Jeff Goldstein’s Latest Attack on Textualism
In his latest post on intentionalism and legal interpretation, Jeff Goldstein attacks textualism with arguments that (I think) talk past the arguments I have made in recent weeks.
I have explained my position on this: “sometimes the speaker’s intent is irrelevant to the practical problem of what to do with his words.” I argue that, without pretending to say that the speaker meant something different than he meant, a judge is sometimes entitled to enforce a speaker’s words in a manner consistent with the original understanding of the words (what Goldstein calls “convention”), rather than the speaker’s intent. Thus:
- A contract written by a con artist need not be enforced according to the con artist’s interpretation.
- Citizens should not be prosecuted for violating a law whose plain terms, as interpreted by a reasonable person, do not apply to them — regardless of the lawmakers’ private intent.
- Votes for a candidate should be counted only if the voter clearly signals his intent on the ballot.
I have also argued that this need not be restricted to legalisms. Using Goldstein’s own example of a bookshelf assembler armed with assembly instructions that work when conventionally interpreted, but that are actually intended ironically, I argued:
- The bookshelf assembler should follow the instructions as written, if he knows that they will work if interpreted conventionally — even if he knows that they are not intended to be followed conventionally.
In these examples, the receiver of the communication acknowledges that he understands the speaker’s intent — and then proceeds to ignore it, not in his “interpretation” of the language but in its implementation.
In his latest post, Goldstein says:
When a textualist[] asks “does a failure on the part of the utterer to signal intent allow the judge to interpret the text as a reasonable man, without consideration of intent, might?” and goes by that standard, the flaw is in the question as phrased. Were he to ask “can a reasonable man be expected to know the author’s intent from what’s been signaled?” he is asking a different question, and basing his reasoning for ruling a particular way on a different standard: to wit, he isn’t ruling that because intent is unknowable, we can dismiss intent and rule on the basis of convention; instead he is ruling that because intent wasn’t signaled, a reasonable man couldn’t possibly reconstruct the intent.
A distinction with a big difference.
Yes, but in all the above examples, I am talking about a third scenario. Namely, the intent can be reconstructed — but a receiver simply chooses to enforce or implement the language in a manner inconsistent with that intent. Which does not mean he is pretending that the intent is different than it was. It means he understands the intent, and has decided to ignore it when it comes to the practical question of how the speaker’s language should be enforced or implemented.
Whether such a course of action is justifiable is a question I have posed in several posts. For the life of me, I can’t tell whether Goldstein agrees with me that such an approach is justifiable.
If anyone can point me to somewhere he has addressed this issue in a clear, understandable fashion, I’d be much obliged. And I invite him to answer the question in comments.
If he does agree, the upshot is this: even if a speaker means one thing, an audience may be entitled to understand his intent, and yet act on his words as if he meant something different. I’m not sure that this is something the intentionalists want to acknowledge — but if they don’t, how do they get around the aforementioned examples??
P.S. As with any post about intentionalism, I’m going to apply my strict no-personal-attacks rule in this thread. Argue issues and not personalities, period. Given my restrictive rules, I will accept comments from banned commenters, as long as they follow the rules I have set forth.
Talking past each other is a good description of what is happening. Whether it is on purpose is another question. There appeared to be times when agreement seemed close.
daleyrocks (1d0d98) — 5/12/2010 @ 9:38 pmTalking past each other is a good description of what is happening. Whether it is on purpose is another question. There appeared to be times when agreement seemed close.
I know. I thought so too, actually.
Sometimes I feel like we’re saying the same thing in different words — but when I say: “So isn’t this true” or “So isn’t this a valid statement or set of statements?” I don’t always understand the answer. Meanwhile there are always commenters at PW whose response is to simply mock without substance, or say I am asking the wrong question without explaining why.
I think the question posed in this post (and in several others, actually) is a perfectly fair one.
Patterico (c218bd) — 5/12/2010 @ 10:02 pmI’m going to take one more shot at this, because I think I may have found the crux of the problem.
It appears that Pat thinks that “intentionalism” means that you have to hew to whatever intention you can reconstruct/divine, regardless of the consequences.
I tried to make it clear in last Friday’s chat that “intentionalism” is a misnomer, because it’s not one interpretative theory among many: it’s interpretation itself. Unless you’re trying to find out what the speaker/writer meant, you’re not interpreting the text.
The opposite of interpretation is to treat a text like a Rorschach blot, whose shape is accidental, and you can go ahead and decide that you see a bunny and a witch, and it doesn’t matter if you look at the ink or the negative space or part of the blot or the whole blot: there are no right or wrong answers.
THAT’s how modern academia treats all texts: as Rorschach blots upon which they can project whatever narcissistic meaning they please. Whatever the author may have intended, they don’t give a damn, and in fact they hold the author’s intentions in contempt. THEY are the new gods of the text, and THEY will decide what those words mean, regardless of any conventions that existed at the time of the writing.
But proposing that a written law can mean whatever—and I mean whatever—you want (no right or wrong answers) is so far removed from what anyone in the legal profession is even thinking, that Jeff’s arguments about “intentionalism” are, for all intents (heh) and purposes, orthogonal to Pat’s hypos.
How? By observing that you’re not talking about interpretation anymore (and therefore not “intentionalism”) but rather talking about application and other practical matters.
Seriously, Pat. Please adjust your understanding of the term “intentionalism,” and stop attributing the implications of your hypos to “intentionalists.” An “intentionalist” is merely someone who rejects the idea that a written text is a Rorschach blot that you can have your perverted way with.
That makes YOU an intentionalist and ME an intentionalist and everyone who isn’t a screwed-up academic an intentionalist.
The hypos that you have posed are addressing something other than what Jeff addresses. I’m sorry, but you haven’t been refuting him at all; you’ve been refuting something else. (What else? Who knows? I didn’t come up with it.)
Sorry, but there it is.
dicentra (5fbaa0) — 5/12/2010 @ 10:07 pmAnother rather subtle point: when someone like “Scalia” talks about “interpretation” I’m not too sure he is talking about the same concept that Goldstein is talking about.
This gets rather esoteric, but as I understand Goldstein, he sees as equivalent the concepts of authorial intent and meaning, and believes that the only correct “interpretation” is one that finds meaning by appealing to authorial intent.
But I see a Scalia as saying something quite different: that a text has a meaning all its own. And that “interpretation” is an effort to find that meaning — which (he believes) need not equate to a search for authorial intent. Thus, Scalia might say: “I don’t care what the legislators intended the law to mean. I care only what the law means.”
To Goldstein, this is nonsense. But does he make an argument for why this is so? Or does he simply *declare* it so — i.e. simply pronounce (as a given) that “interpretation” by DEFINITION is a search for intent, and that meaning by DEFINITION is defined by intent?
Shouldn’t one have to make an argument, if the claim is disputed?
Granted, in my posts, I have conceded this point for the sake of argument, while making it clear that I don’t NECESSARILY agree — because I think the necessary practical flexibility can be imported by reference to enforcement rather than interpretation. My point here is to simply note that Scalia might use the word “interpret” to MEAN “enforce legally.”
And of course, like Humpty Dumpty, he can use the word any way he likes, and define his own meaning. So say the intentionalists (even if they don’t all want to admit it in those terms).
Patterico (c218bd) — 5/12/2010 @ 10:21 pmNot at all! In fact, I have asked, many, many times, whether y’all were willing to agree that one need NOT hew to that intention. Indeed, I ask the question again in this post, and suggest above that we may well all agree on this.
I’ve actually been quite plain on this.
See the previous comment. I have conceded this point in my posts, for the sake of argument, but I think that we could debate it — and you would have to come up with a better argument than simply declaring it to be so. Can’t one use “interpret” in their own personal way — according to your very theory? I believe one can.
Which matters I consider quite significant.
You need not apologize for articulating something that I have been wondering myself for weeks. You seem to be thinking you are contradicting me, but I’m not sure you are.
But y’all would have to be more plain-spoken for me to know for sure.
I’m taking a break for now and playing ping-pong with Mrs. P. Please consider what I have written according to what I have written and not according to your pre-fab beliefs about what I think. I look forward to any response.
Patterico (c218bd) — 5/12/2010 @ 10:29 pm“THAT’s how modern academia treats all texts: as Rorschach blots upon which they can project whatever narcissistic meaning they please.”
dicentra – I think most people here understood that.
“By observing that you’re not talking about interpretation anymore (and therefore not “intentionalism”) but rather talking about application and other practical matters.”
I don’t think you understand Patterico’s posts and the way language functions outside the academy.
daleyrocks (1d0d98) — 5/12/2010 @ 10:35 pmHere is a summary of every conversation we have on this topic:
Patterico (c218bd) — 5/12/2010 @ 11:45 pmThe hypos that you have posed are addressing something other than what Jeff addresses. I’m sorry, but you haven’t been refuting him at all; you’ve been refuting something else. (What else? Who knows? I didn’t come up with it.)
There is a simple question posed in the post:
If any of you folks have answered that clearly, I missed it. Can you give me a pointer?
Incidentally, in answering that question, I’d appreciate it if you read my statement consistent with MY intent and word usage, instead of redefining my words according to your specialized linguistic definitions.
For example:
When I say “his words” in the above example, it is clear to anyone who understands the concepts that my use of the word “words” refers to what you linguists call “marks” rather than “signs.” This is actually how most people use the word “word” — as the squiggles on a piece of paper or computer screen. You folks love to interpret that word as a “sign” — a mark that has already been imbued with meaning by the speaker. But that is not how most people use the term.
It is totally commonplace for someone to say something like: “His words mean one thing to him but another to someone else.” If you interpret the word “words” to mean “marks” that sentence can make sense; the mark becomes one sign for the speaker and a different one for the receiver, who attaches a different signified to it. To the extent that you refer to the words as signs, the same mark (as I understand) serves as different signs to different people.
But when I say the audience acts on someone’s words in a way different from the speaker’s intent, normal non-linguists know just what I mean. Linguists, by contrast, seem intent on projecting their definition of the word “words” onto my usage, redefining it as “signs” fixed by the speaker, and then declaring my statement incoherent according to YOUR definitions (though not mine).
This is very convenient if your interest is attacking a statement by redefining my words. If your intent is instead to understand me, please don’t impose your definitions on my words.
Again, my question is simple. To an intentionalist, can it be justified for an audience to look at the marks on a piece of paper (what I call words), figure out the speaker’s intent, and yet enforce them in a way different from that intent?
Jeff’s comments on the latest thread seem to suggest no; in other places his rather Delphic responses have seemed to indicate yes. Your responses in this thread seem to indicate yes.
But I don’t know why I am having to guess at the answer to what seems like a very simple and relevant question.
If you do manage a straightforward answer to this question, then either way you answer, I have a follow-up.
If you say no: how do you address my hypos??
If you say yes: doesn’t that mean you are admitting an audience may be entitled to understand a speaker’s intent, and yet act on his words (you know, the stuff he wrote down on the screen or paper) as if he meant something different? And if so, doesn’t that take some of the oomph out of the impact of intentionalism?
Patterico (c218bd) — 5/13/2010 @ 12:05 amMeanwhile there is some guy named Ernst Schreiber over there saying I don’t argue in good faith — this although he shows no evidence of ever having read anything I have written here, or ever having commented here.
Whatever. Here I will insist on arguing with arguments and not insults or empty characterizations.
Patterico (c218bd) — 5/13/2010 @ 12:10 amThere are plenty of people who issue paeans to intentionalism, and never rewriting people’s statements — even for purposes of enforcement as described in this post. Has a single person taking that point of view addressed a single one of my hypos?
How do they not commit themselves to interpreting contracts written by con artists according to the con artist’s secret and fraudulent definition of contractual wording? Just to take one of several examples set forth in the post.
I have yet to see a coherent answer to that question.
Patterico (c218bd) — 5/13/2010 @ 12:14 amThese threads from recent weeks have been a significant improvement over the old days, where I spent all kinds of time responding to people who were long on insults and short on substance. Here, those comments don’t post. Which has resulted in some of the higher quality discussions I’ve seen on this blog, and indeed anywhere.
What do people think about extending the rule to all the threads — maybe just as an experiment for a day? This place already hosts some of the best discussions you’ll find anywhere. Do you think such a rule might improve them?
Patterico (c218bd) — 5/13/2010 @ 12:26 amThis whole thing would be a lot more interesting if it were couched in terms of Moops v. Moors. Also if people who have PhD’s in Making Up Meaningless Words could convert their dribble to English, that would be cool.
el duderino (fedc3d) — 5/13/2010 @ 12:41 amI think comment #3 is presented as version 7.0 of why intentionalism does not apply to the law, legislation and and sundry other matters. We’ve witnessed arguments about legislation and law being a second order system of communication, specialized language, etc., to Patterico variously asking the wrong questions or people answering questions not asked. In the hypotheticals Patterico presented in which intent was stipulated, conclusions were avoided like the plague with a dizzying array of explanations.
It has been nice to see periods of good faith debate on both side, but as Patterico points out, the ending always seems to be the same. I see different explanations for the ending being the same, which is interesting, and sort of postmodern.
daleyrocks (1d0d98) — 5/13/2010 @ 6:44 amMoops v. Moors, I think, shows the Goldstein view at work.
Going back to daley’s first comment: daley, you used to hang with these people, and I think you understand what I am asking here. If we had a mind-reading device that allowed us to know the answer to the question I am asking here, what do you think it would be?
Same Q to Leviticus.
I’m reduced to asking it of you folks, because I increasingly despair of getting a clear answer from those defending intentionalism. dicentra comes close above, but she likes to know where I am going before answering my questions.
Anyway, I say above exactly where I am going. That a question has no easy answer consonant with your views does not make it an unfair question. It may just be a question that exposes the flaws in your view.
Patterico (c218bd) — 5/13/2010 @ 6:49 amI admit I have not been following this very closely. Patterico’s arguments seemed fairly self-evident to me, so I didn’t think it was worth bothering about. But I have received the impression that most of the discussion has been predicated on the idea that the “intent” behind a piece of legislation could be equated with a single idea – like the intention of a single author. That’s fine, if you’re just trying to simplify the discussion. But the reality is that there IS NO SINGLE INTENT behind any piece of legislation. There are a wide range of intentions from the coalition of different interests which ended up passing a bill. Therefore, it seems irresponsible to interpret the law with anything other than the TEXT.
Anything else turns the law into putty to be shaped by the hidden intentions of the interpreter.
Gesundheit (cfa313) — 5/13/2010 @ 6:51 amAnyway, to explain why would require a boring slog through terminology nobody cares about, but when Scalia says he is “interpreting ” I think he is using the word in a different sense than Goldstein does.
If I’m right, then shouldn’t the intentionalist try to learn what Scalia means by the word?
Patterico (c218bd) — 5/13/2010 @ 6:58 amPatterico – I think we cross posted. I’ll be more direct than my prior comment. Goal post shifting and avoidance. You will never get it right, but you will never understand why, because the definitions and explanations are a moving target. To borrow one of dicentra’s analogies, it’s like trying to nail jello to the wall. It doesn’t make sense, but that’s my take on the situation. Of course people will say I don’t understand it in 3…2…1.
daleyrocks (1d0d98) — 5/13/2010 @ 6:59 amThat statement is a little too broad for my taste. With respect to legal documents/doctrine I would agree. However, in literature (irony in particular) the statement is exactly wrong.
I realize I may be picking nits. The original topic explicitly refered to Laws and Judges, but in this post Patterico states “I have also argued that this need not be restricted to legalisms.” While I believe that to be a true statement, I also believe it should be pointed out that textualism need not be applied to every situation.
Onus (8b343b) — 5/13/2010 @ 7:07 amFor example, if Scalia says: “When I interpret, I don’t care what the lawmakers intended to say, I care what they said” — what is the proper response to Scalia’s statement from an intentionalist?
1) Use their own definition of the word “interpret” and explain why Scalia is using it wrong — because to interpret means to appeal to the lawmakers’ intent.
2) To attempt to learn what Scalia means by the word “interpret” when he uses it — and realize that HE doesn’t mean “to appeal to the lawmakers’ intent” because he explicitly disclaims that description of what he is doing.
See, I think he might well say something like that if you asked him. And his definition of “interpret” would probably be a lot like what I am calling implementation or enforcement in this post (and several others).
Patterico (c218bd) — 5/13/2010 @ 7:08 amGeusndheit: I addressed exactly that question in this post:
Patterico (c218bd) — 5/13/2010 @ 7:11 amJust a follow-up. This quote perfectly illustrates my previous point. In a debate ideas and intent are paramount, as opposed to the exact wording of the text. When it comes to actual legislation, the text is paramount.
Onus (8b343b) — 5/13/2010 @ 7:13 amThat’s why I said “may be” entitled. I am simply demonstrating that there ARE situations in which my statement is true, not that the statement applies to all situations. I agree with you that it clearly doesn’t.
My question to the intentionalists, which I can’t find a clear answer to, is whether they agree that there are situations where my statement is true.
I think the answer is self-evidently yes … but they may not like where that takes them.
Patterico (c218bd) — 5/13/2010 @ 7:14 amThis argument has boiled for centuries in the field of theology. In that context the simplistic like to cast it as a debate between “literal interpretation” and “figurative interpretation.” In reality, and in other areas than theology, there are many more options than that.
Just because a speaker or author uses irony or sarcasm does not mean that we cannot take them literally. Nor does it mean that we always have to divine the speaker’s intent. Normally, the meaning of ironic or sarcastic statements is evident from the rest of the text. It is in deliberate contradiction to other plain statements of the same speaker. Most listeners have no problem identifying irony or sarcasm.
One way of defining this method of interpretation, when it is applied to Biblical texts, is to call it “historical grammatical” interpretation. The history and context of the text are considered (somewhat analogous to the intent) but the interpretation must always agree with the “grammatical expression” of the content. In other words, we read what the author SAID, and although the context can inform us somewhat about the application of those words, we cannot in the end allow the interpretation to depart very far from the TEXT.
I still maintain that the ballgame changes when the document is authored by 100 people, instead of just one. We can defer to the *stated* intent, if those same authors have written what their intention was, perhaps. But who could begin to detect what the the inner motivations and desires were of 100 people from some time in the past?
Gesundheit (cfa313) — 5/13/2010 @ 7:17 amJust a follow-up. This quote perfectly illustrates my previous point. In a debate ideas and intent are paramount, as opposed to the exact wording of the text. When it comes to actual legislation, the text is paramount.
This quote is asking the intentionalists to apply their own principles to my words, but I take your point. The question is why.
Gesundheit says it’s because the document is authored by multiple people. I think that’s important, but is it the only reason? What if it’s authored by only one person?
And how, Onus, do you answer the question of the bookcase assembler? I think we all agree that he is entitled to build the bookshelf according to instructions that work and not according to intent. All I am asking is for them to agree, therefore, that there are situations where an audience can understand the intent and nevertheless justifiably act on the statement(s) in a way he KNOWS to be at odds with intent.
And if they agree with that, as I think they must, the interesting question becomes WHEN?
Patterico (c218bd) — 5/13/2010 @ 7:22 amHere’s the issue in another context (if that’s helpful at all). I also do a lot of counseling. In every dialog, people always think they know, with absolute certainty, what the other person “really meant” by what they said. “I know that my husband didn’t SAY that, but that’s what he really MEANT.”
Of course, sometimes we’re right. And sometimes we’re wrong. That’s OK. In a dialog we can make it work (if we’re patient) just by going back and forth to clarify what is behind our words. Unfortunately, the law is a one-way conversation. The legislature speaks, and then the litigants duke it out in court, with the judge as the counselor, trying to decide what a third party (the legislators) “meant” by what they wrote.
In such a case, the legislator has an unusually heavy obligation to make clear statements.
And of course that is exactly what we do not have. Instead, I have a sneaking suspicion that, at least sometimes, some parties want the law to be “capable of interpretation”. Perhaps because they know that it is their friends or allies (not only in the judiciary, but also in the bureaucracy) who will be doing the interpreting.
Gesundheit (cfa313) — 5/13/2010 @ 7:33 am“And if they agree with that, as I think they must, the interesting question becomes WHEN?”
Patterico – I think you are right that going down this path may lead to answers they may not like, hence the
PATTERICO, GET OFF MY LAWN!!!!! responses.
daleyrocks (1d0d98) — 5/13/2010 @ 7:37 amAs a layman I have extreme trouble with anybody who claims they can divine my intent absent what I write on paper.
I write software for a touch screen tool used in broadcast stations. One of its paradigms is click on a frame capture of the video in a “library” of videos and click on a playback window. I am not allowed “gestures” beyond a simple “poke”. If I am not allowed a keyboard either and somehow allowed the click in the playback window to mean either “cue it for playing later” or “cue it and play it now” how would I be able to read the user’s intent? I don’t have the sublime hubris to presume I can guess the user’s intent. So it always must be one or the other. Otherwise he doesn’t know what I will guess; and, I don’t know what he meant. He pokes and I guess. 50% of the time I might get it right. Broadcast stations don’t like those odds.
I don’t like the odds of some lawyer overloaded with hubris claiming he can divine my intent absent the hard evidence in the case. I’ve seen it done. It affected me deeply. To this day I get nervous walking into a courtroom even as a juror. When intentionalism is allowed judges are no longer bound by anything other than their own capricious whims and emotions. It frightens me as a layman. I came out of my experience feeling the law means nothing, utterly disrespecting the entire class of people calling themselves judges, and fearing them greatly as capricious forces of nature. My intellect tells me this is wrong. I wish I could reintroduce my fight/flight reactions to my intellect on this issue.
{o.o} (And I have jury duty coming on the 24th. I’m bloody scared.)
JD (9ac83d) — 5/13/2010 @ 7:40 amYou are all invited!
Jeff G (929040) — 5/13/2010 @ 8:10 amYeah. That’s precisely what is happening.
Jeff G (929040) — 5/13/2010 @ 8:12 amViewers may be able to see and understand Sarcasm but how about those who take the speakers literal words and use them to attack the speaker. Case in point – Media Matters attack on Sean Hannity for his “Welcoming Tim McVeigh wannabe’s” at one of his events. His intent was plain, to contrast the crowd of well dressed, peaceful (if enthusiastic, older folks with the lefty shibboleth of mobs of out of control terrorists. However Media Matters and their allies claim to claim that he is supporting those who would bomb federal buildings.
Have Blue (854a6e) — 5/13/2010 @ 8:28 amHave Blue makes a good point. But notice: Hannity is not misunderstood because it is so hard to identify his real meaning. To any *objective* observer it’s plain that he is using sarcasm. All they would have to do is compare his statement with the larger body of his writing and speaking.
However, an unsympathetic listener has a preconceived idea of the context of Hannity’s remarks. Obviously, in their view, he’s just a hater. Therefore it’s perfectly reasonable for them to interpret his remarks in the most hateful way.
In the case of public speaking and persuasion, that’s going to be inevitable. And speakers are always going back and forth between the temptation to use colorful language and figures of speech (which risk allowing their opponents to mischaracterize them) or on the other hand being a more boring speaker. Rush Limbaugh has generally decided to be more interesting, at the cost of being frequently mischaracterized.
But there is no place in the writing of legislation for this kind of problem. The authors of legislation have a duty to write clearly, even if it makes for dull reading. And the readers of that legislation have a duty to look for the evident meaning, not some obscure and unwritten “intent.” Otherwise, all legislation will descend into the kind of debates we see on most comment boards.
Gesundheit (cfa313) — 5/13/2010 @ 8:47 amThis is all about transferring more power from laws written in the past to public officials ruling in the present.
Amphipolis (b120ce) — 5/13/2010 @ 9:56 am“If we had a mind-reading device that allowed us to know the answer to the question I am asking here, what do you think it would be?”
– Patterico
If the question you are referring to is whether or not the statement”[E]ven if a speaker means one thing, an audience may be entitled to understand his intent, and yet act on his words as if he meant something different” is accurate, then I think the answer would be “Yes, but only in circumstances where there is an intent to deceive.” I think that the intentionalists would be unwilling to concede that there are circumstances where the good-faith intent of a speaker may be disregarded in favor a conventional understanding: thus, while the judge in the con man hypo would be justified in adhering to a conventional understanding of the words in the agreement between the two parties (since the con man was not acting in good faith), the judge in the legislative taxation hypo would not be justified in adhering to that same conventional standard, which disregarded a clearly and rightfully expressed intent on the part of the legislature, clouded only by an honest typographical misunderstanding. The judge in the latter ought, in the eyes of the intentionalist (as far as I can tell), to adhere as closely as possible to the intent of the legislature, even if that intent conflicts with the text of the law they’ve created (because the legislature makes a mistake while acting in good faith).
If this position is accurate – which I’m sure it’s not, in the eyes of the PW people, for whom nothing we do is ever good enough (/sob) – then intentionalism still causes serious (and in my opinion seriously unnecessary) problems in interpretive contexts. In my eyes, a reasonable man standard is justified in most cases of interpretation of action (not ignoring intent, but taking it into account in an attempt to ascertain a reasonable understanding of a given expression); likewise for a textualist approach in matters of written communication (particularly statutory interpretation). But while I think that the intentionalists are willing to acknowledge the relatively minor oomph-impact of disregarding the intent of deceivers, I don’t think they’re willing to acknowledge the relatively major oomph-impact of disregarding the intent of honest communicators in favor of reasonable man standards or conventional understandings.
Leviticus (30ac20) — 5/13/2010 @ 10:24 amWell since you are accepting arguments from banned commentators…
True communication and debate requires a degree of good faith and openmindedness (at least on the part of the audience, and preferably on the part of the speakers too), otherwise it is just a sporting event of who can argue best (or loudest).
Joe (a32cff) — 5/13/2010 @ 10:40 amIntentionalism was invented to allow shallow minds to justify lying.
AD - RtR/OS! (2aae98) — 5/13/2010 @ 11:18 amPat, I thought Jeff’s response to your judge scenario was that IF the judge knows the intent of the legislature in passing the bill (regardless of how he or she knows; it’s implicit in the hypothetical), then the written law becomes superfluous, at least to the judge. In that case the written bill was a poor attempt at communication AND the judge knows it. I also don’t believe Jeff advocated what the judge should be doing, merely noting that going with the written law in this situation is going against the intentions of the people who produced it.
In real life, that will never happen. Whether by necessity or convention, the written bill is the only reliable text the judge has to work with, and he or she has no choice but to go with what’s in it. In this case, textualism and intentionalism are indistinguishable.
As regards your third scenario, I can’t believe you said that about my mama! It’s on now, sir.
blah (7499b3) — 5/13/2010 @ 11:28 amSorry, there were supposed to be paragraph breaks in that. I communicate poorly, I guess.
blah (7499b3) — 5/13/2010 @ 11:29 amThis is just the receiver telling a lie about what the speaker intended.
See above.
Entitled to? I’d say they may elect to, but they certainly have no grounds for doing so. But, in general: sure, everyone can do as they please, as far as interpretation goes. It’s a free country, after all. In general, everyone has a right to choose to be mistaken (or, less nicely, to misrepresent), which is what’s happening in your scenario, provided they haven’t broken any laws in doing that.
Slartibartfast (ba27e9) — 5/13/2010 @ 12:17 pmHas anyone else noticed that the “intentionalists” are often accusing other people of “”ignoring intent” and “choosing” to read their own meaning into something when they are, in actuality, arguing over the very issue of authorial intent.
More often than not, they strike me as egocentric people who think that what they think is the “truth” (ie. their opinion of the “real” intent of the author) is obvious true and clear to everyone and therefore people who deny this “truth” (ie. dispute their opinion regarding authorial intent) must be consciously “choosing” to ignore the “obvious” authorial intent and substitute their own meaning.
90% of the time though it is bullcrap and their opponents are really saying “you are wrong about the author’s intent”.
libarbarian (90bd00) — 5/13/2010 @ 12:41 pmAre there any specific examples of that you can point to, libarbarian?
Slartibartfast (ba27e9) — 5/13/2010 @ 12:46 pmDaley, let’s give Jeff the benefit of the doubt — even though he is not giving it to me in comments at his site, where he called me dishonest for saying I can’t find his answer to my oft-repeated question.
I will say only that I have not been dishonest at any point in this discussion, and if I missed the answer then I missed it and ask again for a pointer. Based on the latest post, I still don’t think the question has been answered because I don’t think Jeff fully grasps that I am not taking issue with intentionalism but rather saying that enforcement is different from linguistic interpretation.
Maybe he does; I just can’t tell for sure.
Patterico (75f4de) — 5/13/2010 @ 12:49 pm.
Thee Intentionalist never has to say “sorry” because his intent is always pure and intent is all that matters. No, it is always the other who must apologize to him for choosing to ignore his intent and willfully interpret his words wrongly.
libarbarian (90bd00) — 5/13/2010 @ 12:57 pmThat wasn’t very specific, I’m afraid.
Slartibartfast (ba27e9) — 5/13/2010 @ 1:01 pmI don’t think you understand what I am arguing. In my examples, the receiver does not lie about the intent or pretend it is other than it is.
For example, the bookshelf builder. It seems self-evident that he should not be criticized for building the shelves according to what will work, and the ironic intent can go hang.
This is not pretending about, or lying about, intent. This is understanding intent, and then treating it as irrelevant to the question of how to implement the message.
Is this not clear? I don’t know how to say it any more clearly.
Patterico (75f4de) — 5/13/2010 @ 1:18 pm” I also don’t believe Jeff advocated what the judge should be doing, merely noting that going with the written law in this situation is going against the intentions of the people who produced it.”
Perhaps he did not advocate what the judge should be doing, but that is what I am asking. In these examples, is it worthy of criticism to apply the language as one would apply it if convention determined the meaning, rather than intent?
Patterico (75f4de) — 5/13/2010 @ 1:22 pmWhy must there be an intent to deceive? The bookshelf instruction writer is not being deceitful , just ironic.
I think it’s broader than deceit: the issue to me depends in part on whether the speaker knows or has reason to know of the reasonable misinterpretation. If so, there are times when the receiver is justified in enforcing the language in accordance with that reasonable interpretation.
Patterico (75f4de) — 5/13/2010 @ 1:31 pmI’ve been more or less ignoring the hypotheticals, sorry.
Look, this speaker/receiver thing doesn’t really work all that well with me, because it’s not one-way traffic all the time (even though it is in the bookshelf example), but in this case the fellow reading the instructions has made an error, but it’s an error that doesn’t interfere with his goal of assembling the bookshelf correctly.
If the writer was attempting to write the instructions in such a way that anyone who read them would be insulted, and this particular reader failed to get the insult, he’s failed to interpret the intent. He’s probably happier that way, because all the poor sod wanted to do was to build this bookshelf in time for Tyler Durden to firebomb his apartment.
Ok, I made that last part up.
Slartibartfast (ba27e9) — 5/13/2010 @ 1:37 pmWell, speaking for myself, I can’t really answer what the judge should do. All we’re given in the hypothetical is that the judge knows the legislature’s intent, but laws aren’t written just for the judges. They’re written so the general public has access to them. Nation of laws, not men and all that. If everybody absolutely knows the law-makers’ intent (again, however it happens), then I think the judge should go with that. Otherwise, if the average would-be law-abiding citizen only gets to work with the written law, then the judge should only get to work with the written law.
But my answer here is less about intentionalism and more about how I (a non-lawyer, if it isn’t obvious) see our rule of law.
blah (7499b3) — 5/13/2010 @ 1:49 pm“Why must there be an intent to deceive? The bookshelf instruction writer is not being deceitful , just ironic.
I think it’s broader than deceit: the issue to me depends in part on whether the speaker knows or has reason to know of the reasonable misinterpretation. If so, there are times when the receiver is justified in enforcing the language in accordance with that reasonable interpretation.”
– Patterico
I agree with you, but I thought you were asking me to answer as I thought the intentionalists would answer. It seems that the entire intentionalist philosophy came about in order to alleviate its adherents of any responsibility to take care in choosing their words, even when they know they may be reasonably misinterpreted – because that would be a LIBERAL HIJACKING OF INTENT!!!1!! So long as the intent is pure (as was said above), the speaker is pure – thus my distinction in the earlier comment between a good faith misunderstanding and an intended deception. But I agree with you: if a speaker knows that his words may be reasonably misinterpreted, he ought to choose different words or risk falling victim to the Court of Convention.
Leviticus (30ac20) — 5/13/2010 @ 2:17 pm“reasonably”, from whose POV? Who decides?
Slartibartfast (ba27e9) — 5/13/2010 @ 2:21 pm“reasonably”, from whose POV? Who decides?
Slarti, when something is written down even if it is an agreement between two people, to whom do they wish to communicate?
Laws need to be written down so that people can go about their daily lives hopefully knowing and understanding the rules they live by. The law makers are communicating to the law abiders and law enforcers, not exclusively to selected other law makers. So they had best communicate their law in language that is not likely to be misconstrued. If it is so misconstrued, they failed in their job and had best rectify the situation with clarifying legislation. For example the recent clarification the AZ Legislature issued for a hastily formulated law.
If the writing is by two people who’ve agreed on something as a contract then writing it down means nothing unless there is a dispute. If there is to be a dispute then both parties must clearly communicate to law enforcement and other citizens their intent. Failure here can be costly to one side or the other.
IMAO the two parties can agree completely and knowingly write a document that conveys instructions contrary to their plans. Unless other writings reveal this intent to deceive all third parties, any judge and jury is honor bound to interpret the words not the concealed intent.
And I am saying this with full knowledge of a detail I hate, this concept potentially steps on the toes of those honestly attempting to prevent and prosecute terrorism cases. Fortunately “other writings” tend to exist in such cases that raise a “simple” bombing to a “terrorist” bombing.
(And as a bystander I wish I didn’t feel like I was watching some word games rather than something deadly serious to the whole concept of rule of law.)
{^_^}
JD (9ac83d) — 5/13/2010 @ 2:38 pmCourt of law, I’d imagine. Not sure what that’s got to do with the question of even if a speaker means one thing, an audience may be entitled to understand his intent, and yet act on his words as if he meant something different, though.
Slartibartfast (ba27e9) — 5/13/2010 @ 2:47 pmThat wasn’t very specific, I’m afraid.
Well, Slartibarfast, thats because it wasn’t intended to be a reply to you.
You want an example? I was hesitent to provide them for risk of having it mis-interpreted as a “personal attack” but ok … here goes. However, note that my intent is NOT to debate the substance of the specific incidents or what JG may or may not have actually meant. My intent is to show how the #1 “intentionalist” himself, JG, either misunderstood or misrepresented the arguments and even intent of his detractors and accused them of “choosing” to mis-interpret his intent when, in fact, they were actually asserting their beliefs, right or wrong, about his intent.
(1) The most obvious example, off the top of my head, was when JG was kicked out of this very blog for saying something that some people, including Patterico, interpreted as a semi-veiled threat against another commenter. JG, for his part, chose to interpret this as people willfully misinterpreting an obvious non-threat. In reality, it was pretty clear that, right or wrong, those people honestly thought that JG did actually intended it as a (perhaps idle) threat*.
*an idle threat is still a threat because, although I may know that I do not intend to follow through with the act I do intended for the other party to believe that I intend to do so. In that way it’s a lot like Patterico’s example of the guy who says “diamond” but means “coal” and does this specifically to fool the other party.
(2) The “Obama raping Lady Liberty” affair. The left-bloggers were manifestly NOT saying “while we acknowledge that there was no ‘racist’ intent behind the use of this imagery we choose to interpret it as ‘racist’ because authorial intent doesn’t matter”. They manifestly WERE saying “we think you guys did choose this imagery with full knowledge of, and intent to exploit, the racial subtexts that was traditionally intended with those types of images”. In more academic speak – “We think you intended to pick signifiers that have traditionally been used to convey racist messages with the full intent to have the audience read those meanings into your cartoon”.
In both cases JG’s “accusers” were arguing that Goldstein did intend to mean X and in both cases JG asserted, without any evidence, that they knew full well he really intended Y but willfully chose to mis-interpret it as X for some nefarious reasons.
libarbarian (90bd00) — 5/13/2010 @ 2:47 pm…accused them of “choosing” to mis-interpret his intent …
Correction: I mean “accused them of “choosing” to willfully ignore his intent”
libarbarian (90bd00) — 5/13/2010 @ 3:12 pm““reasonably”, from whose POV? Who decides?”
– Slartibartfast
The Collective, of course. What a silly question, comrade.
Leviticus (30ac20) — 5/13/2010 @ 3:13 pm“reasonably”, from whose POV? Who decides?
Good Questions. A person who was serious about appealing to authorial intent would be at least interested in seriously discussing how people who need to determine that intent can go about doing so rather than just using them as an argument against even trying.
What evidence can be used to help determine the authors intent? Obviously it’s not as simple as just asking the author. What if the author is dead or unavailable or otherwise cannot testify to his intent? What if he has an obvious reason to lie about his intent ?
Simply asserting that “authorial intent is the only thing that matters” without talking about how it can be determined is as useless as insisting that The Celestial Teapot does or does not exist without proposing experiment by which it can be tested.
I remember when it was almost exclusively leftists who argued thatthe ‘reasonable person’ standard privileged the viewpoint of the (white/male/heterosexual/conservative etc) “privileged” at the expense of the viewpoint of the (minority/female/homosexual/leftwing etc) “oppressed”. Now I see “conservatives” saying that the ‘reasonable person’ standard privileges the viewpoint of the (minority/female/homosexual/leftwing etc) “privileged” at the expense of the viewpoint of the (white/male/heterosexual/conservative etc) “oppressed”. Do you really believe the statement is any more accurate or less blatantly anti-intellectual & anti-rational just because the contents of the parenthesis got switched around?
libarbarian (90bd00) — 5/13/2010 @ 4:35 pm“Daley, let’s give Jeff the benefit of the doubt”
Patterico – Fine with me, although answering a question with more questions unrelated to the original question is not usually deserving of the benefit of the doubt.
What we can never get enough of, though, is DEFINITIONS and LABELS!
Jeff G seems a little sideways that people have not taken him up on his gracious invitation. I don’t want to speculate, but perhaps people here remember what Jeff did to Fritz when he ventured over there a while back or the anti-semitic google bombs, but that’s probably just crazy talk.
daleyrocks (1d0d98) — 5/13/2010 @ 4:52 pmI’m commenting before I’ve read all the comments, so excuse me if this has already been addressed:
Just because a speaker or author uses irony or sarcasm does not mean that we cannot take them literally.
Two things – either the receiver doesn’t recognize the sarcasm/irony for any number of reasons, meaning the receiver is misinterpreting
OR
the receiver recognizes the sarcasm and chooses to ignore it in order to “take the words literally” – in which case, no interpretation is taking place; the receiver is using the words for his/her own meaning. Creative writing.
Intentionalism isn’t a philosophy – its the description of how language works.
I understand why some people have a vested interest in keeping up the pretense that “intentionalism” is a philosophy, but it doesn’t make it so.
Darleen Click (fe8e8e) — 5/13/2010 @ 5:43 pmThe “Obama raping Lady Liberty” affair. The left-bloggers were manifestly NOT saying “while we acknowledge that there was no ‘racist’ intent behind the use of this imagery we choose to interpret it as ‘racist’ because authorial intent doesn’t matter”. They manifestly WERE saying “we think you guys did choose this imagery with full knowledge of, and intent to exploit, the racial subtexts that was traditionally intended with those types of images”. In more academic speak – “We think you intended to pick signifiers that have traditionally been used to convey racist messages with the full intent to have the audience read those meanings into your cartoon”
You know, libarbarian, you might like to address the actual person who created the cartoon in the first place.
ahem
Darleen Click (fe8e8e) — 5/13/2010 @ 5:57 pmWhich conservatives are doing that?
Slartibartfast (cb4a33) — 5/13/2010 @ 6:30 pmI have been gone all day and haven’t had time to monitor this thread — and it shows.
But I have now had a chance to read these comments and those at PW and I am pretty discouraged. If people aren’t deliberately ignoring my points they are doing a good job of acting like it.
Why, I have even learned that if a single one of my commenters characterizes intentionalism in a way that intentionalists disagree with, that’s my fault. Of course, if several Goldstein readers seem to have no idea what I’m saying, that’s no reflection on him. These arguments are only valid when they cut against me, not for me.
Patterico (157cfd) — 5/13/2010 @ 10:09 pmJust keep reading my comment 7 over and over and over. It will be about as satisfying as reading what passes for a discussion on this.
If anyone ever decides they want to discuss my actual argument instead of their made-up version of my argument, let me know.
I may respond to his post tomorrow in a post of my own. Or not. Who knows.
Patterico (157cfd) — 5/13/2010 @ 10:24 pmYou having fun over there, Leviticus?
Patterico (157cfd) — 5/13/2010 @ 10:41 pmPatterico – Ur doon it wrong!
That’s where the argument always winds up. This time there’s a lot more squid ink.
daleyrocks (1d0d98) — 5/13/2010 @ 10:48 pmI have not followed this whole discussion since I am new to this site and PW, but I think Patterico is right that the practical application of this dispute boils down to a miscommunication about what a judge is doing – whether he is interpreting or enforcing. (From a practical legal standpoint, it also matters whether the text is a contract, a statute, or a constitution, but that is a whole other discussion)
For example, in contract disputes, courts typically take a textualist, plain-meaning approach and only look at the 4-corners of the document when “interpreting” (as that term is typically used by non-linguists) the contract. Courts focus on the plain text not because the parties’ intent is unimportant, rather that the plain text is the most reliable evidentiary proof of the parties’ intent. Only if the text used is ambiguous (based on a reasonable person standard) do most courts consider extrinsic evidence as to the parties intent.
Based on my limited reading of Jeff G, I think he would say that a judge that only looks at the plain text is not interpreting at all but creating – privileging his own intent to that of the contracting parties. I can agree with Jeff but still think a judge should take a textualist approach when “enforcing” the contract. It goes back to evidentiary proof of the parties’ intent. If courts routinely looked past the text of contracts to extrinsic evidence of the parties’ subjective intent, it would encourage fraud and reduce reliability in the sanctity of contract. Textualists judges are not saying that the text defines meaning; they are saying that they cannot rely on extrinsic evidence of the parties’ subjective intent if that intent directly contradicts the plain meaning of the text (based on an objective reasonable person standard). Simply put, they will give more weight and credibility to the textual evidence than the extrinsic evidence when enforcing contracts.
Other legal conventions must be taken into account when a judge decides whether to enforce criminal statutes. Again, the text is the starting point because it is the most reliable indicator of the legislature’s intent. But if the plain meaning of the statute does not match the legislature’s intent, then the judge should disregard the legislature’s intent and enforce the statute based on the plain meaning of the text. Doing otherwise would violate a citizens due process rights. As the SCOTUS as said, “no one may be required at peril of life, liberty, or property to speculate as to the meaning of a penal law. Everyone is entitled to know what the government commands or forbids.”
Can we agree that the judge in such a case is not “interpreting” since he is ignoring the legislature’s intent, but that he is correct in refusing to enforce a statute where the legislature did a poor job in signaling its intent (because doing otherwise would violate a defendant’s due process rights)?
liblaw (39eb40) — 5/13/2010 @ 11:17 pmliblaw:
Just when I thought absolutely nobody was listening to what I was actually saying, you come along and prove otherwise.
I’m not sure I agree with every last word of what you say — but it’s a tremendous relief to see someone actually making an effort to understand my points.
A distinction between interpretation and implementation. What a concept!
Do you think the folks at PW really think the bookshelf assembler should ignore those instructions that work, just to remain faithful to the speaker’s intent?
If they admit they would follow the instructions, what do they think they are doing with the speaker’s intent??
Just remember: if they do follow the instructions, then the instructions they are following are not the writer’s words. Really! The guy who wrote them; those aren’t his words — if you don’t implement them according to his intent! He wrote them but they aren’t his words.
Humpty Dumpty lives.
Patterico (157cfd) — 5/13/2010 @ 11:53 pm“Can we agree that the judge in such a case is not “interpreting” since he is ignoring the legislature’s intent, but that he is correct in refusing to enforce a statute where the legislature did a poor job in signaling its intent (because doing otherwise would violate a defendant’s due process rights)?”
We can agree that he is not “interpreting” in the sense Goldstein uses that word.
I agree with the rest of your statement as well. The only further point I would make is to note that that in so ruling, the judge is treating the statement as he would if he believed it meant what a reasonable person would take it to mean.
This is not pretending the intent is other than it is. It is noting the intent for what it is, and ignoring that intent.
And it must be permissible — or that dude will never get his bookshelf built.
Patterico (157cfd) — 5/14/2010 @ 12:05 amliblaw: if you can get them to address the distinction you are a better man than I. I tried for days and it sailed over their heads each and every time. Or they deliberately ignored it as Daley suggests. One or the other.
Patterico (157cfd) — 5/14/2010 @ 12:07 amthe way language functions outside the academy.
Language functions the same way inside or outside of the academy. Do you think HOW math functions is different inside the classroom v in the real world?
It is noting the intent for what it is, and ignoring that intent
Then when you ignore the intent you are doing something ELSE with the words besides “interpreting”. To refer back to a real life example I gave you wherein Bank of America put $12,000 into my account – I knew it was an error. I could easily assume by conventional bank practices they weren’t Publishers Clearing House and giving me a Cash Prize(tm). Do you believe I could have successfully ignored their intent and taken that money out of my account and spent it? Sure, intentionalism cannot prevent me from PRETENDING that money was mine, but then what I’m doing with the $12,000 is no longer appealing to BofA’s intent.
Darleen Click (fe8e8e) — 5/14/2010 @ 7:25 amYou know, libarbarian, you might like to address the actual person who created the cartoon in the first place.
Well Darleen, I was discussing the nature of the criticisms you received and not the cartoon itself or even the truth/falsehood of the criticism.
libarbarian (90bd00) — 5/14/2010 @ 11:20 am“You having fun over there, Leviticus?”
– Patterico
No. I think I’ve made some good points, though, as evidenced by Goldstein’s remark that I’m “way out of my depth”. I’ve been continually pointing out the distinction between “interpretation” (in the sense that Goldstein uses the word) and “communication” – similar, I guess, to the distinction between interpretation and implementation liblaw discusses above – and I’ve argued that convention is necessary for communication (even if it must be created on the spot, as in the case of a code). People have asked me how the first people communicated without convention, which prompted me to ask how they could’ve possibly communicated without it.
Leviticus: “The word interpretation is loaded – it begs the question, as you are so fond of saying. Of course one must try to ascertain the speaker’s intended message if the goal is interpretation – that’s what interpretation is. But if the goal is communication – which is almost always the case – then convention becomes much more important, and rightfully so, and there’s nothing wrong with a judge or a listener or anyone else assuming that a speakers words mean what convention says they mean.”
Jeff G: “Convention becomes much more important to whom? Why? Answer those questions, and maybe the light will go off for you. Though I don’t hold out a lot of hope, because you appear to me to be way out of your depth, but almost aggressively unwilling to admit as much.”
Leviticus: “Convention becomes much more important to everyone, because without it we’d all be spewing perfectly intended gobbledygook into the Aether. The “light” you’re referring to has “gone off”. I understand your overblown little truism: you meant what you meant. Language is the attachment of a signifier to a signified, in order to operationalize meaning. There is no “interpretation” without an honest assessment of a speaker’s true intent. To ignore a speaker’s intent is to replace it with the intent of someone else. I’ve understood all these things from Jump Street. And I ask you: SO. FUCKING. WHAT?
Interpretation is indeed necessary for communication, but it’s not sufficient for it. Communication requires convention.
And please: don’t overestimate your own “depth”. It doesn’t take a genius to figure out “intentionalism” – just an assessment of the conventional meaning of the word “interpret”. That Patterico and I and others treat that as an empirical reality rather than a normative one is step in the direction of pragmatism, nothing more.”
Leviticus (30ac20) — 5/14/2010 @ 2:01 pm@ darleen
Do you believe I could have successfully ignored their intent and taken that money out of my account and spent it? Sure, intentionalism cannot prevent me from PRETENDING that money was mine, but then what I’m doing with the $12,000 is no longer appealing to BofA’s intent.
What interpretation of the bank’s intent, using the reasonable person standard, would justify this act? Not to speak for Patterico, but I would say that your action to withdraw and spend the money, was based on an unreasonable conclusion that the bank just decided to give you the money.
The judge in Patterico’s hypo may correctly interpret the legislature’s poorly expressed intent, but be bound by concepts of justice, equity, and statutory construction to give effect to a reasonable interpretation of the law, which may differ markedly from what the incompetent legislature intended.
Receivers have a duty to interpret signals in good faith, but signalers have a concomitant duty to express themselves clearly and reasonably to enable correct interpretation.
cns (02c1ca) — 5/14/2010 @ 2:34 pm“Language functions the same way inside or outside of the academy.”
Darleen – Oh my. I don’t believe I have suggested otherwise. Please stop privileging my intent. In fact wasn’t it at PW that it was decided that intentionalism could not be used to interpret contracts and legislation and such during one iteration of this round of debate because that language functioned differently (I think largely in a lame effort to discredit Patterico’s hypotheticals). I disagreed.
daleyrocks (1d0d98) — 5/14/2010 @ 4:23 pm