Musical Score for "The Flood" from "Charms and Knots"

Click here for a link to Thomas Swenson's Musical Score for "The Flood."

Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law

Here is the abstract for my latest article forthcoming in the Wake Forest Journal of Law & Policy. In the article, I try to take a middle path between two types of error plaguing present times: "post-truthism" and formalism.

Abstract

The hermeneutic pragmatism explored in this article timely examines how “post-truth” claims over-estimate semantic freedoms while at the same time underestimating semantic and pre-semantic restraints. Such pragmatism also timely examines how formalists err by committing the reverse errors. Drawing on insights from James, Peirce, Putnam, Rorty, Gadamer, Derrida, and others, such hermeneutic pragmatism explores (1) the necessary role of both internal and objective experience in meaning,  (2) the resulting instrumental nature of concepts required to deal with such experience, (3) the related need for workability to apply to the “the collectivity of experience’s demands, nothing being omitted,” (4) the inherent role of morality and other norms in measuring such workability, (5) the semantic as well as experiential nature of our workable realities,  (6) the semantic freedoms involved in constructing, framing, and retaining our workable realities and concepts, and (6) the semantic, pre-semantic, and other restraints on constructing, framing, and retaining our workable realities and concepts.

Such hermeneutic pragmatism also introduces Eunomia, a real-world alternative to Dworkin’s superhuman judge Hercules.  Named after the Greek goddess of good order, the human Eunomia represents the reasonable judge excellently versed in (among other things) legal theory, legal practice, linguistics, and philosophy of language.  Additionally, in its appendices, this article surveys the pragmatic restraints of “implementives” and provides a detailed overview of pragmatic “workability” restraints for both law and fact.

In addition to countering formalist error, such hermeneutic pragmatism thus timely counters troubling “post-truth” claims in certain segments of government and society. For example, The Washington Post tells us that President Trump is “known for trafficking in mistruths and even outright lies;” that “The president often seeks to paint a self-serving and self-affirming alternate reality for himself and his supporters;” that, through May 31, 2018; “Trump had made 3,251 false or misleading claims in 497 days--an average of 6.5 such claims per day of his presidency;” and that  Donald Trump, Jr. has posted poorly-doctored images making “his father’s Gallup presidential approval rating look [ten points] higher than it actually is” while claiming “I guess there is a magic wand to make things happen and @realdonaldtrump seems to have it.”  Additionally, the President’s attorney Rudy Giuliani has expressly claimed that “Truth isn’t truth.” Competent and ethical lawyers must of course reject such mendacity.

("Sense" in the title of this article means not only “meaning conveyed or intended” but also “capacity for effective application of the powers of the mind as a basis for action or response.” See Sense, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) “Workable” has the broad meaning discussed in Sections II, IV, and Appendix C of the Article.)

Addition to Strings of Thought 5-19-2018

Hermeneutics

                               To Gadamer

Though eye must squint, eye must explore the bird

Who plays at the horizon of the word,

Whose far tints flash, far notes lag as it hops 

Beyond and back from where the language stops.

For the entire "Strings of Thought" as it currently stands, see here.

Why Legal Writing Is "Doctrinal" and More Importantly Profound

It is high time that we end the disparate treatment of legal writing professors and the use of such disparaging labels as "non-doctrinal" for the profound and essential subject matters which they teach. It is also high time that we reject the absurd Langdellian notion that practice taints scholarship.  I discuss these points in more detail here.

Addition to "Strings of Thought" (2/7/18)

2/7/18 A legislative bill or other proposal isn’t simply a string of words on a page. Instead, a legislative bill or other proposal involves concepts (the signified) to which words (the signifiers) refer with varying degrees of precision.  Legislators debate the concepts signified and the signifiers as signifying such concepts.  Justice Scalia therefore oversimplifies how language works when he claims that “the only thing one can say for sure was agreed to by both houses and the President (on signing the bill) is the text of the statute.”  (Reading Law, p. 376) Justice Scalia oversimplifies here because any such text was adopted as part of a greater whole, as signifiers of concepts involved in the bill.  For example, a statute reading “All cars must drive on the write side of interstate roads” adopted by both houses of Congress and signed by the President no doubt likely means “All cars must drive on the right side of interstate roads.” It’s hard to believe that both houses and the President agreed on “write side” instead of “right side” of the road. I at least cannot “say for sure” that they did. Justice Scalia concedes the same by acknowledging what he considers “the rare case of an obvious scrivener’s error.” (Reading Law, p. 57)  In the real world, of course, obvious scrivener’s errors are hardly rare.

The entire text of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/30/18)

Legislative Intent

1/30/18  Legislative “intent” lies in legislatures’ speech acts and not legislators’ speech acts.  That is, legislative “intent” is the speaker meaning of legislatures not legislators—confusing the two is a category mistake. For example, when the legislature adopts a rule requiring drivers to drive on the right side of the road, the legislature has performed a directive speech act adopting a rule to some end or purpose (such as changing driving patterns to enhance road safety).  When the legislature censures someone, it has performed an expressive speech act condemning someone for some end or purpose (such as discouraging future bad behavior on the part of public officials).  The different purposes (and the plans involved in such purposes) distinguish the different types of speech acts. Recognizing this distinction between legislature and legislator speech acts avoids pseudo-quandaries such as “How can we ever aggregate the subjective intent of countless legislators to determine legislative intent?” or “How do we include the intent of a legislator who votes for a bill for unrelated reasons?” Instead, we ask: “What is the objective bill or proposal (and the concomitant purpose or plan or both) properly adopted by the legislature?”  We also ask: “What are the objective concepts involved?” while acknowledging such concepts can have yet-to-be explored threads and extensions.

1/30/18 A legislature typically speaks best when it adopts a bill or other proposal (and any concomitant purpose or plan) after reasonable debate by legislators.   Although individual legislators’ speaker meaning in such debates can be highly relevant evidence of the legislature’s speaker meaning, legislators’ speech acts are not legislatures’ speech acts. 

The entire post of "Strings of Thought" can be found here.

Addition to "Strings of Thought" (1/21/18)

Speaker Meaning

1/21/18 “Original” speaker meaning includes the unexplored.  Imagine I buy a netted device I categorize as “my hammock” before I unbox and see it.  On the next day, I unbox “my hammock,” count its strings, and note their makeup and weave. On the third day, I tie “my hammock” between two trees.  I broadly gauge its new shape when tied into the world. On the fourth day, I refine “my hammock’s” new shape:  it contradictorily resembles both a canoe and a crescent moon. On the fifth day, I wonder whether “my hammock” now qualifies as a bed and tentatively conclude that it does. On the sixth day, I lie down in “my hammock” and see interesting new views from its vantage point. On the seventh day, I rest with no hammock thoughts in my head.  The “original” meaning of “my hammock” thus casts a wide and variable net not captured from day one. Instead, day by day through day six, I have obtained fuller and fuller understandings of “my hammock” including how it intersects with (and provides vantage points to) the world to which it is tied.  Thus, any “original concept” signified by “my hammock” is larger than any “original conception” (or first-day conception) of something boxed and unseen, is larger than any second-day conception adding counted strings, their makeup, and their weave, is larger than any third-day conception of the hammock as tied, and so on.  Furthermore, for those seeking speaker meaning, any “original concept” and any preceding daily conceptions don’t sleep the seventh day.

The entire post of "Strings of Thought" can be found here.

Strings of Thoughts

Recognizing I’ll never have time to put in finished prose or verse all the things I’d like to explore, I’m starting some strings of thoughts unfinished as of the dates entered below.  I’d enjoy hearing others’ responses to any of the strings.