The meaning of meaning: Fish v. Scalia

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Stanley Fish, discussing John Paul Stevens' reasoning about the value of anonymous speech ("Anonymity and the Dark Side of the Internet", NYT 1/3/2011):

… it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.

Antonin Scalia, arguing for a textualist rather than intentionalist theory of legal interpretation ("Law and Language", First Things 11/2005; discussed here; a pirated version appears to be here):

Two persons who speak only English see sculpted in the desert sand the words “LEAVE HERE OR DIE.” It may well be that the words were the fortuitous effect of wind, but the message they convey is clear, and I think our subjects would not gamble on the fortuity. [...]

If the ringing of an alarm bell has been established, in a particular building, as the conventional signal that the building must be evacuated, it will convey that meaning even if it is activated by a monkey. [...]

What is needed for a symbol to convey meaning is not an intelligent author, but a conventional understanding on the part of the readers or hearers that certain signs or certain sounds represent certain concepts. In the case of legal texts, we do not always know the authors, and when we do the authors are often numerous and may intend to attach various meanings to their composite handiwork. But we know when and where the words were promulgated, and thus we can ordinarily tell without the slightest difficulty what they meant to those who read or heard them.

I disagree with both Prof. Fish and Justice Scalia, but my main purpose here is to observe again how odd it is that law schools (and English departments) generally require no linguistics courses of their applicants, and teach no linguistics to their students.

[Some useful discussion of textualism, intentionalism, purposivism, originalism, etc., can be found here, here, here, and here (but beware ...). An earlier piece by Stanley Fish on textualism and intentionalism is here. Some earlier LL posts on more-or-less related topics are here, here, here, here, here, here, here, here, here.]

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  1. Toby said,

    January 4, 2011 @ 7:50 am

    it's maybe a little ironic, then, that whenever I read linguists' discussions on these kinds of subjects, I always think, "Oh dear! How odd it is that linguistics departments generally teach so little philosophy to their students!".

    [(myl) Fair enough. But as far as I can tell, law schools and literature programs don't require their students to learn any philosophy of language either; and that's half of what I mean the term "linguistics" to mean in this discussion.]

  2. Bill Walderman said,

    January 4, 2011 @ 8:04 am

    "I disagree with both Prof. Fish and Justice Scalia,"

    Would you share your views with readers?

    [(myl) Short form: Both Fish and Scalia seem to assume that "meaning" must either be something that texts have (with respect to the norms of a language), or something that people do (as creators and interpreters of text or speech). Most linguists (and most philosophers of language) assume that both ways of thinking about the question are useful, and even essential in that neither is really coherent without the other; and that both kinds of meaning are accessible to rational inquiry, using tools that neither Fish nor Scalia has ever shown any interest in learning about.

    For a discussion of Prof. Fish's ideas about some of these issues, see "Formality and interpretation", 2/8/2009; and for a discussion of Justice Scalia's ideas about some of these issues, see "A result that no sensible person could have intended", 12/8/2005.]

  3. Tom said,

    January 4, 2011 @ 8:30 am

    As a law graduate (in the UK), who was not only never required but also never given the option of studying university-level linguistics courses, I'd be very interested if there are any books you would recommend which would give a crash-course of sorts to the educated lay reader interested in this sort of discussion…

    [(myl) You might start with Larry Solan's books: "The Language of Judges" (1993) and "The Language of Statutes" (2010), though these are specifically oriented towards the relationship between linguistic analysis and legal interpretation. If you're interested in learning relevant areas of linguistics, it's less clear to me what to recommend. One possibility might be to look at some recent law review articles that depend crucially on linguistic analysis -- one that I can recommend, for example, is Jill C. Anderson, "Just Semantics: the Lost Readings of the Americans with Disabilities Act", 117 Yale LJ, 2007-2008 -- and use them to decide what areas to look into more deeply.]

  4. Tyrone Slothrop said,

    January 4, 2011 @ 8:35 am

    I have always found Elizabeth Mertz' work on the language of law to be quite good. Mertz is both a linguistic anthropologist and has her J.D. She teaches, if I remember correctly, at the University of Wisconsin law school. One also thinks of Justin Richland, who has a J.D. and is a linguistic anthropologist (though his work focuses primarily on Hopi legal discourse). I do agree that students in law school should take both more linguistics, but certainly also more sociolinguistics and linguistic anthropology, especially in the fields of language and law. Understanding the language ideologies behind our legal system is important.

  5. David Fried said,

    January 4, 2011 @ 8:41 am

    Certainly teaching or requiring some elementary linguistics of law students would do no harm and would probably do some good. But law students are taught to be polemicists. Perhaps–I say perhaps–Supreme Court justices should or must develop a consistent and coherent theory of Constitutional interpretation. (Scalia's pretense that he has and follows such a theory is his most brilliant and obnoxious polemical device. He is the most sophistical of judges.) But what a working lawyer needs is a set of rhetorical tools, since the meaning he wishes to impart or imply to any bit of statutory or contractual language is determined entirely by his client's interests.

    For legislation these are supplied by the "canons of statutory construction." What I learned in law school, in brief, is that the canons are mutually contradictory, and that there is a canon at hand that will support any desired construction.

    To give a simple example from a recent case (that I lost), one could equally argue that a recent statutory amendment was simply declaratory of the meaning always implicit in the text, and was needed because of a history of obfuscation and confusion; and that the amendment was necessary because it authorized a new mode of action never authorized by the previous text. My client's purposes required the former. The choice between these alternatives, equally plausible in the abstract, requires resort to information outside the text.

    There is a canon that treats statutory language like Holy Writ, by declaring that where possible a meaning shall be attributed to every word and every variant. That is equivalent to a presumption that all statutes were written by a single omnicompetent author who bore the entire body of statutory law in mind when he wrote your statute. Given the human limitations (and the sheer incompetence) of most statutory draftsmen that is simply preposterous, but I have invoked it when it served my purposes.

    On the other hand, I recently tried to analyze the 155 instances of the phrases "fair value" and "fair market value" in the Massachusetts statutes. They appear in nearly equal numbers, but I could discover no intelligible reason for the choice of one over the other in most instances. If there appeared to be a reason in any particular case it could not be generalized to any other.

    Anyway, I have taught law school. Law students, even at the highest levels, are mostly incompetent readers and writers who need academic remediation, not a linguistics course. What they are missing is a literary education (not to say general culture.) Year after year, for example, I noticed that the biting irony of Chief Justice Marshall in his famous opinion in Johnson v M'Intosh (sic) was lost on them. The case is the foundation of Indian law. It includes phrases like (I quote from memory): "Conquest confers a right which the courts of the conqueror cannot deny, whatever the private and speculative opinions of men." Quoting a bit more loosely: "savage wars in which the white men were not always the aggressors." The internal evidence of Marshall's own "private and speculative opinion" so entirely escaped them that i was forced to search his private letters for support–which I found. It is also significant because Marshall actually confined the legal and equitable incidents of the "right of conquest" within the narrowest possible bounds.

    Off to work now, to make the worse appear the better cause, as Socrates said.

    [(myl) These are good points. But at least as a matter of conventional hypocrisy, we hope for judges to be less sophistical than legal advocates are. And it surely wouldn't hurt for the drafters of statutes, regulations, contracts, and legal opinions to be more aware of potential ambiguities (and of methods for avoiding them) than they seem to be.

    If law students at the highest levels "are mostly incompetent readers and writers who need academic remediation", this is an argument for a more thorough-going revision of the curriculum at earlier levels of instruction, and perhaps for changes in law school admissions requirements.

    Having taught quite a few law-school-bound students over the years, I feel that things are not quite so bad. But in any case, I'd still like to put linguistic analysis on the list of skills that should be added to their preparation. Medical schools require biology, chemistry and physics, even though the relationship between the scientific content of these disciplines and the everyday activities of doctors is arguably even more remote than the relationship between linguistic analysis and the everyday activities of lawyers is. And if (counterfactually) medical-school students learned no natural science, it would not be a strong argument against teaching them some science that they also required remediation in basic arithmetic.]

  6. Mark P said,

    January 4, 2011 @ 9:13 am

    "Law students, even at the highest levels, are mostly incompetent readers and writers who need academic remediation …"

    Interesting. In my previous life I was a newspaper reporter. A significant percentage of the reporters I knew ended up in law school. (I always imagined it was because they reported on trials and watched TV lawyer programs and decided that they could do that. It's a common perception among reporters that they can do anything they report on, and better than the people they see doing it.) I heard from one of them some time later. It seemed that his training in reportorial writing gave him a real advantage over his classmates in writing the various kinds of texts they were required to do.

  7. chris said,

    January 4, 2011 @ 9:21 am

    Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test?

    It seems like what Fish is discussing in the latter sentence is not the message's meaning, but something else – its significance, perhaps? He knows what it means, but not whether or not to believe it.

    The meaning of the note — that Fish has been betrayed by a friend — is so clear Fish overlooks it completely in order to talk about something else and call *that* meaning.

    Most linguists (and most philosophers of language) assume that both ways of thinking about the question are useful, and even essential in that neither is really coherent without the other

    ISTM that even if that is true, it is unnecessarily confusing to use the same term for both. Polysemy in ordinary language is sometimes harmless, but in technical discourse it is often a source of misunderstanding.

    The meaning(s) of a text, the intent of the author, and the significance to the reader may be the same or different in any particular case — but they're clearly different *concepts*, and referring to more than one by the same word seems to me to cause unnecessary confusion.

  8. Kate G said,

    January 4, 2011 @ 10:11 am

    What am I missing? To me it is obvious that both "all texts can be fully understood without knowing their author" and "all texts cannot be fully understood without knowing their author" are false. The counterexamples are at either end of a spectrum: Keep Out Danger High Voltage needs no authorship information to understand, but I Love You is useless without authorship information. Some (most) text carries more meaning if you know who it's from, even when it's a textbook or a law or a legal judgement. Some text carries meaning (enough to cause you to act, anyway) without any knowledge of who it is from. Philosophically you might distinguish between the person who printed the Keep Out sign, the person who composed it, the person who ordered it to be posted, etc, and name only one as the author. While a monkey might activate the fire alarm that does not make the monkey the author of the message – surely the comittee that decided to install the alarm is the true author and the one we trust when we decide to leave the building.

    Anyway as neither a law student, a linguist, or a philosopher I feel I am missing whatever is non obvious here.

    [(myl) In my opinion, you have the essential point.]

  9. peterm said,

    January 4, 2011 @ 11:52 am

    And even knowing the identity of the author of a message may tell you very little about the author's actual intentions, assuming for the moment that the author both has unambiguous intentions in conveying the message to you, and also knows him- or herself what these intentions are. For an example from espionage, see here:

    http://www.vukutu.com/blog/2008/12/hearing-is-not-necessarily-believing/

  10. Jonathan Badger said,

    January 4, 2011 @ 12:01 pm

    Actually "Keep Out Danger High Voltage" does require *implied* authorship in that you assume that the author is likely to be an electrician working for the power company who is telling the truth. If you think the author is just some prankster who put it over the door to the lavatory you would rightly ignore it.

  11. J. W. Brewer said,

    January 4, 2011 @ 12:34 pm

    I'm wondering if recent scholarship in philosophy of language or pragmatics or what have you can actually provide insight into the particular conundrum Scalia is trying (perhaps naively) to grapple with, which is that the "author" for certain relevant purposes of certain legal texts is a collective. The "meaning" of a statute, for example, is hopelessly mixed up with the question of its legitimacy and authority. It has authority, not because some low-level staff person drafted a particular sequence of words (which may or may not have been supplied to the staffer by a wire-pulling lobbyist and/or high-minded proponent of reform and/or other outside source) with a particular intent, but because a whole bunch of different people collectively constituting (in the usual case) separate majorities of two different houses of a legislature voted to approve that particular sequence of words. It is not infrequently the case that when a dispute arises later on there is some evidence that Senator A thought the text meant X and Senator B thought the text meant not-X, yet they both voted for the same form of words, and/or that no one consciously thought about the meaning of the text as applied to the specific factual situation that has now arisen. Is there some practical help the linguistics faculty can provide to the law faculty on this specific practical difficulty?

    [(myl) I'm not the right person to try to answer this question, but I'll forward to various people who actually know something about the range of issues involved.

    However, I can point out that the article by Scalia that I quoted from is a review of Steven Smith's Law's Quandary, and much of the review is devoted to an argument against Smith's "metaphysical" solution to the problem that you pose.

    I should also point out that Scalia himself, in his opinions, often engages in a form of argument that I would characterize as trying to delimit the class of communication-intentions that someone would need to have had in order to write a particular phrase in a particular context. I discuss a couple of examples here.

    And he makes a blantantly intentionalist argument here:

    Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what [the 14th amendment] meant. Nobody ever voted for that.

    ]

  12. Administrative Law Prof Blog said,

    January 4, 2011 @ 12:45 pm

    Interpretation: Intentionalist v. Textualist…

    On the linguistics blog Language Log, Mark Liberman (Trustee Professor of Phonetics, Dept. of Linguistics; Professor, Dept. of Computer and Information Science; Director, Linguistic Data Consortium, Univ. of Pennsylvania) has posted "The meaning of me…

  13. Clayton Burns said,

    January 4, 2011 @ 12:59 pm

    The Fishmonger has spoken: January 3, 2011, 8:30 PM Anonymity and the Dark Side of the Internet By STANLEY FISH NYT –But how, asks Brian Leiter in a powerful essay, is the process of deliberation helped by the anonymous poster who reports falsely “that Jane Doe has herpes” and announces “that he would like to sodomize her?”

    The Internet and the real world, Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.–

    There is also the post here at Language Log on the Fishmonger's column. For 2011, Brian Leiter should help to manage a Philosophy blog at The NYT.

    You will find useful material in The NYT, Language Log, and Leiter's Nietzsche Blog, but information incoherence at the national level is patent. Good subjects arise and die away without sensible resolution.

    I would like Brian to cooperate with The NYT on fundamental issues (not the trivial politics of the Academy). Everyone who wanted to post at the Leiter NYT Nietzsche Philosophy Blog would have to appear under his or her real name.

    Language Log's links raise an interesting question. Is Language Log to be held responsible for any material in the linked sites?

    A meticulous analysis of LSAT is long overdue. I will set out how to go about that in a later comment. Let me present an example of the chronic failure of focus in law as it might be illuminated by philosophy, psychology, linguistics, and literary criticism.

    A decisive factor in assessing the credibility of the governess in Henry James's "The Turn of the Screw" must be the fact that she was able to recount in graphic detail the circumstances of the death of Peter Quint. She could not have done so without an informant who she never tells us about.

    Therefore, that she is able to describe Peter Quint is not proof that he manifested himself to her as a ghost. Even though the best of literary critics falls into this trap.

    Despite the law and literature movement, no penetrating analysis of this most fascinating text, the most important one for law and literature, exists. Despite "Law and literature," by Richard A. Posner.

  14. John Lawler said,

    January 4, 2011 @ 1:07 pm

    With regard to lawyers learning linguistics, one could do much worse than to start with LL author Roger Shuy's books on forensic linguistics (I know, that's not the precise issue here, but the subject impinges and ithe books are case studies, written for both linguists and lawyers), listed here.

  15. SB said,

    January 4, 2011 @ 1:40 pm

    Philip Bobbit, a professor at Columbia Law School, has an interesting book that discusses the six "modalities" of legal argument (which he makes his law students read, so it's not entirely as though law students get no training in this sort of thing). The book is called "Constitutional Fate." Although some of the modalities are more concerned with logic (structural arguments) or costs & benefits (prudential arguments), he also gives substantial time to three "stricter" forms of arguing: historical arguments (using the meaning of the words applied by the drafters of the statute or constitution), textual arguments (using the meaning as a current-day layman would understand the wording of the text), and doctrinal arguments (using the construction supplied by previous courts that have interpreted the relevant text).

    For a somewhat more apposite example, the various states disagree on the rules of contract interpretation (which are taught in first year contracts). When presented with a document memorializing a contract, some courts purport to limit their interpretation of that contract to the "plain meaning" of the words–as defined in a dictionary–and other courts will use context to evaluate what the contract means. This is a debate that is central to contract law, and it is taught at any law school worth its tuition (another, entirely different concern).

    My point is twofold. First, although law students aren't forced to take linguistics courses per se, construction and interpretation are at the heart of what all law students do, and every course I can think of recognizes that the meaning of a document is fluid, and even that there is substantial time given to questions of precisely this sort in most law school classes, even if the time is under the aegis of "contracts," or "torts," or "constitutional law," rather than "semantic philosophies" or some such.

    Second, Professor Fish and Justice Scalia are surely aware of this long-standing debate, since it is so elementary to their profession. It's probably safer to think of them as partisans arguing in front of a wider public that thinks (as most lawyers do not), that laws tend to have a fixable meaning. In fact, as to Justice Scalia, it's pretty safe to argue that he isn't even being intellectually consistent here, since, as an "originalist" (whatever that is–probably some combination of historical and doctrinal reasoning), his ostensibly preferred interpretation of statutes requires evaluating them according to the meaning supplied by those who wrote them. His professed interpretation has no room for an authorless writing in the sand, and the fact that he's advocating such a construction here is probably more evidence of his duplicitousness than anything else.

  16. chris said,

    January 4, 2011 @ 1:52 pm

    I Love You is useless without authorship information

    It's useless, but not meaningless, IMO. It unambiguously means that the speaker loves (or loved, at the time of making the statement) the person addressed. That may be a lie, or a joke, or a self-delusion, but it's what the statement means.

    Now, of course, if you don't know who either of those people *is*, that's even less use than statements where you merely don't know whether the speaker was correct, lying, or mistaken, but IMO that kind of difficulty in applying the sentence to the real world is a separate issue from the meaning of the sentence.

    (A possibly trickier example: the "I am Spartacus" scene from _Spartacus_. Is the whole crowd making the same statement, or different statements? And if they're making the same statement, how can one of them be telling the truth while all the others are lying? I think the answer has to be that they're using the same words to make different statements, which is possible because one of the words is "I".)

  17. Mark P said,

    January 4, 2011 @ 2:18 pm

    The idea that the words themselves are all that is necessary might make sense under certain conditions. The higher the level of communication, the more important it becomes that speaker and listener have a shared experience and knowledge. Both parties have to understand and agree to the meaning of all the words and the way in which the words are put together. In some areas, the higher the level of communication, the more likely that becomes. In other areas, that might not be the case. In the world of mathematics (if you are willing to allow mathematics to be considered a language), once the conditions are agreed to, the math speaks entirely for itself and essentially without ambiguity (usually). But normal languages are not like that. For example, some reporting on the Wikileaks story referred to leaked "top secret" documents. "Top secret" has a specific meaning to people familiar with US classification laws and procedures, while to the layman it probably just means something that is really, really secret. One group probably heard the story as "important secrets were leaked" while another group was brought up short by references to types of documents that were almost certainly not leaked.

  18. Neal Goldfarb said,

    January 4, 2011 @ 2:30 pm

    @ J.W. Brewer:

    I'm wondering if recent scholarship in philosophy of language or pragmatics or what have you can actually provide insight into the particular conundrum Scalia is trying (perhaps naively) to grapple with, which is that the "author" for certain relevant purposes of certain legal texts is a collective. The "meaning" of a statute, for example, is hopelessly mixed up with the question of its legitimacy and authority. It has authority, not because some low-level staff person drafted a particular sequence of words (which may or may not have been supplied to the staffer by a wire-pulling lobbyist and/or high-minded proponent of reform and/or other outside source) with a particular intent, but because a whole bunch of different people collectively constituting (in the usual case) separate majorities of two different houses of a legislature voted to approve that particular sequence of words.

    The issue of legitimacy and authority is an important part of the justification for textualism, and it's a justification that doesn't require one to buy into Scalia's views about the autonomy of the text. The argument is that only the text of the statute has been enacted by Congress and signed by the President (or enacted over his veto). It is the text that is, quite literally, the law.

    One of the expounders of this view has been appeals-court judge, Frank Easterbook, who put it this way in one of his decisions:

    An opinion poll revealing the wishes of Congress would not translate to legal rules. Desires become rules only after clearing procedural hurdles, designed to encourage deliberation and expose proposals (and arguments) to public view and recorded vote. Resort to "intent" as a device to short-circuit these has no more force than the opinion poll—less, because the legislative history is written by the staff of a single committee and not subject to a vote or veto. The Constitution establishes a complex of procedures, including presidential approval (or support by two-thirds of each house). It would demean the constitutionally prescribed method of legislating to suppose that its elaborate apparatus for deliberation on, amending, and approving a text is just a way to create some evidence about the law, while the real source of legal rules is the mental processes of legislators….

    Concern about the source of law—is the statute law, or is it just evidence of the law?—lies behind statements such as: "[T]he language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent." [citation omitted.] To treat the text as conclusive evidence of law is to treat it as law—which under the constitutional structure it is. Legislative history then may help a court discover but may not change the original meaning. [citation omitted] The "plain meaning" rule of Caminetti rests not on a silly belief that texts have timeless meanings divorced from their many contexts, not on the assumption that what is plain to one reader must be clear to any other (and identical to the plan of the writer), but on the constitutional allocation of powers. The political branches adopt texts through prescribed procedures; what ensues is the law. Legislative history may show the meaning of the texts—may show, indeed, that a text "plain" at first reading has a strikingly different meaning—but may not be used to show an "intent" at variance with the meaning of the text.

    As I read this, Easterbook is working with a fairly nuanced view of what meaning is, but what's driving his ultimate conclusion are perceived legal constraints, not semantic theorizing.

  19. Alan Gunn said,

    January 4, 2011 @ 2:52 pm

    "what a working lawyer needs is a set of rhetorical tools, since the meaning he wishes to impart or imply to any bit of statutory or contractual language is determined entirely by his client's interests."

    As a lawyer who appeared in court exactly once before retiring, I find it remarkable that most people, and even some lawyers, assume that we are all litigators. Most lawyers aren't; we help people arrange their affairs, and our clients will end up in court only if we are not successful. Trial lawyers may well think of little but how to present their clients' interests in an appealing way, but the rest of us need more than "rhetorical tools" to do our jobs well. Try drafting a contract with a litigator's set of rhetorical tools and you will make a real mess.

  20. Neal Goldfarb said,

    January 4, 2011 @ 3:06 pm

    Regarding J.W. Brewer's question whether "recent scholarship in philosophy of language or pragmatics or what have you can actually provide insight into the particular conundrum Scalia is trying (perhaps naively) to grapple with, which is that the 'author' for certain relevant purposes of certain legal texts is a collective":

    Although I fully agree with Mark about the usefulness of linguistics (including at least some aspects of philosophy of language) in legal argument and analysis, I'm skeptical about how much it can contribute much to the debate over the role of legislative intent in statutory interpretation.

    Sure, it's valuable to argue against the notion of the text being autonomous, but that doesn't resolve the question of what indicia of nontextual intent can appropriately be considered. And once you get down to this level of detail, the problem is that statutes aren't utterances of the kind that linguistics typically deals with. The passage of a bill isn't so much an utterance as an adoption of someone else's utterance, and in many cases this occurs without (all) the legislators having read (all of) the text that they are voting on. There's nothing that I'm aware of in the literature on pragmatics or whatever that would be useful in dealing with this type of linguistic act. (Which isn't to say that there's nothing out there.)

  21. John Cowan said,

    January 4, 2011 @ 4:52 pm

    The philosophical tradition from which I come, that of Charles Sanders Peirce, Edgar Singer, Thomas A. Cowan, and Russ Ackoff, distinguishes between denotation, connotation and meaning. The sentence "I love you" denotes that the speaker loves the supposed hearer, but its connotation depends on context, and its meaning depends on the effect it has on the actual hearer. Thus, if uttered by a Tertium Quid but (over)heard by the legal spouse of the intended hearer, it may mean "My lover and I hate and despise you."

    Two experts, to explicate meaning
    Wrote a book called "The Meaning of Meaning".
       But the world still perplexed,
       Three experts wrote next
    "The Meaning of 'Meaning of Meaning'."

  22. David Fried said,

    January 4, 2011 @ 5:13 pm

    "Law students, even at the highest levels, are mostly incompetent readers and writers who need academic remediation, not a linguistics course."

    Written in a moment of crankiness and evidently unfair and untrue. Strike "even at the highest levels"–how would I know?–and "mostly." What I do find: 1) The average run of lawyers here in Massachusetts is significantly more competent than 35 years ago, and they write and speak better. 2) The best young lawyers, with a few exceptions, do not write with the sophistication, complexity and precision of their equivalents of 35 years ago.

    There. I feel better.

  23. a George said,

    January 4, 2011 @ 5:16 pm

    I think that we are at such a basic level of verbal communication that it is relevant to recommend an old book: George Steiner: "After Babel: aspects of language and translation", London, Oxford University press 1975 (paperback 1976). I am sure that to some it will be old-fashioned; if you have no clue as to its relevance, do read the review in Journal of Documentation, Vol. 32, No. 3, pp. 241-242.

  24. Neal Goldfarb said,

    January 4, 2011 @ 5:45 pm

    @SB:

    although law students aren't forced to take linguistics courses per se, construction and interpretation are at the heart of what all law students do, and every course I can think of recognizes that the meaning of a document is fluid, and even that there is substantial time given to questions of precisely this sort in most law school classes, even if the time is under the aegis of "contracts," or "torts," or "constitutional law," rather than "semantic philosophies" or some such.

    But as far as I can tell, there's no reason to think that law schools provide any useful guidance in how to analyze and argue issues of, say, grammar or word meaning. (I exclude the small handful of schools whose faculty includes someone with a background in linguistics.) Nor is there any reason to think that most law professors would know how to provide such guidance, or even know what such guidance would look like.

  25. the other Mark P said,

    January 4, 2011 @ 5:52 pm

    Chris is right: Fish is looking beyond the obvious meaning of the words, to see if they are true or not.

    More importantly though, he is not using analogous situations.

    Laws and the like are written without a specific intended recipient and are intended to have face value. As a result hey have meaning only in what they say. If they have some "meta-meaning" it is almost certainly not intended by the writer.

    Personal communication by contrast, of the type quoted by Fish and the "I love you" discussed in the comments, is almost always intended to have a "meta-meaning". People dance around the truth using social conventions to decrease stress and risk of offence.

    You cannot compare the two situations even remotely. The analogous situations to written laws are school textbooks or mechanical instructions: situations where the audience is unknown and the message is all that is important. Good luck with finding any higher level meanings in those!

    (There is a third situation, where the exact audience is unknown, but their general situation is known and the writer intends to persuade. That has the face aspect of literal works, but actually carries as much meta meaning as can be loaded in. Politicians use it all the time: they don't care about the "truth" so much as persuading the populace (but only their populace, they don't care about voters in other countries). This is also a frequent position of newspaper commentators, like Fish, who will use inappropriate arguments if they think it will suit their ends.)

  26. Clayton Burns said,

    January 4, 2011 @ 7:36 pm

    Mark: "I disagree with both Prof. Fish and Justice Scalia, but my main purpose here is to observe again how odd it is that law schools (and English departments) generally require no linguistics courses of their applicants, and teach no linguistics to their students."

    Not only is Mark right, but the comments prove it. I would have alluded to the John Mendez story covered so poorly by The Washington Post and NBC –NBC Washington: Grammar Police Take Down Reckless Driving Law: Back to the Grammar Books for the Va. Legislature By ASHLEY E. BROWN Updated 10:05 PM EST, Tue, Nov 30, 2010.

    Not only would I give the media poor marks for coverage, but I would also fault the ABA and lawyers in Virginia and in the Washington area for the feeble indications in their comments and blog entries that they understood the issues.

    Mendez got some traction in a few law library blogs, but without acceptable development of the linguistic issues. In fact, one such blog (in Vermont) recommended "The Elements of Style" instead of the "COBUILD English Grammar."

    In Language Log, by contrast, the issues were well-developed, if not fully explicated. Anyone who had followed up on this Virginia school bus case would have been embarrassed for the legal profession.

    What I suggest is that Mark find a copy of The Official LSAT PrepTest 60 (June 2010) by the Law School Admission Council, Inc. and submit it to close analysis (since it is about 45 pages it is ideal as a text sample). If we were to consider a different type of admissions test we might set a curriculum:

    1.The "COBUILD English Grammar." 2."A Civil Action." 3.The Sunday New York Times for one year. 4.Major cases such as the Air-India trial in Vancouver.

    I have mentioned that many judges do not seem to understand corpus dictionaries (the "COBUILD Advanced Learner's English Dictionary" and the "Longman Dictionary of Contemporary English" should be official for law school courses, law libraries, and courts, along with special resources for American English.)

    Would linguistics courses for law students translate into better analysis? Law students who had read the front page article "Deepwater Horizon's Final Hours," by David Barstow (NYT, Dec. 26) should have noted the premonitory signs of stress on page 26. Then they could have compared that account with Steve Lohr's Jan. 2nd front page NYT article "Computers That See You, Read You and Even Tell You to Wash." On page 14, Lohr describes Affectiva, which is beginning to market facial-expression analysis software. Now, you could argue that future BPs and Transoceans would have no duty to be aware of Affectiva so there would be no matter of negligence in not having the capacity to analyze stress.

    However, a striking factor in the Deepwater Horizon story is Transocean's "detailed handbook on how to respond to signs of a blowout." BP's communications practices, including its 24-words-long e-mail on the negative pressure test, need examination. The lawyers involved had not worked through the communications systems in such a way as to ensure that they met reasonable standards in the context, in terms of what linguistics and psychology could have offered.

    Information cohesion can be most directly approached by doing exercises based on Chapter 9 in the "COBUILD English Grammar," on cohesion. It is reckless of lawyers not to be fully aware of this resource.

  27. Jerry Friedman said,

    January 4, 2011 @ 10:24 pm

    @The Other Mark P.:

    Laws and the like are written without a specific intended recipient and are intended to have face value. As a result hey have meaning only in what they say. If they have some "meta-meaning" it is almost certainly not intended by the writer.

    This may be true, but we're occasionally told that a proposed law will "send a message" to some people.

  28. baylink said,

    January 5, 2011 @ 12:48 am

    Best phrased argument for prescriptivism I've heard.

  29. ShadowFox said,

    January 5, 2011 @ 5:37 am

    Chris wrote above:

    A possibly trickier example: the "I am Spartacus" scene from _Spartacus_. Is the whole crowd making the same statement, or different statements? And if they're making the same statement, how can one of them be telling the truth while all the others are lying? I think the answer has to be that they're using the same words to make different statements, which is possible because one of the words is "I".

    Actually, the point Chris is making about the phrase "I am Spartacus" is more clearly illustrated by the corresponding scene from the Life of Brian, where not only is the original Brian ignored when he says he's Brian of Nazareth, but the first person to respond admits to have been "pulling your leg" to the Roman soldiers who taking down, with no effect, and one of the other victims claims, "I am Brian, and so is my wife!" It seems the problem is not so much with the use of "I" as with the near-Clintonian parsing of "am" (it depends on what the meaning of "is" is). A similar exploration of "am" occurs in A Fish Called Wanda, when John Cleese responds to the inquiry as to whether he speaks Italian, "I am Italian!" In fact, Terry Gilliam repeatedly returns to the same idea in a number of his films, whether they are done with the full Monty Python cast or without.

    In real life, there are occasional episodes the emulate the same distinction. Two come to mind right away: Hank Gates's argument with Cambridge cops in front of his own home and Chris Christie's retort to a cop who was trying to issue a ticket for driving the wrong way on a one-way street. Both gave slightly different versions of essentially the same statement: "Do you know who I am? You don't know who your are messing with!" In both cases, the actual identity of the person is not what is being put in play–it is the person's cultural identity that is on display.

    Scalia is clearly not interested in recognizing such distinctions in legal cases, although he's perfectly capable of using them when it suits his own purposes. Scalia's statement cited above is precisely the rejection of the notion that the cultural identity of the speaker may be important in interpreting his statement–yet, in the same paragraph, Scalia also claims that the understanding of the statement is based on cultural construction. In fact, without admitting a priori that Scalia is a hypocrite, it is virtually impossible to reconcile this statement with his other textualist positions. Scalia generally claims ontological purity of legislative construction, not constructive epistemology of legislative action.

    This is why this quote seems so uncharacteristic of Scalia. If statements can have culturally determined (or acquired–as would be more accurate) meaning, that meaning may change with a change in culture. While Scalia claims, "If the ringing of an alarm bell has been established, in a particular building, as the conventional signal that the building must be evacuated, it will convey that meaning even if it is activated by a monkey." In some environments this is undoubtedly correct. But in other environments, where the assumption is that the alarm bell rings almost exclusively for testing or training purposes (e.g., a college dorm fire-drill), it is far more likely that the alarm will be ignored as an empty gesture even when pulled with a deliberate warning intent. So, even though the identity behind the actor may not be important, the cultural significance of the statement is, which is something Scalia is usually loathe to admit (this is, after all, the same guy who believed that there were universal prohibitions on abortion at the time of the American Revolution because we have no statements permitting them).

    Of course, such confusion is typical of textualists, literalists and "strict constructionists" because, sooner or later, they are forced to admit that the underlying text requires interpretation, even if they are only willing to admit a single correct interpretation–and even then, they admit this grudgingly because the alternative would be textual (and, as a consequence, moral) relativism.

  30. linda seebach said,

    January 5, 2011 @ 3:24 pm

    I was an editorial writer in Denver, and so often saw bills or ordinances at an early stage, and more often than I liked I would find myself trying to explain to a legislator or city council member that their proposed language did not mean what they thought it did. For example, one wanted city subsidies for child care to be decreased as family income rose, but saying the subsidies will be "inversely proportional" to income is unfortunately a term with a precise meaning, and not the one the drafter of the ordinance had in mind.

  31. Peter Sattler said,

    January 5, 2011 @ 7:04 pm

    Scalia and others seem to miss Fish's — or any intentionalist's — main point. An intentionalist like Fish argues (and I tend to agree with him) that *all* linguistic meaning is intentional. For Fish, to interpret what an utterance or text means simply is to try to figure out what it's author intended for it to mean.

    This does not mean that we need to hold all interpretation in abeyance until we dig up some information on the author. We can make educated guesses, based on what those kinds of words have usually meant in similar situations. We can consult our memories, or our dictionaries, or a Google search. But even when we are doing that, we are trying to get at the intentions behind THIS PARTICULAR UTTERANCE.

    If, for example, we hear someone say "That was bad," we might jump to certain interpretive conclusions based on what we know of the speaker, deciding that the utterance meant "That was not so good," "That was pretty great," or something else entirely.

    But even if we know nothing about the speaker and decide to go just by its "textual meaning," we do so in order to figure out what that particular speaker/writer intended. We could be wrong. We could change our mind, or not. But it is still what we are doing.

    Take Scalia's cases: A monkey pulls a fire alarm or the wind carves what looks like a warning in a rock. It's not illogical to react to those "texts" as if they mean what that those types of marks and noises *usually* mean when we encounter them. But when we do that, it is because we are assuming that this particular example has a similar intention behind it.

    That is also why, when we realize that the monkey or a prankster pulled the alarm — or that the wind or grumpy teenager carved the words — we treat the utterances differently. We do not stay outside (in the case of the alarm) or worry about danger (in the case of the warning) just because those marks and noises still have that standard "textual" meaning.

    In fact, in the case of the monkey and the wind, we probably decide that the PARTICULAR texts had no meaning at all. They were meaningless texts, in those cases. No intention, hence nothing to interpret.

    For instance, imagine that the same precocious monkey — now in a cage — had a crayon and was scribbling on a piece of paper. Within the scribbles you see something that looks like the word "HELP." What would be involved in deciding that this *particular* text had meaning — that it was a call for assistance, or a joke, or a reference to a Beatles album, or anything?

    Fish would contend that you would only worry about the meaning of this particular text if and when you decided that its author (the monkey, a baby, whatever) had some intention. Otherwise it's just an oddity, regardless of how many other people use that set of marks to convey certain meanings.

    From Fish's point of view, intention isn't something that you may *choose* to consult when interpreting the meaning of a text. Searching for the particular intentions is what it means to "interpret a text" at all. Intentional meaning is the only kind of meaning there is.

  32. Jason said,

    January 5, 2011 @ 8:03 pm

    Is it on topic to mention that in his recent interview with "California Lawyer" Antonin Scalia endorses an intentialist, not a textualist interpretation of the 14th amendment?

    "Certainly the Constitution does not require discrimination on the basis of sex." The only issue is whether it prohibits it. It doesn't. "Nobody ever thought that that's what it meant.” Nobody ever voted for that. "If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. (emphasis mine).

    I've noticed Scalia routinely equivocates on his judicial philosophy depending on what outcome he prefers, without even seeming to notice the contradiction. But certainly it seems that even Scalia doesn't agree with Scalia.

    [(myl) Already mentioned here.]

  33. PubliusFL said,

    January 6, 2011 @ 10:20 am

    SB and Jason:

    My understanding is that Scalia subscribes to an "original public meaning" theory of constitutional interpretation, which differs from both the "original intent" approach (focusing on the subjective intent of the authors) and strict textualism.

  34. Liz said,

    January 6, 2011 @ 2:11 pm

    I am reminded of the "Keep Out Danger High Voltage" sign at the Pushkin Intitute for teachers of Russian. One day the door was open: turns out it was the listening post (all the rooms were bugged).

  35. Liz said,

    January 6, 2011 @ 2:11 pm

    forgot to mention, the institute was in Moscow Russia

  36. Liz said,

    January 6, 2011 @ 2:11 pm

    forgot to mention, the institute was in Moscow Russia

  37. Liz said,

    January 6, 2011 @ 2:11 pm

    forgot to mention, the institute was in Moscow Russia

  38. JR said,

    January 6, 2011 @ 3:47 pm

    @PeterSattler: For some 200 years after its publication, Don Quijote was viewed as a comedy. It was only with German Romantics that something more philosophical and heroic was attributed to that character. This new view has shaped most modern interpretations of the novel. But you are saying that, no, Cervantes's intention was pure comedy and that's the end of the argument?

  39. Recent Linkage 2 « Signifying Media said,

    January 7, 2011 @ 5:24 am

    [...] Liberman at the Language Log points out just how strange some of Justice Scalia's thoughts on texts and meanings sound to those who have actually studied language, including theb independently idiosyncratic Stanley [...]

  40. chris said,

    January 7, 2011 @ 9:22 am

    My understanding is that Scalia subscribes to an "original public meaning" theory of constitutional interpretation, which differs from both the "original intent" approach (focusing on the subjective intent of the authors) and strict textualism.

    But surely, nobody ever voted for the public meaning either (to the extent it can be ascertained at all) — they each voted for or against their own subjective interpretations of the bill/amendment/etc. Should a law be invalidated because enough congresspeople misunderstood it that wouldn't have voted for it if they had understood it that, if it had been understood correctly by everyone in Congress at the time, it would never have passed? ISTM that it would be very difficult in practice to apply such a test, even if you think it ought to be done in principle.

  41. Brigid said,

    January 7, 2011 @ 4:09 pm

    The Penn English undergraduate major allows students to count 2-3 linguistics classes. And I think that the English Language, as opposed to English Literature, departments in British universities have linguistic content.

    Perhaps there is a lack of incentive for English literature students to take linguistics classes, since linguistics is not directly applicable to the type of analysis that is awarded with higher marks in English.

  42. jf said,

    January 9, 2011 @ 2:35 pm

    Chris: I'm confused by what you're saying. The whole point of giving up on intentionalism is that we don't care why any legislators voted for anything. We take the thing they voted for as an object. We don't care if they voted for it because they didn't understand it, they were bribed, they misunderstood the wishes of their constituents or anything else. They passed a thing — a list of words and other symbols. We now make a simple move (not necessarily simple in practice) we interpret that thing with the ordinary public meaning at the time it was passed. That is, we act as if the legislators passed a thing with ordinary contemporary understanding of the words. This seems to me to make a great deal of sense (if implemented well) as a strategy of construction.. This doesn't say that anybody does it consistently in the face of their policy predilections.

  43. csfjr said,

    January 9, 2011 @ 6:13 pm

    This interesting article and the ensuing commentary have prompted me to read again Borges's entertaining and thought-provoking, "Pierre Menard, Author of the Quixote." Menard, a 20th Century man, attempts the astonishing task of writing Don Quixote. Borges notes that the contrast in style of the fragments produced by Menard are "vivid" but suffer from a "certain affectation" lacking in Cervantes's work, even though what Menard wrote was identical to what Cervantes wrote. A fascinating way to convey that the meaning of a writing requires an understanding of its author — and its reader.

  44. Oliver said,

    July 23, 2012 @ 5:09 am

    Nobody ever thought that that's what it meant. Nobody ever voted for that.

    The acts of drafting and voting for a bill a separate and different. There's no contradiction in considering one of them utterly irrelevant but the other significant.

    When he assumes that the legislators (whoever they be) voted on a proposal based on the average contemporary reader's understanding, he makes a necessary assumption, as this is the only agreement there is. Each voter/legislator had his own reasons. It would do no good to research intentions, because "get legislator X reelected" is not a thing a court can base rulings on.

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