Patterico posted an extension of the comment he made here about intent, interpretation, and meaning.
As I take his post, it suggests that he broadly wants to push back against intentionalism, and to suggest that the plain meaning of language – as interpreted by a reasonable listener – should rule our understanding what a speaker or writer means. Narrowly, he wants to push back against the use of legislative intent to frame the meaning of law, and return priority to the text itself.
This is murky damn water to be diving into; philosophy of language and understanding is one of the muddiest, hardest to navigate forms of philosophy that I’ve encountered. It’s very much a product of a Godellian problem – the structure of discussion of the problem contains the problem itself (Godel specifically said that “any axiomatic system of arithmetic would have true but unprovable statements — and that any formal system would therefore always be incomplete.”
I disagree (with Patterico, not Godel).
As my opening argument, please accept the following:
Here we have people who – through no fault of their own and with the best intentions – respond to being arrested by shouting “My nipples are bursting with desire!!” -because that’s what the phrasebook which they puchased told them was the translation from the Hungarian.
In court, the author of the phrasebook asks to plead “Incompetent.”
And in fact, at some level, all of us are incompetent in using our native languages. We do well enough to get our dinner orders right, but on many things we are unable to accurately express complex concepts (yeah, yeah, spare me the comments about my blogging…).
I live in the world of technology, specifically often software. Software is made of words – words with highly, incredibly, specific syntax and meanings that in turn create certain explicit behaviors on the systems decoding those words.
People spend years and years structuring statements in those complex, highly specific languages in order to make machines do specific things.
And interestingly, on adequately complex software projects, we find a class of problems called ’emergent’ in which they (ideally) arise from unforeseeable interactions (but often from ones that had simply not been planned for).
The brutal part of what I do, however, comes in the boundary between the mechanistic language of machines and the desires of the humans who want the machine to do something from them.
Requirements analysis is an immensely complex part of software development, and one that is – historically – very badly done. Badly enough that the best models for developing software today often skip formal written requirements in favor of rapidly evolving prototypes which users and developers sit together and build.
Translating the ambiguity of business processes and human behavior into highly structured steps that a machine can interact with is hard at the best of times.
And we haven’t even got to meaning or intention yet. My point? That text is something we create sometimes sloppily, sometimes well, and that on one hand I believe in making the plain meaning of phrase the way I take it – I also am sympathetic to context and, indirectly to intention.
I’ve worked doing legislation. A bunch of really smart people argue over every word, and work hard to make sure that laws are clear and unambiguous…unless the same smart people are working to insert a loophole, or to build in careful ambiguity to win support from opposing interest groups.
There’s no way that our body of laws as it stands today doesn’t have ’emergent bugs’ in it, and as strongly as Patrick will defend the absolute and literal meaning of the words in the law, there is no way that he or anyone else would be willing to live under a regime that didn’t mediate the law with the wisdom and consideration for these ambiguities that people like Patrick (who run our legal system) bring to bear.
But beyond the systems issues, I think that you have to embrace some level of intentional ism in the course of everyday language.
Let’s take a firebreathing case.
If I’m talking to a friend and I say “My nigger?” your interpretation is going to be different if we’re both white, both black, of different races, or are walking out of a screening of ‘Training Day’ (a great film where that line figures prominently).
Here there’s room for ambiguities of interpretation which range from – I’m a racist tool deliberately insulting a black man – to we’re buddies and speak in ghetto slang – to we’re re-enacting scenes from a film we’ve just seen. Leaping to judgment here is fraught with danger – but the worst case interpretation is so bad that we tend to avoid the words entirely, lest we say ‘niggardly’ when we mean cheap and lose our jobs.
And that case is one where I pivot, and say that the range for ambiguities of interpretation is very limited in scope and that it’s easily possible to go far too far.
In a paper I did a billion years ago on the subject, I discussed language as a map (I was reading Alford Korzybski at the time).
The point I made in riffing on his metaphor is that we all draw imperfect maps for each other, and yet most us manage to use them to get from here to there. Children draw maps that leave out whole continents, and yet their maps have a kind of coherence and integrity that usually makes them understandable.
We accept the imperfection of our maps, and use our awareness of what we actually see in the world to correct for the errors in the map – sometimes automatically, as we drive. And sometimes we get completely lost – even with good maps.
I just knocked this out between dinner and a drive to the symphony…what I wrote imperfectly represents the arguments in my head – because of the intentional and conscious nature of language.
But it’s good enough to get a language game going…
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Marc says:
“As I take his post, it suggests that he broadly wants to push back against intentionalism, and to suggest that the plain meaning of language – as interpreted by a reasonable listener – should rule our understanding what a speaker or writer means.”
Unfortunately, Marc, you have misread my post and contributed to an inaccurate caricature of my views.
Yes, I do want to push back against intentionalism — to a very limited extent, by showing that it is not ALWAYS the ONLY way to get at the best interpretation. I make the argument by setting forth the following example, which you do not address in your post:
The intentionalists would tell you that the ONLY proper interpretation of the language is the one selected by the judge — i.e. the one that appeals to the intent of those who ratified the law. I think my example shows that this is wrong — that other interpretations are sometimes proper.
In my post, I quite clearly limited my example to the context of legislative interpretation, merely to show that intentionalism (appealing SOLELY to the speaker’s intent) does not ALWAYS give the proper interpretation of language.
However, I fully agree with your claim that some level of appeal to intentionalism is necessary in everyday speech, and nothing in my post suggests otherwise (even though you imply to the contrary).
You say: “I think that you have to embrace some level of intentionalism in the course of everyday language.” You seem to imply that I disagree. I do not. I agree with this entirely, as I said in my post:
There’s a pretty big difference between the way you characterize my argument and the argument I actually made.
I’m simply saying this: we can’t say that the only possible interpretation of a law is one that privileges the intent of the legislature, because otherwise the government can arrest people for violating laws that, by their plain terms, don’t apply to them. And if that is so, doesn’t it mean that intentionalism is not the ONLY way to interpret ANY statement?
Again, reading down the post:
“I also am sympathetic to context and, indirectly to intention.”
So am I. I am actually directly sympathetic to intention. I think that an appeal to intention is important.
However, my example above illustrates another concept: words mean things. If a cop tries to arrest you for violating a law, and the plain meaning of the law doesn’t apply to you, it shouldn’t matter that the legislature INTENDED it to.
For example, the Democrats may have subjectively INTENDED to cover pre-existing conditions for children. But if they didn’t, we don’t get to rewrite the plain language of the law to conform to their subjective intent. The law is what they wrote.
That’s not an argument that plain meaning always governs regardless of intent. Just that there are situations, like interpretations of statutes, where an appeal to intent may not be the best interpretive method.
I predict that by the end of the this discussion, someone will riff on Goedel’s work in a way that makes me cry.
That said, Patterico is palming at least three cards in that discussion:
First, his own example is far more clearly cut and defined than most disputes of this nature would ever be… because he brings numbers in to the discussion. There is no misunderstanding at all about whether a given sum of legal tender is greater than, lesser than, or equal to, one hundred thousand dollars.
Second, while I am extremely sympathetic to the notion that laws should be written in a form that can be understood by the average layman– or at least by the average humanities graduate– I also know that no line of work ever escapes the curse of jargon. Law is no different.
Third, and much more damning to the discussion as it relates to real, actual, law is that language drifts. In the extreme, one language drifts right over into another. Even in our own relatively brief history, we know that reading a document from 1800 is not as transparent as reading a document from 2000.
So, while I broadly agree that the text is the text, sometimes that’s just not enough. Christ, the Second Amendment as written would come back from any decent ninth grade grammar with red ink all over it. But, as it was written by James Madison, I have to assume the meaning of it was not opaque when he wrote it.
My first instinct is to say, “Well, the Courts should send laws back to Congress if they find them unclear,” but in effect that’s what they’re doing when they pin down an interpretation. When a suit is brought, it is presumed that some type of judgement is needed now. It’s not acceptable for the Court to tell the parties to hang around for a year, a decade, or never, since the Court has no authority to force Congress to rewrite a law for clarity.
By interpreting the law, however, they give the people a decision they can use now, and implicitly challenge Congress to rewrite it with greater clarity if Congress feels the Court has erred.
In the event of a judge interpreting $50,000 to be more than $100,000 (which of course does not actually happen) Congress reserves the right to impeach the judge.
Well, sometimes examples are made clear (or extreme) so that the underlying principles are clear. The fact that real-life situations are more ambiguous than the example does not mean that the person offering the example is cheating (or “palming cards” as you put it).
I’m not sure how this undercuts my point or amounts to me palming a card. I say that if (despite the natural existence of jargon in law) the language of a statute IS clear, and doesn’t apply to you, then we should not care that the legislature subjectively thought it did.
Indeed, and that is why Justice Scalia and I both support the notion of the “original understanding” of the Constitution — because we believe it to be wrong for subsequent generations to impose new meanings on the words as they were understood at the time. The rationale for this is that legislatures pass laws only with the authority of the people, and subsequent changes in language cannot somehow repeal the language passed by the duly appointed representatives.
Again, missing how I am supposedly palming a card here.
First, if your clarifying example is too simple to be relevant to the discussion at hand, it’s at least a poor choice of example– it does not clarify, it obfuscates.
Second, it quite often happens that someone reads a text superficially and without sufficient expertise, then assumes that the text clearly means something that… it doesn’t. So you’re begging the question by assuming some simple test for clear meaning that a layman can understand.
Third, interesting take, but I am skeptical that you can precisely divorce “original understanding,” from “original (or legislative) intent.”
And again, it’s not that I disagree with you in principle; it’s that I have similar experiences to A.L., and think that the world is more complex than you’re portraying it in your argument. (Having been in endless meetings going over a technical specification and realizing that four educated professionals all interpreted it differently is a tragic experience.)
Legal language is a very specific and limited language, as is computer language, and likewise mathematics and formal logic. To approach common language from these perspectives is to go in the wrong direction.
For example, none of them can make sense of the common feature of language known as sarcasm, in which the plain meaning and the intent are entirely opposite.
I think my example is wholly relevant to the discussion. The discussion is about whether you privilege plain language over intent if the language is plain. I have offered an example where the language is very, very plain. How is my example not relevant to the question I am exploring?
You persist in arguing a different case than the one I am arguing. It may well be the case that a text can be written in complex jargon and not be transparent to the average man. That’s not what I am talking about.
I am talking about the case where the language is clear and plain, both to the expert and the layman, and it exempts Marcus Vitruvius from its coverage. But the legislature says that it INTENDED for the statute to cover Marcus Vitruvius.
Where do you come down on that question?
Let’s go to a (related to) real-life example. ObamaCare does not cover pre-existing conditions for kids. It’s not a question of jargon; it just plain doesn’t. But let’s pretend that Congressional Democrats — enough to form a majority — say they intended for the language to cover that.
If that happened, would they have to pass a new bill? Or do you think that their unexpressed intent could be grafted onto the bill in an elevation of subjective intent over plain language?
I’m not required to divorce the two at all. Indeed, the intent of the legislators would be relevant to the public’s original understanding, wouldn’t it? So they don’t have to be “divorced.”
It’s just that unexpressed intent in contravention of plain language can’t TRUMP the original and reasonable understanding of the public based upon the plain text.
That is my view as well as that of Justice Scalia.
That’s a pretty sweeping statement.
For example, I discuss this real-world example in my post:
I elaborated in a comment by quoting a passage from Scalia’s dissent in the “uses a firearm” case:
Here, Scalia makes a common-sense argument by reference to a common-sense example.
Glen Wishard seems to imply that common-sense arguments should be automatically inapplicable to arguments over legal interpretation (and vice versa), as if the law should be some kind of priesthood divorced from reality and common sense.
I know many people who say the law IS divorced from common sense, but many fewer who say it SHOULD BE.
The reality is that if you want the law to interface with society, it has to be governed by the same common-sense principles that apply in society. Justice Scalia did that in the “uses a firearm” case and I applaud him for it.
Wait a minute — I drank a few beers, and then I did what?
In no way do I believe that law is or should be divorced from “common sense”. Quite the opposite, I would hope. But colloquial and literary language, on the other hand, do not reduce to common sense arguments.
If we’re talking about legal interpretation of legal language, then I defer. If we’re talking about language in the sense that all of us are using language here, then I say only that examples drawn from narrower languages are suspect.
By the way, I love the Monty Python bit.
But the idea that legal language is really so different from regular language is part of what they’re mocking in that final scene: “I didn’t know an acceptable legal phrase.”
I would argue that intent is only important when it helps to clarify ambiguities in the language itself.
There’s no reasonable way to interpret “people earning less than $100,000” as “people earning less than $10,000” so even if that was the intent, it is clearly farcical to enforce it as such.
However, let’s say that there is a reasonable argument over whether a “well-regulated militia” means a “well-trained militia” or a “well-controlled militia” (perhaps not the best synonym, but hopefully illustrates my point).
If this is in fact a legitimate point of argument (and I think it is) then it is worthwhile asking what the people who wrote that meant for it to say. Or, alternatively (and perhaps best), attempt to determine what a person who was alive at the time the phrase was written would have taken the phrase to mean.
In fact I think we have at least three serious problems in analysing modern legal language. One, legal language sometimes differs from colloquial language in its plain meaning, leading to confusion. Two, words change in meaning (and subtext) over time. And three, even ignoring those two issues, it’s still difficult to draft statements unambiguously (especially when trying to be terse).
I assume Patterico has in Mind “Smith v. United States, 508 U.S. 223”:http://www.law.cornell.edu/supct/html/91-8674.ZD.html/
At stake was indeed whether using a Mac 10 as payment to purchase drugs was the “use of a firearm” within the meaning of the statute. The universally accepted rules for statutory interpretation by everyone, including the majority and Scalia in Smith, is that the court looks to the language of the statute and if the plain meaning can be determined from the statute, the inquiry ends there.
Here’s the majority in Smith:
This case had nothing to do with looking at legislative intent and concluding that legislative intent somehow trumps the plain meaning of the word “use.” Scalia and the majority in Smith simply had a differnt reading on the plain meaning of the word “use.”
As to Patterico’s $100,000 tax example: if the meaning is clear, you look at the words of the statute; legislative intent never enters into it. Noone disagrees about that.
Until modern times, English law really was an entirely different language: Latin.
But “Legal English” is not entirely different from English; it’s a part of English. But it’s a technical language with a deliberately limited scope.
I don’t disdain it as “jargon”. Jargon is a bad thing only when it prevents communication. Among people who all know what sui generis means, jargon allows more efficient communication. In an emergency on a nuclear submarine, jargon can save lives.
“As to Patterico’s $100,000 tax example: if the meaning is clear, you look at the words of the statute; legislative intent never enters into it. Noone disagrees about that.”
Au contraire. Nobody who has graduated law school disagrees. But there are plenty of people out there who call themselves “intentionalists” who say that the ONLY legitimate way to interpret language is to look to the intent of the speaker. You guys are aware of this, right?
Roland Nikles,
You are correct: that is the case I was referencing, and it is not offered primarily to show the difference between intentionalism and textualism, but rather to show that textualism is not necessarily literal or “strict constructionist” but rather reasonable.
My tax example is more geared towards rejection of an appeal to intent.
I assume you are a lawyer, and like most lawyers who have responded to my post and arguments, you are essentially shrugging your shoulders and saying: well, it’s obvious that you look to intent only when there is no plain meaning.
It’s obvious to lawyers. But to the intentionalists running around the Internet, claiming that one cannot interpret language except by appealing to authorial intent, it’s certainly less than obvious.
I think the argument depends on whether you consider the language in question to be an act of communication or something else.
Computer language isn’t a form of communication. Instead it’s a tool, driving extremely rapid hardware alterations on a micro level to achieve a desired manipulation of electrical flow (to simplify to the point of meaninglessness). Computer language is a tool, a means of manipulating physical reality.
Communication is the act of attempting to transfer information from one intelligence to another. Language is a formalization, a reduction of specific memes into a symbol set in an attempt to reduce ambiguity.
If you disregard authorial intent, than what is the purpose of communication? To ascribe meaning to the transmitted symbols, independent of their usage as an imperfect medium to transcribe a set of memes, is to imbue them with a reality of their own, to make of them a physical reality independent of their creator. If you X out the source, with what is the recipient communicating?
Ascertaining authorial intent is the entire purpose of communication, anything else is madness, an attempt to impose desire upon reality on the part of the recipient.
The real question is whether there are usages of language that are not communication. Has language evolved beyond it’s original purpose as an attempt to reduce the ambiguity involved in attempting to communicate in random screams and grunts?
I’d argue that yes, it has. One example would be certain forms of poetry, where it is the aesthetic appeal of the words and not the ideas contained therein that are the draw.
Another would be legal language, where the usage of the language is not an attempt to communicate, but more like computer language; language is a tool used to manipulate reality. It’s a method for transferring decision making from a source to a destination, not really to communicate ideas (although some of those end up mixed in). Legal language is a control flow system: if act A is committed result B applies unless circumstance C applies.
Instead of manipulating gates on a microprocessor, we’re manipulating people. Understanding is not the goal, a specific desired physical end reality is the goal. As such authorial intent is largely irrelevant, the system has purpose independent of that, and will execute regardless.
Patterico:
Actually I’m not sure who all of these intentionalists are, though you say they are running around the internet. Some examples would do nicely — or, on second thought, maybe not.
Your tax example is perfectly clear to me, but consider the fact that you’re describing an obvious function of law. Legal interpretation is not concerned with the truth content of sentences, or with moral content, but with determining whether the language of a law can be applied to a specific case — according to a set of rules.
That’s not how we judge writing and discourse, though. The only rule is to make yourself understood in some fashion, unless you’re James Joyce. Intent is often divorced from plain meaning: “Brutus is an honourable man.” You can’t have LA Times editorials stricken down for being nonsense, but you don’t have to obey them either.
If you’re saying that a speaker can’t automatically overrule any interpretation of his words by saying “That’s not what I meant; when I said the Senate appointment was for sale, I meant to say that it wasn’t” — then I agree with you, and I can’t imagine anyone disagreeing with you.
OK, a couple of thoughts.
Patrick, I interpret your post as saying two specific things:
In law, reverence for intent is badly misplaced, and we need to look to the words of the law irregardless of the intent of those who wrote them (your example of the 10,000 – 100,000 typo); and
You can’t ignore the plain meaning of words in everyday conversation, regardless of the intention of those who spoke them.
Again, I disagree on both counts – which is arguably insane, given that you live and breathe law and I took a jurisprudence class 30 years ago…
The English/American system of law is unique in that the meaning of law accrues; we look to the words of the law and to prior caselaw to make determinations.
I’ll expand that and say that the greatness of the system is that it humanizes the law by making it the product of a series of decisions and actions by a whole chain of actors, from (in the case of criminal law) the police officer making the arrest (or choosing not to) to the prosecutor and defense attorney and judge(s).
In the specific case of the tax you mention, the real outcome would be – I’d passionately hope – that the defense attorney would quickly review the legislative history and uncover the typo, document it through correspondence with a legislative staffer, present this to the judge, and the poor guy would not go to jail or be penalized because the system has within it a human ability to correct error – just as we do when we’re presented with badly-drawn maps.
In the case of the drugs-for-gun swap, I’m willing to bet that the system would be a lot less inclined to find for the defendant, because he’s a bad guy and we’d like to see him punished.
Now that social flexibility in law can be a good or bad thing.
Riding home from dinner the other night I was trailed by a CHP officer on the 405 for some time – I didn’t see him, no lightbar – and he pulled away without pulling me over although he could have.
Why did he decide not to pull me over? Because I was wearing protective gear? Because even though I was riding fast, I was riding prudently? Or because of the sticker for my son’s service I have on the back of the bike?
TG thinks it was the latter, which is kind of upsetting to me – but leave that for another day.
If I’d had a “Free Mumia” sticker on the back of my bike, and the officer had elected to pull me over, we’d all be unhappy about it…I get to be a political idiot, but the law is supposed to be neutral to that kind of idiocy.
That’s an inevitable product of the inherent flexibility built into our system, which is supposed to prioritize equity over the law.
I think the phrase was “bon judicat et aquitatem strict juri prefert.”
I think we’re in complete, violent, agreement that intent isn’t the sole determinant of meaning – if for no other reason than people can’t be trusted to explain their intentions. They have incentive to make them better in retrospect, and often are not fully aware of them in the moment.
But in law I don’t think you can ignore intent, and in plain speech I think that you have to give some room for changing plain meaning to accommodate context and error (see the “my nigger” example).
Conversely, there is intent on the listener’s part as well, and that intent can lead to complete misunderstanding (as in the “niggardly” example).
Again, this is a hugely complex area of philosophy and not one that we (any of us) are going to exhaust in a series of blog posts. I 100% get your point about trying to stick to the words of the law – but I’ll also suggest that that’s a stronger argument for ‘settled law’ where there is a large body of case law and where the interpretation of the original lawmaker’s words has been pretty well wrung out – because the exact kind of error you point to will have been smoothed out of the system by that point.
Marc
So for the benefit of those of us tuning in late, who won: Gadamer or Habermas?
Also, could someone tell me why “natural born American” would mean anything other than “born an American citizen”? Can you explain that legal constitutional doctrine without ambiguity, or is a certain level of ambiguity simply unavoidable once you enter the realm of the hermeneutic? It seems to me that once we get past “plain language” the landscape becomes swampy because that’s just human nature. It’s a game because we like playing games.
I think it says something about human nature, or at least the exceptional nature of Americans, that this is a game we’ve apparently chosen not to play.
“If you’re saying that a speaker can’t automatically overrule any interpretation of his words by saying ‘That’s not what I meant; when I said the Senate appointment was for sale, I meant to say that it wasn’t’ — then I agree with you, and I can’t imagine anyone disagreeing with you.”
I’m saying more than that. The intentionalists that you have never heard of should agree that the speaker is not the only authoritative interpreter of his own words. Their stance is that the speaker is the only one who determines his intent.
Intent and interpretation aren’t the same thing. Let me take a step back and define some of the terms.
According to the intentionalists, it’s a two-step process. The speaker’s intent determines the meaning of the statement at the time of the utterance. Here, the speaker is king, and only his intent matters.
Afterwards, his words must be interpreted. Interpreters should strive to appeal to the author’s intent to determine meaning, but in interpretation, the author’s claim of his own intent is not determinative. Here, he is not king, and his interpretation could be wrong (he could be lying or mistaken as to his true intent).
But, they hold, the ONLY proper interpretation is the one that appeals to authorial intent.
My example is designed to show that this is not ALWAYS the case. That SOMETIMES a case can be made for a different paradigm.
Otherwise, the guy in my tax example ends up going to jail when the plain language of the statute does not apply to him.
So I’m not JUST saying that the author doesn’t get to give any old wacky interpretation after the fact and have it deemed authoritative. The intentionalists should agree with that.
I’m ALSO saying that sometimes the proper interpretation does not appeal to authorial intent. The intentionalists would never agree with that. Their view is that of Treefrog: “Ascertaining authorial intent is the entire purpose of communication, anything else is madness, an attempt to impose desire upon reality on the part of the recipient.”
But how do they reconcile this view with my tax example? I’ll address that in a separate comment.
Treefrog:
You appear to be one of the intentionalists with whom I had hoped to debate my example. You say:
“Ascertaining authorial intent is the entire purpose of communication, anything else is madness, an attempt to impose desire upon reality on the part of the recipient.”
That is precisely the view that my tax example is designed to refute: the notion that ascertaining authorial intent is ALWAYS the goal of interpreting language.
You seem to counter my argument in a manner similar to Glen Wishard: by redefining legal language as a different category of speech that is somehow not “communication.”
I believe your argument-by-recategorization is an example of the logical fallacy known by the name “No True Scotsman.” I hate citing Wikipedia because it could change at any moment, but it currently has an accurate rendition of the issue as “a logical fallacy, an ad hoc attempt to retain an unreasoned assertion. When faced with a counterexample to a universal claim, rather than denying the counterexample or rejecting the original universal claim, this fallacy modifies the subject of assertion to tautologically exclude the specific case or others like it.”
The example given:
I see this sort of thing on the Internet all the time as well.
Here, I think the argument goes something like this:
The reason I think this is a fallacy is that defining statutory language as non-communicative speech is an artificial categorization that doesn’t survive scrutiny. Statutory language is indeed a form of communication, albeit a formalized type of communication. An authoritative body is the speaker, and the people who be governed are the audience. The fact that the authoritative body is communicating an order (“do this or there will be consequences”) does not make the speech non-communicative.
The issue is: when the speaker (the legislature) makes the order, and the audience hears it, what interpretative rules are we to use? And my example shows that ALWAYS appealing to authorial intent is going to run you into a situation where any rational person is going to say the interpretation is wrong.
Let me be very precise, as I feel I need to be when someone is characterizing my argument for me.
I can’t agree that “In law, reverence for intent is badly misplaced” because the statement is too sweeping. The concept of intent is often critical to legal issues. When I prosecute a murder case, I must prove the intent of the defendant — and we’re talking subjective intent, such as intent to kill.
But reading the context of what you’re saying, you appear to be talking about statutory interpretation. And there, I agree with you.
In that context, I basically agree with your statement that “we need to look to the words of the law irregardless of the intent of those who wrote them (your example of the 10,000 – 100,000 typo).” The one quibble I might have is where the intent is plain upon the face of the document, the intent can matter. In other words, I am not saying that every obvious scrivener’s error must be given the force of law. But sometimes it’s less than clear what is a scrivener’s error.
For example (and this is very loosely based on an actual case), let’s assume that Congress passes a law that says a tax applies to anyone who starts a new job before December 31, 2010.
Joe Taxpayer is hired and starts work on December 31. He is penalized by the IRS for nonpayment of the tax.
Joe argues that the plain language of the statute does not apply to him. “On December 31” is not “before December 31.”
The IRS argues that Congress obviously meant “before the end of the year†or “before the end of the day on December 31″ when they wrote “before December 31.â€
Does Joe win or lose?
And should the answer to that question depend upon uncommunicated legislative intent? Should the judge go hunting through committee reports and transcripts of legislative floor speeches for clues about legislative intent?
And, in case your answer depends more upon your politics than the application of interpretative principles, I’ll spin the example around politically, to make it a benefit rather than a tax that we are talking about. What if the statute doesn’t impose a tax, but gives citizens a chance at a welfare benefit — as long as they apply “before December 31”? Should recipients who apply on December 31 get the benefit?
These are not easy questions, but the courts tend to go with the plain language in these situations. But that is totally contrary to the view of the intentionalists, who say that the only proper interpretative method is one appealing to authorial intent.
Oh, I meant to address this part too. Marc, you say that part of my argument is:
“You can’t ignore the plain meaning of words in everyday conversation, regardless of the intention of those who spoke them.”
Well, reading those words literally, you are correct that I believe you can’t “ignore” the plain meaning of the words because those are a clue to the words’ true meaning.
However, when you use the phrase “regardless of the intention of those who spoke them” I think you are implying that I favor plain meaning over intent in everyday interpretation. That’s not accurate. I’m very sympathetic to the view that one must strive to learn the speaker’s intent, and that this is an important goal of communication.
But my basic thesis is that communication is a two-way street, and that both parties have an obligation to help ensure that they are understanding one another, and that they are being understood.
I can’t even say that I have a universal theory that combines all of these elements into a single coherent paradigm. I’m struggling towards that paradigm, and part of that struggle is to point out where I think other paradigms (such as pure intentionalism) fall short in describing the proper interpretive approach to certain situations (such as my tax example).
Btw, Marc, I think you have my tax example backwards. You say:
You understand that in my example, it’s the plain language that saves the guy in the dock, and not the legislative history? The legislative history is what is being used to penalize him.
Marc, you say:
“I think we’re in complete, violent, agreement that intent isn’t the sole determinant of meaning – if for no other reason than people can’t be trusted to explain their intentions. They have incentive to make them better in retrospect, and often are not fully aware of them in the moment.”
You’re confusing intent and interpretation, I think.
All you are saying here is that the speaker is not the sole authority in the INTERPRETATION of his intent. Intentionalists should agree (although in real life, they sometimes conflate the two and tell people things like “you don’t get to say what I mean”). But the speaker is the sole determinant of his INTENT in intentionalist theory.
I am saying something a little different in the tax example: the best INTERPRETATION in that case is actually one that is at odds with the authorial INTENT.
I think the defense on the basis of non-communicated legislative intent would have a harder time than the prosecution on that basis.
Because, as so many have pointed out, the law tends to look to the plain language of the statute, and go behind it to intent only when there is facial ambiguity.
Something I wrote in December speaks to my beliefs about a lot of this. The post is here, but since many comment readers don’t follow links, allow me to quote from it liberally:
Stripping it down to a more simple example: yesterday Dan Collins said in comments at my blog: “If by ‘bite me, mofo,’ I mean to ask somebody what they want from Santa, I should not be surprised to find myself with a mouthful of bloody chicklets.”
The point is simple: if I phrase my thoughts in such a way that I KNOW they will be reasonably interpreted in a manner at variance with my actual intent, and if I give no outward clues as to my real intent, it doesn’t make a lot of sense to hold the audience to an interpretation tied to my intent.
Legal language is a good example of Wittgenstein’s language-game; a subset language that is limited by a set of rules.
This is not criticism, though Patterico seems to think I accuse lawyers of not speaking English. The rules (when they’re good) enforce clarity, prevent ambiguity, and allow for more efficient communication. This is the very reason for a technical language to exist. The purpose of the language-game is to dispel confusion.
But the rules of the language-game don’t apply to all language, of course.
I’m trapped at work and will try to give a better argument later, but a few quick thoughts.
One, “No True Scotsman” fallacy by definition does not apply to categorization arguments when you’re attempting to define the attributes of a Scotsman. Otherwise you end up with inanity such as:
Teacher: All mammals are warm-blooded.
Student: My turtle is a mammal and it’s not warm-blooded so that’s not true.
Teacher: (face-palm)
Two, I’m not insisting on legal code not being communication, but it clearly intends to solve a radically different problem domain from standard conversation, and when that happens the engineer in me promptly starts wondering if they don’t have equally radically different rule sets applying to them, even if they happen to reuse some of the same parts.
The problem normal conversation solves is that we aren’t a telepathic species. We do not know what others think, but desire to do so, that we may understand and be understood. The entire purpose is to convey intent, nothing else.
The problem legal code solves is that the king cannot be everywhere at once. Thus it was needful to develop a system that allows others to decide as he would in order to achieve the immensely useful attribute of consistency (I imagine I don’t have to explain to a lawyer the societal utility of that trait). This creates dual priorities. On the one hand you want to replicate the decision making of the king as closely as possible. On the other hand, without consistency the entire enterprise is worthless. Thus the two priorities must be balanced.
Your tax example actually does happen all the time in our current legal structure, just not at the trial judge level. The trial judges are constrained to act, in the interests of consistency, strictly to the written law, as written. But as you move up the layers, interpretation of intent becomes progressively more important, until you hit the Supreme Court. The Supreme Court really does nothing but read the intention tea leaves to clarify ambiguity and contradiction.
In your tax example, if Congress passed, by unanimous vote a law which when voted on said (or rather was claimed by leadership as saying) 10,000 (but say, was in such a fragmented incomplete form such that none of the Congress-critters had actually read or seen in it’s entirety – pardon the ridiculously contrived example), but when the formal written copy reached the president and was signed it said 100,000, are you saying you would find it unlikely that the Supreme Court would strike the law down? With those same Congress-critters testifying they voted with the intention of the 10,000 number?