me. Further, I will not condescend as a juror and believe that such ignorance is genuine.

    If there are conflicting laws or there is genuine question as to how a fact pertains to the law, eg was the value of the theft $299, or $300?, I am all ears and will do my best to ascertain fact. But if the accused wants to say that the theft of 100 Gold coins ought to be a misdemeanor because less than 300 “things” were taken, and that he didn’t “intend” to commit a felony, screw him.

    Ed from SFV (f0e1cb)

  11. Entropy: Precisely.

    It is, in fact, the intention to substitute a worthless good for a valuable one that constitutes the offense in this case. If the intent of the text — the contract whether or not written down; “text” is much more general than that — was to misrepresent, that’s the offense in the first place.

    The judge’s consequent ruling will be to make the buyer whole to the extent possible, either by forcing return of the money (return to status quo ante) or by forcing delivery of the ring (performance of the contract), and may include punitive measures against the seller for the fraud. That’s not a re-interpretation of the contract; it’s consequence of intent realized.

    If the judge declared, for instance, that “diamond ring” meant a new Ford automobile, and the seller must deliver such to the buyer, that would be an activist re-interpretation of the contract and would be invalid under intentionalism.

    Regards,
    Ric

    Ric Locke (68d968)

  12. Entropy, it’s always nice to have a new commenter. Thanks for weighing in.

    You say:

    To say that the judge would rule on a matter of fraud based solely on the text is frankly innacurate. He must determine the seller’s intent if he is to convict in a criminal case for fraud, because an aspect of fraud is proving intent to defraud.

    Indeed. He must determine the seller’s intent, and I never said otherwise.

    The question is: having determined the seller’s intent, does he rule on the meaning of the terms of the contract a) in obeisance to the seller’s intent (thus allowing the seller to defraud the buyer), or b) in accordance with the text, as reasonably interpreted by the buyer (thus obligating the seller to hand over the ring to the buyer, or to return the buyer’s money)?

    Obviously the answer is b), no?

    And if it is — and if intentionalists agree that it is — then they agree that, regardless of the actual meaning of words in a contract as determined by the speaker, a judge need not give effect to those words in a way that is consonant with that intent.

    Correct?

    I agree that the key aspect of a contract is the agreement. HOWEVER: when you have a term that party #1 knows will be reasonably interpreted by party #2 as “x” and that party #2 has no reason to believe means anything but “x” to party #1, then that term means “x” under the law.

    No matter what party #1 subjectively intended it to mean.

    This is the objective theory of contracts, and it is universally followed. This is what I am talking about in my example.

    Patterico (c218bd)

  13. Oh, and Ric? The site has been quite glitchy. I have no power to grey out any individual’s comment box, and I certainly did not do so to you (as I see you just accused me of doing at PW). You’re always welcome to ask me (e-mail address is on the sidebar) if you have questions like this in the future.

    Patterico (c218bd)


  14. Entropy: Precisely.

    It is, in fact, the intention to substitute a worthless good for a valuable one that constitutes the offense in this case. If the intent of the text — the contract whether or not written down; “text” is much more general than that — was to misrepresent, that’s the offense in the first place.

    The judge’s consequent ruling will be to make the buyer whole to the extent possible, either by forcing return of the money (return to status quo ante) or by forcing delivery of the ring (performance of the contract), and may include punitive measures against the seller for the fraud. That’s not a re-interpretation of the contract; it’s consequence of intent realized.

    If the judge declared, for instance, that “diamond ring” meant a new Ford automobile, and the seller must deliver such to the buyer, that would be an activist re-interpretation of the contract and would be invalid under intentionalism.

    Regards,
    Ric

    I think you have expressed quite well how a judge would enforce the law in this example.

    (Reading his comments at PW, I hope Entropy has now figured out that my example was intended to describe a deliberate fraud. He seems to have been confused on that point for a while.)

    But Ric: my point is this. We have words that were written down by the seller that read as follows: “this diamond ring.”

    In writing those words, he INTENDED for them to refer to a lump of coal.

    So, two questions:

    1) What does the phrase “this diamond ring” as written by the seller actually MEAN?

    2) How should that phrase be ENFORCED by the judge?

    Are the answers to those two questions the same or different?

    See what I mean?

    Patterico (c218bd)

  15. Putting these arguments another way: there is a difference between what the seller INTENDED (in the linguistic sense) by the phrase “this diamond ring” and what he INTENDED TO CONVEY by using that phrase.

    So why should a court rule that it is going to enforce that phrase the way he INTENDED it?

    Answer: a court should NOT so rule.

    Patterico (c218bd)

  16. I don’t understand why anyone ever thought I was attributing honest intentions to the thief in my hypo. I labeled him a thief. He is a thief. Period. What is so hard to understand about that?

    Patterico (c218bd)

  17. Maybe they don’t intend for thief to mean thief.

    DRJ (d43dcd)

  18. Ric,

    You understand that in our hypo, the intentionalist view is that the words “that diamond ring” actually MEAN the lump of coal.

    Because that’s what the thief meant when he used those words.

    Right?

    Patterico (c218bd)

  19. Maybe they don’t intend for thief to mean thief.

    One of my favorite aspects to the intentionalist view that there is a completely arbitrary relationship between words and their meaning AT ALL TIMES is that a legislator’s “no” vote on a law can actually mean “yes.”

    Even when he pushes the “no” button and KNOWS HE IS DOING SO and knows that everyone will see it as a no vote.

    Patterico (c218bd)

  20. Here is an interesting real-world example of post hoc explanation of intentions (as least as I understand Patterico’s discussions:

    http://www.discriminations.us/2007/08/historical_brownout.html

    Robert (9b1fdd)

  21. As long as we all understand that I am not in this post (or in the past several posts) talking about post hoc explanations of intent.

    I do think that’s a problem, though, and I will address it in future posts.

    Patterico (c218bd)

  22. Robert, that’s a great link.

    Patterico (c218bd)

  23. As another illustration of the difference between the linguistic issue and the practical issue:

    The intentionalists tell us that signs — marks that are imbued with intent — necessarily carry the intent of the person who created the signs. So they would say: no matter how you mark your ballot, your vote actually means what you intended it to mean. So, to an intentionalist, if a voter meant to vote for Gore, the following ballots are indeed votes for Gore:

    A clearly punched hole next to Gore’s name.

    A hanging chad next to Gore’s name, no matter whether it is hanging by a single corner or three corners.

    A lightly marked dimple next to Gore’s name.

    A ballot with no markings on it whatsoever.

    A clearly punched hole next to Bush’s name, together with a handwritten note that says: “I will never vote for Gore in a million years!!!!!”

    To the intentionalist, each of these is a vote for Al Gore — as long as we assume that the ballot was actually cast with the intent of voting for Gore.

    But having answered this linguistic question, there is still a practical question: if the ballot itself gives no hint of the voter’s intent to vote for Gore, should it be counted as a vote for Gore?

    I say no.

    Even if we assume that each of the above was intended as a vote for Gore, the one that conventionally LOOKS like a vote for Bush SHOULD BE COUNTED as such.

    Patterico (c218bd)

  24. I agree that the key aspect of a contract is the agreement. HOWEVER: when you have a term that party #1 knows will be reasonably interpreted by party #2 as “x” and that party #2 has no reason to believe means anything but “x” to party #1, then that term means “x” under the law.

    No matter what party #1 subjectively intended it to mean.

    This example of the fraud is no good for this discussion. To suggest the fraudster sincerely intended what he intended and NOT to commit fraud is very, very difficult. Goldstein misinterpreted you entirely and worked with a rather delicate and unwieldy hypothetical that is hard to even imagine hypothetically because it’s practically speaking… impossible.

    In a meaningful way, a man commiting fraud never entered an agreement at all. He was playing a trick. There was no real contract, only a fraud.

    To say that a judge will properly interpret the intent of a party does not mean he will condone or allow said intent with impugnity if the act is illegal. It merely means he will properly interpret the intent.

    I think the crux of this is you seem to be conflating sincere intent with some sort of semantic game or deception. You cannot always trust authors to be honest about intent. If the intent was fraud, if party #1 knows it will be interpreted 1 way and intends to claim it meant another, then their intent is to have it both ways.

    He did not, in your example of fraud, really mean lump of coal by “diamond ring”. I do not believe it. He meant to have it both ways. He meant simply to take the buyers money in exchange for something worthless. That was his intent.

    Your hypothetical that he both actually sincerely MEANT it, and yet, was commiting fraud, is contradictory. It cannot be.

    This is the problem of my confusion. How can a person “mean”, “intend” ‘lump of coal’ while at the same time, intending to decieve on the issue of lump of coal? It does not fit in my head. You are not using the same definition of “intend” or “to mean” as I am using. You are thinking of meaning as something else entirely than what I am.

    Because his intention was to decieve here. Let’s use the term “intent to convey”. He cannot use “diamond ring” with a sincere “intent to convey” a lump of coal while also intending to convey the same thing, but as a deception. You cannot be sincere and lying at the same time.

    The fraudster’s slick (intentionalist) semantic argument is not the same thing as his genuine meaning and actual intent.

    Ruling in favor of his fraud is not in accordance with intentionalist interpretation of his writings. Ruling that the man is a liar intending to decieve is in accordance. Ruling that he ‘meant a diamond’ would be to fall prey to his lie about his intent.

    Entropy (685a0b)

  25. This example of the fraud is no good for this discussion. To suggest the fraudster sincerely intended what he intended and NOT to commit fraud is very, very difficult.

    Who suggested that?

    Your hypothetical that he both actually sincerely MEANT it, and yet, was commiting fraud, is contradictory. It cannot be.

    This is not my hypothetical.

    As I said in an earlier comment, the thief is is thief, period. He INTENDS to defraud the buyer, by sincerely intending to sell him a worthless lump of coal, thus defrauding him.

    Try reading the very simple, very realistic hypo again with that understanding.

    Patterico (c218bd)

  26. To say that a judge will properly interpret the intent of a party does not mean he will condone or allow said intent with impugnity if the act is illegal. It merely means he will properly interpret the intent.

    Good. If you are an intentionalist, you are the first one to clearly answer that question.

    This is the problem of my confusion. How can a person “mean”, “intend” ‘lump of coal’ while at the same time, intending to decieve on the issue of lump of coal? It does not fit in my head. You are not using the same definition of “intend” or “to mean” as I am using. You are thinking of meaning as something else entirely than what I am.

    It’s quite simple.

    He means for the buyer to think “this diamond ring” means a diamond ring.

    But he subjectively intends to sell the buyer a lump of coal. Thus defrauding him.

    So when he writes “this diamond ring” he means lump of coal.

    But, as you acknowledge, a judge may properly interpret his intent and still not enforce it.

    That was my only point.

    Patterico (c218bd)

  27. What does the phrase “this diamond ring” as written by the seller actually MEAN?

    It means a lump of coal. Just like he intended.

    Hence it is fraud. Since he also intended it as a deception.

    Thus – the definition of fraud.

    So it really means a lump of coal.

    The argument becomes more interesting… albeit nigh incomprehensible, if you stipulate he actually meant a lump of coal without intending to decieve.

    Because that is … well, unimaginably hard to accomplish. No one is that scatterbrain.

    But in such a case, it would STILL mean ‘a lump of coal’ and it would NOT be fraud.

    However, as I’ve argued, since the judge is interpreting an agreement rather than simply a textual document, and the intent of the buyer is also relevant, there is still a matter of failure to uphold contractual obligations as understood by the buyer.

    Since the seller never sincerely agreed to to uphold the buyer’s understanding of his obligations, I would say this:

    The way the judge should rule is to nullify the contract. Return the money and the coal and have them go their seperate ways.

    Unless you intend to punish him for failing to use a common-sense meaning, but what is his infraction worthy of punishment, contractual negligence? There is no rule against being nigh illiterate.

    It is difficult to hypothesize because the situation is very unrealistic in this latter context where we stipulate he actually was honest. I simply find it hard to believe any judge would believe him. I wouldn’t. I cannot believe he possibly could be honest.

    Entropy (685a0b)

  28. Patterico

    But, as you acknowledge, a judge may properly interpret his intent and still not enforce it.

    Absolutely.

    If his intent is criminal, he certainly will not enforce the criminal’s criminality.

    Entropy (685a0b)

  29. Aaarrgghh.

    DRJ (d43dcd)

  30. Entropy,

    I’m not sure why you keep wanting to discuss the impossibility of, and confusion caused by, a hypothetical that I never proposed.

    The one I did propose is very simple. And I think, so far, you’re with me.

    Do you agree that the judge is:

    *understanding the speaker’s intent;

    *treating his words as if the intent were different than it actually is;

    and

    *correct to do so?

    Patterico (c218bd)

  31. The point is this: the answer to the hypo is ridiculously obvious. It is designed to be.

    Once you answer it as you should, then I ask you to realize that you are saying the following:

    It sometimes makes sense for an audience to treat a statement as though it meant what it would mean to a reasonable audience — even though they know that the statement is not intended to mean what a reasonable audience would take it to mean.

    THAT’S the point.

    Patterico (c218bd)

  32. To the intentionalist, each of these is a vote for Al Gore — as long as we assume that the ballot was actually cast with the intent of voting for Gore.

    This… is highly conductive to misunderstanding.

    I do not know what the snark-to-seriously ratio of that is. If it is wholley serious, I must say that – non-perjoratively – I do not believe you understand intentionalism at all.

    Why would we ‘assume’ that such a voter intended to vote for Gore? The whole san graal for an intentionalist is to determine the ACTUAL intent and meaning, not to escape authorial intent. If we wanted to do that, quite plainly we’d be post-mondernists. It’s much easier that way. Pomo was created for pretty much the express purpose of sidelining the author’s actual intent.

    The problem is, his raising a judgement of fraud against a fraudster is neither intentionalists nor textualist. The acts of interpretation are in interpreting the meaning of the agreement or contract, and in interpreting the meaning of the law.

    Once that is done, discriminating between the two, as to whether there is a difference or whether the act falls out of favor with the law, is not an interpretory act.

    But there are two philosophies, and distinctions between the two.

    This example is by no means written by an intentionalist – it’s not. It’s written by a sort of pomo textualist (or perhaps, pomo meta-textualist)… and the problem with textualism can be answered in the legal arena by contextualism. But contextualism is subject to many of the criticisms of intentionalism with none of the rational for textualism. But this illustrates the problem with strict textualism:

    FALLOUT SURVIVAL SHELTER
    Maximum Occupancy: 15
    Provision limitations, single occupant: 180 days; divide by actual number of occupants. Upon entering shelter, see that First Hatch is securely locked and sealed, that the intruder shields are electrified to repel contaminated persons attempting entry, that the warning lights are ON outside the enclosure…

    What does this mean?

    Here is a valid textual interpretation:

    The rest was buried, but the first word was enough for Francis. He had never seen a “Fallout,” and he hoped he’d never see one. A consistent description of the monster had not survived, but Francis had heard the legends…. Brother Francis visualized a Fallout as half-salamander, because, according to tradition, the thing was born in the Flame Deluge, and as half-incubus who despoiled virgins in their sleep, for, were not the monsters of the world still called “children of the Fallout?” That the demon was capable of inflicting all the woes which descended upon Job was recorded fact, if not an article of creed. The novice stared at the sign in dismay. Its meaning was plain enough. He had unwittingly broken into the abode (deserted, he prayed) of not just one, but fifteen of the dreadful beings!

    http://www.themodernword.com/eco/eco_papers_radford.html

    He offers his own theories of literary interpretation.

    But the whole goal is to get at actual, in-fact meaning as best as is possible. Not abuse it. The moment you toss good-faith out the window in any theory of interpretation you’re at a dead end.

    Entropy (685a0b)

  33. *understanding the speaker’s intent;

    Yes

    *treating his words as if the intent were different than it actually is;

    No. His words were spoken with an intent to defraud. In ruling against the guy’s duplicitous interpretation, or convicting him of fraud, the judge is treating his words as though he were trying to defraud someone. Which he was.

    It sometimes makes sense for an audience to treat a statement as though it meant what it would mean to a reasonable audience — even though they know that the statement is not intended to mean what a reasonable audience would take it to mean.

    No, that does not make sense to me. I suppose it depends.

    What do you mean by “treat”?

    If someone on the yearbook commitee writes “I stuck a f** in my a**” as his slogan in the highschool yearbook next to his picture, and really seriously means he gave his donkey a cigarette (and they know this, because he’s the British-Columbian foreign exchange student), does it make sense that they treat it different than they know it meant, and omit it anyway?

    Well yes. Yes it does.

    Would it make sense that we give the student a detention, not for what he meant, but for what other people would reasonably think he means?

    No, no it does not. That would be bogus and unfair.

    Entropy (685a0b)


  34. No. His words were spoken with an intent to defraud. In ruling against the guy’s duplicitous interpretation, or convicting him of fraud, the judge is treating his words as though he were trying to defraud someone. Which he was.

    Let me stop you there and define terms. I am using the term “intend” here in the linguistic sense. He intended the phrase to mean a lump of coal. We agree on that. The judge is not going to treat his words as though he actually meant that, though — the judge will enforce the contract as if the seller meant to sell a diamond ring.

    Listen. Are you up for at least another 30 minutes? If so, say the word (the word will be “yes”) and I will invite you to a real-time discussion which I think will be far more productive.

    Patterico (c218bd)

  35. For my part, as things stand, I have nothing else to add. I’m pretty sure Patterico and I have been on the same page since the “Textualism vs. Intentionalism: Real World Implications of the Choice” post a couple of days ago. Most of my comments since then have been condensed, snarky versions of this post: acknowledging (ad nauseum) that the speaker “meant what he meant”, while simultaneously stating that communication – the exchange of language between parties for a purpose – hinges on some sort of reasonable man standard of interpretation, above and beyond a strict adherence to a speaker’s intent. Minor variations of that sort of thing. (I don’t mean to put words in Patterico’s mouth, by the way – if this summary is off base, disregard it. I’m tired.)

    I think the question’s been whittled down to a sharp point, and Patterico’s poking the intentionalists with that sharp point in a hilariously consistent manner. At this juncture, I’m content to sit back and watch, and see if anyone actually steps up and answers the question in a straightforward manner (such that the actual impact of intentionalism is cast in its proper light).

    Leviticus (30ac20)

  36. Entropy:

    The answer to your fag/ass question is (in my view) affected by whether the student knew of the alternate meanings — in other words, did he know how a reasonable audience would receive his communication?

    Are you up for a real-time chat so we can make our relative points clear more quickly?

    Patterico (c218bd)


  37. I do not know what the snark-to-seriously ratio of that is. If it is wholley serious, I must say that – non-perjoratively – I do not believe you understand intentionalism at all.

    It was wholly serious, and I must say, I understand intentionalism perfectly.


    Why would we ‘assume’ that such a voter intended to vote for Gore?

    Because it was a hypothetical, and in the hypothetical, I asked you to assume that this fact was so.

    Patterico (c218bd)

  38. OK, anyone who wants to chat about these concepts in real time, go here. I’ll be around for a half hour or so.

    Patterico (c218bd)

  39. Unfortunately no. It’s 1:00AM here and before hitting refresh I had planned that to be the last time doing so.

    But as to linguistic ‘intent’, you’re saying, what should the judge consider the contract to mean, totally independant of whether or not the seller has commited fraud?

    Well, as I’ve argued at PW, the contract has at least 2 authors. The seller and the buyer. That they thought the contract means different things is a source of discrepancy. This may open up the door to something of a ‘reasonable’ interpretation. What ‘reasonable’ means is not clear, but neither is firm intent when it’s schizoid and mutually exclusive between multiple authors. Contract nullification is an option since they are at an impasse (except for the fraud thing kinda tips the scales).

    And this is a very important point I think, that I made over there as well. The buyer is also co-author of the agreement betwixt the two, and his intent and understanding is relevant as well.

    If it was 1 man writing a book for his own pleasure, he can mean whatever he pleases. If he says he means coal, he means coal. If a man writes “Napoleon the boar” and says he means Joseph Stalin, so he does, so he does.

    And if the seller and the buyer both agree that ‘diamond’ means ‘coal’, then so it does, so it does. The judge shan’t make them exchange a diamond because Messrs. Merriam and Webster disagree with their chosen terminology.

    I’ve actually argued, in law, in favor (at least in theory) of ‘reasonable interpretation’ sort of thing for laws because in a meaningful way, the authors of the law (who’s intent we must divine to determine meaning) is the collective Citizens of the United States.

    But as I said over there – that is a question of who is the author, not what is the source of meaning.

    Entropy (685a0b)

  40. DRJ,

    Do you remember a few months back when I wrote a post called “Defining Terrorism” over at the Jury, and argued that the essence of terrorism was an intent to cause terror? You argued that was all well and good, so long as there was a more objective standard for assessing intent – a reasonable man standard. I agreed.

    It just strikes me as interesting at this point in time. And pertinent.

    Leviticus (30ac20)

  41. Entropy, I don’t quite agree with all that. The chat window is open if you have a second.

    Same for you, Leviticus — or anyone else.

    Patterico (c218bd)

  42. I remember, Leviticus. That was a difficult question and great discussion. I’m staying away here because it’s hard for me to stay focused on the point Patterico is trying to make, but that’s probably because I already accept the reasonable/objective/prudent man standard.

    DRJ (d43dcd)

  43. Join our chat, DRJ.

    Patterico (c218bd)

  44. A diamond ring is a small lump of carbon with a face-centered cubic lattice arrangement. Coal can be made into diamond with sufficient pressure and heat. Our friend the seller could be meaning to give the buyer the raw material and let him make the ring. Heh.

    If the phrase “this diamond ring” was used, the seller would have to be referring to a picture or the actual object that provides common reference between the parties, and the buyer may have no complaint if the object received matched the object discussed. Then again, if there were deceit involved, if the seller told him the coal would turn to diamond eventually, the buyer just might be gullible enough to buy it. But that wouldn’t explain the ring portion of the deal. If no metal ring with a setting accompanies the lump of coal, the buyer still has a problem.

    Analogies and hypotheticals have limits, but what I see the main argument here is whether or not we’re going to allow parties to contracts or legislators make words mean anything they want it to mean and let the law become total chaos. In many of the cases I read the judge almost always starts with something about the plain language of a statute, then interprets only where there the judge feels there may be ambiguity. However, there are judges that will say a diamond ring is a highly motivated lump of coal, and its scary when you run into a judge like that.

    Jeff M (0204be)

  45. what I see the main argument here is whether or not we’re going to allow parties to contracts or legislators make words mean anything they want it to mean and let the law become total chaos.

    The answer to your fag/ass question is (in my view) affected by whether the student knew of the alternate meanings

    No. This is an improper understanding. You cannot make a word mean whatever you want to mean as simply as that. You’d actually have to mean it.

    A man who is playing games with his words, opportunistically choosing their ‘meanings’ as a rhetorical ploy, is not sincerely attaching those meanings to his words. He’s being opportunistic with his meanings. His intent is simply to decieve.

    Any man who is aware of 2 meanings to his words, and choosing to play off both of them as it suits him, intends both meanings (as it suits him). So both definitions are his intent.

    Same with the ‘fag in the ass’. Patterico asks if the student knows what the ‘reasonable audience’ would interpret. What constitutes a reasonable audience? Can we define a reasonable audience? Reasonable is a loaded, relativistic, valuation term, and audiences are dynamic.

    But if the student knows his fellow students will snicker at the alternate meaning, and wishes to have his fellow students snicker, while at the same time maintaining the former to shield him from his teacher’s wrath, then he means both interpretations at once. And it’s valid to attribute either (or both) to him.

    the reasonable/objective/prudent man standard.

    Who is the prudent man? How do you get that gig? Can I become him?

    Because it was a hypothetical, and in the hypothetical, I asked you to assume that this fact was so

    It’s still imperative to know why. Why does he interpret it that way? Is he dishonest, or is he an imbecile, or is there some actual good reason?

    We cannot, by virtue of hypothetical, assume contradictions.

    Hypothetically, please assume that 1+1 = 2, and also, that 2-1 = 15. Because it’s a hypothetical.

    OK… and do what with it? It’s a hypothetical that, whatever conclusions we draw from it, cannot apply to this universe, because the situation from which we draw those conclusions could not be in this universe.

    If we assume there is a man who is sincere in his interpretation, and yet suscribes to an interpretation that is on it’s face laughably farcical and isn’t open to reason about it’s revision,… well I guess he’s a blistering idiot.

    And a blistering idiot is likely to screw up his interpretation no matter what interpretory method he uses.

    This same idiot intentionalist, were he a textualist, would possibly tell us that a ‘reasonable man’ would interpret “I vote for Gore” as an expression of a wish to be physically mutilated.

    May we also assume this hypothetical? Does it tell us anything?

    An intentionalist is only an intentionalist if he is pursuing the actual intent. He must have a valid reason for believing the intent is what he is. If he’s simply trying to distort meaning as he pleases he’s not an intentionalist, he’s simply a liar. Intentionalist rhetoric does not a true intentionalist make.

    Entropy (685a0b)

  46. Here is my hypothetical, which is also intended to be effectually broken, and demonstrate a dillemna which requires us to explain why it is broken.

    “I vote for Gore”.

    To vote means to wish for or to request. To express support for.

    Gore is a noun that means the visual evidence of wanton, visceral carnage.

    In the German language, all nouns are capitalized.

    So if a German man (with English as a second language) says “I vote for Gore”, any reasonable man must assume he is expressing a wish to witness mutilation.

    What do you say to me?

    For the purpsoe of this discussion, I am accepting the reasonable man standard of interpretation. I am fully on board with the reasonable way of how we interpret.

    And I am saying a reasonable man will know this German dude is a psychopath, requesting violence.

    How shall you convince me that your concept of what constitutes reasonablility is better than my concept of it, given that I’m apparently quite a doofus?

    Entropy (685a0b)

  47. And I’m supposedly positing outlandish hypos?

    The answer is, it depends on context.

    Patterico (1a3023)

  48. No. This is an improper understanding. You cannot make a word mean whatever you want to mean as simply as that. You’d actually have to mean it.

    Indeed. But you didn’t ask about meaning. You asked whether the guy should be put in detention.

    And I said that decision is affected (in my view) by whether he knew how his words would reasonably be interpreted.

    Patterico (1a3023)


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