The Jury Talks Back

5/3/2010

Textualism and Intentionalism

Filed under: Uncategorized — Leviticus @ 8:55 am

I know I’m completely out of my league when I talk about this stuff – between the two of them, Patterico and Goldstein have parsed the issue inside and out. But the issue is really interesting to me – the implications are apparent, even if the discussion seems a little esoteric at times (usually when I’ve had my brain fried by trying to read and grasp one of their in-depth posts on the subject).

Unfortunately, I essentially missed Patterico’s last post on the subject – entitled “Revisiting the ‘Plain Language vs. Legislative Intent’ Debate in Legal Interpretation” – over at the main blog. It was written as a response (among other things) to a post by Goldstein which asserted that textualism was essentially at odds with intentionalism (though the two often produced similar results).

I left two comments at the very end of that thread – and, as cocky as it sounds, I think they really provided a good reconciliation of textualism and intentionalism, based on the notion of a hierarchy of linguistic signifiers. Since the main thread is more or less dead, however, I wasn’t able to have those comments purified by the fire of public scrutiny. And because I do think the comments really got at the heart of the issue, I’d like to see what people think about them. Again, it feels a little big-headed – sorry.

Here they are:

“106. I’ve joined the party kinda late, but it seems that the reconciling conclusion here is that in legislative instances, the rule of law demands that legislative text be treated as legislative intent until new legislative text revises/clarifies it. Since we are bound by the very nature of our task to choose some signal in ascertaining meaning, might we not as well choose written language over spoken language when the two conflict? Both are signals, intended to communicate meaning – is it not in keeping with intentionalism to have a preference for certain signals over others in certain contexts?

It seems that Goldstein is arguing that the act of choosing, as an interpretive audience, between one signifier of intent and another – that is, choosing to privilege written language over spoken language – somehow hijacks the intent of the speaker/writer, by allowing the audience to select an interpretation which may be more in line with their own preferences. But what choice does an interpretive audience have, but to choose one or the other, and would it be any better to take the opposite path?”

and:

“107. Put another way, is it wrong (from an intentionalist perspective) to have a hierarchy of signifiers? Because that’s what a proper textualist is, to my mind – an intentionalist with written language at the top of his interpretive hierarchy?

I mean, would Goldstein argue that all signifiers are created equal, even when they conflict? Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another? Or am I missing something?”

It’s that last part that I’m really curious about – and I don’t know how many hardcore intentionalists we have here – but I’d like to know if I’m missing something in the whole intentionalism debate.

12 Comments »

  1. I’ve been avoiding the debate, mostly because I think that – while an interesting theoretical exercise – the actual problem is that most law is too vaguely drafted to be understandable simply by reference to the text.

    My favorite example of this is the ban on discrimination (in the terms and conditions of employment) based on sex. When passed, it didn’t say anything more than that – and it was added at the last minute by people trying to scuttle the bill (they failed), so there’s little in the way of legislative history to help divine intent.

    So: does a workplace rife with sexual harassment constitute terms-and-conditions discrimination based on sex? The law doesn’t say. What’s a textualist to do?

    —–

    There’s an unrelated problem, too: what do you do when a literal reading of the legislation yields a different result than a looser reading?

    As an example, Californians will (probably) be voting in November on a law which says this:

    While suspended, no state agency shall propose, promulgate, or adopt any regulation
    implementing Division 25.5(commencing with section 38500) and any regulation
    adopted prior to the effective date of this measure shall be void and unenforceable
    until
    such time as the suspension is lifted.

    So: does ‘any regulation adopted’ mean … any regulation? Or just those regulations implementing Division 25.5?

    The drafter of the initiative could have cleared this up for us by saying “any such regulation
    adopted prior to the effective date of this measure shall be void and unenforceable”, but he didn’t.

    Comment by aphrael — 5/3/2010 @ 8:58 pm

  2. Naah! Patterico and Jeff can say all they want but … 1) If somebody wants to misunderstand you he will, and 2) even people with the best intentions in the world hear what they either expect or want to hear. Be careful what you say.

    If you don’t believe me, come to one of our PTA meetings. 😉

    Comment by nk — 5/4/2010 @ 7:30 am

  3. Heh. My mom tried going to PTA meetings when my brother and I were little… once or twice. I don’t think she could handle it.

    Comment by Leviticus — 5/4/2010 @ 9:21 am

  4. Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary?

    I believe the topic here is intentionalism as it apples to law and legal interpretation and not the philosophical question of how we can really “know” anything. (Epistemology)

    We’re all believers in intentionalism at least some of the time. For instance, I’m sure that everyone here thinks that “freedom of the press” extends to such non-press media as radio and television. You arrive at that conclusion by looking at the “intent” of the writers of the First Amendment and not at the literal meaning of the text.

    As far as the question posed – it depends. If the “body language and dress” consist of stripping naked and grinding ones body against another, I think it’s reasonable to conclude that this shows the “intent” of a wish to copulate, yes. And I’m pretty sure you think so too.

    At that point we’ve established the principle and what’s left is to argue over the details.

    Comment by Subotai — 5/5/2010 @ 6:49 pm

  5. > Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another?

    I think you just ripped the head off the intentionalist argument and defecated down its neck.

    Nice work.

    Comment by IgotBupkis — 5/6/2010 @ 11:12 pm

  6. > I think it’s reasonable to conclude that this shows the “intent” of a wish to copulate, yes.

    I’m not a lawyer (though I play one on the internet sometimes), but I believe you would be completely wrong. I believe such may qualify as mitigating circumstances for sentencing purposes, but as I understand it, you can both be going at it fully consensually, I mean insertion and all, and if, right in the middle of that, she says, “Stop! Get Off of Me!” and you ignore that command and continue, then it qualifies as rape. And I believe there have been convictions based on that, though an attorney may certainly say I’m wrong.

    The spoken command to cease supersedes any prior commitment to the task.

    Comment by IgotBupkis — 5/6/2010 @ 11:19 pm

  7. I remember a case in which a teen was convicted of rape because it took him a minute to get control of himself and withdraw after the girl changed her mind in the middle. I could not find the reference on google just now, but I do remember the case.

    Comment by Sabba Hillel — 5/7/2010 @ 4:46 am

  8. “Nice work.”

    – IgotBupkis

    Thanks. And bonus points for the colorful imagery.

    Comment by Leviticus — 5/7/2010 @ 8:30 am

  9. For the record, I sought only to “rip the head off and defecate down the neck of” the intentionalist refusal to acknowledge the compatibility of textualism and intentionalism – not “the intentionalist argument” itself (which is, to my mind, a truism which defies opposition).

    Comment by Leviticus — 5/7/2010 @ 9:47 am

  10. you can both be going at it fully consensually, I mean insertion and all, and if, right in the middle of that, she says, “Stop! Get Off of Me!” and you ignore that command and continue, then it qualifies as rape.

    You failed to read the text and inserted your own “intent”. The question again was:

    “Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary?”

    Your objection is dismissed.

    Comment by Subotai — 5/7/2010 @ 10:45 am

  11. It’s possible that IgotBupkis believes that “in lieu of” means “in spite of”. More interestingy, it’s possible that Leviticus thought so.

    In that hypothetical case, we have a fine example of the way a persons text and their intent can diverge.

    Comment by Subotai — 5/7/2010 @ 10:55 am

  12. Subotai,

    I meant “in spite of”. It’s a bad habit of mine, to read “in lieu of” as “in light of” rather than “in place of”. Sorry for the confusion all around; thanks for reminding me of the distinction.

    The notion of conflicting signifiers only works if there are two simultaneous signifiers. Hence, “in lieu of” makes little sense in the wider context of the argument (since it would imply only one active signifier); “in spite of” implies two signifiers – I meant “in spite of.”

    Comment by Leviticus — 5/7/2010 @ 9:11 pm

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