Conversation Between an Egret and an Intentionalist, 3
Egret [writing in tracks on wet sand]: “So … you’re talking to me now, huh?”
Intentionalist: “Sure. I told you: the adjudicator has simply ruled, for purposes of enforcement, that the third party could not possibly discern the intent from the marks provided.”*
Egret [writing in tracks on wet sand]: “And the part you don’t want to acknowledge is that, as a result, the adjudicator is enforcing the text according to the way a reasonable person would interpret it. That’s what I mean by textualism, and you believe it is justified.”
Intentionalist: “But he is no longer dealing with the same text. He has rewritten the text, and so what he is doing can no longer be called interpreting.”
Egret [writing in tracks on wet sand]: “But the words are the same.”
Intentionalist: “No, the words have been rewritten, in a way that privileges the intent of the receiver and not the speaker.”
Egret [writing in tracks on wet sand]: “Nothing about what is physically on the piece of paper has physically been changed. And yet, according to you, the words and the text have been rewritten. That’s what you’re saying.”
Intentionalist: “Exactly. How could I be any more clear?”
Egret [writing in tracks on wet sand]: “Um … well, anyway. Let me put it in terms that are hopefully acceptable to you, and see if you are willing to tell me in a straightforward manner if you agree with this: A speaker causes words to appear on a page, which constitute a law. A judge is charged with enforcing the law. There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly. Do you agree with that?”
Intentionalist: “The adjudicator is justified in ruling, for purposes of enforcement, that the third party could not possibly discern the intent from the marks provided, because the intent was signaled poorly.”
Egret [writing in tracks on wet sand]: I understand that you don’t want to agree that the judge in that situation is enforcing the law as written, because you believe he is somehow “rewriting” the law without changing what is physically on the paper. But I didn’t ask you to agree to that. So, instead of rewording the answer, can you just tell me whether you agree with the statement as I worded it? I just took the time to dig those words extra deep, so that they would appear bold, so I would appreciate it if you could reward my labor with a direct answer.”
Intentionalist:
Intentionalist:
Intentionalist: “Where are you going with this?”
Ha! Maybe it’s discussed elsewhere but this Quick Chat about Intentionalism explains some of this post.
DRJ (d43dcd) — 5/15/2010 @ 3:24 pmConversation between a Textualist and an Algebra Teacher:
Textualist: Um, in yesterday’s 5 problem pop-quiz you gave me no points for #3 …
Algebra Teacher: Yes?
Textualist: but x=8 is the correct answer?
Algebra Teacher: Technically, yes. But I said to “show your work”.
Textualist: but my answer was RIGHT! That’s what matters! Right here, on this paper I wrote x=8 and THAT’S the ANSWER.
Algebra Teacher: Sorry, but there is more to math then just getting the right answer, you have to know and understand the process of how math works …
Textualist: Process, schm-ocess. I GOT THE RIGHT ANSWER. That’s all that matters in the “real world”. All those fancy mathy terms you throw around don’t mean anything to normal people outside of this classroom.
Algebra Teacher: Yes they do matter, because it shows whether you are really doing math or just engaging in guesswork.
Textualist: I was too doing math! I got the right answer! That’s the important thing. My right answer CLEARLY demonstrates I can solve an algebra problem!
Algebra Teacher: …and the four other problems you also “solved” as “x=8”?
Darleen Click (fe8e8e) — 5/15/2010 @ 4:37 pmI agree with the point you make in comment #2, Darleen. I note that you are reinforcing with an example the argument that Jeff has been making: that it is not enough to get to a result; it also matters how you get there.
Now let’s take a different analogy.
Now, I understand that you will not concede that intentionalism yields the wrong result in the various hypos I have proposed. But at the very least, the METHOD OF ARGUMENTATION I am using is valid — because I am presenting situatons where, IN MY VIEW, enforcing texts according to how intentionalism would demand they be interpreted leads to results that are clearly wrong.
IF I am right (which, again, I understand you and Jeff do not concede), then my method of argumentation is valid.
This is not an argument that the ends justify the means, as Jeff has suggested. Rather, it is an argument that intentionalism, as a process of analyzing language, fails if it leads to results that are clearly wrong.
Citizens should not be prosecuted for laws that they couldn’t understand to apply to them. Contracts should not be interpreted according to the private intent of con artists. Bookshelves have to be built whether the instructions are intended ironically or not. And so forth.
If a theory of language demands the opposite, it must be flawed in some way.
And so, IF (I say IF) intentionalism cannot account for the results called for in the hypos, it does not have universal application.
Now, I have attempted a reconciliation of my concerns with Jeff’s linguistic theories, by positing a distinction between the LINGUISTIC analysis (what did the speaker mean?) and the PRACTICAL decision of how to enforce the language. In other words, a judge can correctly interpret a text, decide what the speaker intended, and yet enforce it according to a different interpretration — one that accords with the way a reasonable person would interpret it.
But my attempted reconcilation got hung up by semantics:
1) Jeff insists on interpreting “text” to mean “what the speaker intended” instead of “what is written on the page”; and
2) Jeff insists on using the word “interpretation” to mean “an appeal to what the speaker intended” instead of “the way a person reads a text” regardless of whether he is appealing to the speaker’s intent or not.
OK, fine. So in this post, I attempt to re-pose the question in a way that will not get hung up on those semantic distinctions. Namely:
A speaker causes words to appear on a page, which constitute a law. A judge is charged with enforcing the law. There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.
I would think that the inclusion of the phrase “as long as he does not pretend he is interpreting the legislators’ true intent” would address the concern that the judge not run afoul of intentionalism principles. That’s why I included it.
However, I do think there is some value to learning whether Jeff agrees with the proposition that I just placed in bold text.
Patterico (c218bd) — 5/15/2010 @ 5:07 pmAll of which is a long way of saying that if you disagree with the bolded language, then you can’t deal with the hypos I have presented in a way that leads to correct results.
Which necessarily reveals a flaw in the theory.
Patterico (c218bd) — 5/15/2010 @ 5:19 pmThere are really only three good-faith answers:
1) “Yes” (perhaps with an explanation),
2) “No” (perhaps with an explanation), or
3) “Your question is loaded, and let me specifically explain why.”
But I’m not used to seeing that. Instead, I’m used to seeing variants of these answers:
4) “Your question is loaded” (but with no explanation as to why it allegedly is); or
5) “[A bunch of words that address a strawman version of the question or restate a position that has nothing to do with the question.]”
I’m always hoping to get a good-faith answer that falls into categories 1-3.
But I want readers who have been following this to understand: answers that fall into categories 4 or 5, at this point, are really a concession that the question cannot be answered, and that the theory cannot be defended in the face of the challenges I have raised.
Patterico (c218bd) — 5/15/2010 @ 5:26 pmThere are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.
Not to be a pain, but ..
Which legislator is it that is saying “Look here judge, you must ignore the words written on the paper and pay attention to what I tell you was my intent in writing them”?
I’m sure this must have come up before and I missed it.
[note: fished from spam filter. –Stashiu]
Suboai (a1fc8f) — 5/15/2010 @ 5:52 pmWhich legislator is it that is saying “Look here judge, you must ignore the words written on the paper and pay attention to what I tell you was my intent in writing them”?
The intentionalists say that the meaning of the law is what was intended, and that the words used do not determine the meaning, the intent does.
Patterico (c218bd) — 5/15/2010 @ 6:07 pmPatterico:
There is no algebraic method where 2+2 = 5. Well, except for very large values of 2, but that’s not an algebraic issue, it’s a significant digit one.
What I’m getting at is that algebra always is. The intent of the user doesn’t matter. If you do it correctly, the result is correct. Law is subject to interpretation. Math is not.
What I’m saying is that using Math as an example for this kind of thing is inherently flawed.
Take engineering for example. Engineers always intend to design their buildings correctly. If they don’t they can fall down and kill people. But intent doesn’t have anything to do with what happens in the field. The workers in the field will build it according to the construction documents (which is actually part of a legal contract).
Now suppose there’s a problem with the construction documents. Maybe I under-designed a beam and the building owner complains because it’s sagging such that the interior finishes crack. I have to pay to fix that. I can’t sue the construction company and say that my intent wasn’t followed. I would be laughed out of court. They did exactly what they were told to do. How could they possible know otherwise?
Newtons.Bit (7c1323) — 5/15/2010 @ 6:49 pm“What I’m getting at is that algebra always is. The intent of the user doesn’t matter.”
Newtons.Bit – In this case you are changing the hypothetical. Perhaps the teacher is incompetant and the teacher’s method always leads the students who follow it to the wrong result. So while what you say is technically true, in the real world it doesn’t always work out that way.
daleyrocks (1d0d98) — 5/15/2010 @ 7:02 pm“I’m always hoping to get a good-faith answer that falls into categories 1-3.”
Patterico – That’s a whole ‘nother kettle of waxed fishballs.
daleyrocks (1d0d98) — 5/15/2010 @ 7:04 pmWhat I’m saying is that using Math as an example for this kind of thing is inherently flawed.
I’m not the one who first brought math into it, but the point is that the theory should yield correct answers or it’s flawed.
If you want to argue that the outcomes of my hypos aren’t correct (e.g. one should not be able to build a usable bookshelf if the instructions are intended ironically) that’s a whole ‘nother issue. You won’t get very far, but you can try.
Patterico (c218bd) — 5/15/2010 @ 7:45 pmI used an algebra analogy because it is one in which the process to arrive at an answer is as important as the answer – because it shows whether one is actually DOING algebra or just guessing at an answer.
These little squiggly things I’m making here on your blog with my ‘puter? It is text. You can either interpret it by figuring out MY intent and MY meaning – ie DOING intentionalism – or you can look at those squiggly things, dismiss that they were put there by anyone else besides YOU -POOF they appeared and YOU will give them meaning! – ie REWRITING the text.
Squiggles that occur on paper without human agency are, even if they LOOK like words, are no more “text”, then random scorch marks on a tortilla are the face of Jesus – or mountain shadows on Mars make it a mammoth statue carved by aliens. If a human creates a “text”, that human is attempting to communicate something. Another human seeing that text and trying to figure out what it means is, at least initially, going to try and figure out what the creator was trying to communicate. That’s an act of intentionalism, just as adding 2+2 and coming up with 4 is an act of math as opposed to looking a sheet of math problems and answering “8” to every one hoping to “guess” the right answer.
There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly
“Not pretend he is interpreting”??
I’ll defer to JeffG’s direct answer:
And that, IMHO, is what this whole conversation comes down to. Leviticus said it plainly at PW – this is about the listener (receiver) having power.
Legal convention can set up policies and procedures on how legal text will be treated – but such text still had to be created in the first place and that takes an act of intention. Legal text/law is neither scorch marks on a tortilla or egret tracks in the sand. Just as the process of using order of operations in solving an algebra equation is an act of math.
Darleen Click (fe8e8e) — 5/15/2010 @ 8:22 pmShow of hands, how many have seen My Big Fat Greek Wedding?
Language, intent and [mis]interpretation is used to great comedic effect. Such as in this clip where, at 6:06, Toulah’s prankster brother teaches what he claims is Greek for “Let’s all go into the house now.” to Ian. Ian turns to the crowd of Toulah’s family and says in Greek “I have three testicles.”
Now it’s funny because WE all know Ian intended to say “Let’s all go in the house now” but it came out sounding like “I have three testicles” in front of a family group. Ian signals incorrectly to hilarious effect AND we laugh along just as the family realizes, and puts in their interpretation of Ian’s words, that (1)Ian doesn’t speak Greek (2)The brother is a known prankster.
No one takes Ian’s embarrassing Greek phrase literally or without trying to figure out what he meant.
The joke would fall flatter than a single sheet of phyllo dough.
Darleen Click (fe8e8e) — 5/15/2010 @ 8:51 pmYou had to be there.
daleyrocks (1d0d98) — 5/15/2010 @ 9:25 pmComment by Darleen Click — 5/15/2010 @ 8:51 pm
What he actually says is “I have cold (κρυα not τρια) testicles”. I.e., “My balls are cold”. Not “I have three balls”.
nk (db4a41) — 5/15/2010 @ 9:45 pmThat’s a rotten example to interpret from one language to another.
nk (db4a41) — 5/15/2010 @ 9:48 pm17.That’s a rotten example to interpret from one language to another
Actually, it’s very apropos. It’s akin to one of my earliest examples of someone doing American sign and another person misinterpreting it as gang sign.
Either the family can attempt to interpret Ian’s statement by finding out what he meant; or they can take it literally, be offended, toss him out and forbid their daughter ever seeing him.
Geez … like the latter would be a believeable scenario …
Darleen Click (fe8e8e) — 5/15/2010 @ 10:29 pmGood night. If there’s a difference worth a damn between tired, sleepy, and exhausted ….
nk (db4a41) — 5/15/2010 @ 10:46 pmI asked if the intentionalists agree with this:
There are times when, as long as he does not pretend he is interpreting the legislators’ true intent, the judge is nevertheless justified in determining how a reasonable person would construe the law, and in ruling accordingly.
Darleen’s answer:
Direct??
Patterico (c218bd) — 5/16/2010 @ 1:38 amRotten in the sense that Ian is not the author, but merely part of the author’s narrative, and the audience got it.
A better example is Kruschev’s “We will bury you”, which is a Russian (and Greek) idiom for “We will outrun you (leave you in the dust)”. We took it as, “We will nuke you”.
nk (db4a41) — 5/16/2010 @ 3:38 amAnd, Greek farmboy that I am,
nk (db4a41) — 5/16/2010 @ 4:56 amI remembered that κρυονοων τα αρχιδια μου (my balls are getting cold) is homophonous with κρειονουν τα αρχιδια μου (my balls are becoming like a ram’s).
Darleen – from personal experience …
As a 6th grader … presented with a “mathematics” test (in Scotland, known as “problems”), I answered all questions by writing down the correct answer for each – with no explicit readable “workings” because, for me, the problems presented were simple mental arithmetic … the examiner gave me a mark of 0 (zero) saying I had cheated … “he must have copied the correct answer from others’ work” …
Interestingly enough, I was the only one in the class who got all the answers correct … but that didn’t make any difference to the examiner … until the examiner was asked how I had managed to only steal/copy the correct answers … and then the examiner finally asked my teacher if I knew the subject that well – and was told that, yes, I did …
(Yes, I was a brat back then)
A teacher who marks a correct answer as incorrect because there isn’t sufficient explanation as to how the student arrived at the correct answer is *not* a skilled teacher … and, for some of us, the answer *is* our work, when it is the result of mental arithmetic …
(The ending about giving the same answer to all questions is cute, I will admit)
With that said – I generally find that those who comfortably accept that the intent is different from the text and who nonetheless support the intent as more important are usually clueless when it comes to doing any real computer programming …
Their classic complaint about computers is “The computer did what I *told* it to do, not what I *wanted* it to do !” …
Alasdair (205079) — 5/16/2010 @ 5:09 amI think Patterico and Jeff are concerning themselves with a very narrow part of communication, some expository speech or writing, and that for the most part — from poetry to newspaper reporting to fiction stories to talking to your neignbor to legal opinions to medical prescriptions — their theories are not really applicable because both parties have the same convention i.e. they use the same words and phrases the same way, or in the case of poetry or literature they could not care less what the speaker said — they only care what they “understood”.
nk (db4a41) — 5/16/2010 @ 5:19 amor in the case of poetry or literature they could not care less what the speaker said — they only care what they “understood”.
I take part of that back. We remember and quote what the speaker said but our understanding of it is still irrelevant to the speaker’s intent.
nk (db4a41) — 5/16/2010 @ 5:24 amas long as he does not pretend he is interpreting the legislators’ true intent
Pat, I put “?” because that phrase is unclear to me.
Do you mean a judge dismisses the intent of the legislature completely, as if the written law/text before him appeared like marks made by egrets? Whatever he does then is not interpreting, it is then puting his own meaning on the text and I would worry about some judge subsequently ruling according to his own meaning because he then is appointing himself as a legislator.
Or is the judge eschewing interpretation because he declares the Legislators intent so poorly signaled it doesn’t meet the conventional standards of how a law should be written? In that instance, the judge is still interpreting because he has tried to discern the Legislatures intent and found it wanting. Any subsequent ruling is not based on the judge making himself a legislature but based on legal convention.
The latter judge is doing his job AS a job. The former, not so much.
Darleen Click (fe8e8e) — 5/16/2010 @ 9:08 amOh… btw … if you want a real-life example of a judge substituting his own judgement instead of seriously considering intent …
to devestating results …
look up “Robert Lemkau”
Darleen Click (fe8e8e) — 5/16/2010 @ 9:09 amoops…
“The judge is doing his job as a judge. The former, not so much.”
Darleen Click (fe8e8e) — 5/16/2010 @ 9:11 amA teacher who marks a correct answer as incorrect because there isn’t sufficient explanation as to how the student arrived at the correct answer is *not* a skilled teacher
I beg to differ. In algebra teachers make it a point that one is required to show your work. Even if one can “mentally” solve (x+2)(x-3)= in your head, a teacher cannot evaluate if you are actually using FOIL to arrive at your answer or just guessing.
It’s akin to a conscientious programmer who leaves extensive comments in his/her coding so others can figure out what s/he was trying to achieve with any particular piece of code.
Darleen Click (fe8e8e) — 5/16/2010 @ 9:19 amI generally find that those who comfortably accept that the intent is different from the text and who nonetheless support the intent as more important are usually clueless when it comes to doing any real computer programming …
Their classic complaint about computers is “The computer did what I *told* it to do, not what I *wanted* it to do !”
******************
You’re wrong on so many levels there. I got nothing but “As” in my math classes and also have done a fair amount of programming. Dicentra, too.
And if a particular piece of code didn’t work as “I” wanted it, too, I knew I wrote it wrong. I wasn’t clear in my coding/text.
Intent is not different from text. Intent makes text “text” because text isn’t random marks made by egrets or scorch marks on a tortilla. Humans use marks to communicate. Text is intended, human agency put it there.
When we hear/read text and interpret the first thing we do automatically in our heads is “what is the writer/speaker” trying to mean? That’s interpretation because we are trying to discern the creator of the text’s intent.
Intent is “not more important” than text … they are inseparable. Text isn’t text without intent.
For years I hosted students from Japan during summer exchange programs. They come to America with at least 5 years of formal English classes under their belt in order to live with American families to hone their conversation skills. The first couple weeks of their visits can be difficult because American accents and our daily use of slang, idioms and shortcuts in conversation (American language conventions) is nothing they’ve encountered in their classes. They can easily misinterpret what an American is saying to them. So it makes both the American speaking and the Japanse student listening, take more care in proper signalling so intent is correctly interpreted.
Darleen Click (fe8e8e) — 5/16/2010 @ 9:39 amI put the phrase there (and I include something similar in every example) because every time I ask the question, I am told that, in my example, the receiver is rewriting the language and attributing the intent to the speaker. And every time I say: no, I SAID IN THE EXAMPLE HE IS NOT DOING THIS.
A textualist judge dismisses the intent of the legislature for at least two reasons:
1. Because the rule of law demands that citizens be put on notice of how they must conform their conduct to the law. This is very similar to your
second rationale. I have given the example of the legislature that wrote $100,000 when it meant $10,000. In that case, we assumed that the judge was able to discern the legislators’ intent, but we agreed that the intent was so poorly signaled that a reasonable audience could not possibly discern the intent from the text alone. I posit, therefore, that a judge should rule that the law must be enforced according to how a reasonable person would read what is written — i.e. $100,000 means $100,000 for purposes of enforcement. From the language of your most recent comment, it sounds as though you agree with this judge’s actions, not as an interpretive technique (which I don’t claim it to be), but rather as a practical decision borne of his concerns about this country being a country based on the rule of law, and not the rule of men and their whims.
If you do agree with the judge’s actions on this level, that represents progress, since you have made comments on my site that seemed to suggest that you would go with the legislators’ intent rather than the text:
On the other hand, you have also written this:
So I admit to being confused as to where you come down on that hypo. But if you are now saying that a judge should NOT rule in accordance with what he determines to be the legislative intent, I agree. Holding citizens responsible for knowing legislative intent is, I believe, patently absurd — I think it’s tough enough for citizens to keep up with the laws themselves as written, without imposing on them a duty to also be aware of legislators’ statements made in committee meetings, floor speeches, and the like.
2. Because, not just as a practical matter but also as a THEORETICAL matter, in most cases there is no single “intent” of the legislature — because the text represents a set of competing interests and intentions, coupled with votes cast by boobs who HAVE no intention regarding the disputed provisions because they are unaware the provision existed, never having read the law themselves.
This is a problem that your crowd at PW in general, and Jeff in particular, has completely failed to grapple with. When I raise the issue with specific examples (60 people vote for a provision; it means x to 30 of them and “not x” to the other 30; what is the “intent”?) I get no meaningful response; ultimately the response is the textual equivalent of a shrug of the shoulders, and a resort to definitions. For example, in comments to the first egret conversation, I asked Jeff to explain how he would arrive at a legislative intent where the various intentions of the legislators are at odds, and told him that the most direct response of his to this concern I could find was this, from an update to this post:
As I said in response:
I have not received a response, and I cannot imagine what a coherent response would look like.
I’ll tell you what a textualist judge does: he looks at the text, and asks himself: what would a reasonable audience understand that text to mean, at the time that the text was enacted?
This is NOT the judge imposing his OWN reading upon the text; this is a judge choosing a rule that he believes would be the reading OTHER REASONABLE PEOPLE would give to it.
You might object that, because he is making the decision, it is necessarily him imposing his own reading — and there is some validity to the argument, but there are two quibbles.
First, in an attempt to harmonize Jeff’s views with Scalia’s, I would describe what the judge is doing not as “interpretation” in the sense that you folks use the word, because Scalia knows he is not trying to discern what the legislators intended; he explicitly doesn’t care.
Second, textualist judges often come up with interpretations of text that do not match their personal predilections . . . but that do match the way in which they think a reasonable audience would construe the language.
Anyway, it’s a lot of words to say that the particular example of legislation is very complicated and contains many subtleties that I don’t think are adequately addressed by intentionalism — namely the problem of competing intentions.
And don’t even get me started on the issue that the original words in legislation are hardly ever written by the legislators themselves to begin with — which adds yet another layer of complexity to the analysis. Answer me this: if Darleen says x, and then I repeat it, whose intent do we look at to determine the meaning of x? I suggest that the answer is: it depends. Your answer?
[Note: comment edited to remove an unhelpful parenthetical that would not advance the discussion. — P]
Patterico (c218bd) — 5/16/2010 @ 12:45 pmI have asked SPQR to rephrase his last two comments, which were just a touch aggressive in tone. As I explained to him, I’m trying to have a discussion with people who are suspicious of me and my motives, and it repeatedly threatens to degenerate into ugliness because of past history, which I have tried to overcome in recent weeks. The only way to avoid the degeneration is a heightened expression of politeness — which I have not achieved at all times, but which I have tried hard to pursue.
I liked the points SPQR was making, but the way he made them would probably not be productive to the discussion.
Patterico (c218bd) — 5/16/2010 @ 1:06 pmMy sincere apologies, Patterico.
Patterico, you and I know that legislatures have in fact passed legislation with deliberately vague language because they could not agree on an “intent” and the only “intent” they had was to punt the matter for a court to decide.
I.e., the closest to an “intent” for the legislature as a whole on that was to specifically have no intent.
As I’ve mentioned before, the whole intentionalist analysis is simply meaningless where the text is functional.
======
Darleen, I believe your response to the programming code example fails.
There is no such thing as “clear” code or non-clear code to a computer compiler. See the old obfuscated C code contests. It is a literal mapping of computer programming “language” to computer instruction. The intent of the coder was meaningless, either the resulting instructions are functional, in that they accomplish the functionality that was the objective, or they fail.
If you “intend” nothing, and push gobbledy gook into a compiler, it produces instructions for the computer if your gobbledy gook maps into the instruction set regardless.
SPQR (26be8b) — 5/16/2010 @ 1:11 pmLegislation is not communication, it is not a “medium” of describing ideas.
Legislation/statutes are functional.
SPQR (26be8b) — 5/16/2010 @ 1:15 pmSPQR:
I disagree with you to an extent. I think legislation is different, but not because it is not “communication.” Rather, because it is an odd form of communication that in most cases cannot have an accurate intent ascribed to it in the sense that most communication can, because it is a text that represents an amalgam of competing intents that often CANNOT be reconciled in any workable fashion OTHER THAN a resort to the text itself.
As I have said, I have yet to see a coherent response to this concern from the intentionalists. That’s because there is none.
Patterico (c218bd) — 5/16/2010 @ 1:25 pmPatterico – I appreciate Darleen’s comments, but they were not direct answers to the questions you posed. They merely rehashed previous arguments on the subject. The ball did not move in my opinion. I think the hive mind over at PW has collectively decided ot is at the place this video suggests.
daleyrocks (1d0d98) — 5/16/2010 @ 2:03 pmdaley,
I think my latest post (and my initial comment to that post) pretty well illustrates where we are.
Patterico (c218bd) — 5/16/2010 @ 2:07 pmTo be honest, Patterico, I don’t think you do disagree with me even if you intend to ( a little joke there ).
When you have a piece of literature, where the author has characters mouth lines, you can have this rich discussion of “intent”. Did the author mean the lines, or did he have his antagonists mouth them to show the meaning that he wanted to discredit and on and on. The author uses the language of the novel as a “medium” to communicate his “idea”. Life sucks. Teenagers of different clans who fall in love ought to kill themselves. Don’t trust kings named Richard, … At the end, millions and millions of words later, you have through this exercise earned yourself a PhD and tenure in teaching literature.
Legislation has no “idea” to communicate. It is not a “medium”. It is a functional text that creates a template of law that we match circumstances to and come out of with a legal conclusion. What “interpretation” we do uses a formalistic system independent of the nonexistant “intent”.
SPQR (26be8b) — 5/16/2010 @ 2:13 pmPatterico – I do not disagree and believe my comment is consistent with that position.
daleyrocks (1d0d98) — 5/16/2010 @ 2:22 pmA textualist judge dismisses the intent of the legislature for at least two reasons:
1. Because the rule of law demands that citizens be put on notice of how they must conform their conduct to the law
That’s convention and takes place subsequent to interpretation. Why has the judge dismissed the intent? Because he found it so poorly signaled that it defied convention, so he rules subsequent to the convention? I find that coherent and within a judge’s job. Did he not like the legislation due to his own prejudices and dimisses the intent and subsequently rules to convention in order to rewrite the text to his way of thinking? Then he’s not doing his job. He’s substituting his meaning for that of the legislators.
2. Because, not just as a practical matter but also as a THEORETICAL matter, in most cases there is no single “intent” of the legislature — because the text represents a set of competing interests and intentions, coupled with votes cast by boobs who HAVE no intention regarding the disputed provisions because they are unaware the provision existed, never having read the law themselves
Since legislatures pass things as a majority, the intent of the majority is what created the text – regardless of how many John “I voted for it until I voted against it” Kerry’s want to wax in politically self-serving ways in public.
Again.. the statute/law/code/text didn’t appear magically out of thin air. SOMEONE(s) wrote it. Some other one(s) will read it. In the act of reading they will be asking themselves WHAT DOES THIS MEAN?
A judge who finds the meaning obscure (as in the legislature made it vague in order to kick it to the court) can either kick it back (Dammit, Jim, I’m a judge not a legislator!) or move on to legal convention and use “reasonable audience” approach. I confess being a little queasy over the latter convention because it still feels too close having a judge use “reasonable audience” as a beard for his/her own agenda. And it let’s legislators duck their own responsibilities in crafting clear, precise documents.
I would absolutely love some kind of law that limited Congress wherein any bill could not be more than 100 pages long. If you can’t make yourself clear in 100 pages, then you’re failing in your duties to the citizens.
Answer me this: if Darleen says x, and then I repeat it, whose intent do we look at to determine the meaning of x? I suggest that the answer is: it depends. Your answer?
Me. If you have merely repeated what I’ve said, then my meaning is still mine. If you’ve REWRITTEN what I’ve said (ie Maureen Dowd “hearing” Wilson say “You lied, BOY.”) then you are responsible for the new meaning you’ve created out of my text.
Darleen Click (fe8e8e) — 5/16/2010 @ 2:28 pmI think the hive mind over at PW
oh, nothing insulting there. None at all.
Darleen Click (fe8e8e) — 5/16/2010 @ 2:30 pmoh, nothing insulting there. None at all.
Darleen:
Honest question: do you appreciate the way I have been conducting things here? Do you intend to keep coming and commenting?
I can delete daleyrocks’s comment, but I’m feeling like the experiment I tried here has already failed. So what’s the point?
If you think there is a point to continuing the experiment, let me know.
Patterico (c218bd) — 5/16/2010 @ 2:49 pmI mean, Goldstein declared three days ago: “I’m convinced that no one from Frey’s site has any desire to continue this examination in good faith.”
Today, he claims that he responded to Leviticus and “Leviticus didn’t return.” Despite the fact that Leviticus returned to that thread seven more times. After Jeff’s response, Leviticus left comments at #157 (responded to by Goldstein, quite snippily and condescendingly, at #165), and fully six more, at #211, #213, #216, #217, #220, and #221.
Which flatly shows that, contrary to Jeff’s claim, Leviticus DID return.
Many, many times.
So, you know, I can try continuing the experiment if there is any point to it. But when the principal on the other side has long since declared that I am operating in bad faith, even as that principal makes false statements about the one person (Leviticus) who went over there to engage him on his own ground, I’m really left wondering: what is the point?
And if it weren’t a hive mind, maybe someone would have corrected Jeff on that point. “Hey, Jeff? You know, Leviticus actually did return, contrary to what you said.”
You gotta give respect to get respect. I’ve tried hard with this. I really have. But watching the falsehoods about Leviticus really tears it for me.
Patterico (c218bd) — 5/16/2010 @ 3:22 pmThe funny thing, for me, is that Goldstein and Darleen keep pretending that the people over at this site just don’t understand the process – that we can’t show our work, as it were. And we do – I know exactly what the intentionalists at Goldstein’s site are saying: I just disagree with them as to the relevance of it. In some cases, I happen to think that it’s better to get the right answer than to show your work. That doesn’t mean I don’t know how to show my work, or that I don’t understand the importance of it.
I don’t disagree with most of what they’re saying (because, as they are repeatedly saying, you can’t really “disagree” with a truism), but I was also raised to think that most valuable theories were falsifiable. So… yeah. I’m done with that site.
Leviticus (30ac20) — 5/16/2010 @ 4:15 pmThat is what I have been telling them for months. Here’s the theory: speakers mean what they mean. Great. Now let’s talk about how people enforce language in real-life situations.
Such as: how do we figure out the legislative intent when half the lawmakers had one intent and the other half had the opposite intent as to a provision?
They can’t answer that.
Patterico (c218bd) — 5/16/2010 @ 4:32 pmLeviticus, why did you leave after posting only one comment over there, and refuse to return?
Except for your seven other comments, I mean.
Well, it depends on what the meaning of “return” is.
Patterico (c218bd) — 5/16/2010 @ 4:34 pm… which is obviously something along the lines of “defer to Jeff Goldstein’s supreme linguistic awesomeness.”
Leviticus (30ac20) — 5/16/2010 @ 4:48 pmLeviticus,
I’m going to let the last couple of comments go because you had a rank falsehood told about you over there, and I think you’re entitled to respond to that. But MD in Philly has asked me to continue to enforce civility, so going forward, let’s try to avoid sarcasm (however much I agree that it might be merited).
I don’t know how many people are still following this anyway — you, daley, and MD in Philly? — but if there is any productive discussion left to have, doing it civilly is the only way it can possibly work.
Patterico (c218bd) — 5/16/2010 @ 4:55 pmYep. No problem. Check your email, when you get a chance.
Leviticus (30ac20) — 5/16/2010 @ 5:19 pmYou have completely sidestepped the question, Darleen. Patterico specifically said that a measure was passed with 60 votes for it: 30 of those votes intending “x” and 30 of them intending “not x”. How, then, can you discern the intent of the majority that voted for the law?
Some chump (6d3f73) — 5/16/2010 @ 5:20 pmDarleen writes in #41 above: “That’s convention and takes place subsequent to interpretation. Why has the judge dismissed the intent? Because he found it so poorly signaled that it defied convention, so he rules subsequent to the convention? I find that coherent and within a judge’s job.”
This, I think, is a rather classic example of what Patterico has been saying. They deliberately avoid the point of the comment addressed to them, and rewrite it in their jargon thereby creating tautologies. In this example, the case was explicitly a discussion of notice – a legal concept regarding the text – and we get this “intent poorly signaled” jargon. No, there was no “poor signal”, rather the text failed to provide notice.
SPQR (26be8b) — 5/16/2010 @ 5:25 pmSome chump, actually if you quote more of the passage you refer to:
One almost gets the impression that Darleen is close to understanding the point that she’s seems to be avoiding there as well. The point being that the legislature had no “intent” to do anything other than adopt the text. And so we are left with the text and no “intent” beyond it.
SPQR (26be8b) — 5/16/2010 @ 5:33 pmPatterico – In the interest of continuing the discussion, why don’t you delete my earlier comment, or not as you see fit.
daleyrocks (1d0d98) — 5/16/2010 @ 5:37 pmPat,
your bolded part, brings me to mind the intentionalism of calling them “judges”
EricPWJohnson (7ff4d9) — 5/16/2010 @ 5:41 pmSo where is the demarcation line between enforcing the law, and judging cases?
EricPWJohnson (7ff4d9) — 5/16/2010 @ 5:41 pmDarleen #29 – “And if a particular piece of code didn’t work as “I” wanted it, too, I knew I wrote it wrong. I wasn’t clear in my coding/text.” – it seems that your Freudian slip is showing, or perhaps you are attempting to be ironically recursive ? In the sentence immediately prior to “I wasn’t clear in my coding/text.”, you definitely were not clear in your text …
SPQR #32 – *you*, on the other hand, definitively seem to understand computers … computers and computer programs are objects, tools, artefacts used to achieve something … does a tool like an axe have “intent” ? Darleen talks about being clear in her coding/text – which, while it *might* have relevance when applied to the comments accompnying the code, the “clear” part has no relevance to whether or not computer code functions correctly … it either does or it doesn’t …
A well-written law is like a well-written piece of code … it achieves the required functionality … “If you steal, then you go to jail.” …
Is the first test satisfied ? Then carry out the second instruction …
Darleen #29 – “Intent is “not more important” than text … they are inseparable. Text isn’t text without intent.” – a nice try, yet, again, ironically recursive – since “Text isn’t text without intent.” is a good example of text that *is* text without intent … now, if you wanted to postulate that text cannot have meaning without context, that could be supported, especially in English … less so in French or Japanese, but still applicable, even there …
“Will no one rid me of this turbulent priest?” – that is a classic example of a text which remains a text regardless of the intent of the utterer …
Egyptian heiroglyphics were another form of text which remained text even though modern folk could not understand their intent (or even their meaning) properly until the Rosetta Stone was understood …
(grin) That’s why it is called the “Code of Hammurabi” – and not the “Intent of Hammurabi” … (although, with some of my former colleagues, what they wrote was indeed more “intent” than it was “code”) …
Alasdair (205079) — 5/16/2010 @ 6:13 pmAlasdair, well I should understand computers. I’ve got two degrees in software engineering and spent 15 years writing software before changing careers to practice law.
SPQR (26be8b) — 5/16/2010 @ 6:23 pmTo expound uselessly further, Alasdair, computers have no intent but more importantly, they do not perceive intent. Computer “language” has a very specific, and objective, semantics. The statement in the “C” language:
x = y++ ;
means assign the value of y to x and then, after evaluation of the statement, increment the variable y. If you intended to add one before assignment, that’s a different statement and the compiler won’t substitute. Regardless of how you “signaled” your intent. Intent be damned.
SPQR (26be8b) — 5/16/2010 @ 6:29 pmLeviticus #43 – “In some cases, I happen to think that it’s better to get the right answer than to show your work. That doesn’t mean I don’t know how to show my work, or that I don’t understand the importance of it.” – when the test requires that you show your work, you show your work … when the test asks for the answer to a problem, you give the answer … if the teacher’s intent is to have the student go through the process, then the teacher had better spell out that intent … and, when the teacher doesn’t spell it out, that is the teacher showing a lack of skill, not the student …
It could be interesting playing a game of Chess with Darleen … well, until the point where her King takes one of my pieces a knight’s move away, while she says “The intent of the King is that he is the most powerful piece, therefore he can do anything any other piece can do.” …
Throughour history, there have been places and cultures which tried to have laws based upon intent (usually based upon the intent of those who ruled) – and those places and cultures tended not to prosper for various related reasons … not the least of which being that such laws were both unpredictable *and* unreliable …
(Hmmm – Leviticus and I agreeing – which Horseman is that (or which Seal just broke)?)(grin)
Alasdair (205079) — 5/16/2010 @ 6:30 pmAlasdair writes: (Hmmm – Leviticus and I agreeing – which Horseman is that (or which Seal just broke)?)(grin)
Pestilence.
(just kidding)
SPQR (26be8b) — 5/16/2010 @ 6:32 pmSPQR #57 – yup – isn’t it interesting how self-sevingly anti-semantic Intentionalists tend to be ?
Alasdair (205079) — 5/16/2010 @ 6:40 pm(+r)
(sigh)
Alasdair (205079) — 5/16/2010 @ 6:40 pmSo let it be written, so let it be done? No. Writing is not magic. Words on paper are no more meaningful than words heard.
nk (db4a41) — 5/16/2010 @ 7:40 pm“You have completely sidestepped the question, Darleen. Patterico specifically said that a measure was passed with 60 votes for it: 30 of those votes intending “x” and 30 of them intending “not x”. How, then, can you discern the intent of the majority that voted for the law?”
Some chump is paying attention!
Patterico (c218bd) — 5/16/2010 @ 7:47 pmI think that we are in the third stage of the disease we call language. The first stage was saying things. The second was saying them in a way that could be remembered such as in epic poems using rhyme, meter, alliteration, and assonance as mnemonic aids. The third, that we are in, bibliophia, making it into little marks on paper (or a computer screen). I don’t think I’ll be around for the fourth whatever it might be.
nk (db4a41) — 5/16/2010 @ 7:47 pmGoldstein has now deleted my trackbacks. (Oh, the repression! My expressions of opinion BANNED!!!) His excuse: I didn’t answer his questions. (ANSWER THE QUESTION!) Left unexplained: why he feels he has the right to demand answers from me, when he has spent weeks dodging clear answers to the questions I have repeatedly asked here for weeks: 1) can a receiver ever be justified in understanding a speaker’s intent but enforcing the language according to the interpretation a reasonable listener would give the text? and 2) how can one appeal to the intent of a body of people who do not share a single intent?
His persistent refusal to answer these questions, choosing instead to issue long-winded, Delphic pronouncements that dodge the simple question posed — together with his blatant and uncorrected slander of Leviticus — demonstrate clearly what a mistake it was to attempt to engage him in dialogue.
Patterico (c218bd) — 5/16/2010 @ 8:02 pmPatterico – According to Jeff G. he has patiently answered your questions, time and again. UR DOON IT WRONG! Oh, and in bad faith.
If you guys disagree, that is one thing, but that is not the same as answering questions nor is it the same as a blanket statement that one does not understand how language works.
daleyrocks (1d0d98) — 5/16/2010 @ 8:31 pmJeff Goldstein’s legendary patience makes Job look like a petulant and irritable whiner. His honesty makes Abe Lincoln look like lyin’ Joe Wilson. His unique clarity of expression and economy of speech makes E.B. White look like James Joyce.
Truly, he is a selfless patriot and a straight shooter. A greater man we will likely never have the privilege to meet.
Patterico (c218bd) — 5/16/2010 @ 8:37 pmDon’t hold back.
daleyrocks (1d0d98) — 5/16/2010 @ 8:43 pmnk #62 – au contrary, writing IS magic, in that it fixes words in time and space … and it can carry them forward *without* continuous human presence …
Alasdair (205079) — 5/16/2010 @ 8:49 pmMy second grader reads at fifth grade level (although stupid “No Child Behind” tested her at fourth.) So she gets some silly thing for homework that asks “Why are libraries important”. She answers, “Because they perpetuate knowledge”. And now comes the joke: A python crawls into a Petco store and eats a hamster, a rat, and a mouse. As he is crawling out of the store, an employee stops him and says, “Sir, you owe me fifteen dollars”. The python asks, “What for?” The employee says, “Five dollars perpetuate”.
nk (db4a41) — 5/17/2010 @ 7:49 am