Conversation Between an Egret and an Intentionalist, 1
Egret [writing in tracks on wet sand]: “PASS THE SALT”
Intentionalist: “Look. A meaningless set of marks left by a bird lacking intent.”
Egret [writing in tracks on wet sand]: “I’ll abandon the block printing for ease of reading. Actually, I do possess intent, as you should be able to tell from the words I am writing, the fact that they are in a certain order and make sense when placed in that order, and the fact that they are in response to your comment. Hey, listen. I read your recent post asking Patrick Frey a series of questions about the underpinnings of textualism. I agree that these questions are good ones, and I’m sure he’ll attempt a post in the future addressing them, but for now, you should realize that you’re talking past the argument he has been making. Don’t you understand that, for the purposes of his argument, he is accepting as correct all your assertions about how language works? In his examples, the receiver applies your principles and reaches what he believes to be a correct interpretation. At that point the linguistic analysis is over, and it has been conducted in accordance with principles of intentionalism. There is no dispute about this, even though you keep asserting one. What you seem to be missing is Frey’s assertion that, once the correct interpretation has been reached by the receiver, there are situations where he may justifiably choose to ignore that interpretation when he decides how to implement the speaker’s words (I use “words” here the way you use the term “marks”). For example, the bookshelf assembler may justifiably choose to ignore the irony inherent in the manual writer’s intent, and simply build a workable bookshelf using the manual written by the manual writer. This shows that receivers are sometimes (not always, but sometimes) justified in assessing the speaker’s intent, reaching a correct interpretation of that intent, but enforcing or applying or implementing a different interpretation of the speaker’s words (or, to you, “marks”) — namely, one in accord with the reading that a reasonable person would give to those words (or, to you, “marks”). Frey has asked you several times whether you agree with this assertion, and frankly, your answers haven’t been very clear. Instead, you seem intent on quibbling about definitions and restating your beliefs about how language works, even though he has conceded that (for the sake of argument) in his series of posts. Ultimately, your responses have been answering a different argument than he is actually making. It’s as if you see his words, but make no effort to understand the intent behind them or their plain meaning.”
Intentionalist: “Lookee there. It looks so much like English, yet it’s just a bunch of accidental bird tracks. Isn’t nature something?”*
Question: if the egret uses the term “words” in a to describe a concept that an intentionalist would call “marks,” and the egret even clarifies this in an aside, I assume that an intentionalist would never tell the egret that he is misusing the word, because words are actually “signs” and not “marks”? Right? Because that would be taking the egret’s intent and appropriating it, by redefining his terms according to the conventional understandings used by intentionalists in their shop talk.
That doesn’t sound very “intentionalist.” So I assume we won’t see that happen here.
Especially because it’s just a stupid egret with no intent anyway.
Patterico (c218bd) — 5/14/2010 @ 7:31 amThe healthcare legislation is not intended to raise taxes or increase the deficit or make us lose our current plans. Everyone will have coverage and have the treatments they need. There will be no death panels, and abortions will not be paid for with government money. There were no deals to benefit some more than others. Costs will go down. Medicare will not be affected. It will not make us socialist. At least that was what was intended based on numerous public comments by congressional leaders.
Why should any congressman bother to read legislation when his intentions are so clearly articulated? That’s the law the courts must enforce. It doesn’t really matter what is in all those pages of text. They could have just deemed it passed and reconciled after all.
Amphipolis (b120ce) — 5/14/2010 @ 7:33 amEgrets like to fish while in the water. No Egret would spend time on a beach. This conversation seems very fishy to me. (Being an avid bird watcher I find this analogy troubling. Now, if instead, you were to find a Red Knot or Sanderling holding such a conversation, well, that truly would be a bird of a different feather. A wise old owl once found that it takes 5 licks to get to the center of a tootsie pop – he would the one you should be debating intentionalism with.)
Corwin (ea9428) — 5/14/2010 @ 7:37 amWere I to answer the egret’s concerns, I would say that we are not talking past each other, and that I know that even though we started off speaking about interpretation and have now moved on into application or enforcement or implementation, the principle of intentionalism are still binding.
To wit, let me restate it this way and see if it makes a difference: the “interpretive” standard used by the textualist is “what can a ‘reasonable man’ make out of a given set of signifiers, keeping in mind that he is constrained by the conventions of a given historical context?” But for purposes of application, the correct question he should be asking is “what part of the text’s intent can a ‘reasonable man’ not possibly glean from the way it has been signaled in that given historical context?”
Those are different questions, not least because they imply different things about how language works.
To go back to an earlier example: If dicentra says to you “pass the salt” and means “pass the pepper,” when you try passing her the salt she will let you know that she didn’t intend you to pass her the thing you passed her. If then (after a few more misfires) you pass her the pepper and she thanks you, you will know that, for dicentra, “salt” means “pepper.” That is, you will have understood her signification, and so understood her signs and consequently what she intended.
A few minutes go by. Once again, dicentra asks you to pass her the salt. What do you do? You know that by “salt” dicentra means “pepper.” You also know that dicentra is signaling her intent in a manner that runs counter to conventional signification. Do you pass her the salt again, because convention tells you that’s “allowed” — and then insist to her that’s what she must have meant? Or do you pass her the pepper because you know that’s what she means?
One thing you may wish to do ultimately is to point out to dicentra that, conventionally, “salt” doesn’t equate to the pepper she wants. You might explain to her that, if what she aims to do is signal her intent more clearly and consistently, it is important that she try to adhere to conventional usage, particularly if she wishes to be immediately understood. But you have also just proven that convention doesn’t dictate what she meant. Her intent does.
In this interpersonal instance, you were able to solve the problem of application by trial and error: eventually you came to understand what dicentra meant, and so you were able to give her what she wanted. But the problem arises in those situations where you cannot further query the intender, and yet you are impelled to act with a limited bit of information.
Most likely, you’ll do exactly what you did when you were first asked to pass the salt. But you will have done so because you believe that’s what was being asked of you — not by convention, but by the person signifying. You believed, in other words, that you were honoring an intent.
In those rare theoretical instances where you know the intent at play (dicentra says salt but she means pepper, and you haven’t had time yet to inform her as of yet that she is signaling in such a way that will confuse those who rely heavily on convention to help glean intent) — and you are in the interim asked to rule on whether or not a third party (who doesn’t share your interpersonal experience with dicentra, and so doesn’t know her intent beforehand) is justified in believing she meant “salt”, no intentionalist would deny that the third party is indeed justified in believing exactly that.
But that’s not because dicentra meant salt, or because her text also means salt. It is because there’s no way a third party could possibly know from her text alone that she meant pepper when she signaled “salt”.
She has failed to signal her intent to that third party, even though she was able earlier to signal it to you. She still means what she means; but because the third party couldn’t possibly know what she meant, you find that they are justified in having misinterpreted her — not because they can make “salt” mean salt, but because in trying to reconstruct her intent, they couldn’t have known that salt meant pepper to her.
Particularly in the realm of legal language, where it is conventional to write and read in a way that intends first and foremost to apply the most conventional usages of terms, problems of the kind you have raised in your hypotheticals are rather unlikely, or else beside the point.
Even so, the meaning of a text hasn’t changed simply because it doesn’t adhere to convention. The adjudicator has simply ruled, by way of enforcement, that the third party could not possibly glean the intent from the marks provided.
This is, as I’ve been saying, a different ruling than one that says the text, conceived of as existing beyond intent, also means “salt” because convention says it can — even if the two rulings accomplish the same goal.
It matters how you get there. Because the former adheres to the rules of language; while the latter uses a linguistically incoherent set of rules to reach the same destination.
The problem is, those linguistically incoherent rules then come to be seen as legitimate, and it is not difficult to see how the notion that “a text means whatever a reasonable person, having dismissed original intent, can do with a set of signifiers and an up to date dictionary” is not something we wish to institutionalize as an interpretative rule.
Jeff G (929040) — 5/14/2010 @ 8:24 amThere were plenty of paragraph breaks there when I wrote that, by the way.
No matter. I’ll post it on my site so that it reads more clearly.
Jeff G (929040) — 5/14/2010 @ 8:26 amSounds like the No-God crowd.
HeavenSent (a9126d) — 5/14/2010 @ 8:34 amI’d just pass her the salt and pepper and let her figure out which one to use.
Jim Finch (30d04c) — 5/14/2010 @ 8:37 amWrites Frey-as-egret:
I don’t know how my answers could be any more clear.
First of all, said “reasonable” people, if they know the writers’ intent but ignore it, aren’t applying a different interpretation. They are applying a different text and attributing it to the author. And that’s because it makes no sense to say “I know what you mean, but I’m going to say that you mean something else because I can show with your marks that you might have, even though we both concede that you didn’t” is both dishonest and linguistically incoherent.
— Which is why I keep noting that it matters what you think you are doing. If you recognize in that instance that you are ruling on the basis that a misinterpretation of intent was all but guaranteed because of the faulty signaling, you are ruling that a proper interpretation could not have conceivably been reached given the limited information provided.
This is a different animal entirely from one that maintains that a text “means” whatever a reasonable man can argue it means having first dismissed the intent of the author (and so dismissed what makes a text language to begin with) as irrelevant.
Jeff G (929040) — 5/14/2010 @ 8:52 amPainted Jaguar: I am a different animal entirely, and though my mummy said to stay away from armadillos, this does not look quite like an armadillo, but it could be a cousin, and that would be all right, don’t you see?
Now, this is part of what was just written, and it is all that I will deal with, or I’ll be back to being confused about armadillos again:
First of all, said “reasonable” people, if they know the writers’ intent but ignore it, aren’t applying a different interpretation. They are applying a different text and attributing it to the author.
The law passed says $100,000, yet I am informed (by my mummy, whom I trust, as she is ever so patient with me) that “their” intent was for it to say “$10,000”. If it is written in front of me with ink as black as my spots (handsome, aren’t they), how can you tell me I am reading a different text? If I am reading what is as plain as plain can be right in front of my face (and we jaguars do have good eyesight) how can I be reading a different text when I read “100,000”?
This question alone I shall ask, for sticking my nose in any further I am liable to get it filled with hedgehog prickles, or something worse, and that would make my mummy disappointed, and this would be right, don’t you see.
MD in Philly (ea3785) — 5/14/2010 @ 9:12 amThis is a serious question. Was Shakespeare a textualist or an inentionalist? Because, I think I understand him.
nk (db4a41) — 5/14/2010 @ 9:18 amAnd I am told that he was the creator of much of modern English.
Is he undestood by convention or by evocation given that his writing were also poetry? Did he use words, conventionally learned by people when children to burn new synapses of understanding?
nk (db4a41) — 5/14/2010 @ 9:22 amIn the end, is language only an auditory hallucination, meaningful only to the hearer?
nk (db4a41) — 5/14/2010 @ 9:24 amShakespear wrote Henry VIth . I suspect he was a textualist.
BarSinister (edbc1a) — 5/14/2010 @ 9:25 amI had a very sweet Jewish English professor in college whose class I dropped when I saw that she had not understood that “Give us this day our daily bread” was a metaphor.
nk (db4a41) — 5/14/2010 @ 9:31 amnk, reminds me of a comedy script I once heard:
“Manna, get your fresh manna here. Water, nice refreshing wat… wine, I mean. Wine, get yourself a cool glass of wine” – vendor chatter during a biblical baseball game.
Corwin (ea9428) — 5/14/2010 @ 10:09 amComment by Amphipolis — 5/14/2010 @ 7:33 am
The healthcare legislation is not intended to raise taxes or increase the deficit or make us lose our current plans.
You sure about that?
What they TOLD us and what they INTEND are two different things. In layman’s terms’ that means they were lying through their mendacious little teeth.
dicentra (5d3e3e) — 5/14/2010 @ 10:32 amYou sure about that?
What they TOLD us and what they INTEND are two different things. …
Comment by dicentra
Painted Jaguar: The last time I was asked if I was sure about something, I couldn’t even tell for sure if I was sitting on my tail or on my head.
But this I will venture, if you cannot trust them to tell you what they intended, then how can you use what you think they intended to modify the meaning of what they actually wrote (or said)?
When Stickly-Prickly Hedgehog told me to sccop him out of his shell with my paw, it would have been nice to know that his intent to trick me by giving me false information, and that when Slow But Sure Tortoise told me to push him into the dark turbid Amazon his intent was also to trick me but by telling the truth.
So, by this I know that whether they say the truth or a lie, it does not matter, but their intent is always to trick me, and whether I believe them or not, my intent is to find a meal, and so once our true intents are understood, it makes no matter what anyone says. Is that not clear?
MD in Philly (ea3785) — 5/14/2010 @ 11:00 amMD in Philly – it’s coyote clear !
Alasdair (7dc63b) — 5/14/2010 @ 12:56 pmAlasdair – How many texts is that?
daleyrocks (1d0d98) — 5/14/2010 @ 4:06 pmFirst of all, said “reasonable” people, if they know the writers’ intent but ignore it, aren’t applying a different interpretation. They are applying a different text and attributing it to the author.
You are operating under a different definition of the word text than I am. When I see a text that reads $100,000, for example, it strikes me as incoherent and bizarre to call it “rewriting” that text to interpret it as meaning $100,000.
Yet in my hypo about the tax law, that’s just what you said. Which illustrates that we mean different things when each of us uses the word “text.”
Try imagining what I mean when I use that word — or what I mean by “interpret” — and then, using MY definitions and not yours, react to the question I asked.
Patterico (c218bd) — 5/14/2010 @ 7:51 pm“First of all, said “reasonable” people, if they know the writers’ intent but ignore it, aren’t applying a different interpretation. They are applying a different text and attributing it to the author.”
How can that be if everyone is looking at the same law? Are courts supposed to ignore the written law if it does not conform to the expressed intent of the authors and receivers of the law have relied upon the written words?
daleyrocks (1d0d98) — 5/14/2010 @ 8:05 pmYou are operating under a different definition of the word text than I am. When I see a text that reads $100,000, for example, it strikes me as incoherent and bizarre to call it “rewriting” that text to interpret it as meaning $100,000.
Comment by Patterico — 5/14/2010 @ 7:51 pm
How can that be if everyone is looking at the same law? Are courts supposed to ignore the written law if it does not conform to the expressed intent of the authors and receivers of the law have relied upon the written words?
Comment by daleyrocks — 5/14/201
Painted Jaguar: That’s what I growled back at #9, which no one has answered.
MD in Philly (ea3785) — 5/14/2010 @ 8:43 pmdaley,
This is part of the reason the discussion is so frustrating. You and I and MD in Philly use a word like “text” according to its ordinary definition. To us, there are words written on a computer screen. No matter how they are interpreted, the words — the text — doesn’t change; only the interpretation does. We would say that an interpretation that is inconsistent with the speaker’s intent might be an interpretation that is WRONG, but it is still an INTERPRETATION.
But to the intentionalist, the words “text” and “interpret” have specialized meanings that are unconventional and confusing when not fully explained. To an intentionalist, the relation between the words on the screen and the intent of the speaker is PURELY ARBITRARY (the Humpty Dumpty school of language), and so, if you interpret the words in a way that is inconsistent with the speaker’s meaning, you are not even “interpreting” a “text” that hasn’t changed — instead, you are creating a new “text” . . . a process that they deny is even interpretation.
This is very frustrating to those of us who think of a “text” as “that particular set of pixels there on the computer screen” — i.e. something that doesn’t change, even if the interpretation changes.
Ironically, by insisting on applying their own specialized definitions instead of trying to understand the way that WE are using these terms, they are robbing us of the ability to express ourselves. I frankly rebel against having to refer to a set of words on a screen — what you and I would call “words” or a “text” — as “marks” or a set of squiggles or some other denotation that is opaque to the average reader. But if I don’t, then I can never talk about people “interpreting” a “text” in different ways — because then we get the flurry of quibbles over definitions, together with the confident assertion that any varying interpretation of words actually “rewrites” the “text” even though the goddamned symbols on the screen don’t change at all.
And I’ll be damned if I am going to be forced to discuss this in some rarefied terminology that ordinary people need to pore over to understand. That turns the conversation into a clubby chat among the anointed, and is not conducive to the wide-ranging discussions I seek to foster here.
I don’t know what the solution is. Certainly, it is no solution to ask the intentionalists to interpret according to their own principles, and attempt to understand our assertions on our own terms, rather than constantly quibbling about our supposed misuse of definitions.
For people who are supposed to be unwedded to convention, these folks are absolutely beholden to the conventions of terminology in discussing these very concepts.
Which I find kinda ironic.
Patterico (c218bd) — 5/14/2010 @ 8:45 pmPut more simply — as Painted Jaguar did above — it is not “rewriting” a text to interpret “100,000” as “100,000.” You can declare it otherwise all day long, but that doesn’t mean that what you’re saying makes any sense.
Patterico (c218bd) — 5/14/2010 @ 8:47 pmThe egret says in the post:
Here is Goldstein’s response. I leave it to the reader to decide whether the bold language from the above egret quote is on target or not.
Does this constitute quibbling about definitions? You be the judge!
Patterico (c218bd) — 5/14/2010 @ 9:20 pmTo be clear: if one thinks a word is truly being used improperly, of course it’s OK to quibble about definitions, to be precise.
It’s also helpful to two-way communication to acknowledge the sense in which the speaker is using the word — especially if, as here, the speaker’s use is quite conventional.
Patterico (c218bd) — 5/14/2010 @ 9:40 pmPainted Jaguar: My mummy, who is the wisest (and ever so patient) creature I know in the region of the dark, turbid Amazon, tells me there is a place where the two legged mammals live who know about armadillos. She tells me that the wisest of them can explain things just as she does, very clearly, and that they have a saying, to be a genius is to know how to explain a complicated thing and make it simple. This is right. For when creatures use many words they are more like Stickly-Prickly Hedgehog and Slow But Sure Tortoise, who would not answer a simple question and did not want to explain anything, but only wanted to confuse and trick.
And this too is true, do you not see, that the Anaconda under my paw and between my teeth is my dinner, whether it intended so or not.
MD in Philly (ea3785) — 5/14/2010 @ 9:45 pmBecause it’s not particularly conventional to talk about text being “rewritten” when the little doohickies on the screen (that I call letters and words and text) aren’t changing.
And a quick read through this thread reveals that the rather unconventional use of the word “text” is confusing others as well.
What word would the intentionalists allow me to use to refer to those pixellated images on the screen made up of letters from the alphabet — you know, the symbols that DON’T change no matter how people interpret or misinterpret them? I’m not allowed to call them words or text, because that changes with the interpretation (or misinterpretation; I’m not allowed to simply use the word “interpretation” in a conventional sense either). So what can I call them?
I suppose the answer is “marks.”
Which means that anyone who discusses this has to learn the word “mark” or be left in the cold.
So, join the guild or leave the discussion, folks. That is your choice. If you want to discuss this in plain terms you are going to spend all day listening to people telling you you’re using the words in the wrong way.
That’s the intentionalist way!
Patterico (c218bd) — 5/14/2010 @ 9:47 pmEgret turds are mere marks on the sands of intentionalism.
Which came first, convention or signifiers?
Was the first communication a grunt, a fart or a belch? How was it interpreted?
daleyrocks (1d0d98) — 5/14/2010 @ 9:49 pmDefine the universe, give two examples.
daleyrocks (1d0d98) — 5/14/2010 @ 9:50 pmMD in Philly:
Did you know it is possible to alter the text of your comment without access to the control panel?
All you have to do is interpret it differently than you do. Presto-change-o — the TEXT is changed!
All the words are the same.* Same letters, same word order. But the text is different!
That doesn’t confuse anyone, does it?
*They don’t agree to that either. According to the intentionalist, the words, like the text, change with the interpretation. (Well, what you and I would call “the interpretation.” That word has a specialized meaning, too, such that when people like you and me talk about multiple “interpretations” of a text, we must have it explained that there is no such thing, as there is only one interpretation of a text — the correct one, which appeals to the speaker’s intent — and to attach any other meaning to the words is a complete rewriting of the text. So the phrase “multiple interpretations” is incoherent and has no meaning (despite being an utterly commonplace phrase in the English language).
Again: they’re speaking a different language, and if you don’t speak in their (unconventional and specialized) terms they will refuse to attempt to understand you.)
Patterico (c218bd) — 5/14/2010 @ 9:59 pmLet me show you two completely different texts:
1) Hey, how’s it going?
2) Hey, how’s it going?
See the difference? The second text is a complete rewriting of the first.
Those two very different texts have nothing to do with one another.
I hope this is clear. I mean, how much clearer could it possibly be?
Patterico (c218bd) — 5/14/2010 @ 10:03 pmNow I’m going to create a third text that is nothing but creative writing: a wholesale substitution of a different TEXT that contains entirely different WORDS than the previous two examples:
3) Hey, how’s it going?
I don’t know how this could be any more clear.
Patterico (c218bd) — 5/14/2010 @ 10:05 pmNo soap radio
daleyrocks (1d0d98) — 5/14/2010 @ 10:06 pmNo soap radio
Hahahahahahahahahahahaha!
[wipes tears from eyes]
I wish I had thought of that first.
Of course, there are some who just won’t get it.
Patterico (c218bd) — 5/14/2010 @ 10:12 pmPainted Jaguar: Mr. Frey, ‘Well, suppose you say that I said that he said something quite different, I don’t see that it makes any difference; because if he intended what you said I said he said, it’s just the same as if I said what he said he said.
On the other hand, if you think I remember what I intended to say when I started to say it, you would be mistaken, and so you will not know what I said even though you “see” the result of photons from the computer, don’t you see. Or do you?
My spots are tired, and I’m going to bed, which means, my spots are tired and I’m going to bed (at least I intend to).
MD in Philly (ea3785) — 5/14/2010 @ 10:44 pm“I wish I had thought of that first.”
Patterico – Sometimes I’m amazed at the useless crap that bubbles to the surface.
daleyrocks (1d0d98) — 5/14/2010 @ 10:58 pmI’m going to have a conversation with a bowl of instant grits. Maybe there will be some egret tracks on the surface. Dip your beaks into that.
daleyrocks (1d0d98) — 5/15/2010 @ 6:54 amThe fact that you recognize that they are words (are what an egret leaves scratched into the sand “words”?) means you understand that you are dealing with language that was intended as such.
You can turn those egret scratches into a text by intending to read those marks as language.
That would depend on whether or not the “interpreter” is appealing to what the author intended. Trying to recover intent is the object of an interpretation. You can have interpretations that are wrong.
However, when you claim, as someone like Scalia has, that intent doesn’t matter, then you are saying that the signs before you, intended as they were by someone who meant, are not signs at all. Because a sign is a mark plus the thing it refers to. Take away intent, you take away the thing the mark refers to and are left with only the mark. That is a signifier. And it is no more “language” at that point than those egrets scratches.
You can intend to see it as language — and that move, to then add references back to those marks (let’s say you decide to add to those marks those referents most conventionally used) — is the move whereby you create your own text by dint of adding your own intent to signify to the signifiers you “borrowed” from the original author.
Again: you haven’t borrowed his signs — in fact, you’ve said up front as a matter of textualist principle that his signs don’t matter — but rather you’ve kept his marks and have resignified them to suit your own desires.
And yet you wish to maintain that those signs are still his.
If you aren’t interested in dealing with the message the author intended, by what lights are you interpreting his text?
Oh, I think they’ve been fully explained, and they weren’t too specialized to appear in the NYT.
But rather than complain about rather traditional usages of those words as they operate in the area of intellectual endeavor you keep insisting you’re interested in pursuing, why not just define what a “text” is to you? What it means, from your perspective, to “interpret” — as well as what it is that you believe can be interpreted, and what has to happen in terms of where and how meaning is addressed in instances of interpretation?
That a lawyer would complain about so-called specialized language is funny. But whatever. We can work around that. It is silly however to suggest that what is meant by things like sign or interpret or text haven’t been explained — because I’ve explained them over and over and over again, and as Stanley Fish’s NYT piece shows, I’m not using those terms any differently than they are ordinarily used in such discussions.
You can’t have “words” without intent. What is arbitrary is the joining of the signifier and the signified: why did the mark “cat” come to mean what it generally signals? Most words aren’t onomatopoeiatic. The sound form chosen to represent them is attached arbitrarily to the thing to which they refer. That’s what “arbitrary” means.
Not true. If you interpret incorrectly you have interpreted incorrectly. If you strip a message of its intent, take only its marks, and then decide what it should mean based on those marks, you are turning marks into language.
And at that point — because it is YOUR intent to signify that is creating that text — it makes no sense to pretend that you are trying to understand what the writer meant. You aren’t interpreting. You’re showing what you can do with the marks somebody — or, hey! even an egret! — left for you to play with.
And just as you can use the sound form “cat” and come away with “hep jazz musician who blows a mean horn,” you can attach the signifier “horse” to heroin, and on and on and on. Language grows that way. Once arbitrary connections become accepted conventionally. But even before that happened, the first person to attach “horse” to “heroin” meant what he meant, and presumably others began to understand what he meant before convention ever recognized the usage.
Jeff G (929040) — 5/15/2010 @ 3:43 pmOh. And as a reminder, I invited all of you over to answer the following questions:
1) From the perspective of the textualist, what is a “word”? How are words made? How do they mean?
2) From the perspective of the textualist, what is a “text”? How are texts made? Can a text exist independent of intent?
3) Envision the following: you receive what looks to you like three identical “texts”, each appearing to say “pass the salt.” The first, it turns out, was created by a few egrets walking around in wet sand; the second was carved in a very old rock; the third was written on a slip of notebook paper. Are these three texts the same? How would you “interpret” each? Or would you even bother? Why or why not?
4) When you interpret, what exactly is it you believe yourself to be doing?
5) What is convention? How does convention come to supplant intent as the locus of meaning?
Knowing what YOU think those things are would have allowed me to speak your language — and to point out the differences to you between how you are using certain terms and how those who deal with such questions of language as a matter of course define their terms.
Jeff G (929040) — 5/15/2010 @ 3:49 pmHere’s the thing, Jeff. I don’t really have a unified theory of how language works and I doubt that a single one exists that is workable and applies to all different types of language. The closest I have come to articulating such a theory is to argue that communication is a two-way street, and that both speaker and listener have a responsibility to try to understand each other and perform their respective roles in good faith.
What I have been doing is challenging your beliefs as to your unified theory, to demonstrate (which I believe I have done) that it is not workable in every situation. This does not mean that I am a “textualist” in every scenario that arises in human communication, and indeed I believe it would be absurd to take that stance.
Let’s take your complaint about Scalia, for example:
I think it’s important to realize that when Scalia says he doesn’t care about intent, he is talking about interpreting statutes and the Constitution. He is not saying that intent never matters to communication — and I feel quite confident that, like me, he would acknowledge that there are ALL KINDS of situations where appealing to intent is critical. In your work, Jeff, you have pointed out many situations where this is so. I have learned a great deal from your examples, and will never think about language again without at least considering the role that intent plays in creating meaning.
However, intentionalism simply does not answer every question, and statutory interpretation is a great example.
I (and many others) have posed the question to you before: if you are not going to give the text of a law (real in context and reasonably) effect according to its plain meaning, then how in the world does one go about ascribing intent to a text where its creators have different intentions?
I have posited examples where some legislators intended a particular passage to have one meaning, others intended it to have the complete opposite meaning, and a third set had no intent because they didn’t even bother to read it. I have asked you how an intentionalist would resolve these competing intentions, all relating to the same textual language.
The closest thing I have found to a response to this argument is this, from an update to this post:
That is a fine restatement of your view that, even when there are competing intentions, one must look to intent if one reads the text as language. But I think that view is fatally flawed if you can’t articulate (even in theory) HOW this is to be done.
This is hardly a theoretical or outlandish concern. One of the main tasks of courts is to resolve competing views about what legislative language means. This is a recurring problem, and courts very often disagree with each other about how to interpret specific language. I have absolutely no doubt that there are countless situations where, if you had a mind-reading device and could search the minds of legislators as to a particular provision, at the time it was passed, you would find them split as to the meaning of that provision: some intending it to mean one thing, others intending it to mean something else, and others completely unaware of the provision’s existence.
How do you resolve the question of locating intent in such a situation?
My answer, and Scalia’s, is to read the TEXT — to ignore what the legislators intended, and simply read the words to see what the words mean.
I understand you object to that, as well as to the way I phrased it — and that you believe doing so is rewriting the text (even though the junk down on the paper does not physically change).
Fine. So how would YOU resolve such a situation? 120 legislators vote for a law. A provision is disputed. 40 intend it to mean x, 40 intend it to mean y, and 40 didn’t read the law.
Do you consider it a tiebreaker if reasonable people would all read the law to mean x?
Same question, but this time 39 intended it to mean x, 40 intended it to mean y, and 41 didn’t read it. Reasonable people would all read the law to mean x. Would you nevertheless interpret the law to mean y, because one more legislator INTENDED it to mean y?
If you can’t answer these questions, I think that reveals a flaw in your views when applied to the area of legislative interpretation. Which is NOT to say that textualism is a unified theory of language that applies in all situations. It is merely to show why famous judges throughout history, from Scalia to Oliver Wendell Holmes, have declared that they are concerned with what the law means and not what the legislator intended.
Patterico (c218bd) — 5/15/2010 @ 4:29 pmAs for #40:
I am willing to give straightforward answers to your questions if you make an effort to give straightforward answers to mine.
To repeat:
A speaker causes words to appear on a page, which constitute a law. A judge is charged with enforcing the law. There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.
Do you agree with that?
That’s a question I have asked, in one form or another, for weeks.
A straightforward answer would begin with something like this: “Yes, I agree” or “No, I don’t agree.”
If a straightforward answer like that is forthcoming, I’ll take that as a show of good faith, and do my best to answer the questions in #40.
If a straightforward answer like that is not forthcoming, then I can’t see that you have any basis to ask me for straightforward answers such as you request in #40.
If you would like to say that you have already given the straightforward answer, then I will give you the following equally straightforward answer to your #40: it is answered in #41 — as thoroughly and directly as the questions I have raised here have been answered.
By the way, there actually was someone who went over and addressed each and every question. For his efforts, he was repeatedly insulted. The line to get treated like him forms right over there!
Patterico (c218bd) — 5/15/2010 @ 5:41 pmBy the way, there actually was someone who went over and addressed each and every question. For his efforts, he was repeatedly insulted.
He started his “address” with insulting everyone there and then didn’t answer the questions.
Since he never came back having just chose to sneer and run, you can judge his “good faith” accordingly.
Darleen Click (fe8e8e) — 5/16/2010 @ 9:52 amI am not getting into the issue of whether Leviticus was right in what he said, because that is reviving a discussion of personal conflicts in a venue where I reject any such discussion. However, I do feel it is necessary to correct you: he most certainly did not sneer and run. He held a discussion and came back many times to address specific comments — but I guess his comments got lost among the trading of insults.
This illustrates perfectly why I am not permitting personal insults here on this topic — including yours, Darleen, as well as the many insults leveled at Jeff that I have deleted. They cause the discussion to degenerate.
Patterico (c218bd) — 5/16/2010 @ 12:27 pmI don’t think that either of you gentlemen are making the case you want to make. For example, Jeff’s But even before that happened, the first person to attach “horse” to “heroin” meant what he meant, and presumably others began to understand what he meant before convention ever recognized the usage. That’s jargon. People who understood it, understood it. And so are the people who went through nineteen years of school to understand Patterico’s legal examples.
nk (db4a41) — 5/16/2010 @ 12:41 pmAnd that represents the last comment I am going to make that refers in any way to the comments that are going on at PW. It’s quite clear that by even mentioning Levicitus’s foray over there, the discussion threatens once again to degenerate into a discussion of personalities. It was a mistake for me to mention it at all.
I remain willing to discuss ideas here, and I appreciate very much, Darleen, your willingness to discuss those ideas here. Why don’t we just (to use a phrase I hate) agree to disagree about Leviticus’s comments over there, and pretend we never brought it up?
Patterico (c218bd) — 5/16/2010 @ 12:55 pm..
jls (3b1a14) — 5/29/2010 @ 10:46 pm