Two Birds and Reader-Based Originalism

Speaker intent governs speaker meaning. Hearer meaning doesn't. Thus legislative intent controls, not contemporaneous reader meaning (even if there were such a thing).

Hermeneutics and Anselm's Ontological Argument: Lessons for Lawyers and Others On Existential Proof

When lawyers and others explore the limits of logical proof in proving matters of existence, it's quite useful to explore St. Anselm's Ontological Argument purporting to prove God's existence as a matter of pure logic. Grasping how the argument might might work on a purely hermeneutic level while possibly failing on the pragmatic level helps explain the need for meaning to work in the face of experience. We can also gain much insight on these points by exploring how a common objection to Anselm's argument fundamentally fails. As we'll see, hermeneutics must be pragmatic in the sense discussed below, and this straightforwardly makes the case for hermeneutic pragmatism as best philosophy.

Starting with a common objection to Anselm's argument, it seems but common sense that things either exist or they don't apart from pure logic. For example, as the objection might go, my keyboard I'm using now would exist even if no one knew logic. How, then, can pure logic prove anything exists? Well, the objection and example assume that existence as we commonly understand the term is something simply there apart from language. But that is error. Existence is a concept created by our language (or more precisely our semiotics). That is, existence itself is hermeneutic and things can meaningfully "exist" within countless conceptual schemes of the world that we might construct. Hilary Putnam's exploration of "internal realism" sheds further light here. How, then, is existence less subject to logical proof within conceptual schemes than other concepts like that of God offered by St. Anslem? 

All that said, we of course cannot accept that God must transcendentally exist simply because we can deductively prove God's existence within Anselm's (or any one else's) conceptual worldview. First, this ignores the hermeneutics just discussed: we can have countless concepts of God which may or may not be compatible within the countless potential conceptual world schemes we might use. Second, any such purely deductive ontological argument would ignore a critical element of good reasoning. Our concepts must work in the face of all experience: they must help us predict, organize, and improve such experience in ways that sufficiently handle (for the purposes we have) all experience (including moral experience). If we wish to fully "prove" anything, we must therefore not only successfully prove how concepts flow within a conceptual scheme. We must also demonstrate the pragmatic workability just discussed. This is the real lesson of Anselm's argument and the flaws in the common objection to Anslem noted above. Thus, as theologians wishing to prove the existence of God must address both hermeneutics and pragmatism (and thus embrace hermeneutic pragmatism), so must lawyers wishing to prove matters of existential dispute. 

Anselm's no less fascinating Cur Deus Homo also invites useful instruction in hermeneutic pragmatism. Hopefully soon, I plan to sketch out a more modern rewrite also in question form. In addition to allowing such further exploration of good hermeneutic pragmatism, I hope this will also help too-insular lawyers see how deep explorations of areas beyond the law can make them better lawyers.

Balancing Freedom and Restraint: The Role of Virtue in Legal Analysis

                                                                Abstract

Even if one sees the law as “a self-contained system of legal reasoning” from which we deduce “neutral,” non-political conclusions from “general principles and analogies among cases and doctrines” (including formalist claims that judges simply call “balls and strikes” like umpires in a baseball game), one should still consider certain characteristics of the party making such deductions or calling such “balls and strikes.” [Relevant citations to quoted language are in the Article.] If such decision maker has questionable motivations, lacks proper perspective, does not grasp the flexibility in the concepts in play, does not grasp the restraints on concepts in play, does not follow the proper processes involved, and lacks the detail, courage, and tenacity needed to reach the proper “deduction” or “call,” on the face of things the formalist, too, should have reason to re-examine any “deduction” or “call” by such party. Thus, even the formalist should not deny the critical role of virtue when examining legal analysis, a role belying the notion of law as a "self-contained system of legal reasoning."

This Article thus explores basic freedoms and restraints applicable to legal analysis and the role that virtue plays in balancing such freedoms and restraints. Such exploration covers: (i) the origin, nature, and purpose of concepts and categories used in legal analysis; (ii) the experiential nature of the meaning of such concepts and categories used in legal analysis; (iii) the freedoms and restraints applicable to such concepts and categories as a result of either experience or of the concepts or categories themselves; (iv) how workable notions of virtue rightly balance such freedoms and restraints in legal analysis; (v) the distinction between such virtue and skill; (vi) reconceiving the analytically virtuous mean as a proper balance between such applicable freedoms and restraints; and (vii) defining and surveying the particular virtues that lead us to such proper balance and thus to good legal analysis. My hope is that lawyers and law schools in their curricula will follow such explorations as well in a quest to better understand legal analysis and how to teach and perform it well.

Download the full text of this article here.

Keywords: legal analysis, virtue, skill, formalism, character, phronesis, concept, category, hermeneutic pragmatism, Peirce, Rorty, Putnam, deduction, induction, semiotics, legal education, rhetoric

My Common Thread

Though the subject matters of my writing may seem quite diverse, there is a common thread. What is it?

That common thread is a hermeneutic pragmatism which explores meaning that is workable (morally and otherwise) through time as more particularly set forth in (for example) my "Making Good Sense: Pragmatism’s Mastery of Meaning, Truth, and Workable Rule of Law." As a philosopher and experienced lawyer, I explore "diverse" matters which on closer examination uniformly involve hermeneutic pragmatism for proper analysis. Such matters include the inseparability of theory and practice in law and life; workable semiotics (including semantics, hermeneutics, and pragmatics) in law and life; originalist claims as to interpretation and construction; conceptual metaphor in law and life; the cognitive nature of emotion in law and life; the role of virtue in legal and other analysis; the interrelation of law and the humanities (including classical rhetoric and parallels between lawyers and poets); and the need for legal education reform consistent with thoughtful explorations of the matters set forth above. 

How To Do Things With Signs: An Overview of Semiotics for Lawyers and Others

Click HERE for a link to my current draft of "How To Do Things With Signs: Semiotics in Legal Theory, Practice, and Education."

Abstract

Discussing federal statutes, Justice Scalia tells us that “[t]he stark reality is that the only thing that one can say for sure was agreed to by both houses and the president (on signing the bill) is the text of the statute. The rest is legal fiction."

How should we take this claim? If we take "text" to mean the printed text, that text without more is just a series of marks. If instead we take "text" (as we must) to refer to something off the page such as the "meaning" of the series of marks at issue, what is that meaning and how do we know that all the legislators "agreed" on that "meaning"? In seeking answers here, we necessarily delve into semiotics (i.e., the “general theory of signs”) by noting that meaningful ink marks ("signifiers) signify a meaning beyond themselves (the "signified.") Thus, understanding how signs function is integral to lawyers' textual and linguistic analysis. Additionally, as this article demonstrates, legal analysis and rhetoric are much impoverished if lawyers ignore nonverbal signs such as icons, indices, and nonverbal symbols.

In providing a broad overview of semiotics for lawyers, this article thus (1) begins with a general definition of signs and the related notion of intentionality. It then turns to, among other things, (2) the structure and concomitants of signs in more detail (including the signifier and the signified), (3) the possible correlations of the signifier and the signified that generate signs of interest to lawyers such as the index, the icon, and the symbol; (5) the expansion of legal rhetoric through use of the index, the icon, and the non-verbal as well as the verbal symbol, (6) the nature of various semiotic acts in public and private law (including assertives, commissives, directives, and verdictives); (7) the interpretation and construction of semiotic acts (including contracts as commissives and legislation as directives); (8) the role of speaker or reader meaning in the interpretation and construction of semiotic acts; (9) the semiotics of meaning, time, and the fixation of meaning debate; (10) the impact of signifier drift; (11) the distinction between sense and understanding; and (12) some brief reflections on semiotics and the First Amendment. This article also provides an Appendix of further terms and concepts useful to lawyers in their explorations of semiotics.

Keywords: semiotics, intentionality, signifier, sense, reference, meaning, index, icon, symbol, rhetoric, speech act, interpretation, construction, speaker meaning, reader meaning, originalism, first amendment, intent, contracts, legislation, Peirce, Shakespeare, directive, commissive, verdictive

Voltaire and the Semiotics of Dress

For those who doubt that there is a semiotics of dress, here is Voltaire wigged and wigless. Many thanks to the National Gallery of Art in Washington, D.C. for displaying these busts in near tandem.

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.