Patterico's Pontifications

5/7/2010

A Response to Jeff Goldstein’s Latest on Intentionalism and Legal Interpretation

Filed under: — Patterico @ 7:13 pm

Jeff Goldstein has responded to my post from this morning, but I feel like we’re talking at cross purposes, so I want to try to restate my point, hopefully more clearly this time.

Again, the hypo, which I will tweak* in response to complaints from Goldstein’s commenters that the original was somehow unrealistic or outlandish:

  • 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 cubic zirconia ring.

Since there seems to be some confusion about it, let me repeat: the seller in my hypothetical is a thief. He is not mistakenly calling a cubic zirconia ring a diamond ring. He is trying to defraud the buyer.

You are the judge. You know every aspect of the above scenario. The buyer has proven to you that the ring is cubic zirconia, and that the seller intended to defraud him.

Now, there are two possible questions at issue. Because they are easily confused, I am going to clearly label each with capital letters and bold text:

  • THE LINGUISTIC QUESTION: When the seller said “this diamond ring” what did he mean?
  • THE PRACTICAL QUESTION: How should the judge rule in the case?

In my post from this morning, I intended to accomplish two goals: 1) to accept for the sake of argument the intentionalists’ view on the answer to THE LINGUISTIC QUESTION; and 2) to get the intentionalists’ answer to THE PRACTICAL QUESTION.

As I said this morning:

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.

Here, I give the non-intentionalist’s view of what happened in the scenario: the seller actually agreed to sell the diamond ring. Then I give my characterization of how I believe the intentionalist would view the same scenario. First, I discuss how I believe the intentionalist would answer THE LINGUISTIC QUESTION — namely, the seller meant what he meant:

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.

Then I note that the intentionalist would draw a distinction between THE LINGUISTIC QUESTION and THE PRACTICAL QUESTION:

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 I suggest how the intentionalist might resolve THE PRACTICAL QUESTION:

And so an intentionalist might agree that a judge is entitled to treat this as a contract for the sale of a diamond ring.

Goldstein, in his post, quotes the above and responds:

No. An intentionalist will agree that if the judge is aware in advance of his ruling (the only way this hypothetical has any real force) that the seller meant “lump of coal” and decided to signal “lump of coal” with “diamond ring” — and he believes that the seller genuinely meant what he meant — then the judge will be able properly to interpret what the seller intended.

In other words, if the judge has all the information provided in the hypothetical — which I was of course assuming he did — then the judge would be in a proper position to decide THE LINGUISTIC QUESTION. So far, this seems consistent with what I said.

At which point the judge will have to decide if he believes the seller made a mistake in signaling intent; or if the seller intended to defraud.

If he has all the information provided in the hypothetical, he won’t have to make that decision, since the hypothetical states that the seller is a “fraudster” — a thief trying to defraud the buyer.

In both instances, the judge knows what the seller meant when he entered into the contract. And what the seller meant hasn’t changed.

This is an answer to THE LINGUISTIC QUESTION, and it appears to be the one that I gave: namely, “the seller meant what he meant.”

I’m not sure why Goldstein’s response begins with the word “no,” as if he is disagreeing with me.

But let’s read on. I then spend the rest of the post assuming that the intentionalist’s answer to THE LINGUISTIC QUESTION is correct, so that I can get past that to THE PRACTICAL QUESTION, which I consider more interesting:

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.”

In other words, I am asking whether the intentionalist would agree that a judge could say to the seller:

I have resolved the answer to THE LINGUISTIC QUESTION and I will go with the intentionalists on that issue. You meant what you meant; when you said “this diamond ring” you meant “a cubic zirconia ring that I plan to substitute for the diamond ring, without the seller’s knowledge.” I would never pretend to tell a speaker that he meant something other than he meant, and so I accept the fact that when you wrote the words “this diamond ring” the meaning of those words was “a cubic zirconia ring.”

However, sir, there remains THE PRACTICAL QUESTION — namely, knowing that you intended to defraud this buyer, am I going to enforce the law as if you meant what you meant — or as if you meant what this buyer reasonably thought you meant?

And I have to tell you sir, that on THE PRACTICAL QUESTION I am going to treat your statement just as if you had intended to sell this man that diamond ring. This is fair, because you led him to reasonably believe that you did.

In my post, I generalized this concept to assert that there are times an “audience” might tell a speaker that they understood the intentionalists’ answer to THE LINGUISTIC QUESTION, but still might choose to answer THE PRACTICAL QUESTION in a way inconsistent with the intent of the speaker. In other words, I am asking: doesn’t my example show that THE PRACTICAL QUESTION need not always be answered in accordance with the intent revealed by THE LINGUISTIC QUESTION?

As I said:

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?

It should be clear from this that I am interested in the answer to THE PRACTICAL QUESTION: in other words, once a judge has resolved THE LINGUISTIC QUESTION, what should a judge do with the answer to that question — and does the answer to THE LINGUISTIC QUESTION always control the correct answer to THE PRACTICAL QUESTION?

My argument is: it does not. I posed the hypothetical of the thief to prove that point. I am focused on the answer to THE PRACTICAL QUESTION.

But Goldstein does not answer THE PRACTICAL QUESTION. Instead, in a post that reads as though he is disagreeing with me, Goldstein appears to restate in different language my points that a) THE PRACTICAL QUESTION and THE LINGUISTIC QUESTION are different, and b) the intentionalist answer to THE LINGUISTIC QUESTION is that the speaker meant what he meant.

Let me quote Goldstein’s response:

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

But again, the man putting together the shelving [in my earlier example of an ironically written instruction manual] would have virtually no way of knowing that he was interpreting incorrectly. And that’s because the writer subverted a number of conventions, provided no ironic or parodic cues, was unnamed (and so made intertextual considerations impossible), and — most importantly to the man who bought the shelves — what the writer intended didn’t much matter in the end because the man got his shelving. And so even though his interpretation was wrong, it was still useful.

So far, this reads like an argument that THE LINGUISTIC QUESTION does not necessarily determine the answer to THE PRACTICAL QUESTION. Which is just what I was saying.

More, had the original author really wanted his intentions known, he would have been more careful in signaling them. In nearly every case, the best way to ensure that your intent is read is to follow convention. And that’s because convention is a second order system “designed” to help us better divine intent. A failure to follow convention can cause all sorts of problems for receivers who, in good faith, try to decode your speech act. But what a failure to follow convention doesn’t do is change your meaning.

Which is why when I noted in an earlier discussion that textualists and originalists who appeal to intent will most often come to the same reading of a statute, I was noting that, for the most part, what matters is what we think we are doing when we interpret, because convention — as a rule — is a highly functional guide for divining intent.

But what convention isn’t is the locus of meaning. Because to say that is to say that, regardless of what a person meant when he crafted a communication he desired to have interpreted, his meaning rests with the way signifiers are most typically signified. That is, his meaning rests with convention — or general group usage of signifiers — and not with his own desire to express meaning.

And this is not only wrong but dangerous. First, if meaning did rest with convention, convention would remain static. How could convention change, after all, if it prevented any meaning-making to exist outside of its own parameters for determining meaning?

Second, by taking meaning away from the intentional actor and giving it over to convention, you are taking meaning away from the individual and giving it over to the consensus of a community or culture (convention being nothing more than that consensus meaning spread out and institutionalized). In that way, you are allowing a community or culture to determine what it is an individual means — and so taking away that individual’s autonomy and demanding he surrender his own will to group generalizations.

None of which is a repudiation of intentionalism. Instead, it is nothing more than a transfer of whose intent is privileged disguised as a bracketing of intent.

Because to say that the author doesn’t mean what he meant — that what his “plain text” means is what “convention” tells us it means — is to say that our intent to privilege group generalizations about signification trumps your ability to signify. Or, to put it more bluntly, our intent to attach to your signifiers what we as a group want to see there supplants your intent to signify as you have.

This all reads like an argument as to why one should answer THE LINGUISTIC QUESTION the way the intentionalists do: by saying the words mean what the speaker intended them to mean.

Great. But I already asked people to assume that to be the case for the sake of my post.

There is a difference — and it is an important one — between demanding that writers of law follow convention as closely as possible to ensure the most accurate interpretations of their intent; and maintaining that what the writer intended doesn’t matter, because convention is the locus of meaning.

Scalia and others push for the latter in order to get the former. But in doing so, they open up avenues that legitimize an idea of “interpretation” that is not interpretation at all.

In other words, asking speakers to be clear is different from maintaining that, if they aren’t, they don’t mean what they mean. Again, this is a restatement of the intentionalist’s answer to THE LINGUISTIC QUESTION, and I don’t take issue with it in my post. I explicitly ask readers to assume that this answer is correct.

To look at someone’s intended text — his signs — and try to decode them as part of a speech act is to interpret. To look at someone’s signs, remove the intent that turned them into signs in the first place, and then react to signifiers, which you then resignify solely based on convention, is to write your own signs — to create your own text.

And at that point, it is your intent that you have privileged, and your meaning that is the endproduct of what you have called “interpretation,” but which is no such thing.

My argument is, how you get there matters. To privilege your own intent is to rob others of their meaning. And the consequences of such a maneuver are far reaching, and go to the heart of the will to power / consensus meaning paradigm I’ve been at pains to dissect here over the years.

This is more restatement of the same issue.

Hopefully I have been as clear as possible here: I am interested in the intentionalist’s answer to THE PRACTICAL QUESTION — namely, is it ever proper for a judge to enforce language in a manner inconsistent with what he knows to be the speaker’s intent?

I am still interested in an answer to that question. I think my thief hypo shows that the answer is yes.

*Instead of calling it a “lump of coal” that seller is selling, I’m calling it a cubic zirconia ring. It is not outlandish that a thief would try to substitute such a thing for a diamond ring.

UPDATE: I missed quoting one passage, even though I meant to quote the entire post:

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.”

Goldstein cites that passage in comments and says: “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?”

Well, first of all, the hypothetical is not loaded. Despite Goldstein’s complaints on his blog that it is outlandish and such, it actually just presents the incredibly commonplace case of a fraud where the judge knows enough facts to know that it was a fraud.

My, how outlandish!!

Second, it’s clear to me how the judge will rule and why. If Goldstein wants to give a straightforward answer as to how he feels as an intentionalist, the invitation is open for him to post that answer here, at which point everyone can judge for themselves how straightforward it is.

6 Responses to “A Response to Jeff Goldstein’s Latest on Intentionalism and Legal Interpretation”

  1. Again, balls.

    You are making a false distinction.

    The >>>>>>PRACTICAL QUESTION!!!111!eleventy11!1<<<< is easily answered: knowingly saying one thing while meaning another is in fact the actual offense here. It is fraud or lying (if knowing) or an error (if unknowing). When the judge rules against the fraudster, he is not reading something new into the text of the contract; he is discovering the intent of the persons who uttered it, and declaring that the act resulting from that intent is an offense. Which it is.

    There is thus no separation between the linguistic analysis and the “practical” one. In fact, linguistic analysis from an intentionalist point of view reveals an act resulting from intent that is an offense. The judge will then attempt to rule in such a way as to make the buyer whole — either the money must be returned (status quo ante) or the diamond ring must be delivered (contract performance). Neither of those cases rewrites the text of the contract. He may also make a punitive ruling — perhaps that the seller must pay some amount in damages. That, too, is a punishment for the offense of misrepresentation, not a re-reading of the contract.

    Now, if the judge reads the contract and declares that the contract says the seller must give the buyer an automobile, that is a violation of intentionalism in interpretation. There is no automobile mentioned in the contract; if the judge declares that “diamond ring” means neither a lump of coal nor a diamond ring, but an automobile, he is creating a new text and substituting his own intention for those of both buyer and seller. It might be a fit punishment, but it isn’t an intentionalist interpretation of the contract.

    Regards,
    Ric

    Ric Locke (68d968)

  2. We’re making parallel arguments on two different threads, and perhaps should stick to the other one. But here is what I said to you on the other thread and it applies here:

    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?

    Since we’re already discussing this in the other thread, why don’t we keep it there?

    Patterico (c218bd)

  3. As a supposed “point by point” rebuttal, you seem to have left out the very part of my response 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?

    Jeff G (929040)

  4. Didn’t mean to leave that part out. I think this merely bolsters my point that a judge can treat an utterance as if it meant something different than he knows it means.

    Patterico (c218bd)

  5. …a judge can treat an utterance as if it meant something different than he knows it means.

    No, that’s wrong.

    The judge can (and should) say, “your intent was to misrepresent, and we want to discourage 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.”

    No, again. The second sentence of the judge’s statement is wrong.

    The judge is entitled to look the seller straight in the eye, and tell him: “I understood what you meant. What you meant was a deliberate misrepresentation, which is fraud, an offense against the Law, and I intend to correct that.”

    Now: The correction might entail reading the contract under a “reasonable man” or textualist approach — that is, the contract says a diamond ring, therefore the seller is obliged on pain of pain to produce a piece of finger jewelry with a bit of transparent carbon on. It might entail canceling the contract entirely, requiring the seller to return the money. It might entail something entirely outside the contract itself, like punitive damages. But none of that is a reinterpretation of the contract as it was originally made; it isn’t reading into the contract anything that isn’t there; it is the legal response to the existence of a contract made with fraudulent intent.

    The difference is perhaps subtle, but it is vital. Intentionalist analysis stops when we have discovered intent; your hypothetical posits intent, so does not address the question! Fraud might well be defined as “deliberately failing to communicate real intent”, and that is the offense here. The legal remedy for that offense is outside the realm of intentionalist analysis.

    Regards,
    Ric

    Ric Locke (69dba7)

  6. The correction might entail reading the contract under a “reasonable man” or textualist approach — that is, the contract says a diamond ring, therefore the seller is obliged on pain of pain to produce a piece of finger jewelry with a bit of transparent carbon on.

    Indeed it might. And that is why I am right, and not wrong, to say that the judge would be 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.”

    But none of that is a reinterpretation of the contract as it was originally made; it isn’t reading into the contract anything that isn’t there; it is the legal response to the existence of a contract made with fraudulent intent.

    Indeed. Thank you for restating my point. Now it’s time for you to acknowledge that you are not correcting me but rather restating my point.

    Patterico (c218bd)

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