Scalia and language
There's been some interest of late ("Man bites dog": a Supreme Court Justice reviews a law Professor's work) in the recent review by Antonin Scalia of Steven D. Smith's Law's Quandary. Over at Language Log, my one-stop source for Things of Interest Lately That Are Linguistically Inclined, I read this fascinating post:
Scalia on the meaning of meaning, Oct. 29, 2005.
In that post, Language Log host and contributor Mark Liberman notes the fascinating contrast between Smith's theory and Scalia's response, played out on the battlefield of linguistic theory. What's the meaning of a word?
Both Smith and Scalia are discussing meaning, significance, and the proper way of determining same. What's the least ambiguous way? What's the most reliable, the most ethical, the most appropriate way? Both must get somewhat theoretical as they grasp for a handle on handles: what are we talking about when we say something means something?
Scalia, as he has historically, disdains the mind of the author. He has consistently derided legislative history - that is, the contemporaneous but un-enacted statements of the people whose job it was to craft the words of the statute. That's because, as with international law, it is easy to look out over a crowd and pick out one's friends; that is, to act unethically as a judge by deliberately pretending that some out of a crowd support your view.
Meanwhile, Scalia views the proper method of interpretation of the Constitution to be the one consistent not only with its words but with the original meaning. Not the intent, perhaps, of the Framers, but the objective meaning the words had as generally understood.
Smith takes a far contrary position, that words are meaningless absent context.
I disagree with Scalia for policy reasons and for political reasons and for legal reasons, but most of all I have to disagree with him for linguistic reasons. His parable, of
Mark Liberman does more than just analyze what the two thinkers are saying, he also brings some context.
This debate - where do you look to understand what the meaning is - has aspects of linguistics, in the deep questions of what language is and how it does it. Here's my favorite bit:
Of the many canons of construction, one of them is to disregard minor errors which clearly contradict the entirety of the rest of the corpus, and which would nullify the obvious meaning of the whole. That wasn't supposed to be a second "not"; we judicially omit it. The comma was inadvertent; we disregard it. The word "leaving" was supposed to be "leading," and we take judicial notice of the fact that everyone involved in the whole process believed it did in fact read "leading," and never noticed when it got changed between the final draft and the enacted legislation. Etc.
But Mark's deeper point remains: is there room to synthesize these two putatively opposed views of law and language? I'm not skilled enough on the linguistics side of this to do much heavy lifting there, but I'll see if I can't point up some good stuff in the law to help illuminate this area a little better.
Scalia on the meaning of meaning, Oct. 29, 2005.
In that post, Language Log host and contributor Mark Liberman notes the fascinating contrast between Smith's theory and Scalia's response, played out on the battlefield of linguistic theory. What's the meaning of a word?
Both Smith and Scalia are discussing meaning, significance, and the proper way of determining same. What's the least ambiguous way? What's the most reliable, the most ethical, the most appropriate way? Both must get somewhat theoretical as they grasp for a handle on handles: what are we talking about when we say something means something?
Scalia, as he has historically, disdains the mind of the author. He has consistently derided legislative history - that is, the contemporaneous but un-enacted statements of the people whose job it was to craft the words of the statute. That's because, as with international law, it is easy to look out over a crowd and pick out one's friends; that is, to act unethically as a judge by deliberately pretending that some out of a crowd support your view.
Meanwhile, Scalia views the proper method of interpretation of the Constitution to be the one consistent not only with its words but with the original meaning. Not the intent, perhaps, of the Framers, but the objective meaning the words had as generally understood.
Smith takes a far contrary position, that words are meaningless absent context.
I disagree with Scalia for policy reasons and for political reasons and for legal reasons, but most of all I have to disagree with him for linguistic reasons. His parable, of
is nice poetry, but is weird. Really, really weird.
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.
[...]
As my desert example demonstrates, symbols (such as words) can convey meaning even if there is no intelligent author at all.
Mark Liberman does more than just analyze what the two thinkers are saying, he also brings some context.
This debate - where do you look to understand what the meaning is - has aspects of linguistics, in the deep questions of what language is and how it does it. Here's my favorite bit:
Liberman's concluding question is a throwaway: "I suppose that legal texts are generally carefully composed and proofread, but errors must occasionally creep in — and do obvious typos or malaprops then have the force of law?" and there's an obvious answer.
It's obvious that the concerns of legislators, lawyers and judges overlap significantly with the subject matter of linguistics and language-related philosophy, and I've always been puzzled about why the real-world interactions between the disciplines and their practitioners seems to be so limited. Reading Scalia's review left me more puzzled than before.
I gather from Scalia's review that Smith's perspective is at least as strongly represented among contemporary legal scholars as Scalia's is. I won't presume to characterize the philosophical state of play on these questions, but let me say that as a practical matter, linguists generally find it necessary to think about both kinds of meaning..."
Of the many canons of construction, one of them is to disregard minor errors which clearly contradict the entirety of the rest of the corpus, and which would nullify the obvious meaning of the whole. That wasn't supposed to be a second "not"; we judicially omit it. The comma was inadvertent; we disregard it. The word "leaving" was supposed to be "leading," and we take judicial notice of the fact that everyone involved in the whole process believed it did in fact read "leading," and never noticed when it got changed between the final draft and the enacted legislation. Etc.
But Mark's deeper point remains: is there room to synthesize these two putatively opposed views of law and language? I'm not skilled enough on the linguistics side of this to do much heavy lifting there, but I'll see if I can't point up some good stuff in the law to help illuminate this area a little better.