neale.nature of law

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“Convergentism & the Nature of Law”

Stephen NealeProfessor of Philosophy, City University of New York

Legal Theory WorkshopUCLA School of Law

03/14/2013, 5:00p.m.-6:45p.m., Room 1314

http://www.law.ucla.edu/home/index.asp?page=817

Draft For UCLA Workshop. Please Don’tCite Or Quote Without Permission.



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Convergentism & the Nature of Law

—––—————————————————–––—————————————————

Stephen Neale

Work in Progress

Draft for the Oslo Workshop on the Pragmatics of Legal Language

May 29, 2012

1. INTRODUCTION

1.1.

Convergentism

A few years ago, I wrote a very long paper called “Textualism with Intent” in

which argued that the rather lazy theories of statutory interpretation that fly under

the flags of “intentionalism” and “textualism” must converge if they are to amount

to more than collections of slogans—at least if talk of statutory interpretation really

is talk about interpretation and not talk about something else with which

interpretation is easily confused. But there was a problem. I tried to do everything

making as few assumptions about law as possible. As a result, I over-reached with

the philosophy of language to make up the shortfall. I want to advance the samecore thesis here—that sensible intentionalism and sensible textualism converge—

but this time I shall draw upon what I take to be the nature of law, at least in a

modern democracy, and argue that it this together with the nature of

communication and the nature of language that together force sensible textualism

and sensible intentionalism into a single box. It is unclear there is any alternative

philosophy of interpretation that is even consistent with the ordinary conception of

what the purpose of law is. If there is a genuine disagreement that remains, it is

orthogonal to the advertised battle lines. Though hardly conceptually necessary,

textualist propaganda tends towards convoluted attempts to further a conservative

political agenda; similarly intentionalist propaganda and a liberal political agenda.

1.2. Scalia’s Lament

According to Justice Antonin Scalia: “Every statute that comes into litigation is

to some degree ambiguous” (1997a: 22). (The word ‘ambiguous’ is being used here as



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a catch-all term for things philosophers of language would ordinarily separate:

lexical ambiguity, polysemy, vagueness, ellipsis, underdetermination,

indeterminacy, for example.) In the same piece, Scalia says, “Every issue of law

resolved by a federal judge involves interpretation of text—the text of a regulation,

or of a statute, or of the Constitution” (1997a: 13); “By far the greatest part of what

I and indeed all federal judges spend most of their time on is interpreting themeaning of federal statutes and federal agency regulations” (1997: 22); “Thus the

subject of statutory interpretation deserves study and attention in its own right, as

the principal business of judges and (hence) lawyers” (1997a: 13-14). And yet,

Justice Scalia laments, “We American judges have no intelligible theory of what we

do most” (1997a: 14), no intelligible “method of textual exegesis” (1989: 1184) as he

put it a few years earlier. The situation and its consequences are well described,

Scalia suggests, by Henry M. Hart and Albert M. Sacks:

Do not expect anybody’s theory of statutory interpretation, whether it is yourown or somebody else’s, to be an accurate statement of what courts actually do

with statutes. The hard truth of the matter is that American courts have no

intelligible, generally accepted, and consistently applied theory of statutory

interpretation. (1994: 1169).

Scalia himself has endorsed a form of textualism, a doctrine that he sees as taking

the language of a statute more seriously than other doctrines do without

succumbing to the woodenness of strict constructionism. Before looking at Scalia’s

ideas, I want to work my way towards a seemingly natural, intentionalist position.

1.3. Naïve Intentionalism

Scalia’s lament surprises many people outside law and legal theory. On the face of

it, the need for a theory of statutory interpretation is one that needs arguing for.

The texts that judges interpret—statutes, constitutions, regulations, treaties,

contracts, and wills—typically brim with complexities surpassing those found in,

say, passport application forms or instruction manuals for electrical appliances.

They may contain definitions and specialized vocabulary; they may have to conform

to certain formal templates or be read against backgrounds supplied by other texts;

and, however carefully crafted, they may present readers with pockets of

“ambiguity”, broadly construed. But does this really distance the texts of statutes so

greatly from those of passport application forms and appliance instruction



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manuals?1 They too may contain definitions and jargon that can be picked up

readily by anyone interested. They may have to conform to certain specified

conditions. As for any “ambiguities” they contain, aren’t commonsense and context

the tools used to resolve them? You and I may disagree about whether an

instruction on a form tells us to tick Box A or Box B if the applicant was born in a

British protectorate of a naturalized mother and a foreign father; or about whetheran instruction manual for some piece of machinery tells us to push Button A or

Button B if it is overheating. But no-one has suggested that we need general

theories or philosophies of the interpretation of passport application forms and

electrical appliance manuals.

Surely, the objective in interpretation is always the same: to identify what the

author or authors of these texts meant (in a sense of ‘meant’ that it is well worth

elucidating). So why do we need general theories of the interpretation of say,

statutes or contracts? Can’t we just take it for granted that statutes, contracts,passport application forms, and manuals for electrical appliances were written with

certain purposes and audiences in mind by reasonably clear-headed people who

knew what they were doing? And take it for granted the texts were checked and

proofread by other professionals for the sorts of errors that could well defeat the

aforementioned purposes?2

Aren’t we dealing with a continuum of texts—personal letters and e-mails at one

end, statutes and constitutions at the other, and in various places in-between such

things as job offers, parking tickets, passport application forms, tax returns,military orders, congressional committee reports, judicial opinions, affidavits and

depositions? Aren’t knowledge of a shared language, ordinary commonsense, and

the ability to draw upon context the tools we automatically deploy in all acts of

interpretation, whether we like it or not? An author seeks to communicate

something to an audience using a text; to interpret that text is just to identify what

it is the author intended to communicate (i.e. what the author meant). How could

identifying anything other than this constitute success in interpretation?

1 There is some temptation to lump letters with instruction manuals. But a letter from a friend, forexample, has as its author and as its intended audience specific persons with their own beliefs,desires, intentions, expectations, and hopes, some of which may be causally implicated in thewriting, resulting in texts that are highly idiosyncratic and personal, communicateing much that isnot stated directly. This would seem to set them apart from typical instruction manuals andstatutes.

2 Though I imagine many people have experienced emotions ranging from irritation to amusementwhen confronted with badly written, badly proofed, or badly translated instruction manuals ormenus. (I once saw on a menu in Greece ‘Lamp shop and ships’.)



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So what is so special about statutes? For that matter, what is so special about

texts? Isn’t interpreting a text—any text—just like interpreting an ordinary

conversational remark? People seek to communicate things to others; they use

words that they think will do the trick; sometimes things go horribly wrong; but for

the most part they don’t; typically people identify what other people are trying to

communicate. How can interpreting a legal text be any different and still beinterpretation rather than some grander activity? Where does theory come in?

1.4. No Escape From Theory?

Good sense and confusion are intertwined in the questions raised by the naïve

intentionalist, but not inextricably so. For now, it will suffice to react in two ways,

though it will be clear soon enough that good sense and confusion are interwoven

here too.

First, people have all sorts of intentions in speaking or writing. Intending to use

the noun “bank” with its financial meaning rather than some other; intending to

refer to the State of New York with “New York”, with “the state”, or with “it”;

intending the word “vehicle” to be understood as applying to, say, buses, cars, and

trucks, but not say, motorized wheelchairs; intending to amuse readers with a

particular turn of phrase; and intending to get re-elected by appearing to be “tough

on crime”, are quite different types of intentions one might have in speaking or

writing. So the naïve intentionalist needs to specify a principle that bifurcates

authors’ intentions into those that interpreting a legal text seeks to recover andthose it does not. And by specifying such a principle the naïve intentionalist has, in

effect, provided a theory of interpretation, however slight.

A “theory” of statutory interpretation cannot be a theory in the sense of ‘theory’

common to the sciences. I don’t just mean the hard physical sciences. Take so-called

humanistic sciences like linguistics or archaeology. These fields are sciences, at

least in Hempel’s sense, because there is great deal they seek to explain rather than

merely describe. But they are humanistic fields because a great deal of what they

seek to explain are products of human activity. We produce utterances, inscriptions,hand axes, jewelry, and buildings and we do so with certain intentions and

purposes. Linguistics and archaeology both had periods in which they were choked

by behaviourism and positivistic philosophy of science, but both have escaped, and

today the cognitive structures underpinning the behaviours that produce

utterances, inscriptions, jewelry, hand axes, and buildings are no less the subject

matter of linguistics and archaeology than the products themselves, as Chomsky

and Renfrew have argued. We explain properties of the things we produce by



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reference to postulated behaviours which in turn are explained, in part, by

postulated cognitive structures. (It should not be overlooked that Hempel himself

saw no reason why either history or archaeology had to be purely descriptive, why

they could not also be explanatory, there being no principled difference between

the sorts of explanation offered by the traditional sciences and explanations

offered by history and archaeology.)

There is nothing that a theory of statutory interpretation is meant to explain, in

this sense. A theory of statutory interpretation is not even descriptive, let alone

explanatory. It is, at bottom, prescriptive. It’s (part of) a particular philosophy of

law. It can be backed by reasons, but these cannot sensibly be such things as

explanatory or predictive power (even if predictability of application and outcome

are among the reasons). To this extent, then, a philosophy of statutory

interpretation is closer to a philosophy of archaeology than it is to archaeology

itself. It is an approach to the entities objects it studies, and it is normative.

2. LAW, COMMUNICATION, AND LANGUAGE

I am going to characterize legal interpretation in a way that seems to make some

form of intentionalism and some form of textualism almost truistic, given the

nature of law, at least in a modern democracy. I’m then going to argue that given

the nature of communication and the nature of language, the forms coincide. But I’ll

set everything up from the intentionalist perspective.

2.1. A Rough Intentionalist Position

Here’s a rough first pass at stating an intentionalist position and the form any

defence should take:

(1) The objective in interpreting a statute is, in the first instance, discerning the

intent of the legislature in enacting it, where this is construed as the

collection of directives the legislature intended to be communicating by way

of enacting and publishing it.

(2) Perceived difficulties with this picture are consequences of

(a) The difficulty of articulating clearly what it means for anything other than an

individual to intend something (which is no more than a stark reminder of

how hard it is to produce theoretically adequate descriptions of social

practices we find it so easy to engage in or contribute to);



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(b) Failures to understand what is constitutively involved in having an intention,

and what is involved in having a communicative intention, and thereby

failures to understand the difference between the sorts of causal constraints

that expectations impose on the formation of genuine intentions, and the

sorts of things that can be epistemically or evidentially involved in

identifying communicative intentions (however constituted or formed).(c) Misunderstandings about the relation between the linguistic meaning of an

expression X and what X is used to state on a given occasion or in a given

text;

(d) Unjustifiable assumptions about the status of what the stating of X in a

statute is being used to imply.

(e) Equivocal appeals to notions of text and context;

(f) The absence of an obvious, clear, and consistent criterion for deciding which

parts of what the legislature intended to be communicating constitute the

contents of statutes;

(g) Conflations of questions about the constitutive determination of statutory

content and questions about the epistemic determination of that content (the

evidence and tools and methods may be used to ascertain it) and subsequent

failures to distinguish questions about the objective of statutory

interpretation from questions about the methods of reaching it.

(h) Nonsense talked about such things as “ordinary use”, “ordinary language’,

“plain meaning”, and “plain language”.

(i) Slipping and sliding between talk of (i) the meaning of a sentence X , (ii) what X is being used to say or state, (iii) what the law states, (iv) what the law

means, (v) what the law implies, and (vi) what the legislature meant, and a

general looseness in using the verbs ‘say’, ‘state’, ‘mean’, ‘imply’, ‘intend’, and

‘expect’.

2.2. Meaning

Virtually no-one who works seriously on the nature of language and communication

denies that we need to separate notions we can describe as follows:

(i) What a given sentence X means;

(ii) What a given person S says (or states) by producing X on an given

occasion or in a given text;

(iii) What S means by producing X on that occasion or in that text.

(I shall use ‘say’ and ‘state’ interchangeably throughout.) A simple example. At a

party one night, I am tired and wish to go home, I say to you,



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mean that I was tired, but I did still mean, let us suppose, that I wished to go home.

On my view, and Grice’s, I did not say that I was tired, I merely made as if to say

that I was tired. I’ll come back to this type of case.) As before, I utter ‘I’m tired’ to

you at the party, intending to communicate to you that I wishes to go home. But

this time I know full well that you know (and know that I knows that you know)

that I am not in the least tired. This time, I do not mean that I am tired, by uttering‘I’m tired’, because I do not intend you to think that I tired (let alone intend you to

think that I am tired at least partly on the basis of recognizing this intention). Since

I do not mean that I am tired, I does not say that I am tired (in the sense of ‘say’

that Grice and I favour), I merely play-say (or make as if to say) that I am tired.)

A theoretically interesting saying/implicating (or stating/implying) distinction is

notoriously difficult to make precise, but no-one who has thought seriously about

language and it use denies the existence or importance of a distinction of this sort.

So a theory of interpretation must answer two questions about this example:

(a) What is involved in an audience forming a hypothesis about what I am

saying?

(b) What is involved in an audience forming a hypothesis about what I am

implicating?

Answering (a) will require saying something about linguistic meaning—about the

meaning of the sentence ‘I’m tired’. But it does not follow from this that that

linguistic meaning is one of the things that constitutively determines what I said

when I uttered ‘I’m tired’. (Indeed, on my account, what I said is wholly determined

by my communicative intentions in uttering ‘I’m tired’. I’m not going to defend this

here, but we can certainly talk about it in the discussion period.)

There will be an important issue to take up here. In the first scenario, I had two

communicative intentions in uttering ‘I’m tired’: I meant that I was tired and I

meant that I wished to go home. Surely the communicative intention in virtue of

which I meant that I was tired is tied in some special way to what I said, a way in

which the communicative intention in virtue of which I meant that I wished to go

home is not. So, at best, what I said wholly constitutively determined by just one of

these two intentions—the one in virtue of which I meant that I was tired? After all,

it’s just false that what I said is partly constitutively determined by then

communicative intention in virtue of which I meant that I wished to go home! I said

something and implicated something else; one of my communicative intentions is

tied to what I said and the other to what I implicated. So we if we are to have a



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general theory of saying and implicating, we need some general way of separating

what we can call saying-intentions and implicating-intentions.

It is what people mean, rather than what their words mean, that concern us in

ordinary conversation and many other situations in which we encounter language

in our daily lives—for example, when we read letters or emails from friends or when

we consult instruction manuals for electrical appliances. This is not to deny that

there are times when the exact words are important—when we read Acts of

Parliament, statutes, or constitutions, for example, or when listening to trial

testimony; or when reading novels and (especially) poetry, where imagery or

feelings may be connected to uses of particular words or strings of words (often in

ways we have difficulty explaining prosaically). Nor is it to deny that interpretation

of a sort goes on when we encounter written sentences and have no idea who wrote

them; or when we look at manifestations of sentences we know have been generated

by a computer; or when we see (seeming) manifestations of sentences in the sandand know have been formed by nothing more than the wind. But in ordinary life

words are means to an end; so are their meanings; only in special cases are we

interested in word meanings per se. Doubtless, the meanings of words, phrases, and

even whole sentences are things we register (if only tacitly) when we encounter

speech, things implicated in the largely unconscious cognitive computations that

serve up hypotheses about what speakers mean. But typically, we do not retain the

exact form of words the speaker used, even when we remember what the speaker

meant. (Doubtless you do not recall the previous sentences of this paragraph,

despite remembering the gist, I hope.)

If S means that p on a given occasion by uttering something, let us say that S is

performing an act of meaning and that S is engaged in communicative behaviour.

And let us say, as before, that to interpret an utterance (or act of meaning) is to

form a hypotheses about what the utterer means. It is hard to see how there can be

any substance to the notion of what the utterer means that does not take this to be

a function of certain mental states the utterer had in producing the utterance—

indeed, no obvious alternative to the position that someone’s meaning something by

uttering something on a given occasion is a special kind of intending.3

Quite generally, even before we consider the matter of interpreting utterances,

the idea of interpretation makes little sense in the absence of a problem to be

solved, or at least a question to be answered. We reflexively generate hypotheses

3 Understanding the word ‘mean’ as meaning intend traces back at least to Anglo-Saxon. Thevestiges of this are found with the German meinen, meaning think or intend.



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about the things we perceive—objects, events, actions, whatever. This includes

especially the behaviour of conspecifics, which we take to be, often enough, backed

by reasons. It is a familiar point that to interpret an action is to form a hypothesis

about the intentions behind it, the intentions that explain it. When the interpreter

has done that—and does not go on to revise the hypothesis—the interpretive

problem is taken to be solved. As it is often put, interpreting behaviour is a form ofmindreading, construed as the capacity non-demonstratively to infer the mental

states of others (e.g. their beliefs and intentions) from their behaviour. The behavior

in question will be compatible with all sorts of different hypotheses about the

intentions behind it—a standard case of an empirical hypothesis being

underdetermined by the available evidence.

Communicative behaviour is a special type of intentional behaviour, and

interpreting it is a special type of mindreading. If Grice’s (1957, 1969) picture is

right, then communicative behaviour is not just intentional but intended to berecognized as such. But the complexity of the intention does not alter the fact that

communicative behaviour will be compatible with all sorts of different hypotheses

about the intentions behind it. And, to this extent, there is no guarantee that the

constructed interpretation will capture what the speaker intended. Interpretation

always involves a risk.

The communicative behaviour of most interest here involves the use of language.

Facts about non-linguistic communication can shed light on this, of course, but

there is something special about interpreting a linguistic utterance: it involves atype of mindreading that is steered or guided or constrained by the interpreter’s

understanding of the language in which the utterance is made. (As some people see

matters, this means that a proprietary body of information—knowledge of the

language in which the utterance is made—is implicated in some way in the

interpretation process.) Nonetheless, the interpreter’s goal—what he or she appears

built to do—is the same whether interpreting a linguistic or non-linguistic act of

communication. Whether we conceive of it this way or not, the goal is identifying

what the utterer meant. To interpret an utterance is to form a hypothesis about

exactly this.4 But the mere fact that language is being used does not alter the fact,

stressed by Sperber and Wilson, that communicative behaviour will be compatible

4 Typically, in interpreting ordinary speech the rôle of conscious reflection is so negligible, or at leastso imperceptible, that it is tempting to say, with Fodor, that fast, automatic, unreflective, reflexivecognitive operations serve up an interpretation that will be “accepted” unless or until there isconscious reason to doubt it—because of, say, puzzlement induced by the speaker’s next remark. It’s just the way we’re built, cognitively speaking. (Sometimes we are in the position of interpreting ourpast selves, so to speak, as when we read things we wrote long ago.)



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with all sorts of different hypotheses about the intentions behind it. And, to this

extent, there is still no guarantee that the constructed interpretation will capture

what the speaker intended.

2.3. Communicating Standards of Conduct

I want now to draw on a remark in Hart’s The Concept of Law about the nature of

law. I am not certainly qualified to wade seriously into Hart or Austin or Kelsen,

but there is something in Hart I think I can draw on without too much danger,

something that will help me characterize the nature of law and legal interpretation,

at least in a modern democratic society, in a way that seems to make some form of

intentionalism almost a truism. (Cosim Sayid thinks I am selling myself short here

by restricting myself to modern democracies. Perhaps he can say something about

this in the discussion period.) The description I have in mind takes off from the

following remark of Hart’s:

If it were not possible to communicate general standards of conduct, which

multitudes of individuals could understand, without further direction, as

requiring from them certain conduct when occasion arose, nothing that we now

recognize as law could exist. (p. 124)

The word I want to emphasize here is ‘communicate’. Communication is

something people do. The use of language is the primary means of doing so. We

need a clear sense of the verb ‘communicate’ to get us started, and we need to relate

it to the verb ‘mean’. I’ll start with what I'll call the Meaning-Uptake Condition onCommunicating :

(MUCC) To communicate something X (e.g. that p) by producing Y is to mean X by

producing Y and to be so-taken by one’s target audience.

In much ordinary talk, sometimes we care and sometimes we don’t care whether

someone who meant that p stated it or implied it. Indeed, we just don’t have robust,

stable notions of stating and implying in ordinary talk, and the use of ordinary

speakers’ “judgments” or “intuitions” to tease apart theoretically significant notions

of stating and implying is of value only in cases no-one is interested in debating.

(Interestingly, this makes them very different from purported judgments about

meaning, which are rather robust, as Grice recognized.)

I’ll say quite a bit later about the place in theorizing about language of these

concepts and purported appeals to intuitions about them—but for the moment talk

of lying will set enough of the scene. A distinction between lying and (“merely”)

intending to mislead by one’s words seems pretty entrenched in our dealings with



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one another. (Perhaps we see the former as a special case of the latter.) If you ask

me whether I am still a British citizen and I reply “No”, manifestly intending you to

think I am no longer a British citizen, then I have lied to you. But what if I reply, “I

am an American citizen”? If I know that you believe it is not possible to have dual

US/UK citizenship, and if I manifestly intend and expect you to believe, on the basis

of my response, that I am no longer a British citizen, then ordinarily one will saythat I misled you with my words. Ordinarily, we will not say that I lied about

whether or not I am a British citizen. (But, in fact, I lied about being an American

citizen—I’m not.) And the distinction seems reasonably well correlated with a

distinction between (“literally” or “strictly”) saying or stating something false and

(“merely” or “just”) implying something false. That was a clear-cut case. Many

others are not. But the existence of unclear cases does not make the concepts of

lying and saying unusable. Of course there will be cases in which people are not

sure whether to say that someone said something false or just implied it. And of

course people will disagree about particular cases. But this just underscores that we

rarely have clear or stable or shared boundaries for the applications of our terms.

No big deal.

But the point I want to get across is that, nonetheless, we sometimes care,

whether someone lied or verbally misled in some other way, which seems to mean

that we sometimes care about whether a speaker is stating or just implying

something. Why? The answer must have something to do with publicity conditions

that the use of language are meant to enshrine, conditions that license talk of overt

commitment. It is pretty common to come across the view that prescinding from a

few annoyances created by indexicals, demonstratives, and verb tenses, our

declarative sentences can be mapped straightforwardly onto statements whose

truth conditions are clear even if the boundary conditions of the concepts behind all

the words are not. (Even people who disagree about whether motorized wheelchairs

or jetpacks are vehicles can agree that “No vehicles entered the park on 11/11/11” is

true iff no vehicles entered the park on 11/11/11.) It’s a useful fiction for certain

purposes, particularly in logic where elegant “context-sensitive” systems have been

designed to respond to capture validities stated using sentences that contain“context-sensitive” expressions. But it’s a fiction nonetheless. In the realm of law

the point of the fiction is pretty obvious: without consistency, constancy, stability of

statutory content, our legal system is unlikely to do what it is meant to do in a

modern democracy. But that needs spelling out.



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2.4. The Nature of Law

But what is it, exactly, that a legal system is meant to do? Here facts about the

nature of language, the nature of communication, and the nature of law (in a

modern democracy) come together. Here’s what I have in mind:

(1) The enacting of statutes by a legislature and subsequent publication is themethod the modern democratic society has developed for the legislature to

communicate to citizens, administrative bodies and arbiters its solutions to

certain problems that can arise in that society, general directives it has

determined shall regulate that society, directives it has made known it will

attempt to enforce through the actions of its authorized arbiters (and bodies

authorized to bring citizens before those arbiters).

(2) To the extent that a statute is not vacuous, this is because the directives it

communicates make a difference to the rights or obligations of those to whom

it applies.

(3) The use of a common language is regarded as the most efficient method for

expressing these directives. And the most efficient, stable, public and

equitable method (to date) of using a language to express such directives is

through the use of a common written form in freely available public texts that

the legislature, its arbiters, and the citizenry recognize as the legislature’s

authorized expression of such directives.

(4) There is a prevailing assumption of “legislative supremacy.” Members of the

judiciary must act as “faithful agents” of the legislature: their designated

function is to enforce the directives the legislature intended to be

communicating by way of the enactment and publication of statutes.

If this is right, it’s hard to resist the idea that the basic goal of anything deserving

to be called “statutory interpretation” is the process of identifying the directives the

legislature intended to be communicating by way of enacting and publishing

statutes, directives whose contents it intended to be expressing by using the

particular form of words it used. A statute is treated—not by choice, but because

there is simply no alternative if the concept of a statute is to be intelligible—as if it

were a purposive statement made by a person or group of persons. This is not

merely a convention or an established practice, enshrined in society’s understanding

of how laws will in fact be interpreted. It goes, rather, to the heart of the concept of

law. Hart and Sacks (1958) in their book The Legal Process, do not get it quite right

when they say that



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every statute must be conclusively presumed to be a purposive act. The idea of

a statute without an intelligible purpose is foreign to the idea of law and

inadmissible.

What they should have said, I maintain, is that the idea of a statute without a

purpose is itself unintelligible.5

Now there are all sorts of objections to talk of legislative intent—ontological: the

relevant intentions don’t exist, for one or other reason; epistemological: we can’t find

them even if they do exist; political: claims about intent are more open to abuse

than claims about textual meaning). I’ll address each of those in due course. But my

point is going to be even if we lack the means to respond to those arguments right

now, there is simply no intelligible alternative to some form intentionalism. Without

the assumption of legislative supremacy it is impossible to engage in fruitful debate

about statutory interpretation: The judge, as faithful agent of the legislature, tries

to enforce the directives that members of the enacting legislature understood

themselves to be promulgating.

This invites some seemingly straightforward questions: Can the textualist

coherently claim that statutory interpretation has as its objective something

distinct from what the intentionalist has always said it has? If the judge’s objective

is not recovering and giving effect to legislative intent (whatever that amounts to)

then what is it exactly?

2.5.

The Nature of Sentence Meaning

Let’s say more about the fiction. Great efforts have been made by philosophers of

language o characterize precisely the relation between sentence meaning and what

is said, where the latter is taken to be something propositional. The relation is

clearly not identity if only because of the existence of indexical and demonstrative

pronouns such as ‘I’, ‘you’, ‘he’ and ‘that’. At best, it is only relative to assignments

of referents or binding assignments to the underlined expressions (1)-(4) whole

propositions come into view:

5 There was a time when judges in the Anglo-American judiciaries exercised considerable legislativepower, as we might put it, rather anachronistically. Judge-made common law was the norm. In theUSA, it was not until the late 19th century that statutes—which had, until the, been regarded withconsiderable suspicion—began to make a big impact. Statutes in both the US and the UK today areextremely detailed when compared with the statutes of the civil law system in France, which areexpressly written so as to provide more of an outline of the law within which judges are to operate,giving them considerable interpretive leeway in specific cases. There is an assumption behind this:the purposes of the law are sovereign. Interestingly for Europe, under the European Communities Act of 1972, both Community and member Courts must adopt a purposive approach in interpretinglaws implementing European Community Law, even if the letter is the cost.



15

(1) I am sillier than you

(2) This is bigger than that

(3) John told Paul that Ringo said George had thrown away his drumsticks

(4) John told Paul a lot about himself.

But overt indexicality is only part of the reason for thinking the meaning of asentence may “fall short” of being a whole proposition. Consider familiar examples

such as (5)-(9), minus the parts in angled brackets:

(5) The mayor <of New York> should be impeached

(6) Everyone <in this room> looks tired

(7) John is ready <to talk to speak to us>

(8) John is leaving <home>.

(9) John looked back at the house and noticed the front door <to the house>

was open.

In each case the material inside the angled brackets might be used to state more

explicitly Analyses of such sentences have encouraged statements such as the

following:

(a) The meaning of a sentence X often “underdetermines” (or

“underspecifies”) what is said (the proposition expressed) when X is used

on a given occasion, even relative to the anchoring of indexicals and

demonstratives.

(b) The proposition expressed when X is used on a given occasion may

contain constituents unarticulated by any part of X .

2.6. “Determinants” of “What is Said”

People who say such things are apt to agree that things other than a sentence’s

meaning may play roles in determining what is stated when the sentence is used on

a given occasion or in a given text, and then argue about what those things are and

how they “do” this “determining.” Among the things that people have argued are, or

are not, partial determinants of what is said are the following:

• linguistic convention

lexical meaning, syntax, prosody

principles of meaning composition (respecting syntax and prosody)

• context • physical environment • topic of conversation

• salience • relevance • discourse structure • resource situations



16

• common ground • mutual knowledge • background information

• pragmatic inference • the nature of cooperation • rationality assumptions

• maxims of conversation • canons of construction • community standards

• social conventions • social environment • social practices • social norms

• expert opinions • causal chains • baptisms • dubbings • intentions.

My own position, which I shall not seek to defend here, is (a) that what is said is

determined solely by the communicative intentions the utterer had in producing the

sentence, that the other things listed—inlcuding linguistic meaning—merely

constrain the formation of such intentions, and (b) that arguments to the contrary

confuse constitutive, causal, and epistemic determination. But I do not need to

assume anything this strong here to make my point. However, I do no need to say a

few things about theoretical concepts and purported appeals to intuitions in

discussions of them.

2.7. Intuition and Analysis

The best known attempts to separate and analyze different notions of meaning

(and, through these, theoretically tractable notions of saying and implying) are

those of Grice (1957, 1968, 1969, 1989) and Schiffer (1972). To talk of analysis here

invites questions about goals and about data.

Both the alleged reliance that many philosophers place on intuitions—or at least

judgments—in their theorizing and the negative reactions some other philosophers

have had to this alleged practice strike me as bizarre. With the exception of a

philosophical theory of intuitions, no philosophical theory is about intuitions, or

takes intuitions as its subject matter, and it is doubtful that anyone has ever

argued otherwise. At best—or worst—ordinary applications of some of our terms—

‘time’, ‘space’, ‘knowledge’, ‘meaning’—have provided the starting points for

formulating philosophical or scientific questions and preliminary answers. How

could things be otherwise? How could we have even asked ourselves our initial

questions without words implicitly taken to be reasonably clear and stable in

respect of meaning? Call this appealing to intuition of you like, but let’s not getcarried away. (I’m sure Herman will have something to say about this in his

comments.)

Let’s reflect on the use of certain verbs in embryonic philosophical

investigations, in particular, mean, say, and imply. Go back to Grice and Schiffer

and their alleged appeals to intuitions. The data Grice and Schiffer mined to test

potential analyses of meaning were, in fact, for the most part, their own judgments



17

of the truth or falsity of an analysandum used to describe a scenario in which a

proposed analysans (specifying the structure and content of an intention) seemed

clearly true or clearly false.6 The idea was to home in on some notion of meaning

that could, in principle, serve as a basis for characterizing other notions for which

we cannot possibly proceed in that way.

From the outset, evidently Grice thought this method of closing in on a robust

and potentially useful notion of what the speaker means would not be helpful in

closing in on a robust and potentially useful notions of what a speaker says and

what a speaker implies. This is clear from the fact that he explicitly says that the

notion of saying he is out to analyse is one that satisfies what I shall call the

Meaning Condition on Saying:

(MCS) If, in uttering x on a given occasion, S says that p, then in uttering x on

that occasion, S means that p.

The explanation is surely this: in ordinary, tutored, and semi-theoretical talk there

are in fact genuine differences in the strengths of intuitions about, on the one hand,

what S means and, on the other, what S says and implies; indeed, with the benefit

of hindsight, it seems clear that numerous cases in which intuitions about what S

means are clearer and more robust than those about what S says and implies were

fuelling debates in the 1940s, 50s, and 60s about the meanings of (e.g.) ‘and’, ‘or’, ‘if’

‘the’, ‘a’, ‘some’, ‘know’, ‘look’, ‘try’, and ‘voluntary’, the very cases that provided

much of the substance to and philosophical interest in Grice’s attempt to draw a

clear line between what S says and what S implies, in the counterproposals made

by Sperber and Wilson (1986) and Carston (1988, 2002), in debates about the

referential-attributive distinction, and debates about certain cases of (purported)

implicit reference.

The ways in which philosophers, logicians, and linguists use the verbs ‘mean’,

‘say’, ‘imply’, ‘refer’ etc. have their origins in “ordinary” talk (as it is sometimes put)

and there is an underlying assumption that the theoretical questions we pose (and

attempt to answer) using sentences containing these verbs are to reflect (if

somewhat abstractly) the original philosophical questions that got us fired up in the

first place, questions we were originally formulated without a great deal of theory—

and, in fact, still manage to formulate that way when introducing students to topics

in the philosophy of language.

6 For the gruesome details, see Grice (1969, 1989) and Schiffer (1972).



18

Sometimes when the use of an “ordinary” word may lead to confusion, we replace

it with a new one. (For example, in work anxious to focus attention on facts about

expressions themselves (rather than on facts about their uses or their users), one

might find the verb ‘refer’ ceding to ‘denote’ or ‘designate’, or find the verb ‘say’

ceding to ‘semantically express’. And in work anxious to focus attention on facts

about users of expressions, one might find the verb ‘say’ ceding to ‘state’ or ‘assert’,and ‘imply’ ceding to ‘implicate’.7) But sometimes we just use the original “ordinary”

word but with a stipulated meaning.

And it is a cause for celebration (rather than mourning) when stable theorizing

reaches a point where practitioners feel comfortable casting aside the strictures of

ordinary usage and stipulating certain features of the meaning of a verb (or any

other expression) originally used precisely because of its “ordinary” meaning.

(Developmental semantic stipulations, as we might call them, occur in many fields,

and here is no reason to think they are illegitimate when the subject matter islanguage, meaning, or communication.)

But we must guard against semantic stipulations that simply change the

subject. If we take ourselves to be addressing questions philosophers before us have

been addressing—rather than simply addressing new questions using old

vocabulary—there are limits on how far a stipulation can sensibly remove us from

prior usage. (The fact that we cannot delimit in advance precisely how far we can

depart from it is hardly a reason to deny this.) A philosopher would be rightly

ridiculed if he said we had reached a point in our thinking about knowledge wherewe should (or could) stipulate that

(1) ‘S knows that p’ entails ‘S has never doubted that p’

Or a point in our thinking about intention where we should (or could) stipulate that

(2) ‘S intends to ! ’ entails ‘S expects to have reasons for ! -ing again once S

has ! -ed’.

Would a philosopher be ridiculed for saying we had reached a point in thinking

about language, meaning, and communication where we should (or could) stipulatethat,

(3) ‘S says that p’ entails ‘S means that p’

7 We find the same with nouns, of course, with a bit of Latin thrown in: ‘designatum’, ‘nominatum’,‘implicatum’.



19

(or, more precisely, that ‘by uttering X , S says that p’ entails ‘by uttering X , S

means that p’ )? Evidently not, for this was Grice’s position in Lecture 5 of ‘Logic and

Conversation’. (The uncompromisingly intentional account of what is involved in S

meaning that p is then given in Lecture 6.) And while this Meaning Condition on

Saying might be criticized on theoretical grounds, it cannot been subject to ridicule

(except by those irredeemably blinkered by ordinary language considerations). It isa genuinely interesting question whether there is a notion of saying subject to

Grice’s Meaning Condition on Saying that will bear fruit in theorizing about

language, meaning, and communication. The issue cannot be prejudged on the basis

of prejudice stemming from one’s perceptions of “ordinary” uses of ‘say’ and ‘mean’

(except, perhaps, by the linguistically self-righteous).

So the analyses we give of what is meant, what is said, and what is implied are

ultimately stipulative. They earn their keep not by yielding results that conform

precisely to native speaker’s intuitions—though these are where we start—but invirtue of their interlocking roles in an explanatory theories of the properties of

marks and sounds that enable us to do the things we do with them. Before looking

at this in the legal realm, I need to say something about three notions of

determination.

3. “DETERMINATION”

3.1. Constitutive, Causal, and Epistemic Questions About Meaning

It is a curious fact about contemporary philosophy of language, linguistics, and

legal, literary and archaeological theory that excitement about notions of “meaning”

and “interpretation” can be generated by conflations of metaphysics and

epistemology. In the study of language, this often manifests itself in conflations of

constitutive, causal, and epistemic questions about what people mean, say, imply,

and refer to when they talk or perform other actions.

On the assumption that people mean things in producing utterances, the

following seem like reasonable questions a philosopher of language might try to

answer:

(A) In virtue of what facts does S mean whatever it is he means by uttering

something, X (e.g. by producing certain noises, marks, or gestures)?

(B) What factors bear on A’s forming a hypothesis about what S means by

uttering X ?x



20

(A) is a constitutive question (in metaphysics). The Gricean answer is that S

means whatever he means by uttering X in virtue of the communicative intentions

S had in uttering X . We can just construe it as a possible, though not particularly

detailed answer.

(B), by contrast, is an epistemic-evidential question (in psychology and

epistemology, broadly construed) in that it concerns evidence, tools, methods,

cognitive processes and anything else potentially involved in an interpreters’

attempts to identify or ascertain what utterers mean.

(A) and (B) are frequently get run together in the literature, often with

disastrous consequences. One common source of conflation is carelessness with the

verb ‘determine’, which may be used to talk about at least constitutive, epistemic,

causal, or stipulative notions. Consider the following statement of a seemingly

important question:

(*) How is what S means by uttering X determined?

Surely (*) is ambiguous between at least (A !) and (B!):

(A !) What determines (i.e. fixes) what S means by uttering X ?

(B!) What is involved in A’s determining (i.e. identifying or ascertaining) what

S means by uttering X ?

But (A !) and (B!) are just ways of asking (A) and (B), respectively. In the course of

apparently addressing a single question, posed with (*), philosophers and linguistssometimes slip and slide between statements that seem to be potential answers to

(A !), hence (A), and statements that seem to be potential answers to (B !), hence (B).

This has led to no end of confusion.

3.2. Conflating Constitutive and Causal Determination

Consider the following argument—on my account, Premise 1 is true, but that is not

relevant right now):

Argument I [Invalid]

P1 What S (the speaker) means by uttering X (on a given occasion) is wholly

determined by the communicative intentions S has in uttering X ;

P2 The communicative intentions S has in uttering X (on a given occasion)

are partly determined by S ’s beliefs about the context and about his

audience, A, insofar as they bear on S ’s expectations of success (in



21

uttering X ) in getting A to recognize the communicative intentions S has

in uttering X (on that occasion).

So: What S means by uttering X is partly determined by S ’s beliefs about the

context and about A, insofar as such beliefs bear on S ’s expectations of

success (in uttering X ) in getting A to recognize the communicative

intentions S has in uttering X (on that occasion).

The argument is invalid. Premise 1 concerns constitutive determination—the facts

that constitutively determine the content of what S means by uttering X on a given

occasion, the facts in virtue of which the content of what S means is whatever it is.

Premise 2, by contrast, concerns causal determination—the etiology of the

communicative intentions S has in uttering X , i.e. it describes part of a causal story

about their formation. Consequently, there is no univocal way of reading

‘determined’ in the conclusion that renders the argument valid.

The Gricean story is untouched: The formation of a particular communicative

intention M with which a speaker S utters X (on a given occasion) is causally

constrained by S ’s expectations of success in uttering X ) in getting A to recognize

that S is uttering X with M , i.e. expectations of success (in uttering X ) in getting A

to identify that part of what S means by uttering X that is constitutively

determined by M.

Consider the following argument—again, on my account, Premise 1 is true, but

that is not relevant right now):

Argument II [Invalid]

P1 What S says by uttering X (on a given occasion) is wholly determined by

the communicative intentions S has in uttering X (on that occasion);

P2 The communicative intentions S has in uttering X (on a given occasion)

are partly determined by S ’s grasp (or, perhaps, S’ s beliefs about A’s

grasp) of what X itself means (the linguistic meaning of X, as determined

by the conventions of the language to which X belongs), insofar as this

bears on S ’s expectations of success (in uttering X ) in getting A to

recognise the communicative intentions S has in uttering X .

So: What S says in uttering X (on a given occasion) is partly determined by

S ’s grasp (or, perhaps, S’ s beliefs about A’s grasp) of what X itself means,

insofar as this bears on S ’s expectations of success (in uttering X ) in

getting A to recognise the communicative intentions S has in uttering X .



22

The argument is invalid. Again, Premise 1 concerns constitutive determination,

whereas Premise 2 concerns causal determination. Consequently, there is no

univocal way of reading ‘determined’ in the conclusion that renders the argument

valid.

The moral to be drawn from the invalidity of Arguments I and II is thatintentionalist theses to the effect that what S meant and what S said in uttering X

(on a given occasion) are wholly determined by the communicative intentions S had

in uttering X (on that occasion) are neither refuted not rendered superfluous by the

fact that such things as S’ s beliefs about the context, S ’s beliefs about A, and S ’s

grasp (or beliefs about A’s grasp) of what X means are causally implicated in the

formation of S ’s communicative intentions. To think otherwise is to conflate

constitutive and causal determination.

3.3. Conflating Constitutive and Epistemic Determination

Consider the following little argument about what is conversationally implicated:

Argument III [Invalid or Trivial]

P1 Determining what S conversationally implicates in uttering X (on a given

occasion) requires making pragmatic inferences;

So: What S conversationally implicates by uttering X (on a given occasion) is

determined, at least in part, by pragmatic inference.

The premise of this argument concerns epistemic determination. (For the Gricean-

intentionalist, this amounts to identifying certain communicative intentions S had

in uttering X . But we do not need to assume this in examining the argument.) Read

as a claim about epistemic determination, the conclusion is simply a restatement of

the premise. Read as a claim about constitutive determination, it simply does not

follow from the premise. (Which is good, because there is no reason to think it is

true when so-read). So there is nothing in this little argument to threaten theintentionalist claim that what S conversationally implicates in uttering X is

determined by, and only by, certain communicative intentions S had in uttering X .

Argument III is really no better than Argument IV:



23

Argument IV [Invalid or Trivial]

P1 Determining the communicative intentions S has in uttering X (on a

given occasion) requires making pragmatic inferences;

So: The communicative intentions S has in uttering X (on a given occasion)

are determined, at least in part, by pragmatic inference.

The premise of this argument concerns epistemic determination. Read as a claim

about epistemic determination, the conclusion is simply a restatement of the

premise. Read as a claim about constitutive determination, it simply does not follow

from the premise.

Now consider the following common argument about the determination of what

is said, used time and again by relevance theorists:

Argument V [Invalid or Trivial]

P1 What S says in uttering a given sentence X (on a given occasion) is not

fully determined by what X itself means (the linguistic meaning of X, as

determined by the conventions of the language to which X belongs);

P2 Determining those aspects of what S says in uttering a sentence X (on a

given occasion) that are not determined by what X itself means requires

making pragmatic inferences;

So: What S says in uttering X (on a given occasion) is determined, at least in

part, by pragmatic inference.

This argument is either invalid or trivial. Premise 1 concerns constitutive

determination. By contrast, Premise 2 concerns epistemic determination. Read as a

claim about constitutive determination, the conclusion does not follow from the

premises (which is good, because it is false when so-read). But if it is read as a claim

about epistemic determination, it is an obvious truth (because of the existence of

third-person pronouns, for example). So there is nothing in this argument to

threaten the intentionalist account of the determinants of what is said.

The following argument has essentially the same problem:



24

Argument VI [Invalid or Trivial]

P1 What S says in uttering a given sentence X (on a given occasion) is not

fully determined by what X itself means (the linguistic meaning of X, as

determined by the conventions of the language to which X belongs);

P2 Determining those aspects of what S says in uttering X (on a givenoccasion) that are not determined by what X means requires taking into

account facts about the context of utterance;

So: What S says in uttering X (on a given occasion) is determined, at least in

part, by facts about the context of utterance.

Here, Premise 1 concerns constitutive determination, whereas Premise 2 concerns

epistemic-evidential determination. If the conclusion is read as a claim about

constitutive determination, it does not follow from the premises. (Furthermore, I

maintain, the conclusion is false when so-read, but let’s not be detained by thiswisdom here.) And if the conclusion is read as a claim about epistemic

determination, then it is just a clumsy restatement of Premise 2—or rather it would

be if ‘taking into account’ were inserted between ‘by’ and ‘facts about the context of

utterance’—and is obviously true when so-read.

The following argument has a different problem:

Argument VII [Valid]

P1 What S says in uttering X (on a given occasion) is wholly determined by

what X itself means and by (objective, observable, external, extensional)

facts about the context of utterance;

P2 Neither what X itself means nor any (objective, observable, external,

extensional) facts about the context of utterance that determine any part

of what S says in uttering X (on a given occasion) are determined, even in

part, by the communicative intentions S has in uttering X (on that

occasion).

So: What S says in uttering X is not determined, even in part, by the

communicative intentions S had in uttering X .

This argument is at least valid —assuming the premise and conclusion both concern

constitutive determination. Everyone accepts Premise 2—even for the Gricean,

contrary to popular myth. But the truth of the Premise 1 is far from self-evident.



25

(Indeed, I maintain it is actually false, along with the conclusion, but let’s not be

detained by this wisdom right now.)

We find a similar situation with the following argument:

Argument VIII

P1 What S says in uttering X (on a given occasion) is wholly determined by

what X itself means and the referential (and anaphoric) intentions S has

in connection with any demonstrative or third person pronouns in X .

P2 What X itself means is not determined, even in part, by the

communicative intentions S has in uttering X ;

So: What S , says in uttering X is not wholly determined by the

communicative intentions S had in uttering X .

Again, we have an argument that is at least valid. But the truth of premise 1 is far

from self-evident. (Indeed, I maintain it is actually false, along with the conclusion,

but let’s not be detained by this wisdom here.)

One important moral that emerges from the foregoing is just how important it is

to distinguish constitutive questions about what is involved in acts of meaning (i.e.

in acts of saying and implicating) and epistemic-evidential questions about what is

involved in interpreting acts of meaning (i.e. in forming of hypotheses about what

speakers mean). But, as we shall see, it is important not to overstate the case, toappreciate the ways in which epistemic-evidential considerations are causally

implicated in the formation of the communicative intentions that constitutively

determine what speakers mean.

3.4. Intention and Expectation

Having gone to some lengths to distinguish constitutive and epistemic-evidential

questions, I want to develop a point I take up in detail elsewhere, viz. there is an

important way in which they must be carefully interwoven. I shall to do this bydeveloping a few condensed remarks I made in a review of Studies in the Way of

Words 20 years ago, and exposing a common misunderstanding of Grice’s project:

[We need] a distinction between (i) accounts of what S said and what S meant

by uttering X and (ii) accounts of how hearers recover what S said and what S

meant by uttering X. . . . What S meant by uttering X is determined solely by S’s

communicative intentions; but of course the formation of genuine



26

communicative intentions by S is constrained by S ’s expectations: S cannot be

said to utter X M-intending A to !

[e.g. M-intending A to believe that p] if S

thinks that there is very little or no hope that S’s production of X will result in

A ! -ing. . . . S’s conception of such things as the context of utterance, the topic

of conversation, background information, and A’s ability to work out what S is

up to may all play rôles in the formation of S’s [communicative] intentions; but

this does not undermine the view that what determines what S means are S’s

communicative intentions. (Neale, 1992: 552-3).8

There are three important things to note here:

(i) Speaker Expectations. A Gricean communicative intention—unlike a mere

intention to communicate—is an intention involving the pairing of a given utterance

with a given message (aimed at a given audience). So, to say, as above, that “the

formation of genuine communicative intentions by S is constrained by S ’s

expectations” is to say that the formation, or creation, in S ’s mind, of an intention tocommunicate a particular message, M, by way of uttering something specific, X, on

that occasion is causally constrained by S ’s expectations of the likelihood of his

success in communicating M by uttering X on that occasion.9 There is a quite

general constraint on the formation of intentions, to the effect (roughly) that one

cannot form the intention to do something one believes to be impossible.10

(ii) Speaker Conceptions. A great deal is rolled up in “S’ s conception of . . . A’s

ability to work out what S is up to”, above. No theoretical work is not done by A’ s

actual ability; nor is any work done by “the context of utterance, the topic ofconversation, [or] background information.” The theoretical work is done by S’s

conceptions (or perceptions) of all these things, which will include S’s conceptions of

A’s conceptions of these things. It is these conceptions that “play rôles in the

formation of genuine communicative intentions by S.” And S’ s conceptions of a

number of other things will shape S ’s estimation of A’s ability to work out what S is

trying to accomplish by uttering X . A preliminary list (call it Z ) would have to

include S’ s conception of such things as the following: A’s competence in the

8 The ellipted material from this passage contains what now seem to me two mistakes. I used thelocution “the assumption that S and A are both operating in accordance with the CooperativePrinciple and maxims” (where I should have used “S’s assumption (i) that A is operating inaccordance with the Cooperative Principle and maxims and (ii) that A assumes S to be so-operating) and the locution “facts about the context of utterance, the topic of conversation, backgroundinformation” (where I should have used “S ’s conception of the context of utterance, the topic ofconversation, background information”). If I republish the paper, I will fix the offending sentence.

9 On this point, see also Donnellan (1968), Grice (1971, 1989), Schiffer (1972, 1978, 1981, 1982,2006), and Neale (2004, 2005).

10 See Grice (1971), Neale (2004, 2005a).



27

language S is using; the relevance to A of certain types of information; the relative

salience, for A, of objects in the immediate environment; A’s perception of the

current topic of conversation and the structure of the discourse thus far; the extent

to which A and S are party to common specialized knowledge of what is being

discussed; A’s general intelligence; the extent to which A can be presumed to

presume that S is a rational, cooperative speaker; the extent to which A can bepresumed to presume that S is operating in accordance with various norms,

conventions, practices, maxims, canons, and community standards; prior

conversations with A or with others who have mentioned A; the extent to which A’s

interpretation (in general, or given the topic at hand) may be affected by emotional

considerations; the extent to which A has been concentrating; the extent to which A

is a stickler for accurate or careful wording. Z is far from exhaustive. (Won’t we

need to add to Z some of S ’s conceptions of A’s conceptions of some of the things on

Z ?)

There is a good reason for this, of course: Z lists things that S may reasonably

presume to be potentially involved in the process of A’s forming a hypothesis about

what S means. (Hence they are things to be investigated in providing a theory of

interpretation, along with such things as pragmatic, non-demonstrative inference,

the nature of cooperation and rationality considerations manifesting themselves in

conversational maxims or other interpretive principles.) So, to greater or lesser

degree, they are all things S may need to take into account (if only tacitly) when

producing his utterance. And to this extent they bear causally on the formation of

S ’s communicative intentions, understood as intentions involving the pairing of a

given utterance X and a given message M (aimed at a given audience A, on a given

occasion). But none of the things on Z constitutively determines, even in part, what

S means by uttering X on that occasion. What S means is determined by, and only

by, S ’s communicative intentions in uttering X . And the formation of these

intentions is causally determined, in part, (causally constrained by) S’s conceptions

of numerous things on Z (which, within reason, may vary from utterance to

utterance).

The question of what determines what S means on a given occasion and the

question of what is involved in identifying (or at least forming a hypothesis about)

what S means on that occasion are conceptually distinct, even though the formation

of S’ s communicative intentions is typically constrained by S ’s conceptions (or

perceptions) of (If a certain version of externalism is true, then community

standards, causal chains, and divisions of linguistic labor will certainly bear on

aspects of the contents of the intentions S forms, but that does not entail that they



28

bear on the formation of those intentions.) In short, the formation of genuine

communicative intentions by S is constrained only by S ’s own cognitive life.

(iii) Sentence Meaning. Where does sentence meaning fit into all this? The short

answer is that meaning of the sentence, X, that S utters plays no role in

determining what S means by uttering X on a given occasion. Schiffer puts thepoint well:

what a speaker means supervenes entirely on her communicative intentions,

regardless of what the sentence she utters means (…while speaker-meaning

isn’t a function of sentence-meaning, but only of communicative intentions, the

role of sentence-meaning is to make known the speaker’s communicative

intentions: the hearer is intended to rely on her knowledge of what the

sentence means in order to infer what the speaker meant in uttering the

sentence). (2006: 57)

Important as it is, knowledge of the meaning of a sentence X isn’t the only thing

A will or should rely on in forming a hypothesis about what S means by uttering X .

No fact about X itself (semantic or otherwise) tells A that S is speaking literally or

ironically; no fact about X tells A what S is conversationally implicating (if

anything) or, in many cases, even what S is saying (or making as if to say). In

principle, virtually anything could be a factor involved in A’s forming hypotheses

about what S means (however constituted). But the dominant things are surely

cognitive processes that involve A’s grasp of X’s meaning (if it has one) and

inferences steered by A’s conceptions of the following (some features of the list

should sound familiar): S ’s competence in the language S is using; prior

conversations with S , or with people who have mentioned S ; the topic of

conversation and the structure of the discourse thus far; the extent to which A and

S share specialized knowledge of what is being discussed; S ’s general intelligence;

the salience, for both A and S, of certain objects in the immediate environment; the

relevance to S of certain types of information; the extent to which S is a cooperative

interlocutor; the extent to which S is guided by various norms, conventions,

practices, maxims, canons, and community standards; the extent to which S is astickler for accurate or careful wording; the extent to which S ’s language (in

general, or given the topic at hand) may be affected by emotional considerations.

(Again, the list is far from exhaustive.)



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4. REPLYING TO NAÏVE INTENTIONALISM

4.1. Preliminary Response

The naïve intentionalist needs to specify a principle that bifurcates authors’

intentions into those that interpreting a legal text seeks to recover and those it does

not. And, as noted earlier, merely by specifying such a principle the naïve

intentionalist is, in effect, providing a theory of interpretation, however slight.

The natural thing for the intentionalist to say at this point is that, in a Gricean

spirit we need to focus on what we might call statement or saying intentions. A

statement intention with respect to a particular sentence ! is the intention to be

using ! on a given occasion to state such-and-such. Of course, that’s a huge

promisory note, but the basic idea is clear: then only intentions relevant to

statutory content are those that mesh with our best theory of saying, which must

mesh with our best theory of sentence meaning. Of course, saying this orients the

intentionalist towards the textualist. Statement intentions will be connected to

more specific intentions, such as the following:

(a) Lexical Intentions: A lexical intention with respect to a particular word in ! is

no more than the intention to be using it with such-and-such meaning.

(b) Referential Intentions: A referential intention with respect to a particular

expression in ! is no more than the intention to be using that word to refer to such-

and-such object.

(b) Anaphoric Intentions: An anaphoric intention with respect to a particular

expression in ! is no more than the intention to be using that word in way that

makes it anaphoric on some other expression in ! or some other sentence in the

vicinity of ! .

| lexical

| linguistic – | referential

| | anaphoric

1. statement intentions – | | scope

| saturation

| enrichment

2. application intentions “vehicle”



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| legal (enable/facilitate prosecution)

3. achievement intentions — | social (reduce gun crime)

| personal (get re-elected)

4.2. Special Properties of Legal Texts

Legal texts seem to give rise to their own special problems that are not dissolved

by naïve appeals to the recovery of authorial intentions, even once a solid

bifurcation principle has been provided. Here are several issues that a sceptic about

naïve intentionalism might raise.

4.2.1. Contracts

The signatories to contracts and treaties may sincerely disagree about their

interpretation, even when they went to great lengths together to word the

documents carefully enough (so they thought) to forestall possible disagreements at

a later date. Often that means some third party must make an enforceable decision.

The question now arises of how that third party, a judge for example, is to proceed.

By hypothesis, the authors genuinely disagree, so in some crucial respect they must

have had different intentions of the sort the intentionalist is interested in. So the

idea that the judge succeeds in interpreting the contract once he has identified what

‘the authors’ sought to communicate, intended to communicate, or meant is

hopeless. The judge may already know what each author independently intended,

and know there is no relevant shared intention—indeed, in the scenario just

sketched this is precisely why he has been called upon the break the tie.

4.2.2. Novel Situations

For the most part, ordinary conversation is narrowly tailored to fleetingconcerns. There is a specific person to whom the speaker’s remarks are addressed,

and information the speaker and hearer possess about the previous remark (or

about a collection of previous remarks), about the general topic of conversation

(even if only recently recognised), about the physical context (even if only recently

encountered), and about one another (even if they have just met) may all affect

interpretation by way of constituting constraints, clues, or evidence. Once the

moment has passed, things are different. The conversation may fade or be forgotten,



31

though perhaps a few snippets may be of sufficient import that they undergo

reinterpretation in the light of new data. Passport application forms and instruction

manuals too are narrowly focussed, but in a different way. They involve a finite

number of variables, more or less clearly circumscribed. The documents may persist

through time, but the number of perceived variables is unlikely to increase in any

significant way.

Legal texts are different: they must be capable of being applied in countless new

situations, many of which may not have been conceivable to the people who

authored them. A variant of an old chestnut: Does a law passed in 1900 prohibiting

vehicles in the park prohibit skateboards? Wheelchairs? Motorized wheelchairs?

Jet-packs? It would seem that talk of identifying the intentions of the lawmakers in

order to provide a correct interpretation must be replaced here by something more

like talk of identifying the intentions the lawmakers would have had if they had

foreseen the possibility of jet-packs and so on; or, perhaps, the intentions theywould have if we could bring them here now to take a look. But is such talk actually

coherent? And if it is, is it actually helpful?

4.2.3. Feedback Loops

The interpretation of legal texts may involve special sorts of feedback loops. The

fact that the framers of statutes may worry about how the judiciary will interpret

certain forms of words may itself have a serious impact on how all (or some)

statutes get worded in the first place. And this fact could well be something that the judiciary (or at least some judges) think they should take into account when

interpreting. And so on.

This has suggested to many legal theorists that generally accepted principles of

interpretation need to be set out, principles that should not only, in principle, yield

common interpretations for all relevant interpreters, but also, by virtue of being

generally accepted, thwart attempts to word texts in ways designed to influence

future interpreters who might otherwise be moved by quite different interpretive

principles. The problem, of course, is that the texts that specify such principles mustthemselves be interpreted.

4.3. Problems with Talk of Legislative Intent

Although they are not always separated clearly in the literature, at least six

common types of objections can be found to the idea that the recovery of legislative



32

intent is the objective in statutory interpretation. (I draw your attention to

Marmor’s discussion in his book.)

4.3.1. The Metaphysical Objection

The Metaphysical Objetion is an old chestnut, but it is often found intertwined

with what I shall call the Methodological Objection. The Metaphysical Objection is

this: Typically, there is no fact of the matter about legislative intent. The legislature

is a body of several hundred people. They will have had all sorts of intentions in

voting for whatever it was they voted for. Typically, there are no intentions common

enough to all of those involved to justify talk of legislative intent. The final wording

of legislation is, of necessity, a compromise. There is nothing that can be called the

legislative intent. A quote from a recent paper on Textualism by Manning:

Textualists maintain that the (often unseen) complexities of the legislative

process make it meaningless to speak of “legislative intent” as distinct from

the meaning communicateed by a clearly expressed statutory command. It

may be true that a majority of legislators, perhaps a large majority, would

sometimes prefer statutory results different from those required by the

statutory text. But legislative preferences do not pass unfiltered into

legislation; they are distilled through a carefully designed process that

requires legislation to clear several distinct institutions, numerous veto gates,

the threat of a Senate filibuster, and countless other procedural devices that

temper unchecked majoritarianism. Hence, the precise lines drawn by any

statute may reflect unrecorded compromises among interest groups,

unknowable strategic behavior, or even an implicit legislative decision to forgocostly bargaining over greater textual precision. So understood, the legislative

process is simply too complex and too opaque to permit judges to get inside

Congress’s “mind.” Textualists therefore believe that the only safe course for a

faithful agent is to enforce the clear terms of the statutes that have emerged

from that process.

4.3.2. The Methodological Objection

The Methodological Objection is basically this: We don’t know what we mean by

“the author of a statute”. Whose intentions are we aiming to identify? Those of the

legislature? Does that amount to the same thing as the intentions of the members of

the legislature at the time the statute was enacted? Or of just those members who

voted for it? Or of just those who read it and voted for it? Or of just those of those

who read it, voted for it, and were active on committees that read and endorsed the

final, reconciled Senate and House versions? Or none of these things?



33

What about the intentions of the President who signed the reconciled version

into law? What about the intentions of the hundreds of congressional lawyers and

clerks who worded much (if not all) of it? What about those of individual lobbyists

who insisted on this or that clause being inserted or reworded, perhaps even

dictating the exact words?

In principle, the situation is no different with passport application forms and

electrical appliance manuals, of course. But all this seems to show is that the naïve

intentionalist’s picture may not even fit interpreting a passport application form or

an electrical appliance manual!

4.3.3. The Anthropomorphic Objection

A great deal of ink has been unnecessarily spilled on this one. The

Anthropomorphic Objection is that intentions, like beliefs and desires, are things

that only individuals have. It may make perfectly good sense to talk of two or more

persons having the same belief or having the same intention. (Probably you need

lambda abstraction to specify clearly the content of certain common contents, but

that’s hardly a conceptual difficulty.) But, the objection goes, there is no sense to the

idea of a legislature itself intending anything.

The hollowness of the objection should be clear from the fact that it is made by

people who are perfectly happy to talk of legislatures and committees saying , voting ,

deciding , opposing , sanctioning , declaring , responding , or expecting things, to talk of

courts deciding cases, or ruling or enjoining things, and to talk of corporations

complying or wanting, expecting, seeking , intending, trying or deciding to purchase

other corporations, and indeed to talk of corporations plain purchasing other

corporations).

There is, of course, a genuinely hard task of providing a theoretically adequate

description of the conditions under which we are prepared to say that a legislature,

court, committee, or corporation intended, wanted, believed, sought, tried, or

decided something, but this does not add any substance to the “anthropomorphic”

objection. And, in fact, Margaret Gilbert has provided a very attractive picture of

how we should understand talk of the mental states of bodies of people in terms of

the mentals states of delegated individuals in those bodies.



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4.3.4. The Epistemological Objection

Like the Metaphysical Objection, the Epistemological Objection is an old

chestnut. They can both be found in Justice Scalia’s undisguised contempt for the

idea that there is any fact of the matter, let alone any currently deducible fact of the

matter as to the relevant intentions a body of lawmakers had in enacting any piece

of legislation.11 The Epistemological Objection is that even if there is a fact of the

matter about legislative intent, it cannot be deduced with certainty.

On the face of it there is something bizarre about the Epistemological Objection,

about the idea of sidelining legislative intent on the grounds that it is not

discoverable or deducible with certainty. The epistemological predicament is no

different from that of trying to discover then intentions, motives, beliefs, etc. of

defendants in court. The issue is simply one of evidence; and in the statutory case

this evidence may take a variety of forms, including the comparison of successive

drafts, the voting down of amendments, changes made in the light of discoveries

about earlier statutes, recorded acquiescence to conventional terminology,

transcriptions of floor debates, committee reports, chairman’s reports. The judge

who is worried that all he will ever have is evidence for intentions and no foolproof

discovery procedure has not reflected on two things he must often do. The first, is

something juries also have to do: evaluate evidence in order to make decisions that

may impinge upon life and liberty. The second is interpreting statutes. For

interpreting a statute is, by its very nature, and not in an attenuated sense, a

classic form of inferring a conclusion based on available evidence, evidence that willhave to outstrip the meanings of the words of which a statute is composed because

of the ways in which linguistic meaning underdetermines statements.

This leads us straight into two other objection, both raised by Scalia.

4.3.5. The Clarity Objection

Scalia raises what I shall call the Clarity Objection to reconstructing legislative

intent: The idea of interpreting a statute in such a way as to give effec to the intent

of legislature is incompatible, he says, with a “generally accepted rule of statutory

construction: when the text of a statute is clear, that is the end of the matter.”

(1997: 16). There could be no place for this “rule of construction”, says Justice

Scalia, if “what the legislature intended, rather than what it said, is the object of

11 What I am calling the metaphysical and epistemological objections are discussed fruitfully byBruncken (1915), Radin (1930), Landis (1930), and MacCallum (1966).



35

inquiry.” (1997: 16). Scalia is making an interesting conceptual point here. But once

(a) the constitutive and epistemic-evidential are pulled apart for clear cases—as I

argued in Lecture I they must—once (b) the phenomenology of clarity is properly

explained—the principal source, I argued last week, is the fast, automatic,

manadatory nature of the processes involved in utterance—and once (c) it is

appreciated that there can be no non-intentional explanation of the fact that therule of construction Scalia mentions is not always in play—even Scalia thinks it is

defeasible—the moral is importantly different.

To jump ahead, consider case of scrivener’s error, typos and the like. All

textualists accept that such errors can exist in the texts of statutes. Ask them how

you tell you’ve found one and the answer is: the result of a literal reading is

absurd—a violation of the “Absurdity Doctrine.” But then ask the the crucial

constitutive question—what makes an interpretation absurd?—and they say that

an interpretation is absurd if, and only if it’s regarded as absurd by all reasonablepersons who know the language. But that just pushes the constitutive question back

a step: in virtue of what property of the interpretation is it regarded as absurd? And

there is simply no way of answering this question, I maintain, without appealing to

the legislatures purposes and intent.

4.3.6. The Political Objection

Justice Scalia rejects outright the idea that “political judgment” and a judge’s own

ideas about what is good, just, right, or fair should play any role in interpretingstatutes.12 There is a very real danger, he believes, that if reconstructing legislative

intent becomes the aim of statutory interpretation, judges rather than elected and

unseatable lawmakers will be making law:

It is simply incompatible with democratic government, or indeed, even with

fair government, to have the meaning of a law decided by what the lawgiver

meant, rather than by what the lawgiver promulgated. That seems to me one

step worse than the trick the emperor Nero was said to engage in: posting

edicts high up on the pillars, so that they could not easily be read. . . .

12 He is not alone in this of course, but it is a serious question in moral psychology whether and towhat extent a person with the final, life-and-death powers granted to Supreme Court justices canignore his or her own core political and moral beliefs in making judicial decisions and still satisfy theconditions for being a rational interpreter of linguistic utterances and inscriptions. In The Concept ofLaw, Hart (1960) argues for a sharp distinction between legal and moral arguments, without whichthe idea of a moral criticism of a law would lack clear sense. But for Hart it is the concept or natureof law rather than political considerations that underpin the distinction between the moral and thelegal. To the best of my knowledge there is nothing in Scalia’s writings to suggest he follows Hart inthis.



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Government by unexpressed intent is . . . tyrannical. It is the law that governs

not the intent of the lawgiver. . . . Men may intend what they will; but it is

only the laws that they enact which bind us. (1997: 17)

. . . under the guise or even self delusion of pursuing unexpressed legislative

intents, common-law judges will in fact pursue their own objectives and

desires . . . When you are told to decide, not on the . . . basis of what thelegislature said, but on the basis of what it meant, and are assured there is no

necessary connection between the two, ask yourself what a wise and intelligent

person should have meant; and that will surely bring you to the conclusion

that the law means what you think it ought to mean . . . (1997: 17-18).

It is difficult to extract anything compelling in these remarks as (a) Scalia asserts

without argument that there is no necessary connection between “what the

legislature said” and “what the legislature meant”; (b) he uses “what the legislature

said” as a virtual synonym for “what the laws mean”; and (c) he uses “what the

legislature meant” as a synonym for ‘the legislature’s unexpressed intent.’

Nonetheless, these remarks of his give us an idea of what it is that Scalia opposes

and why. And that’s important for understanding his positive “theory”.

5. REPLYING TO NAÏVE TEXTUALISM

5.1. Naïve Textualism

Textualism has risen to prominence in the United States, largely through the

writings of Justice Antonin Scalia, who was appointed to the US Supreme Court by

President Reagan in 1986. Scalia’s philosophy of interpretation is set out in his

Tanner Lectures, delivered at Princeton in 1996 and, more piecemeal, in hard-

hitting dissenting and even concurring opinions in which he lambasts his fellow

Supreme Court Justices, catapulting textualism to the centre of the Court’s

deliberations, shaping the terms of much debate.

Textualism, as the name suggests, is meant to privilege the text of law in a way

that versions of intentionalism or purposivism apparently do not. At first glance,

Justice Scalia appears to think that his textualist philosophy of interpretation is

sufficiently commonsensical and straightforward that it needs no carefully crafted

statement. A few slogans suffice: ‘The text is the law, and it is the text that must be

observed’ (1997: 22). ‘I am more inclined [than some judges] to adhere closely to the

plain meaning of a text’ (1989: 1184). ‘Words do have a limited range of meaning,

and no interpretation that goes beyond that range is permissible’ (1997: 24). ‘A text



37

should not be construed strictly, and it should not be construed leniently; it should

be construed reasonably, to contain all that it fairly means’ (1997: 23).

Scalia applauds remarks by Justice Holmes (quoted approvingly by Justices

Frankfurter and Jackson):

“Only a day or two ago—when counsel talked of the intention of thelegislature, I was indiscreet enough to say ‘I don’t care what their intention

was. I only want to know what the words mean.’” (1997: 22);

‘We do not inquire what the legislature meant; we ask only what the statute means.’

(1997: 23). At the same time, Scalia insists that he is not a ‘strict constructionist’ or

‘literalist’ and introduces as evidence for this his own opinion in a case I may

discuss later.13

5.2. Disagreement about What?

Talk of ‘the plain meaning of a text’, of ‘what the words mean’, of ‘a limited range

of meaning’, of interpretations that go ‘beyond that range’, and of construing a text

‘reasonably’ (rather than ‘strictly’ or ‘leniently’) to contain ‘all that it fairly means’

should elicit frowns from anyone familiar with the distinctions I have been

emphasizing. His pithy prose rides roughshod over subtle and not-so-subtle

distinctions that are vital to clear-headed theorizing about language and its use.

It is Scalia’s expressed view, recall, that ‘Every statute that comes into litigation

is to some degree ambiguous’ (1997a: 22). So given the implicit acknowledgment inthis remark that word meaning and grammar do not yield a unique interpretation,

given the claim that his version of textualism is not strict constructionism or

literalism, and given the claim that it is ‘formalistic’ (1997a: 25) but not

‘simpleminded’, ‘wooden’, ‘unimaginative’, or ‘pedestrian’ (1997a: 23). So Scalia

needs to answer two questions, one evidential and methodological, the other

constitutive.

The epistemic-evidential-methodological question is this: What methods should

be used in identifying what a statute states (‘what a statute means’, ‘all that it

13 Smith v. United States, 508 U.S. 223 (1993). In the light of what Scalia writes in his dissent inSmith and what he says about strict constructionism and literalism, it is hard to take seriouslyStanley Fish’s (2003) sentence meaning interpretation of Scalia’s textualism unless one believes thatthe textualist theory Scalia actually attributes to himself spectacularly undergenerates hisinterpretation of the relevant statutory provision. As we shall see later, it is also hard to takeseriously Ronald Dworkin’s claim that the only intentional component of Scalia’s textualism is thatin interpreting we are always looking for semantic intent: lawmakers are to be understood asintending the words occurring in statutes to be understood with their standard meanings, unlessthere is explicit indication to the contrary.



38

fairly means’) and what is to count as legitimate evidence for a particular

interpretation in cases where word meaning and grammar come up short?14 Talk of

construals that are ‘reasonable’, ‘intuitively obvious’, ‘self-evident from context’, or

‘commonsensical’ amounts to no more than labelling attributes the victorious

construal must possess, and is no substitute for a specification of the methods and

the type of evidence that must be used to reach it.

Scalia is happy invoke various ‘canons of construction’ and ‘context’ (his catch-all

term for several very different notions that need to be separated). But he explicitly

excludes legislative history—floor debates in the house and senate, committee

reports, successive draft comparison, explicit and unanimous ex post facto

expressions of prior intent by the drafters and those who voted for the legislation,

and so on. The reason he gives is that legislative history is at best, evidence for

lawmakers’ intentions, and the lawmakers’ intentions are not what we are seeking.

But the evidential-methodological question takes on a bizarre hue if the objective

of ascertaining legislative intent is discarded: it forces to the forefront of discussion

the following question: If the evidence Scalia is prepared to entertain (and the

methods for obtaining it) are not evidence for (and methods for identifying)

legislative intent, then what exactly are they evidence for (and methods for

identifying)? In short, Scalia can provide us with nothing of substance in response

to the evidential-methodological question until he answers a logically prior

constitutive question: What facts make it the case that a particular interpretation of

a statute is the correct one? In virtue of what facts is a particular interpretation thecorrect one. If two Justices genuinely disagree over whether a particular occurrence

of the word ‘bank’ in a statue is to be understood in the financial or the sloping

sense, they must think there is some fact of the matter as which reading is correct,

and each must think he is right and the other wrong. And that forces the question:

in virtue of what facts is one right and the other wrong?

Is Scalia simply overlooking the constitutive question? Or is he implicitly

assuming, incorrectly, that the question is answered or dissolved by what he says in

response to the evidential-methodological question? He says several times that

there is something quite specific we are seeking in interpreting a statute: the

meaning that a ‘reasonable person’ who understands the language and appreciates

14 Doubtless, this could be broken down usefully into two distinct questions, but I do not think thatwill be necessary here. For some possible answers, of course, method and evidence are two sides of asingle coin—legislative history (evidence), systematic appeal to legislative history (method).



39

the context would come up with.15 But this just raises the question of what facts

make it the case that there is a meaning—if indeed there is—that reasonable

persons converge on, unless one is of the opinion that de facto convergence itself is

enough, that we should forget about reasons for convergence, that we should junk

the idea of person-transcendent meanings inhering in texts themselves. On such an

account, a complete answer to the constitutive question is purely extensional:convergence of interpretation by reasonable, well-informed persons. I myself have

argued for the coherence of the idea that convergence of this form lies at the heart of

some of our theoretical talk about language, but it just won’t wash here.16 There is

only one place for the textualist to look for the answer to the constitutive question, I

maintain: legislative intent, or rather the statement intentions of the legislature.

The fact that these are epistemically inaccessible is neither here nor there. We face

a simple case of a hypothesis underdetermined by the evidence. But that doesn't

mean we can have no conception of what we are looking for!

6. SCALIA ON EVIDENCE AND TOOLS

Certain types of disagreements found in the literature between purported

textualist and intentionalist approaches to statutory interpretation are often the by-

products of disagreements over the methods and evidence that may be used to

resolve the interpretive questions raised by underdetermination. Textualists

preferring to restrict themselves to the invocation of well-established, fairly general,and readily explicable ‘canons of construction’ or well-established background

‘principles of law’, intentionalists preferring broader, or at least more holistic,

approach.

Scalia revels in the criticism that textualism is ‘formalistic’; yet he appears to

think that drawing upon dictionaries, context, or canons of construction are

sufficiently rule-governed activities that they qualify as formalistic. But a little

reflection on the use even of dictionaries engenders questions that go to the heart of

the textualist enterprise and forces us to see that the intentionalist was right about

one thing all along, and that, rhetoric aside, a theoretically adequate description of

15 In this connection, see also Easterbrook (1988), who says we are looking for ‘the understanding ofthe objectively reasonable person’ and the ‘reasonable import of the language’.

16 See Neale (2004, 2005, 2008)



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textualism will entail that the first, unavoidable objective in interpreting statutes is

to identify the intent of the legislature.

6.1. The Text Itself

It would also seem to require an act of will to resist the idea that the dominant

source of evidence for the directives the enacting body intended to be

communicating by the particular words it used are those words themselves.

Now this idea has come under intense attack from textualists on the grounds

that it embodies a confusion of such severity that it undermines the very idea of

law. Judge Easterbrook summarizes the complaint thus in an opinion on the

interpretation of the federal Bankruptcy Code: “Statutes are law, not evidence of

law”. But Easterbrook’s rhetoric is highly misleading. The text of a statute is not

the same thing as the content of that statute: the text is the means selected for

publicly expressing the content. And the linguistic meaning of a sentence is a very

different sort of thing from what that sentence is being used to express on a given

occasion or in a given text.

So the idea that the words used are the best evidence for the statute’s content

does not undermine the very idea of law. It’s just the truth, and Easterbrook’s

remark embodies a confusion of form and content, of the words making up the

statute and what that statute expresses with those words. End of story.

6.2.

Legislative History

Justice Scalia is contemptuous of the idea that the excavation of legislative

history is a key ingredient in interpreting a statute or regulation, and of the idea

that appears to fuel it: the judge’s objective in interpreting a statute is to

reconstruct and give effect to ‘the intent of the legislature’ (1997: 16), an idea

frequently expressed in judicial opinions, for example in the opinions of with Justice

Breyer, on his own Court.17 By itself, hostility to what I shall henceforth call

excavation and reconstruction does not indicate any specific political position.18

17 See the discussion of Ali v Federal Bureau of Prisons below.

18 Ronald Dwork in—whose political and judicial outlooks contrast markedly with Scalia’s—has

produced a lattice of arguments against interpretation based on the reconstruction of legislativeintent, and he has proposed in its stead a theory of ‘creative’ interpretation that differs infundamental ways from the textualist theory advocated by Scalia. Hostility to the excavate-and-reconstruct approach to interpretation is not confined to Dworkin and Scalia, or even to legal theory.Indeed, some of the reasoning in the legal domain bears a striking resemblance to that found in earlyattacks on authorial intention in literary criticism and literary theory, most famously in the writings



41

Interestingly for Britain, in Pepper v. Hart [1993] AC 593, the House of Lords

held that courts now take a purposive approach to interpreting legislation, and to

find what Parliament intended, all sources including Hansard (records of debates in

Parliament before an Act is passed). Lord Griffiths stated (617),

“My Lords, I have long thought that the time had come to change the self-

imposed judicial rule that forbade any reference to the legislative history of anenactment as an aid to its interpretation. The ever increasing volume of

legislation must inevitably result in ambiguities of statutory language which

are not perceived at the time the legislation is enacted. The object of the court

in interpreting legislation is to give effect so far as the language permits to the

intention of the legislature. If the language proves to be ambiguous I can see

no sound reason not to consult Hansard to see if there is a clear statement of

the meaning that the words were intended to carry. The days have long passed

when the courts adopted a strict constructionist view of interpretation which

required them to adopt the literal meaning of the language. The courts now

adopt a purposive approach which seeks to give effect to the true purpose oflegislation and are prepared to look at much extraneous material that bears

upon the background against which the legislation was enacted. Why then cut

ourselves off from the one source in which may be found an authoritative

statement of the intention with which the legislation is placed before

Parliament?”

How much weight to give to legislative purpose is open to debate; purposivists,

for example, can be divided into strong and weak purposivists. Weak purposivists

might defer to the statute's purpose only as a device for interpreting ambiguity,

vagueness, or underdetermination in its text. Strong purposivists are willing to go

further. Justice Stephen Breyer, for example, has been known to argue that there

are cases in which a statute’s purpose is more important than its text. In his dissent

in Medellin v. Texas, he objects to the Court’s construction of a treaty because “it

looks for the wrong thing (explicit textual expression about self-execution) using the

wrong standard (clarity) in the wrong place (the treaty language)”. The Court

responded by “confess[ing] that we do think it rather important to look to the treaty

language to see what it has to say about the issue. That is after all what the Senate

looks to in deciding whether to approve the treaty.”

of T. S. Eliot (1919), W. K. Wimsatt and Monroe Beardsley (1947), Cleanth Brooks (1951), RolandBarthes (1968) and Michel Foucault (1969).



42

6.3. Dictionaries

Where there is doubt as to the meaning of a word occurring in a statute, Justice

Scalia is happy to appeal to a dictionary that was current at the time of enactment

(or known to contain reliable information about the meanings of words at that time)

to resolve the issue. This may sound perfectly reasonable, but it actually raises in

an acute form the question of what textualism is meant to be a theory of.

What is Justice Scalia’s rationale for using a contemporaneous dictionary rather

an earlier or later one? Obviously, he believes that the meaning of the word relevant

to interpreting the statute is one it had at a special point in time, viz. the time of

enactment. But what is it about that time that makes it so special? It can only be

that the meaning at that particular time is the one that was operative for the

persons comprising the body that enacted the legislature. But what is so special

that fact? There can be just one answer: if we fail to select the meaning that was

operative for the legislators, then we are, temporarily at least, suspending the

general principles that define our legal systems, dislodging the bedrock upon which

the entire legal system is founded. Intention through the back door?

6.4. Context

According to Justice Scalia (and again I quote): “In textual interpretation, context is

everything.” (1997: 37) Upon examination, what Justice Scalia has in mind by

“context” changes from cases to case without so much as a comment. (He is not

alone.) Sometimes he means the previous or next or word, or the previous or next

modifier, or words in the same sentence, or sentences in the same paragraph or

same provision, or same statute. At other times he is alluding to conceptual or

empirical associations. Or to common-sense. Or to what is “obvious.” At other times,

he is alluding the context of enactment (!!) Isn’t that invoking legislative history.

purpose, intent? And what about when context is short for “contexts of valid

application”. That’s either circular or intention-invoking. It’s that ghastly word

“context” again: it covers a multitude of sins. All of these notions need to be

distinguished. All the more so if you’re a textualist.

6.5.

Canons of Statutory Interpretation

The word ‘canon’ gets used to cover at least two very different sorts of

interpretive principles that it would be good to separate: Maxims and General

Principles of Law. And those that are maxims can be broken down into the

linguistic and non-linguistic.



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Of the well known canons of construction, or interpretive maxims, Justice Scalia

(1997) talks about three the textualist may appeal to. And we need to ask what

licenses appeal to them, of course, as they are extra-textual. The matter is one I

take up shortly.

7. CANONS AND MAXIMS

7.1. Generalized Conversational Implicatures

For Grice and for anyone interested in theories of statutory interpretation, the

conversational implicatures of most interest are those that attach to remarks

containing specific words in such seemingly regular or automatic ways that there is

an understandable temptation to view them as part of what the speaker or writer is

stating. Examples are legion involving logical words such as ‘some’, ‘and’, ‘or’ and ‘if’Using the vocabulary of someone who resists this temptation, here are some

examples:

(a) Someone who says, ‘I put some of the meat in the freezer,’ will likely be

regarded as implying that he did not put all of the meat in the freezer.

(b) Someone who says, ‘I must meet my boss in Washington or Beijing next

week,’ will likely be regarded as implying that he does not have to meet

his boss in Washington and Beijing next week.

(c) Someone who says, ‘Jill had a baby and got married’ will likely be

regarded as implying that Jill had a baby before she got married.

(d) Someone who says to his son, ‘If you wash my car now, I’ll give you £20’

(or ‘I’ll give you £20 if you wash my car now’) will likely be regarded as

implying that he will not give his son £20 if he doesn’t wash the car

now.19

Grice views these examples as involving conversational implicatures readily

explicable in terms of seeming violations of one or other of the conversationalmaxims he sketches.20

19 This particular example is from Geis and Zwicky (1971).

20 The explanations that follow are for illustrative purposes only. They contain much that is in needof clarification, and more complex Gricean and non-Gricean explanations can be found in theliterature. For a detailed discussion, see Carston (2002).



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The implicature in (a), for example, arises primarily because of a seeming

violation of the first maxim of quantify. If the speaker had put all of the meat in the

freezer he should have stated as much, rather than simply stating something

weaker, viz. that he had put some of it in there. The explanation must be that he

could not make the stronger claim without violating the first maxim of quality. The

situation is much the same with (b): the explanation for the weaker disjunctivestatement must be that he could not make the stronger conjunctive statement

without violating the first maxim of quality.

The purported implicature in (c) has a different basis. One of the maxims of

manner enjoins speakers to be orderly. Other things being equal, the default order

of presenting information about events indicates their chronological order. If the

speaker had not meant to imply that Jill had a baby before she got married, other

things being equal, he would have switched the order of the conjuncts. That the

implication does not seem to involve the meaning of the word ‘and’ seems to besupported by the fact that the same sort of implicature can arise when a speaker

uses two simple sentences without ‘and’ conjoining them. For example, if asked to

mention two interesting things about Jill, the speaker might reply, ‘She had a baby.

She got married.’ And, arguably, we would find the same implicature.

Example (d) is particularly interesting as it appears to shed some light on

appeals to a widely discussed canon of statutory construction usually known as

Expressio unius est exclusio alterius (‘Expression of the one is exclusion of the

other’), a canon that Justice Scalia endorses in the course of his defence oftextualism. The speaker in (d) utters the conditional (‘if...then’) sentence (1), or the

equivalent conditional (1!):

(1) If you wash my car now, I’ll give you £20

(1!) I’ll give you £20 if you wash my car now.

The speaker’s son would be very surprised if, after an hour had passed, his father

handed him £20 even though he, the son, had made no attempt even to begin

washing the car. Why? Because the son interpreted his father’s conditional as if it

were a biconditional (‘if, and only if’) sentence (2) or (2!):

(2) If, and only if, you wash my car now, I’ll give you £20.

(2!) I’ll give you £20 if, and only if, you wash my car now.

As it is sometimes put, the son ‘perfected’ the conditional to a biconditional. All the

speaker stated was that he would give his son £20 if he washed the car now. He

stated nothing about what he would do if the son did not wash it. Of course, in the



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circumstances it was quite reasonable for the son to construe his father as meaning

what he would have stated had he used, say, (2) instead of (1).

The Gricean purports to provide an explanation of why the son’s conditional

perfection is reasonable in terms of the maxim of relation (perhaps in cahoots with

the second maxim of quantity or the maxims of manner enjoining brevity and

overall clarity). If the father was going to give his son £20 either way, other things

being equal he would and should have said as much, for example by uttering ‘I’ll

give you £20’ or ‘Here’s twenty quid for you.’ The stuff about car-washing was

irrelevant. The son, assuming his father was observing the maxim of relation,

assumed the stuff about car washing was relevant. The only reasonable

interpretation of his father’s remark was that washing the car was what he was

required to do to get the £20. So, summarizing with our basic terminology:

(i) By uttering, ‘If you wash my car now, I’ll give you £20’ the father stated

that he would give his son £20 if the son washed the car.

(ii) By stating that he would give his son £20 if the son washed the car, the

father implied that he would give his son £20 only if the son washed the

car.

(iii) And so, putting together (a) and (b), by uttering, ‘If you wash my car now,

I’ll give you £20’ the father meant that he would give his son £20 if, and

only if, the son washed the car.

With this in mind, let’s turn to canons Scalia likes.

7.2. Expressio unius est exclusio alterius

(‘Expression of the one is exclusion of the other.’) Justice Scalia’s example concerns

a sign that reads:

(3) Children under twelve admitted free of charge.

For the sake of argument let us construe this a local regulation governing entry to a

park, that there is no other information about this regulation other than what is

expressed on the sign, that it is in fact a regulation by virtue of being on a sign of

the right type in the right place, and that legally enforceable penalties are

applicable to those who violate the regulation by entering the park without paying.

And let us suppose we are ruling on a case involving an alleged violation by a

thirteen year-old. According to Scalia, there is no need to ask whether the thirteen

year-old child must pay. The sign makes it clear that he must pay. But now suppose

our thirteen year-old, who is both precocious and an avid reader of Grice and Justice



46

Scalia, says to the latter that he is surprised to hear a textualist claiming that

interpreting the regulation expressed on the sign involves perfecting the conditional

(4) to the biconditional (5):

(4) A child is admitted free of charge if he or she is under twelve

(5) A child is admitted free of charge if, and only if, he or she is under twelve.

(5) does not capture what the sign states, our precocious child says. What it states is

captured by (4). At best, he goes on, there is a conversational implicature that

children twelve and over must pay, and as conversational implicatures are known to

be highly context-sensitive and defeasible, one can hardly include them in the

contents of statutes and regulations!

When asked by Justice Scalia what he means by defeasibility, our thirteen year-

old to points out that the sign’s producer could easily have defeated the implication

without producing a contradictory regulation by adding ‘Everyone over twelve

admitted free’ or ‘Children under fifteen admitted free on Saturdays. Free

admission to everyone on Sundays.’ The sign’s producer did not add such clauses, he

admits, as it was almost certainly the aim of those who drew up the regulation to

make those people twelve and over pay, and in the absence of such defeating clauses

the implication is clearly present that children twelve and over are not admitted

free. Indeed, the existence of the implicature is readily explicable by appeal to the

maxims of manner: if the park authority had wished to communicate that both

those under twelve and those twelve and over are admitted free, it could have opted

for a sign that just read ‘Free admission’.

Drawing upon Justice Scalia’s own claims about textualism and intentionalism,

our precocious child points out that a good textualist rightly derides any quest to

establish the intentions, expectation, desires, or hopes of the park authority officials

who produced the relevant sign (to be posted publicly on bright, clear, well-

illuminated signs at all entrances to the park, rather than posted, say, on the top of

high columns where they cannot be read, as it is said some of Nero’s edicts were). A

good textualist, he continues, is meant to go on what the text on the sign itself

states, and what the sign states is captured by (4), not by (5). Strictly speaking, thesign is silent on whether children twelve and over have to pay. If the park

authorities want to charge children twelve and over, they should take back their

signs and rewrite them. It is not the job of the judiciary to go out with paint and

brushes adding words to signs, or deleting or reordering words, so that they more

clearly express the intent of those who made them. We are hardly dealing with

Scrivener’s error.



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7.3. Noscitur a sociis

(‘Known by its companions’) According to Justice Scalia], ‘If you tell me,

(6) I took my boat out on the bay

I understand ‘bay’ to mean one thing; if you tell me,

(7) I put the saddle on the bay

I understand it to mean something else.’ (1997: 26)

Scalia’s point here seems to be that immediate linguistic context disambiguates.

There are two problems here:

First, with a little imagination, as we saw earlier in connection with examples in

involving ‘bank’, to dream up with scenarios in which invoking Noscitur a sociis,

construed as a canon about linguistic context, would yield the wrong result. So if thenotion of ‘companion’ Justice Scalia assumes is implicit in Noscitur a sociis amounts

to items in the immediate linguistic context, it isn’t a valid canon of construction in

any interesting sense, it is just a useful rule of thumb that appears to yield the right

answers in many cases, but not in all. Now suppose Justice Scalia assumes a

broader notion of companion is implicit in Noscitur a sociis, one that amounts to

items in surrounding sentences—canons themselves are just as much in need of

interpretation as statutes, of course—then one might be able to rescue the right

result by invoking it, but this would only invite further acts of imagination that

would undermine it.21

The second problem, which piggy-backs on the first, is more worrying. To accept

that invoking Noscitur a sociis may, on occasion, produce the wrong result, is to

concede that there is a correct result according to some other unstated criterion.

One would like to know what this is. That is, one would like an answer to a (by now)

familiar constitutive question: in virtue of what facts is a particular interpretation

correct. Justice Scalia seems to catch sight of this question occasionally, but the

answer he gives only pushes the problem back. Recall that Justice Scalia says

21 The point about canons themselves requiring interpretation is put nicely by Hart:

Even when verbally communicated general rules are used, uncertainties as to the form ofbehaviour required by them may break out in particular concrete cases. . . . In all fields ofexperience, not only that of rules, there is a limit, inherent in the nature of language, to theguidance which general language can provide. . . . Canons of ‘interpretation’ cannot eliminate,though they can diminish, these uncertainties; for these canons themselves are themselvesgeneral rules for the use of language, and make use of general terms which themselves requireinterpretation. They cannot, any more than any other rules, provide for their owninterpretation.’ (Hart, Ch VIII)



48

several times that there is something quite specific we are seeking in interpreting a

statute: the meaning that a ‘reasonable person’ who understands the language and

appreciates the context would come up with.22 But as noted earlier, this just raises

the question of what facts make it the case that there is a meaning (if indeed there

is) that reasonable persons converge on, unless one is of the opinion that

convergence itself is enough, in which case we shall need a characterisation of‘reasonable, well-informed persons’ that permits us to regard judges as reasonable

persons, even when their interpretations of statutes do not converge. And what is

needed to pull this off, as we shall see, is a bedrock intentionalist thesis.

A related problem is that any or canons that are invoked to reach and justify

particular judicial interpretations are themselves in need of justification. But the

justification of a particular canon can come only from its yielding the ‘correct’ result

in very many cases. And again this means that some antecedent criterion of

‘correctness’ has been smuggled in and implicitly invoked to check on the canon’sdeliverances.

7.4. Ejusdem generis

(‘Of the same sort’) ‘When a text lists a series of items, a general term in the list

should be understood to be limited to items of the same sort’. Justice Scalia gives us

an example: in talk of tacks, nails, staples, rivets, screws and other things, the last

item covers only other fasteners. Again, fair enough. But the word ‘fasteners’ does

not appear in the passage in question. Again, something other than the words usedmust be invoked to see that ‘other things’ should be understood as ‘other fasteners’?

7.5. In pari materia

(Upon the same matter or subject) When a statute is ambiguous, its meaning may

be determined in light of other statutes on the same subject matter.

7.6. Reddendo singula singulis

(Refers only to the last) When a list of words has a modifying phrase at the end, the

phrase refers only to the last, e.g., police officers, other law enforcement officers,

and doctors in the hospital.

22 In this connection, see also Easterbrook (1988), who says we are looking for ‘the understanding ofthe objectively reasonable person’ and the ‘reasonable import of the language’.



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7.7. General Principles Of Law

7.7.1. The Absurdity Doctrine

The Absurdity Doctrine is basically this: If a given interpretation of a statute

produces a result that conflicts with commonly held social values, then the Supreme

Court presumes that the result is absurd and hence attributable to imprecise

wording that Congress could and would have corrected had the issue come up prior

to enactment.

Scalia is not averse to this doctrine. But this is just to say that the “absurd”

result is so contrary to perceived social values that Congress could not have

intended it. So the Absurdity Doctrine is just a trivial consequence of

intentionalism, which permits a court to take action in the those rare cases in which

the Court finds the text incompatible with the legislature’s intent as derived from

other sources.

7.7.2. The Compatibility Doctrine

I would be remiss in a way that would come back to bite me if we did not to mention

Scalia’s opposition to one general principle: the idea that

ambiguities in a newly enacted statute are to be resolved in such a fashion as

to make the statute, not only internally consistent, but also compatible with

previously enacted laws (1997: 16).

This appears to put him at odds with those who rely on the fully general principle

that a statute must be constructed so as to conform, as closely as possible, to certain

general principles that shape the legal system and are, eo ipso, inherent in all

statutes, enabling each to be treated as piece of a coherent and consistent whole.

For any law we care to pick, says Justice Scalia, it is just false that ‘the enacting

legislature was well aware of all those other laws with which the law under

consideration is meant to be compatible.’ (1997: 16). It is hard to quarrel with

Scalia’s empirical claim. But does anything actually follow about how ambiguities in

a newly enacted statute may or may not be resolved? As a matter of fact, the

following is often taken to be a general principle or a canon:



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7.7.3. Generalia specialibus non derogant

Legislatures must usually be explicit if they intend to repeal an earlier law. If two

laws are potentially in conflict, courts will adopt the reading of the later law that

does not result in an implied repeal of the earlier one.

8. CONVERGENCE

8.1. Scalia Meets Grice

We need just one more piece to see why intentionalism and textualism, when

consistent with what we expect from a legal system in a modern democracy, must

converge.

To understand Scalia’s textualism it is important to get past his slogans andone-liners. Although scornful of the idea that in statutory interpretation we aim to

reconstruct any actual intentions the legislature had in enacting it, Scalia does

seem attuned—contrary, it must be said, to explicit statements elsewhere—to the

idea that the concept of intention plays a role in an adequate description of the true

aim. The following passage, for example, reveals an intentional ingredient in his

position, one that distinguishes it clearly from the sort of strict constructionism that

critics see his position devolving into.

. . . despite frequent statements to the contrary, we do not really look forsubjective legislative intent. We look for a sort of ‘objectified’ intent—the

intent that a reasonable person would gather from the text of the law, placed

alongside the remainder of the corpus juris. (1997: 17)

This has a Gricean ring to it. So does the following passage, derived from Joel

Prentiss Bishop (1882), whom Scalia cites semi-approvingly:

[T]he primary object of all rules for interpreting statutes is to ascertain the

intent; or, exactly the meaning which the subject is authorized to understand

the legislature intended. (1997b: 144)

Expanding upon “the meaning which the subject is authorized to understand the

legislature intended”, he says this is

What the text would reasonably be understood to mean rather than upon what

it was intended to mean.



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But then he makes a rather Gricean point, though with a messy appeal to “context”

that is neither clearly constitutive nor clearly epistemic-evidential:

Ultimately, of course, these two concepts chase one another back and forth to

some extent, since the import of language depends upon its context, which

includes the occasion for, and hence the evident purpose of, its utterance.

(1997b: 144).

Putting aside worries about “contexts” themselves including such things as

purposes, these remarks reveal that Scalia has tacitly absorbed certain important

facts about meaning that have been missed by his allies in the textualist camp—

particulaly by Judge Frank Easterbrook—by many of his critics, and, indeed, by

many philosophers of language who have not absorbed the morals of Grice’s work:

the mutually sustaining nature of the concepts of meaning and interpretation, and

the severity of the constraints imposed on the formation and attribution of

communicative intentions by simply knowing a language. Scalia can, and should,

junk talk about context and canons of construction as partial determinants of

statutory meaning. They are determinants only in causal and epistemic-evidential

senses: they are things that causally constrain—or things knowledge of which

causally constrain—the formation and attribution of genuine communicative

intentions. And the result is the sensible intentionalist position, which sees the aim

of statutory interpretation as the discerning of the communicative intentions of the

legislature.

Some of Scalia’s prose needs cleaning up, of course. He maintains that the job offederal judges is to establish what the lawgiver said (or promulgated) rather than

what the lawgiver meant. The subjects of the verbs ‘say’ and ‘promulgate’ here are

‘the lawgiver’ (rather than ‘the statute’), but that’s largely for rhetorical symmetry:

Scalia uses the expression ‘what the lawgiver said’ and ‘what the law says’

interchangeably.

In his characterization of what he opposes, Scalia seems happy to use

interchangeably the expressions ‘what the legislature intended’ and ‘what the

legislature meant’. This is unfortunate. Lawmakers may intend all sorts of thingsby enacting a statute that they did not mean by producing the text they produced.

But only intentions satisfying a certain Gricean overtness condition—

communicative intentions—will count as meaning intentions.

Dworkin (1997), who homes in on what he sees as an important intentional

component of Scalia’s position, sees Scalia as relying implicitly on a distinction

between (a) what lawmakers ‘intended to say’ in using the words they did in a



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statute, and (b) what they intended to be the consequences of their stating this.

Dworkin’s Scalia is sensitive to what Dworkin calls “semantic intent”, which

includes such things as the intent to be using a word with this rather than that

meaning. But semantic intent falls short of what is needed here in two ways. First,

it is silent on certain aspects of what is said that are underdetermined by linguistic

meaning. Second, it is silent on anything that is conversationally implicated,including the most generalized of conversational implicate such as those

describable as cases of exclusio. Only by talking about statement intentions can one

deal with underdetermination; and only by talking about meaning intentions more

generally can one deal with cases of generalized conversational implicature.

In his response to Dworkin, Scalia says he accepts Dworkin’s ‘semantic

intentions’ but prefers the term ‘import’ because

that puts the focus . . . upon what the text would reasonably be understood to

mean rather than upon what it was intended to mean. (1997b: 144)

Dworkin’s blinkered offering is unhelpful and seems to have led Scalia astray.

Scalia had already put the point well in the lecture Dworkin was commenting on:

We look for a sort of ‘objectified’ intent — the intent that a reasonable person

would gather from the text of the law, placed alongside the remainder of the

corpus juris (1997: 17)

But this is intelligible only if Scalia backs down on canons of construction as

constitutive determinants of statutory content and locates them where they really

belong: as tools for the epistemic determination of content. My complaint here is not

that the content of an exclusio implication is not something that a speaker or a

legislature said. Why should the sensible intentionalist worry about that if there is

every reason to think the relevant meaning intention is present. My complaint is

that if Scalia allows canons of construction to be constitutive determinants he will

be pushed into saying that what the statute ‘says’ can go beyond what the

legislature ‘said’ and into what it ‘meant but did not say’! And this is effectively

what the majority opinion in Smith accuses Scalia of doing in his dissent. But Scaliais fine once he concedes he is the sensible intentionalist in Smith, and the Court’s

opinion one that placates only the naïve textualist. It is because he implicitly

appreciates underdetermination that Scalia is getting the result he wants in Smith.

Again: Semantic Intent falls short of the Objective Intent Scalia needs. Objective

Intent, in the required sense, is Communicative Intent. Scalia boxed himself in in

Smith by appealing to an undefined and open-ended set of canons to prevent his



53

position form devolving into precisely the sort of wooden literalism he sees the

majority opinion in Smith effectively endorsing.

Within the framework I have articulated, the solution is straightforward: drop

all talk of individual canons, maxims, and interpretive rules as constitutive

determinants of statutory content. Whether Scalia describes it this way or not, the

objective of statutory interpretation is the discovery of legislative intent, albeit in a

specially restricted form: communicative intent.

In producing an utterance or text, S relies on what he takes to be H ’s capacity to

identify what he intends to communicate; H assumes that S is so relying. And,

possibly, so on. The ways in which S and H operate form a dovetail joint, they are

mutually sustaining. And to this extent, there is simply no possibility of making

sense of H’ s capacity to interpret S without making sense of S ’s capacity to exploit

H ’s capacity, and vice versa. So the project of constructing a theory of interpretation

may be approached from either of two complementary perspectives, and an

adequate answer must make sense of both.

The great thing about convergentism as a philosophical theory of statutory

interpretation is that it requires no access to any particular intention of any

particular person or persons. At the same time, it naturally embraces the idea, at

the evidential level, of appealing to particular expressed intentions where there is

doubt about what ‘Objective Intent’ or ‘Import’, in the sense that Grice, Scalia, and I

need it. It is unclear to me there can be any alternative philosophy of interpretation

that is even consistent with the ordinary conception of what the purpose of law is.

neale.nature of law

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